AFACT didn't explain notices to iiNet

On the morning of the third day of the Australian Federation Against Copyright Theft (AFACT) appeal against the iiNet copyright case verdict, iiNet barrister Richard Cobden said that the federation had passed infringing customer data to iiNet without explaining it.

Cobden told the Federal Court in Sydney that iiNet had received thousands of notices from AFACT saying that copyright-infringing acts had been performed by iiNet customers using specific IP addresses. iiNet had not acted upon AFACT's notices by identifying the customers and warning them, but had instead referred the notices to the police.

Cobden repeatedly told the court that AFACT never made clear what it expected iiNet to do, nor had it adequately explained the data it provided.

"At no point is there ever any explanation from AFACT ... about how one is to read this data, and in particular how the data was gathered, how the data was assembled and put onto the DVDs ... and how one might use it to reveal the activities about which AFACT complains," Cobden said. The data was just "thrown" at iiNet and AFACT had effectively said, "You're an ISP, you're technical, you sort it out."

"Saying that a certain event occurred at a certain IP address at a certain date and time does not constitute an understanding that a copyright violation has taken place," Cobden said. "If AFACT is asking iiNet to contact customers, which it is here, then AFACT could have explained the data."

AFACT's allegations of copyright violation were based on data gathered by investigators at DTecNet, who joined BitTorrent swarms to identify copyrighted material being shared by iiNet customers. Cobden told the court that until March 2009 no information on DTecNet's methodologies had been provided to iiNet and there was no way for the internet service provider (ISP) to know whether the information was reliable. He argued that for iiNet to verify that the claims were correct, the ISP would have to had joined BitTorrent itself to download the file and confirm that it was the AFACT member's copyright material.

"iiNet could not itself engage in the DTecNet method without running the very real risk of breaching copyright itself," he said. "It is not a reasonable step for an ISP to take to be required to process, match and develop a database and a system to respond to notices of a kind that AFACT served."

Cobden also told the court that the Internet Industry Association (IIA) had been negotiating for "a number of years" with AFACT, other representatives of copyright-holders and the government on an industry code of conduct and a way to deal with the issue of copyright-infringing peer-to-peer traffic, but he showed from the dates of correspondence that AFACT seemed unenthusiastic. "One can detect a certain leisurely interval between correspondence," he said, noting that AFACT eventually ended this dialogue.

Cobden also corrected some information given to the court yesterday. The statement that iiNet had received 11,000 "robot notices" between November 2008 and July 2009 was incorrect, as it also included copyright infringement notices from other sources. "A better working figure, which we respectfully submit, is around two and a half thousand robot notices a month," he said.

The appeal continues before Justices Emmett, Jagot and Nicholas this afternoon.