AFACT v iiNet: 'We should not be doing AFACT's work' (Dalby)

iiNet had no intention of forwarding copyright infringement notices to customers without court orders, the Federal Court of Australia heard today (November 6) as part of the ISPs case with the Australian Federation Against Copyright Theft (AFACT).

As the cross-examination of iiNet chief regulatory officer, Steve Dalby continued on from yesterday afternoon, it was revealed that despite numerous letters from AFACT last year outlining alleged copyright infringement concerns, the ISP took the stance it "should not be doing AFACT's work".

Dalby claimed AFACT was asking the ISP to take steps it could not do. He said it would have been a waste of resources to do so.

"We were not going to take any action to issue notices," Dalby said.

A draft response from iiNet to AFACT tabled as evidence in court, also revealed the ISP wanted to find out the meanings of certain legal terms in letters. Dalby then revealed that the response was written after iiNet had already decided not to take action.

In a heated confrontation, AFACT barrister Tony Bannon accused Dalby of presenting "completely and utterly misleading" evidence to the court, and that he allegedly failed to inform Justice Cowdrey of the fact that iiNet had no intention of pursuing AFACT's requests last year.

"By 16 July [2008] you adopted a position where it didn't matter what additional information you received, you were not going to take a step?" Bannon asked.

"...Our position was that we should not be doing AFACT's work," Dalby replied. "If we had received authorisation by way of court order...that would have changed our position."

Yesterday, iiNet moved to reassure customers that it never supported breaches of the Copyright Act, following chief executive Michael Malone's three and a half day stint in the witness box, during which he claimed iiNet does not have the technical capabilities to block BitTorrent traffic from websites like The Pirate Bay.

The case so far:

The case started on October 6 but was adjourned by Justice Cowdrey so that Malone did not have to take the stand and then remain silent for two weeks until it resumed on November 2.

All evidence will be heard within the next two weeks, however Melbourne University Associate Professor of Law, Professor David Brennan, has said those interested should not expect a result for some time.

"Once the trial ends, it is highly likely that the court will reserve to take time to consider," Brennan toldComputerworld. "In a case such as this, with both legal and commercial significance, it is likely that the period in which the court reserves to prepare its judgment will be measured in months rather than weeks."

The case is expected to be taken to the High Court of Australia, regardless of who wins this round.

(Read some of the best posts from the first week and second week of the trial.)

In the first two weeks, AFACT, which represents over 30 film studios and TV broadcasters, introduced several witnesses including AFACT's expert witness, Nigel Carson, and representatives from four big film studios, Warner Bros, Paramount, Disney and Fox by video from Los Angeles.