The defense comes at the end of the Federal Court case between iiNet and the Australian Federation Against Copyright Theft, as iiNet counsel Richard Cobden makes his closing arguments.
Cobden told the court yesterday AFACT investigators had "very likely" committed criminal activity in their own investigation of copyright violations on iiNet's networks.
He described that section 132AJ(1) of the Copyright Act, which outlaws "possessing infringing copy for commerce", contained a description of an indictable offence that may have been committed by AFACT investigators while obtaining evidence.
"The problem...[AFACT investigators] would face, is it is strongly arguable that [the investigator's actions] were crimes."
The investigation involved detectives downloading materials in order to gain information on how a copyright violator would go about obtaining files illegally.
However, Cobden admitted it was "arguable whether a crime had been committed or not", as the studios involved in the case had licensed investigators to download parts of films and television shows.
"‘Cleared for Australian litigation' plainly carries the notion that the films were ready [for investigation]," Cobden said. "It's clear the studios knew what the investigation involved - downloading pieces and entire copies of the films."
Meanwhile, Cobden also said the company would have been forced to break the law in order to verify allegations of copyright infringement as requested by the film industry.
He said the Telecommunications Act prevented the company from matching customer account records to allegations, and that "in order to even check what AFACT says it he case, one would infringe Copyright".
"If one wanted to check the DtecNet evidence and see on a range of IP addresses supplied by iiNet that infringing material was online, the only way to do it would be to use the BitTorrent client like DtecNet did, construct the parameters of the IP address range, locate the file and compare it to details in the spreadsheets."
"To run a DtecNet system oneself to verify what DtecNet was doing, one would infringe copyright. It points out how unreasonable throwing notifications into the laps of ISPs is."
Cobden also attacked AFACT's approach to warning customers of copyright infringements, pointing out a lack of resources to answer customer complaints. There "was no suggestion that AFACT would ever taken on answering those questions - they just say [to ISPs] ‘Do what you have to do and report back to us'," he said.
"AFACT has never set up a system to deal with these enquiries and there's no suggestion they would do so."
The case has been adjourned until next Tuesday.
