The Pirate Party welcomes the latest development in the Dallas Buyers Club (“DBC”) case[1]. Justice Nye Perram’s ruling protects Australians from speculative invoicing, a practice widespread in the US and other parts of the world in which copyright holders effectively extort legal settlements from those they accuse of copyright infringment. Furthermore, DBC was ordered to pay a bond of $600,000 to access contact details of alleged infringers to ensure they abide by restrictions his Honour may order over the content of communications between the rights-holders and the accused unauthorised file-sharers.
“We are pleased to see the Federal Court taking a keen interest in ensuring customers’ details are not used for shakedowns through speculative invoicing,” said Simon Frew, President of the Pirate Party. “We have been concerned that the DBC case would open the floodgates for a burgeoning new industry of copyright trolling in Australia.”
The judgement is a positive step for consumers because it limits the potential scope of damages. The company has not provided a legitimate way for damages to be calculated and Justice Perram has instructed the damages only be calculated in the context of someone viewing the movie, instead of calculating the cost of buying a commercial license to distribute. This ruling accords with the Pirate Party’s position on the issue, as well those of consumer and digital rights groups such as Electronic Frontiers Australia[2], who make the point that the movie retails for almost nothing compared to what might be sought as damages.
“We are pleased to see the aggressive demands and tactics of Dallas Buyers Club will not be accepted by Australian courts without strict scrutiny. One of the most outlandish claims was that the accused downloaders could be charged for the cost of a film distribution licence, a claim the Judge dismissed as ‘so surreal as not to be taken seriously'[3]. They are clearly going to extreme lengths to fleece as much money from file-sharers as they think they can get away with,” Mr Frew continued.
The judgement is not all good news for consumers. It still allows the release of account holder information to DBC as an “alleged infringer,” even though that person may never have downloaded the movie. It also indicates that the Federal Court does not need to see correspondance between DBC and alleged unauthorised file-sharers and the court has yet to see exactly how the damages claimed will be calculated, though this is conditional upon DBC only seeking certain types of damage. The disclosure of account holder information to overseas-based rights-holders brings serious privacy risks as to where this information may end up and could lead to personal information being accessed by undisclosed third parties in the future.
“Even if Internet connections involved in copyright infringement can be accurately identified, it’s still unclear who in those households may have been responsible,” said Adien Treleaven, Pirate Party Councillor. “Identifying the offending Internet user in a household is not an easy task. Innocent people, who are not involved in unauthorised file-sharing, should not suffer the same consequences as those who are, merely because they share an Internet connection. Indeed, there have been cases thrown out in other countries due to an IP address being insufficient evidence to connect an individual with a torrented file[4].”
[1] http://www.smh.com.au/digital-life/digital-life-news/dallas-buyers-club-dealt-major-blow-in-federal-court-iinet-piracy-case-20150813-giyyd7.html
[2] https://www.efa.org.au/2014/10/31/data-retention-copyright-trolls/
[3] http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2015/2015fca0838
[4] http://www.vrworld.com/2014/03/24/judge-rules-ip-address-not-valid-means-of-identification/
I’m unclear whether this practice is “speculative invoicing” or “fear mining”. It appears there’s an inappropriate targeting of internet consumers due to the use of the account holder’s internet, where the account holder is the suspicious party of illegal downloading and to hell with the presumption of innocence.
My internet connection entertains dozens of devices and the service I pay for gives opportunity for many people to use free internet including those who cannot afford it, or otherwise decide not to pay for it at their residence. I’m unsure of my responsibilities and rights if, for example, a person infringes copyright/intellectual property by use of internet through my account, nor do I have a background to determine the legal concept of copyright, privacy, intellectual property, and the nuances of digital and media content sharing. It all seems circumstantial and I’m unclear how anybody can be prosecuted because they fit a circumstance and not evidence that doesn’t exist and cannot be provided. For example, I’m unclear about:
1. How downloading a movie is illegal yet I could watch and record the same movie at the same time on my television system, which appears to be legal;
2. Is watching a streamed movie illegal, and at what point is a streamed movie a downloaded movie;
3. If I lend a movie I bought to a person, whether I acquired that movie online or DVD or otherwise, I am denying the artists a sale: is this illegal;
4. If I provide a downloaded movie acquired via a .torrent site (whether I downloaded it or not) to Person B, what laws am I in breach of, and what laws are Person B in breach of.
There are many more grey areas. These are the first issues that popped into my head.
As with some countries, legal representation for such matters in Australia – even for an innocent party – is expensive and corporations certainly benefit from speculative invoicing as it is a cheaper alternative for the accused to pay rather than suffer the financial impact of legal representation and the courts. I believe in a democracy that has free access to the law, however, access to the proof of innocence against those that are financially endowed is a pipe dream, whether one is innocent or guilty. Regardless of my innocence I know I’d have to pay a speculative invoice instead of suffer the costs of legal representation. I am currently suffering an organisation because they have substantially more resources than I, and am no stranger to the concept (unrelated to piracy, and I was quoted tens of thousands of dollars in legal representation for a process that should be fair and impartial). This process has overwhelmed me, and within the last week drove me to healthy activism.
Due to my personal issues and my awakening of these problems, I voted for the Pirate Party for the first time in the last Federal election and I shall continue to advocate their objectives. I’ve recently started educating myself about privacy and online issues to help and to protect and educate others. I’ve recently realised how grey the areas are.
I trust the Pirate Party will continue to measure the pulse of insipid trajectories of Australian privacy issues and report them to people like me, a common person (and I of under-average intelligence with very little formal education), to help determine our rights, provide avenues for discussion, and means of personal protection. Your understanding may help protect people like me who in turn will protect the less savvy.
It’s welcoming to see the courts intervene at this time with the interests of the Australian public at the forefront of their agenda.
I shall continue to provide free internet to select people unless Australia labels me a criminal for it (as Germany appears to be doing). As described above, I have no idea what’s legal and illegal, and why it is so, and currently unable to transmit this to persons accessing content through my internet account.
It would also be beneficial to understand processes about how information is collected by an organisation which includes and I expect not limited to:
(a) how IP address mining occurs including the accuracy thereof, and what laws permit such data collection, distribution, use, and retention which theoretically personally identifies me;
(b) how a determination is made by a domestic and/or overseas corporation and by the Australian courts about who up/downloads versus who is responsible, if indeed up/downloading content is illegal, and how the illegality of that content is determined, and
(c) how the device that downloaded the content is determined, and whether the owner of the device is responsible for the download, seeing that many people could access the device;
(d) whether the legal issue is due to download, upload, or any form of access including search engine links, and why.
There’s a significant amount of grey area in digital content. I do not agree with, “Downloading is theft”. It’s preposterous and makes the entire internet illegal. Unfortunately, I have no idea what’s legal and illegal. I don’t understand Australia’s laws on these matters.
What are my rights and obligations? I sincerely have no idea. As such, how can I manage what occurs over my internet connection and how I monitor those using it?
Lastly, it’s unclear how I can be held responsible for another person’s actions whether by their use of my car, other possessions, or my internet account unless legislated and brought to my attention. There’s already a significant amount of legislation out there. Although ‘ignorance of the law is no excuse’, it could certainly be made easier to access and understand.
Perhaps it’s just me that needs the law dumbing down so I can understand it – including this grey area of digital content access. In my experience, Government Departments do not freely share Ministerial policies, office ‘practices’, precedents, legal advice, and other sources of law interpretation – how is the common man supposed to engage and uphold law with access only to legislation that is not written in Plan English that requires legal interpretation and significant time to comprehend to at least a minimal degree. Talk about being set up to fail!
Thank you for your continued contributions and I trust my points of view, whether right or wrong, are welcome.