As I previously anticipated, iiNet have won the case against them for copyright infringement, but there’s a very strong chance this case will end up in the High Court – there’s no question AFACT won’t accept this verdict.
So, there will be an appeal, what the grounds for that appeal have some options.
AFACTs counsel made a major screwup in the presentation of a case, I’m a big believer in the ability of a strong case to stand on it’s own merits, reading just the first 200 paragraphs of the verdict, the impression surrounding it was the case was never actually a strong case. This is determined by the below:
– Their needless credibility attacks on Mr Malone and Mr Dalby. Both of them presented what appeared to any objective viewer to be reasonably presented evidence.
– The letter they sent to iiNet tried to make inferences that AFACT were some kind of authority (they are not).
– The intent of trying to dismiss Dalby’s affidavit caused Justice Cowdroy to assess it closer than it would otherwise have been, in doing this, the discovery was made that he was actually the opposite to their claim, and in many of the credibility attacks, Justice Cowdroy’s assessment was no such dishonest or misleading items were present.
These credibility attacks did two things, it first suggests their case was too weak to present itself for what it is.
The issue was AFACTs counsel (well, their case) claimed copyright infringement, yet throughout the trial, they failed to in anyway demonstrate iiNet authorised their users to commit copyright infringement – they claimed iiNet were advised, and even knew it was occurring, however, iiNet’s ultimate defense is – it wasn’t their job to investigate AFACTs claims, AFACT remained to be Jo Blow making a report of copyright infringement, but the evidence was gathered using unknown means, and the courts were the best place for AFACT to assess that information.
And the process remains, for the actual copyright infringement to take place, and for it to be prosecuted, one must not need to prove full distribution, they need only prove such packets were made available for distribution.
So, they have the tools to gather evidence, DtecNet’s evidence appeared satisfactory to the expert witnesses called, and therefore satisfactory for the purposes of proving infringement.
The steps that they should have followed were – obtain a subpoena for the names, and addresses of account holders that they had conclusive evidence of infringement.
With these account holder details, they must determine if the copyright infringement activities are civil in nature, or criminal, or both. The criminal offence is the path they should take.
With the correct evidence, they should indeed file criminal proceedings against the account holder, which should cause an evidence gathering process to occur, a raid of the account holders premises should suffice.
With this evidence, they then need to gather the information relevant, and prosecute, and if successful, rinse and repeat.
There’s two immediately obvious reasons why they targetted iiNet and none of the 3 other ISPs:
– iiNet’s email trails, and specific written statement that they would not be taking any action regardless of evidence presented. AFACT saw this as an oppourtunity, they saw more value in it then was present.
– iiNet’s a big enough ISP to scare the others into submission, once a precedent is set, John Linton, Simon Hackett, would immediately cower to AFACTs demands.
In their pursuit of domination, they became blinded to reality. They still needed a strong case that would stand on it’s own merits, they did not have it.
To launch an appeal though, Justice Cowdroy’s dismissal of the calling of other technical staff would be one rightly considered, an argument used was the sending of the notices would be ‘too difficult’, this falls flat as they are in no way required by law to forward them on (AFACT have this strange perception that iiNet must) – but they could launch an appeal based on that – in the hope the lower staff of iiNet, would in some way make errors that could positively impact the judgement.
It’s one of a few avenues, I’ve only reached line 220, and there’s 400 odd to go. There’ll be other avenues in there of appeal.
It’s great that Justice Cowdroy had no issues in his findings, the technical details (protocols, BitTorrent, IP, etc) are where I initially thought this case could fall over (what Judge is distinctively competent in IT?). The explanations in his findings (the explanations) are very much satisfactory, but they do have some flaws (i.e. the verdict states iiNet DSLAM, but not mentioned is iiNet’s resale of Telstra, or iiNet’s backhaul agreements with PIPE). These are immaterial, but still – there were errors.