John Linton wasn't the best "choice" to "defend the ISP Industry" against the combined might of the entertainment industry....at least if the various statements in this article are anywhere close to the truth:
http://www.zdnet.com.au/news/communications/soa/Crux-of-iiNet-defence-due-by-April/0,130061791,339295644,00.htm
I have previously expressed my views on the stupidity of comments about illegal downloading via P2P processes made to the media by the CEO and other executives of iinet but I really didn't expect a competent SC to mouth slightly watered down versions of those mixtures of arrogance and stupidity to a judge. Now, I understand that Telstra et alia are almost certainly both 'running' and partially funding iinet's court room travails on behalf of their cozy cartel and therefore you would expect a degree of unreality and crazy denial of self evident facts but.......really some of the statements, assuming they are correctly reported are just plain "cloud cuckoo land".
For instance if this is how iinet's SC is going to run his case then they are doomed to not only lose but seen to have acted both irresponsibly and dishonestly:
"iiNet's barrister, Richard Cobden, SC, said the ISP was not required to act on a "mere allegation of copyright infringement"
Exetel, like many other ISPs, received the AFACT infringement notices and they weren't allegations; they contained exact and specific information about the title downloaded, times, IP addresses and actual content. Any rational and vaguely knowledgeable person or entity receiving such a notice would be in no doubt that the "alleged" copy right infringement was in deed factual and exact - if they did in fact have any doubts a simple check of their own logs would have removed that. Attempting to run an argument that it is an unsupported allegation is just plain nonsense.
Similarly trying to run this argument shows the level of "straw clutching" they are indulging in:
"They also claimed that, because files are broken up into tiny "packets" before being sent over BitTorrent, this may not be enough to suggest a "substantial portion" of a copyrighted file was distributed."
How patently ridiculous and so totally dishonest! And, should they wish to be taken seriously on that claim, how totally embarrassing for an ISP (which presumably knows how IP traffic is routed) to try and say that P2P processes are so unreliable that they don't actually deliver complete files!!!
It's a pretty clear indication that iinet have no defence and that their SC is either struggling to understand what is going on, being deliberately mislead on the actual situation or is hoping that all the technical jargon will not be understood by Cowdroy and they can somehow obscure the situation to the point that iinet will escape with a slap on the wrist 'settlement'.
It seems to me it was only iinets deluded sense of self importance that has caused them to be selected for the expenditure of large amounts of money and management time defending the indefensible. It was Michael Malone's pointless personal hubris (rather than the arrogance which is the more usual stock in trade of his 'co-defendants') that sees them in 'the dock' at all - it could have so easily been avoided and so easily been avoided without any effect on their business at all using the quite simple processes available to both iinet and iinet's customers.
How would this have occurred? It's so simple I am amazed that iinet chose their brash stupidity approach rather than the sensible, and glaringly obvious, business approach that was available to them. Which was:
1) on-send the notice to the customer whose IP is mentioned in the infringement notice stating that (as requested) if a second or third notice is received from AFACT that their account will be terminated. Total compliance with the AFACT request - problem solved - good corporate citizen - no waste of money and time on court case - no looking like a total goose in the eyes of the Australian internet user community.
"but we can't do that because we would lose a lot of customers?" (the real fear/reason for the current 'denials')
2) Include in the notice sent to the alleged infringing copyright customer the innocuous comment that you understand that the IP cited may actually not have been being used by the customer at the time of the infringement as it is dynamically allocated and if that is the case then you suggest that they log their modem off and then log it back on to acquire a different IP address. There can then be no second notice sent to the original alleged 'infringer'.
Not totally in the spirit of the respect for other people's property rights but well within the legal processes of assigning dynamic IPs under which iinet has operated for its entire existence and also well before any copyright notices based on IP addresses existed so no possibility of being accused of anything AFACT might have in mind.
But why take that eminently co-operative, responsible and painless way of dealing with a difficult business situation when you can grandstand in the media that:
"iiNet has previously said that the case was "like suing the electricity company for things people do with their electricity".
What a dimwit Malone must be (or whoever used him as a cat's paw to speak those truly dumb words) to use such a stupidly flawed and inapposite analogy. If Malone et alia truly don't understand the concepts of corporate responsibility to that extent you have to wonder who ties their shoe laces for them each day when they get dressed.
Hopefully someone will point out to iinet's 'legal team' that they can call off the case apologise to AFACT for not taking the requested actions more expeditiously and get away with a notional costs settlement.
They can then write the few lines of code that will on send any future copyright infringement notice together with whatever words they wish to include that will re-assure their end users about the ongoing security of provision of their service. The incorrigible thieves will not be discouraged but it's highly likely that the responsible parents who then realise that they are bringing up their children to be irresponsible thieves and also possibly bringing retribution on themselves will reduce the level of theft of other people's property.
So some good will come of this action if only iinet, et alia, stopped behaving so commercially irresponsibly.
Then again....hubris exacts a very high price before common sense eventually prevails. ("Whom the God's would destroy, they first make CEO's of pretentious Australian ISPs" - apologies to Euripides)