iiNet builds its defence against AFACT copyright claim

iiNet supremo Michael Malone has given the clearest indication yet of the company’s detailed defence to AFACT’s copyright action against it.

Writing on Whirlpool, Australian broadband’s town square, Malone laid down the law:  ‘We have yet to receive any independently verified notice that show (sic) that a customer has actually infringed.’

His statement goes on to make it clear that iiNet will argue that an ISP is never obliged to discipline a user for peer-to-peer copyright infringement allegations unless they have been declared an infringer by a court; evidence that falls short of a court finding does not give an ISP any obligation to act.

Malone draws the battle lines

This view takes paragraph 63(a) of the Federal Court ‘Statement of Claim‘ head on.  The para reads that ‘at all material times, iiNet knew or had reason to suspect that iiNet users engaged in, and were likely to continue to engage in’ copyright infringement.

No says Malone.  We did not know that, and had no reason to suspect it.  All we had was the evidence provided by AFACT, and that wasn’t a court judgment as (we say) is required.

Their evidence was pretty good, says Malone

Malone acknowledged that the evidence delivered to him wasn’t at all bad.

With the evidence that AFACT has, I’m betting that a magistrate will happily issue an order for us to disclose the account holder’s identity for under $50.

Michael Malone, iiNet

That’s a big concession, and shows how iiNet is committed to its argument that nothing short of a court finding carries any weight.

For a court to order disclosure of an account holder’s identity, it must be satisfied that there’s a realistic prospect that an unlawful act has been committed.  So Malone is happy to admit that the evidence he received from AFACT would satisfy a court that there ‘could be something in it.’

Evidence has to be ‘independent’

As noted above, Malone’s position is that: ‘We have yet to receive any independently verified notice that show that a customer has actually infringed.’

This head buts a key element of the AFACT Statement of Claim:  that third party DtecNet did independently verify infringement.

Another part of Malone’s post suggests that this denial is based on the same key argument:  ‘Whatever the action, it will then be overseen by the independent legal system.’  If we read this correctly, iiNet will say that only the legal system is independent, so DtecNet could never be.

That would explain why he can claim that, despite having the DtecNet evidence, ‘We have yet to receive any independently verified notice …’

Our take on it

This is an interesting move by iiNet.  It has made it clear, before the company has even filed a Defence document, that it will argue a very simple case.  Malone’s statements strictly don’t limit the defences iiNet’s lawyers can raise, but they do set a clear course for the defence team to follow.