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After an earlier ruling went in iiNet's favor, the ISP and the Australian Federation Against Copyright Theft were back in Federal Court for the fourth straight day of the appeal today. AFACT, representing many Hollywood studios, argued that Internet subscribers should be held accountable not just for their own infringements, but for those carried out by anyone using their account.

As the hearing entered its fourth day, AFACT, representing the Village Roadshow and more than thirty Hollywood studios, and ISP iiNet were back in Federal Court for the appeal in their copyright infringement dispute. Three judges will eventually decide if iiNet can be held accountable for copyright infringements carried out by its customers.

In the meantime, AFACT would like to go a step further, as it insisted today that Internet subscribers should not only be responsible for their own infringements, but for those carried out by anyone using their account.

AFACT lawyer Christian Dimitriadis told the panel of three judges that is was irrelevant if an account holder infringed copyright or not, adding: “The fact that the user may be another person other than the subscriber doesn’t change the fact that the information relates to the personal affairs of the subscriber.”

Dimitriadis said that even though the Internet bill-payer was the only one to physically enter into an agreement with iiNet, by default all other users of that connection must also agree to be bound by the same terms. AFACT continues to argue that if subscribers break the terms of their agreement and use their accounts to break the law, iiNet has the ability and power to terminate their contracts and disconnect them from the Internet.

According to another report today, that notion has started to receive the sympathy.

In a continuation from our earlier report, yesterday two of the appeal judges questioned Justice Cowdroy’s reasoning in the original ruling which deemed that disconnecting customer accounts was an unreasonable response to infringements.

Cowdroy reasoned that from the evidence provided in the case, it could not be decided to what extent any subscriber had used their account for infringement.

Lawyer for iiNet Richard Cobden told Justice Arthur Emmett that on this basis it would unreasonable to close a customer account. Justice John Nicholas then asked if the evidence ever showed to what extent customers used their accounts for piracy.

“We’re just saying that the reasonable step that would be incumbent upon an ISP must be tailored to what has been put in front of them,” said Cobden, according to The Australian.

“And if what’s put in front of us is that there’s not a significant use of quota on an account in relation to this, it affects the question of whether the reasonable step to be taken is to turn over the whole account which, as we say, is what our learned friends seek.”

In other words, the evidence provided by AFACT – which shows that a particular account was infringing copyright at a precise moment in time – does not show to what extent an account was used to infringe copyright overall.

Justice Emmett, however, suggested that maybe an important point had been arrived at.

“Maybe the stage is reached where it’s reasonable to say, ‘Look, you’ve had warning after warning. Maybe you’re doing other lawful things, but if you insist on doing this unlawful activity, we’re going to close you down’.”

Cobden later countered that he could only go by the evidence provided in the case, and that shutting down an account was not an appropriate response to it.

iiNet weren’t the only ones to point to a lack of evidence in order to refute an argument. In the original hearing, iiNet said the existence of its legal content distribution platform, Freezone, showed that the ISP had made efforts to discourage users from sharing illegal content and that this model was a better way to deal with piracy than legal action by outfits such as AFACT.

AFACT lawyer David Catterns told the Federal Court that the existence of Freezone is irrelevant, since there is no evidence that portal reduced piracy on iiNet’s network.

The two sides also clashed on the implications of the Telecommunications Act and whether ISPs could use it as a reason not to deal with infringement notices issued by rights holders such as AFACT.

The hearing continues.

Article from: TorrentFreak.

It's the third day in Federal Court for the Australian Federation Against Copyright Theft and ISP iiNet. As they continue to pick over the ruling handed down several months ago by Judge Cowdroy, the Court wonders if the appeal will actually solve the copyright infringement dispute between the sides.

For the third day, AFACT, representing the Village Roadshow and several Hollywood studios, and ISP iiNet were back in Federal Court for the appeal in their long-running copyright infringement dispute. Three judges will be required to decide the outcome – should iiNet be held accountable for copyright infringements carried out by its customers?

Yesterday, lawyers for AFACT argued that iiNet had the power to stop its customers infringing on the rights of the studios represented by the anti-piracy group.

Today, iiNet lawyer Richard Cobden detailed why the ISP had not acted on the copyright infringement notices it received from AFACT. He also questioned whether by receiving infringement notifications but doing nothing with them, the ISP should then be considered as an authorizer of those reported infringements.

Referring back to iiNet’s assertion yesterday that disconnecting customers would not be a “reasonable” response to infringement notices, Cobden said that AFACT never asked for a graduated response, only account terminations on the basis of its evidence – evidence which iiNet says is of questionable reliability.

Justice Arthur Emmett went on to voice concerns that the appeal in this case might never solve the dispute between the parties and that copyright infringement might continue whatever the outcome.

Emmett said that if iiNet’s assertion was accepted – that AFACT had failed to suggest “reasonable steps” the ISP could take in response to infringement notices – the anti-piracy group could simply submit new notices with new terms and then sue iiNet again.

“It just seems to me that out there is a commercial solution and there’s nothing we can do that will ultimately resolve this problem,” said Emmett.

However, as noted here, discussions between AFACT, ISPs and the Internet Industry Association (IIA) on the possible introduction of a code of conduct for dealing with infringement took place in 2007 and 2008. Those discussions effectively ended after AFACT announced action against iiNet.

The appeal continues.

Article from: TorrentFreak.

Yesterday the Federal Court saw the return of two old rivals, the Australian Federation Against Copyright Theft and ISP iiNet. The pair were there to fight the appeal of the decision handed down several months ago by Judge Cowdroy and today, on day two of the hearing, iiNet lawyer Richard Cobden began setting down the ISP's case.

After successfully defending legal action brought by Hollywood anti-piracy group AFACT back in February, iiNet is back in court today for day two of the appeal. AFACT, representing the Village Roadshow and many Hollywood studios, would like the panel of three judges in the Federal Court to hold iiNet accountable for copyright infringements carried out by its customers. iiNet maintains it is not responsible.

As detailed yesterday, AFACT – which has chosen not to go after primary infringers (iiNet customers using BitTorrent) – says that by doing nothing to stop infringements, iiNet effectively ‘authorized’ their illegal activity which renders the ISP liable for their actions.

In the original hearing AFACT said that iiNet had full knowledge that its customers had been pirating AFACT members’ copyright works because the ISP had been given evidence to prove that. AFACT also stressed that the ISP had enough power to do something about those infringements, either by taking technical measures such as throttling, or terminating accounts.

As reported by ARN today, there are four steps to identify authorization:

A person provides the means of infringement, a person makes copyright material available, a person provides the means of infringement and whether reasonable steps were taken to prevent copyright, that is, the power to prevent.

In the original hearing it was decided that since iiNet did not provide the means to infringe as indicated in the opening guideline (as BitTorrent was out of its control) the other steps were irrelevant. AFACT is now arguing that the steps in the guideline do not have to be read in strict order.

A veteran from the earlier hearing, Richard Cobden representing iiNet insists that the guidelines be handled sequentially, as they were originally.

When it was AFACT lawyer David Catterns’ turn to speak, he returned to the topic he initiated yesterday, that iiNet had plenty of power to do something about BitTorrent infringements.

In the original hearing iiNet chief Michael Malone said privacy laws prevented the company from identifying customers, but Catterns pointed to the procedures employed by the ISP to deal with customers who send out spam. These, he said, lead to account suspension and ultimately termination.

For iiNet, Cobden said no matter which steps were taken, be they letters or throttling, AFACT would not be happy unless the measures ultimately ended in account termination. He said that this most final of sanctions would not be a reasonable action to take on the basis of notices generated by AFACT. In the original hearing, Justice Cowdroy agreed with this assertion.

According to iTNews, Catterns also referred to a press release that iiNet had sent out earlier about its legal battle with AFACT. The fact that the ISP chose to use BitTorrent (it ran its own installation of RivetTracker) to distribute the announcement, argued Catterns, sent a message that it the ISP had no intention of doing anything about infringements.

The hearing continues.

Article from: TorrentFreak.