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.