Judgement day looms: iiNet vs AFACT verdict announced tomorrow

Verdict for landmark copyright case to be delivered tomorrow

Australian ISP iiNet and millions of Australian Internet users will be holding their breath tomorrow as the Federal Court delivers a verdict on the iiNet vs Australian Federation Against Copyright Theft (AFACT) copyright case.

Justice Cowdroy is due to hand down his judgment in the case — which began in October 2009 and concluded in late November — at 9.30am tomorrow.

AFACT is representing Roadshow Films, Channel 7 and other film studios including Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, and Disney Enterprises. The organisation accused iiNet of failing to act against customers downloading illegal content via BitTorrent and P2P file sharing networks. iiNet denies the allegations and claims ISPs aren't directly responsible for what customers download. The ISP said that the matter should come under the jurisdiction of copyright enforcers.

Below is a timeline covering some of the landmark events in the case:

November 2008:

The leading film studios and Channel 7 take legal action against iiNet claiming the ISP is complicit in the infringement of their copyrighted material. The action was filed in the Federal Court on 20 November 2008.

November 2008 - the Internet industry backs iiNet in copyright fight:

The Australian Internet industry back supports iiNet in its defence against the legal action filed by AFACT. Experts say if the court rules in favour of the plaintiffs, it would force ISPs to police the peer-to-peer traffic of individual customers.

February 2009:

iiNet lodges its defence in the Federal Court. The ISP disputes AFACT's claims and says it does not in any way support or encourage breaches of the law, including infringement of copyright. "iiNet has, and always will, abide by the law. We forward allegations of illegal activity involving services connected to our network on to the relevant law enforcement agencies for their attention," said Michael Malone, CEO of iiNet.

May 2009:

AFACT drops a portion of its legal case against iiNet. It disposed of the legal claim known as "conversion", which suggested iiNet denied copyright holders their right over possessions. AFACT also confirmed the primary claim against iiNet's failure to intervene in known copyright infringement on its network still stands.

August 2009:

iiNet presents further evidence to the Federal Court and also hires the help of an expert witness. Independent US telco pundit Dr Michael Caloyannides is hired to elaborate on the technical aspects of the case. "We have commissioned him to provide some expert testimony in the form of an affidavit and he will likely be called as a witness," said iiNet's chief regulatory officer, Steve Dalby.

September 2009 - Internet Industry Association wants in on the action:

The Internet Industry Association (IIA) seeks court permission to join the legal case. The IIA, which represents the wider Internet community along with ISPs, has applied to be amicus curiae, a 'friend of the court', in the proceedings. AFACT opposes IIA’s participation, flagging concerns over the Industry organisation's relationship with iiNet.

September 2009 - Batman enters the case:

AFACT tables an outline of its submission to the Federal Court, and cites specific evidence from a group of films including Batman Begins and The Dark Knight. AFACT also renewed its accusations of iiNet's negligence and claimed the ISP "rewarded" its users for continued patronage by ignoring their copyright infringements. iiNet refuses to respond.

September 2009 - AFACT 'goes for the throat':

AFACT drops another legal claim against iiNet six days before the trial is set to begin. In a bid to bolster its main case, AFACT withdraws the claim which alleged iiNet made copies of and stored pirated movies.

October 2009:

iiNet and AFACT finally enter the Federal Court on October 6, 2009.

The first day starts with a bang, as AFACT lawyers flag almost 95,000 instances of copyright infringement on iiNet's network.

iiNet then attempts to use contractual relationships between movie studios and BitTorrent Web sites to counter accusations by AFACT that the ISP is guilty of "authorising" copyright infringements.

Court adjourned prematurely on day four, due to conflict over the use of confidential documents. The court resumed on 14 October.

November 2009:

iiNet CEO Michael Malone takes the stand. "We are still comfortable and confident in our position and confident in our defence and, by the end of this case, these allegations [by AFACT] will be seen as unfounded," said an iiNet spokesperson.

The Government's controversial ISP filtering trial featured prominently in the case. AFACT barrister, Tony Bannon, quizzed Malone on his knowledge of methods to block certain Web sites on a network, making specific reference to the ACMA blacklist, a catalogue of Web sites containing illicit material — such as child pornography — used in the Internet clean-feed trial. iiNet volunteered to participate in the trial but pulled out in after Malone claimed the policy was "fundamentally flawed, a waste of taxpayers' money and would not work."

AFACT also accused iiNet's chief regulatory officer, Steve Dalby, of issuing misleading evidence.

AFACT claimed Michael Malone conceded infringement notices presented "compelling evidence" that copyright infringement was occurring on the iiNet network during cross examination. "This is another dramatic example of the lack of credibility which can be attached to statements made by and on behalf of iiNet except in circumstances which were against [its] interest." In response iiNet's claimed its company history separates the ISP from previously convicted copyright infringers and also stated AFACT's research didn't accurately demonstrate the actions of iiNet users.

After the conclusion of the case, iiNet's financial statements revealed that its legal costs will total $4 million.

December 2009:

Broadband and Communications Minister, Senator Stephen Conroy, revealed the court stoush between iiNet and AFACT may provide the basis for new legislation addressing online copyright issues. "We are just waiting to see the outcome of the case," he said. "The court case may settle this issue.. It may show to the world ISPs have got the responsibility to work with copyright owners to work out a solution or to monetise a solution."

January 2010:

The ruling on the case is to be handed down on 4 February 2010 — earlier than expected.

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Tags Australian Federation Against Copyright Theft (AFACT)AFACTcopyrightAFACT v iiNetISPiiNetInternet providerbroadband

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Ross Catanzariti

Ross Catanzariti

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