AFACT vs iiNet Appeal Begins: “3-Strikes for Spam Not BitTorrent?”

Australian Federation Against Copyright Theft (AFACT) tells court that the Aussie ISP could have taken reasonable steps to sanction file-sharing subscribers in the same way that it does those who make threatening calls or send spam email.

Day 1 of the Australian Federation Against Copyright Theft’s (AFACT) appeal of its loss to iiNet took place earlier today with AFACT trying to make the case that the Aussie ISP could have taken steps to deter illegal file-sharing using the same system it already has in place to punish customers who make threatening calls or send spam email.

“There are a number of steps short of terminating an account that [iiNet] could have done including warnings. iiNet has a graduated response to spam… we proved there were other reasonable steps in place,” AFACT attorney David Catterns told a three-judge panel of the Federal Court of Australia. ”

He argued that iiNet “clearly clearly had the right to control what happened here,” the relationship between customer and ISP cemented in a written contract clarifying each party’s rights and responsibilities.

In the previous trial Justice Dennis Cowdroy ruled that “iiNet has no control over the BitTorrent system and is not responsible for the operation of the BitTorrent system.” He said the ISP was protected under the Safe Harbour Provisions of the Copyright Act and that AFACT needed to target the “primary infringer,” that is those individual BitTorrent users accused of illegal downloading.

Catterns took that line of reasoning to task, complaining that “there’s no person to sue in Australia for BitTorrent,” that it has “no way of detecting these individuals,” and that “it’s not desirable to be suing individuals time after time.”

He cited the University of NSW v Moorhouse case from 1975 whereby the University was sued for copyright infringement after a student was asked to make photocopies of pages from some of Moorehouse’s books. The judge in that case found that the University did not take “reasonable or effective precautions against an infringement of copyright by the use of the photocopying machines.”

“The fatal weakness in the case for the University is the fact that no adequate notice was placed on the machines for the purpose of informing users that the machines were not to be used in a manner that would constitute an infringement of copyright,” reads the ruling.

Catterns made the connection because he alleges that iiNet had no code of practice in place to deal with repeat infringers in the same way that the UNSW had no adequate notices in place. Therefore, by not taking adequate steps to prevent illegal file-sharing on its network iiNet it does not qualify for protection under the Safe Harbor Provisions of the Copyright Act.

“[iiNet] did nothing,” he said. “They had complete power to prevent, warn, or flag the account. They can shape, suspend, and playpen.”

AFACT first sued iiNet back in 2008 and the case has been closely watched ever since. Despite losing the first round this past February, it quickly filed an appeal.

AFACT has been trying to win the case outside the courtroom with sensational reports like the one that “downloading movies is more lucrative then heroin” and the recently discredited study that “98.1% of BitTorrent files are illegal” (it claimed it couldn’t find a SINGLE legitimate movie or TV torrent).

In the meantime, iiNet managing director Michael Malone has maintained that the best way to fight piracy is to do what even the studios have admitted in court: “making content freely and cheaply available online.”

Stay tuned.

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