iiNet wins right to use documents in court

The case between iiNet and the Australian Federation against Copyright Theft has continued in the Federal Court, with the Perth-based ISP winning the battle to use certain documents as evidence.

Judge Dennis Cowdroy admitted the use of a group of documents from as early as mid-2006 that show communications between the internet industry, AFACT and the Federal Government.

Included in the documents is a submission on internet piracy signed by executives from AFACT, which iiNet said could help in its defense that it could take no reasonable steps to prevent users from engaging in piracy.

In the submission, AFACT said to the attorney-general that it “understands the need to ensure that a proposal such as this does not overreach the legitimate needs of copyright owners or unnecessarily burden the Federal Magistrates Court or ISPs”.

But iiNet says that submission is complementary to its own argument, which states that taking action against alleged internet pirates would be an unreasonable burden. Cowdroy admitted the documents on the grounds they are important in assessing whether iiNet could take reasonable steps to reduce piracy.

“It is not the conduct of other ISPs that is being called in question, rather the question is whether, against the factual actual matrix relating to iiNet and other ISPs, any measures taken by iiNet were reasonable, or whether there was a failure to take a reasonable step that could be taken,” Cowdroy wrote in his decision.

The court also heard yesterday that AFACT paid investigators to become customers and monitor a number of ISPs including Optus, Internode and Exetel to determine whether alleged copyright infringements had occurred. The three ISPs, along with iiNet, were shortlisted from a list of nearly 200 as part of an investigation conducted by DtecNet.

“The plan with DtecNet was to review the extent of copyright infringement across all ISPs,” AFACT executive director Neil Gane said in court. “When we first engaged them [DtecNet] we actually monitored copyright across I believe 190 ISPs.”

DtecNet chief technology officer Kristian Lokkegaard took the stand yesterday, with iiNet counsel alleging that “one of the fundamental choices that DtecNet made was deciding to apply a filter that meant users of iiNet’s services were targeted”.

Lokkegaard’s examination focused on whether the actions of the investigator would be similar to those of a typical BitTorrent user. iiNet counsel alleged that a normal user would not filter IP addresses to target a single ISP.

“But it would be very unusual for an ordinary operator of the BitTorrent client… to tweak the client to only engage with peers on a particular ISP’s network, would you agree with that?” the iiNet counsel asked, with Lokkegaard responding “yes”.

AFACT internal investigator Aaron Herps was also cross-examined, and said that while many users filter IP addresses they do not typically do so to target users of a specific ISP.

The case continues today.