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.

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The online copyright infringement marketing research report prepared by TNS for the Department of Communications indicates that the Federal Government’s strategies for reducing online copyright infringement in Australia will be less effective than simply making content more affordable and convenient to access[1]. This vindicates much of what the Pirate Party — among others — has been saying in statements to the media and in submissions on proposed legislation.

“The report prepared by TNS supports what we have been saying all along. The best way to reduce online copyright infringement is by offering competitive services that guarantee easy, cheap and quick access to content, not threatening consumers with legal action or disconnection,” commented Pirate Party spokesperson Mozart Olbrycht-Palmer. “The report explicitly acknowledges that most people do in fact want to pay for the content they consume, and changes in pricing, convenience and accessibility, as well as improving release dates, remain significant considerations — in fact, the lack of options is identified as a reason why consumers have been slow to embrace legal modes of consumption.

“It is very clear that sending threatening letters to consumers will not be as effective as the copyright industry hopes, but instead addressing high costs, low availability, and often significantly delayed release dates compared to the rest of the world will be much more effective. It is also telling that TNS found that consumers who consume from both legitimate and infringing sources spend more money on content than those who consume all of their content legally — it appears many pirates do pay for content after all!

“But it must be stressed: these findings do not reveal anything that we do not already know and that has not already been said before, at great length. Had the Government actually paid attention to the research that has already been conducted, as well as the successful examples of business models that have adapted to meet changing consumer demands, the measures being adopted in Australia would have been recognised at the start as unnecessary and futile.”

The Pirate Party does, however, have some concerns about the report itself, which demonstrates a limited technical understanding and an overly simplistic approach to “legal” and “illegal” consumption.

“TNS’ report leaves a lot to be desired in the way that it handles technologies that can be used to infringe copyright, such that it does feel a little like the blind leading the blind. It would be novel, but useful, to have government — and opposition — policy directed by persons with the requisite degree of technical knowledge in these areas.

“The report also conflated accessing an overseas version of a service like Netflix with illegal consumption, despite it currently being legal under Australian law to do so. This is erroneous at best and does, to an extent, undermine the validity of the research in terms of the rates of illegal or illegitimate consumption of content,” Mr Olbrycht-Palmer concluded.

[1] https://www.communications.gov.au/sites/g/files/net301/f/DeptComms%20Online%20Copyright%20Infringement%20Report%20FINAL%20.PDF

The Pirate Party condemns the passage of the Copyright Amendment (Online Infringement) Bill 2015 through both Houses of Parliament. The legislation means that Australia now joins a list of countries that allows individuals and companies to seek orders to censor websites they allege infringe copyright.

“Today we saw the payoff for rights holders such as Village Roadshow, who have poured over half a million dollars into the coffers of the major parties over the last financial year[1]. These donations show the influence of money on the direction of Australian politics, where censorship will now be employed to prop-up failing business models,” said Simon Frew, Deputy President of the Pirate Party. “This is at best a misguided attempt to protect rights holders from the ‘menace’ of piracy.

“This legislation does not address the underlying reasons why Australians are at the top of the list for online infringement,” Mr Frew continued. “Content for Australian audiences is often released weeks or months after other countries, and often at a higher price, in formats that make access inconvenient, or locked to devices they do not want to use. File-sharing websites provide timely access and often in high-quality formats that consumers can easily use.

“Most Australians are willing to pay if the price is reasonable, and access is both convenient and timely. You only have to look at the rapid uptake of Netflix since it became available in Australia two months ago to see this in action. Giving consumers what they want, when they want it, and at a reasonable price is the most effective way to tackle online copyright infringement.”

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Australians should be prepared for threatening letters demanding they “pay up or else” for allegedly downloading movies online, following the Federal Court’s judgment in Dallas Buyers Club LLC v iiNet Ltd. The judgment, handed down this afternoon, means that Australians may soon be the target of “speculative invoicing” — sending letters that threaten legal action unless the alleged downloader pays a settlement figure.

Originally the respondent, iiNet, refused to hand over its customers’ details, believing they would be used as part of speculative invoicing, and its refusal prompted the litigation[1]. Although Justice Perram, in giving the judgment, reportedly stated that the letters will need to be cleared by the Court prior to issue[2], the Pirate Party remains concerned that this sets a dangerous precedent.

Pirate Party Secretary Daniel Judge commented: “This practice has been criticised strongly in the United Kingdom[3], and is predatory to say the least. Like scams, speculative invoicing targets thousands of people and extorts payment from the most vulnerable. In the UK, the accuracy of this approach in targeting people who actually infringed copyright has been criticised. Innocent users have been targeted as a result of the indiscriminate approach[4][5], and even copyright holder representatives have condemned speculative invoicing[6].”

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Today is a dark day for Australians and the Internet as the Labor Party caucus approves data retention[1] and the Coalition prepares to introduce misguided new legislation aimed at combatting online copyright infringement[2]. To encourage Australians to join us in fighting back, the Pirate Party is offering pay-what-you-want memberships with no minimum amount at http://pirateparty.org.au/join

Pirate Party Deputy President Simon Frew said: “The Government and the Opposition have effectively declared war on the Internet and war on our privacy. The Labor Party has rolled over on data retention, meaning all Australians will be subjected to mass surveillance until this appalling legislation is repealed.

“At the same time, legislation to give copyright holders an easy mechanism to get websites blocked will mean we are subjected to a censorship regime. The Government has opted for a long and pointless game of whack-a-mole — as soon as a site is blocked it will pop up in several new places and copyright infringement will continue.

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