iiNet was asking for legal trouble: Exetel

Exetel CEO John Linton said today that iiNet brought the federal court action upon itself by not forwarding Australian Federation Against Copyright Theft (AFACT) complaints to its customers.

(Credit: ZDNet.com.au)

According to Linton in his blog, it was obvious from the first letter from AFACT that the federation was "following a strategy designed by its legal advisers to take one or more smaller ISPs to court to test the provisions of the current newer clauses in the copyright act".

At this, Exetel took action to shield itself, he said, sending AFACT a letter that said Exetel was doing everything to make sure it wasn't aiding copyright infringement. It also started forwarding copyright infringement notices to the customer alleged to have infringed copyright.

"An action such as the one now being taken against iiNet was inevitable and it was going to be costly. What also should have been clear to anyone with half a brain was that the 'head in the sand' attitude adopted by iiNet, among others, just courted the exact result that has now transpired," Linton said.

Telstra and Optus were out of the question for an action "due to their track record and long experience of using the Australian legal system to their continual advantage and their immense legal budgets [being] already in place and fully funded", Linton said.

From the list that was left, iiNet made itself a target, he continued. "iiNet has selected itself as the defendant in this test case by not only ignoring the requirement to deal with AFACT (in whatever sensible commercial manner it may have chosen to do so) but its MD has run to the press alternating between grandstanding and whining and making his company a very obvious 'target'."

iiNet's general manager of regulatory affairs Steve Dalby didn't believe it was true that iiNet had stuck up its hand for the legal action, saying only that AFACT had worked down the list until it had a company small enough to take on.

Dalby also said it was nonsensical sending notices to customers when there was no direct link between an IP address and a person. "When we get notification from AFACT all they do is provide an IP address. It's not the equivalent of a phone number," he said. "There's no pointer that this IP address is Steve Dalby."

"The whole exercise is flawed on the basis that AFACT says it has identified offenders and we say it has not," he continued.

He said it was obvious that AFACT wanted a court case. "There's no doubt it is looking for two things: A lot of publicity and a precedent." He said that such action had not had success anywhere in the world, which would make it a global precedent.

ZDNet.com.au contacted some of the ISPs to see if they had also been receiving letters from AFACT. Internode, Adam Internet, Soul Telecommunicatons have received such letters.

Soul and TPG's policy was to follow up with the customer issue a warning. If the infringements were to continue, they could disconnect the customer.

"I think all of the ISPs have been receiving letters for quite some time," said Scott Hicks, CEO of Adam Internet. "There are a lot of smaller companies out there that are incredibly worried."

He said that his company had told AFACT it needed to go to the South Australian Electronic Crime Division to follow up on the alleged infringements.

Netspace's MD Stuart Marburg said that his company had been receiving notices, but was not sure if they had been from AFACT. When the company received complaints, it tried to get in touch with the customer, which he said took up a lot of time.

Internode did not provide information on what it did when it received complaints, although MD Simon Hackett did comment on the issue. "The industry remains of the view that ISPs aren't policemen. The content industry should take legal action against end users if it believes they have broken the law. ISPs are like Australia Post: we [just] deliver it."

Telstra said it hadn't received messages from AFACT for months. If the pirated content was on its network it would have it removed, but otherwise, it required a court order to act, a spokesperson said.

"It would be a dangerous world indeed if ISPs were forced to sit in judgement of their customers, particularly on a mere allegation. Every ISP should enforce legislation of elected parliaments enforced by courts but no individual ISP should sit as judge, jury and executioner. It would be as foolish and unworkable as holding the postman accountable for the content of letters he delivers," the spokesperson said.

Amcom and Optus would not comment on whether they had been receiving notices or not.

However, an Optus spokesperson said: "It is unfortunate that the rights holders are targeting an ISP because under Australian law, Internet Service Providers may generally be considered "conduits" which provide carriage services, and as such are not responsible for copyright infringements carried out by customers using their internet services".