iiNet: AFACT’s 94,942 figure artificially inflated

AFACT finishes its opening arguments and iiNet begin on day two of the civil court battle

Legal representatives for Internet Service Provider, iiNet, have claimed copyright infringement figures presented to the Federal Court of Australia by Australian Federation Against Copyright Theft (AFACT) in the civil case between the parties were “artificially inflated”.

Yesterday, AFACT, which represents several large film studios and TV stations, began to outline its arguments, claiming there were 94,942 instances of iiNet customers making available online unauthorised copies of movies that included titles such as Batman Begins, Dark Knight and Harry Potter over a period of 59 weeks.

On the second day, on October 7, AFACT finished its arguments and presented its key documents around lunchtime. One of the documents, sighted by Computerworld, showed email communications between key iiNet employees, including CEO Michael Malone, discussing how to deal with infringement notices.

AFACT argued the documents show iiNet should have done more to stop its customers sharing copyrighted files. Other confidential documents were also tabled in court.

Barrister for the studios, Tony Bannon SC, also alleged iiNet’s training course documents showed the ISP knew its customers were using P2P networks, thus indicating the company could monitor what its customers were doing and do more to stop copyright infringement.

In outlining iiNet’s opening arguments, however, senior counsellor, Richard Cobden, described AFACT case as a “novel composition and adventurous” and “a dramatic extension of the application of the law”.

He also alleged AFACT’s 94,942 claim was “artificially inflated by a contrived process”. Essentially, iiNet claims AFACT counted an alleged copyright infringing file sitting on one computer as part of its total figure each time it searched for the file.

If AFACT returned twice a day to check for infringements, for example, it would count the same file in question on a computer as equating to two infringements.

iiNet will finish its arguments tomorrow before AFACT calls its first witnesses.

The case will run for two more weeks and rest for two weeks before coming back for a final two weeks. It is expected, however, to be taken to the High Court regardless of who wins this round.

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Trevor Clarke

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