Anti-piracy group says iiNet should have acted to stop copyright infringement

ANTI-COPYRIGHT group disputes original judgement, says iiNet "authorised" copyright infringement

iiNet's CEO Michael Malone gave evidence at the original Supreme Court hearing in late 2009. // Image: Colin Murty, AAP

FILM studio lawyers say internet service provider iiNet had the technical ability and power to prevent customers from abusing its network for film piracy, but failed to act.

The Australian Federation Against Copyright Theft (AFACT), representing 34 studios, made the argument on Tuesday in an appeal it brought against iiNet in the Federal Court in Sydney.

AFACT is appealing an earlier Federal Court decision that found iiNet did not authorise customers to illegally download films using its service.

The federation argues that Justice Dennis Cowdroy failed to identify or apply the correct test for authorisation under Australian copyright law when finding iiNet was not liable.

On the second day of an appeal expected to last most of the week, AFACT lawyers said Justice Cowdroy erred in several of his findings including the "means" to infringe copyright and whether iiNet had the power to prevent infringement.

Lead AFACT barrister David Catterns told the court iiNet had the "power to prevent" through contractual obligations under its customer relationship agreements, safe harbour provisions and also through its technical capabilities.

Much of the morning was spent outlining the internal steps iiNet could, and AFACT argues should, have taken to halt a user's ability to infringe.

These "gradual steps" included warnings, flagging the account, shaping, playpenning, suspension and eventually termination, outlined in iiNet's policies on tackling spammers, Mr Catterns said.

AFACT also said iiNet had told its customers in a press release, distributed on BitTorrent, that it would not prevent them from infringing copyright unless it had a court order directing it to do so.

Mr Catterns argued that amounted to authorisation of users behaviour, saying "it adds up to something more positive than indifference."

He told the court on Monday that iiNet was given details of infringing customers every week for 59 weeks.
The hearing continues.