The Little Australian Court Case With Big Implications For Pirate Movie Downloaders. Beware They Are Coming To Get You

A not so quiet revolution is being played out in the Federal Court of Australia. It’s a legal case with Tsunami like implications that could pretty much engulf most of the world. No, I am not being melodramatic.

In fact this court decision, will result in some unwelcome questions being asked wherever there’s a computer, and a person sitting in front of it, downloading pirated movies. When you put the two together it amounts to a shedload of people. Now do you see where this is a going?

If you still don’t, let me explain.

The case was a commercial action involving the copyright owners of a movie called The Dallas Buyers Club. I can’t profess to know much about the film other than it features some big Hollywood names like Matthew McConaughey, Jennifer Garner and Jared Leto. Clearly it was enough of a box office success for a lot of people to want to download the movie illegally. The copyright owners of The Dallas Buyers Club were understandably pissed that this was happening because it was costing them money. A lot of money. So they decided to do something about it. You could call it a testing of the waters.

In a nutshell, a Federal Court judge ordered several Australian internet service providers, including a very large one called iiNet, to hand over to a film studio, the identities of thousands of account holders whose internet connections were allegedly used to share an unauthorized copy of the Dallas Buyers Club movie. In a landmark judgment, Justice Nye Perram ruled in favour of Dallas Buyers Club LLC’s “preliminary discovery” application requesting that the ISPs disclose the identities of people it alleges shared the movie online.

Preliminary discovery. Such a quaint legal term but in this particular case it means dire consequences for pirate movie downloaders. In addition to iiNet, ISPs Dodo, Internode, Amnet Broadband, Adam Internet and Wideband Networks will also be required to hand over customer details. Even if these ISPs weren’t big companies, even if their list of subscribers was small, the devil is in the detail. It’s the implications of what this decision means that’s important. It is unclear whether iiNet will  appeal the decision before the Full Court of the Federal Court. They have 28 days to do so.

As for the implications, picture this. Thousands of anonymous people sitting in the privacy of their own home, in front of a computer screen all over Australia quietly using applications like Bit Torrent to download pirated versions of first release movies. Their safety net has always been their anonymity. I mean how could anyone trace them? Well guess what? Thanks to this court ruling now they can. Not only can, they will be traced. The ruling means about 4700 Australian internet account holders whose service was used to share Dallas Buyers Club on the internet from as early as May 2013 are soon likely to receive legal letters, from Australian lawyers representing Dallas Buyers Club LLC. These letters will threaten legal action, unless relatively large sums of money are paid for breach of copyright. Now I can hear you thinking. What is he on about? This case only affects 4700 people the man must be dreaming. How can this have worldwide implications? Well my answer to that is don’t think numbers. If you think numbers, you are missing the point. Think precedent. A ruling has now been made about one movie but what is to stop similar rulings being made for each and every pirated movie or video that has ever been downloaded? What is to stop similar courts in similar countries all over the world being asked to make a similar decision? And now that decision has been made in favour of the copyright holder, is it more probable than not that a similar court will make an almost identical ruling? These are very, very big questions.

And as for that letter of demand, the practice commonly referred to as ‘speculative invoicing.’ there are already examples in the United States where letters were sent to ISP account holders threatening legal action claiming they would be liable for damages of up to $US150,000 unless settlement fees of up to $US7000 were paid. No surprise most people paid the $7K. It’s a lot less than 150 grand.

Now the Australian Federal Court decision did come with some provisos. The judge also ordered that the privacy of individuals should be protected, meaning Dallas Buyers Club cannot disclose the identities of letter recipients to a third party.

Some overseas judges have placed caps on the amount of money that can be sought through this out of court process. But Justice Perram did not indicate whether he would do this as part of the letter approving process.

The case, which was heard over three days in February, centred on whether Dallas Buyers Club LLC should be given access to details of internet account holders whose connections it alleges were used to share its movie using peer-to-peer file sharing software. The details to be handed over include names, email and residential addresses of those whose connections were allegedly used to share the movie. So not only do they know who you are, they know where you live. During the case, Michael Wickstrom, vice president of royalties and music administration at Voltage Pictures, the parent company of Dallas Buyers Club LLC, objected to iiNet providing examples of the speculative invoicing letters sent in similar US cases. One of the reasons for his objection might be because those letters, in the minds of some, amount to extortion.

Wickstrom said the format of the letters to be sent to Australian ISP subscribers would be different and worded in such a way that they complied with local laws.

In a remarkable display of generosity, Wickstrom also said the company would not sue or attempt settlement with people suffering from autism people who were disabled, on welfare, or have mental illness.

It should be noted that anti piracy forces are employing sophisticated means to track down illegal downloaders. They employed a German-based pirate hunting company called Maverick Eye UG to identify ISP users who were sharing the movie online. Maverick Eye joined torrent “swarms” sharing Dallas Buyers Club and then tasked its software to log the Internet Protocol (IP) addresses of those who distributed the movie without authorisation and in breach of copyright laws. The software identified a total of 4726 Australian IP addresses.

Dallas Buyers Club LLC then contacted iiNet and other ISPs, asking them to divulge customer details associated with those IP addresses without a court order — but as you might expect the ISPs refused. They know giving over that kind of information is also going to cost them customers. No-one will want to subscribe to an ISP that is going to hand over a customer’s private information.

Dallas Buyers Club LLC then decided to take Federal Court action, to compel the ISPs to disclose customer details through the preliminary discovery application process, which is often used by parties in a case where the identity of the person or company they want to take legal action against, is unknown but can be discoverable through a third-party.

iiNet sought to challenge the request on the grounds that it would lead to alleged infringers being sent letters of demand seeking significant sums of money for an infringement. “We are concerned that our customers will be unfairly targeted to settle any claims out of court using [this] practice,” iiNet said in a blog post. The ISP also argued that customers could be incorrectly and unfairly identified as alleged infringers if details of the account holder were revealed. In other words, the relevant IP address could have originated from a person in a shared household where someone other than the account holder had infringed copyright. iiNet also argued it wanted to fight the matter because Australian courts had never tested a case like this one. But none of these arguments impressed the court.

So, to all those Pirate downloaders out there in cyberspace. Here are some words of warning. They’re coming to get ya.

Beware What You Download, The Internet Police Are Coming To Get You On A Computer Near You

There is some serious stuff going on in the world of internet piracy. So much so that a consumer group has warned that everyday internet customers who download TV shows, movies and music for free could soon be hit with massive fines, legal threats and skyrocketing internet bills. Ok. We’re talking Australia but it would be naïve to think the same thing or worse is not being contemplated elsewhere.

Consumer advocate Choice has attacked what it described as a “truly scary” plan from Australia’s Internet Service Providers (ISPs) that could result in average customers being sued by Hollywood studios. Australia’s biggest ISPs — including Telstra, Optus and iiNet — have joined forces to establish the Copyright Notice Scheme Industry Code, which is aimed at reducing the incidence of online piracy. At the request of the Australian Government, the companies have formulated a three strikes notice, to try and change the behaviours of customers and steer them towards lawful (read that as paid for) sources of content. But Choice says it is a “heavy handed scheme” that will “drive average Australians into the legal system”. “The scheme reads like the script of a Hollywood horror film,” Choice campaigns manager, Erin Turner said. “It would see average teenagers, mums and dads facing uncapped fines and legal threats. It’s truly scary.”

Under the draft code released last week, customers suspected of illegally downloading content will be hit with a series of escalating infringement notices from the ISPs. After the first breach, a customer is promptly emailed a standardized “Education” notice but if they continue to breach copyright laws, they are then sent a “Warning” notice followed by a “Final” notice.

The ISPs plan to detect illegal downloading through their customers’ internet protocol (IP) addresses, which every computer has. Official warning notifications are then sent to the account holder. The warning must be emailed within seven days of the infringement and include the title of the work, as well as the date and time when the downloading occurred. The final notice, which does not have to carry the ISP’s branding, warns the account holder they could be taken to court and recommends they “seek independent legal advice”. The “three strikes and you’re out” scheme could then kick off a “facilitated preliminary discovery process”, which obliges the ISP to reveal the customer’s identity to the rights holder. If a customer receives three notices within 12 months, the owners of the content — such as a Hollywood studio or a record company — can then apply to a court to access the customer’s name, address and contact details and launch legal action against them. “Any rights holder whose copyright work has been the subject of an Education, Warning or Final Notice will be provided with assistance to take direct copyright infringement action against an account holder,” the code says.

The code is still in draft form, but ISPs hope to implement it by September 1, 2015. Like I said this is serious stuff if you happen to be someone who regularly downloads copyright protected content.

A spokesman for the industry body behind the scheme, says it is primarily focused on public education, rather than punishment. “Ultimately we’re trying to strike a balance. We’re trying to ensure privacy and personal details are protected, that any allegation (of copyright infringement) will be independently reviewed, that customers don’t face sanctions,” the spokesman says. But Choice calls the scheme “heavy handed. ” The group says it fails to protect Australians consumers. “What we’re worried about is the final notice step that would funnel people into legal action,” Choice’s Erin Turner said. “There’s no limit on how much people can be fined and it opens up a whole bunch of risks. The scheme also forces internet service provides to act as an antipiracy police force on behalf of Hollywood rights holders, handing over personal contact details on the basis of unproven allegations.”

Turner said similar schemes overseas led to rights holders sending “speculative invoices” to account holders. “We’ve heard reports of customers being sent letters that say, ‘Pay this amount of money or we will take legal action’. Customers usually just paid the amount to “make the very scary process go away”, she said.

Choice points out that the “discovery process” clause in the code is concerning because it requires ISPs to participate and comply with any court actions, rather than protect their customers.

And there has been an ongoing court case that has, so far, said the discovery process was a legal right available to copyright holders. That case is one of the most important for the future of Australian piracy laws. It revolves around Dallas Buyers Club LLC, the copyright holders for the film Dallas Buyers Club, wanting ISP, iiNet, to provide information on its customers who Dallas Buyers Club believe pirated the film.

Late last year it was revealed that Dallas Buyers Club used a German software tool known as MaverickEye to detect torrent users who were illegally downloading the movie. The software allegedly revealed a number of Australians who had ‘seeded the film online’ or made it available to be downloaded from their computer using peer-to-peer programs. That software disclosed the IP addresses of 4800 Australian computers, with Dallas claiming in court that it could find a further 6000 if it ran the MaverickEye software again. Currently those IP addresses don’t disclose specific details about any particular person, which is why Dallas is in court trying to force iiNet to hand over this information. Both the courts and iiNet are worried that Dallas Buyers Club will use a technique known as speculative invoicing. This involves sending a legal threat to someone saying that unless they pay a sum of money they will take them to court. Often that sum of money is a few thousand dollars, when the actual loss to the rights holders would have been no more than a few hundred, or even as low as $5 according to iiNet’s lawyers. People are more likely to choose to settle, whether the sum is fair or not, because it will cost even more than that to argue the case court. There is no doubt piracy is becoming a big issue everywhere. But how this case resolves itself will, in all likelihood set a precedent for future cases and how piracy is dealt with in Australia.

Choice says the code ignores the real crux of the problem, the causes of illegal downloading in Australia. “We’ve looked into the reasons people pirate, and it’s due to cost and availability,” Erin Turner said. “There’s still massive delays when content is available in Australia. It’s a market failure. Consumers know this.” Turner acknowledges that infringing copyright is wrong, but Choice research shows that customers mostly turn to illegal means when they can’t find the content they want. “It doesn’t excuse it, but it does explain it,” she said.

The industry body leading the copyright crackdown admits that “more needs to be done” to address the problems of access and affordability of content in Australia. But they dispute Choice’s claim that average customers should be worried about the code. “I can understand that this may not be a popular move with some customers but we’ve genuinely tried to strike a reasonable balance,” the industry group spokesman said. “I don’t expect there to be universal acclaim, but it’s a scheme that’s fair, that’s not punitive and that balances competing interests.”

Choice is concerned that customers will be made to bear the cost of the scheme, which could drive up internet bills. “If ISPs end up paying the lion’s share of administration costs, these are likely to be passed on to their consumers,” Choice’s Erin Turner said. “We don’t think consumers should be footing the bill for an ineffective industry initiative.”

As if you didn’t have enough to worry about already, technology could turn the 21st century into a new dark age, lost to history, according to a leading internet pioneer. As computer operating systems and software get upgraded, documents and images stored using older technology are becoming increasingly inaccessible, says Dr Vinton Cerf, the Vice-President of Google. He say in the coming centuries, historians looking back on the present era could well be confronted with what he describes as a digital desert comparable with the dark ages. The Dark Ages was the post Roman period in Western Europe about which relatively little is known because of the scarcity of written records. Dr Cerf, who also has the title of chief internet evangelist at Google, says : “If we’re thinking 1000 years, 3000 years ahead in the future, we have to ask ourselves, how do we preserve all the bits that we will need in order to correctly interpret the digital objects we created? ” We are nonchalantly throwing all of our data into what could become an information black hole without realising it. ” The 22nd century, and future centuries after that, will wonder about us but they’ll have great difficulty knowing anything much because so much of what we’ve left behind will be bits and pieces that are uninterpretable.”

Cerf urged people to print out everything, especially treasured photos and not rely on storing them as memory files. “In our zeal to get excited about digitising, we digitise photographs thinking it’s going to make them last longer, and we might turn out to be wrong,” he said. “I would say if there are photos you are really concerned about, (then) create a physical instance of them. Print them out.”

Cerf was speaking at the annual meeting of the American Association for the Advancement of Science in the Silicon Valley capital, San Jose, California.

To illustrate his point, he referred to an “amazing book” by American Pulitzer Prize winning historian Doris Kearns Goodwin, called ‘Team Of Rivals: The Political Genius Of Abraham Lincoln.’ Goodwin’s material was obtained by scouring libraries for copies of written correspondence between Lincoln and the people he associated with. “Let us imagine that there’s a 22nd century Doris Kearns Goodwin, and she decides to write about the beginning of the 21st century, and seeks to reproduce the conversations of the time,” Cerf says. “She discovers there’s an awful lot of digital content that has either evaporated because nobody saved it, or it’s around but it’s not interpretable because it was created using software that’s 100 years old.”

The Google boss believes the problem has serious implications for the storage of legal documents, needed to be kept for long periods. One possible solution is what he calls “digital vellum”, a concept now being explored by computer scientists at Carnegie Mellon University in Pittsburgh. This involves taking a digital “snapshot” of an item, when it is stored, as well as all of the processes needed to reproduce it at a later date, including the software and operating system. The snapshot could then be used to reproduce the information, on a computer, in perhaps centuries from now.

They should be calling this, back to the future.