The country is currently grappling with its piracy issues and while there’s hardly a consensus of opinion right now, most of the region’s rightsholders feel that suing the general public isn’t the way to go. It’s painful for everyone involved and doesn’t solve the problem.

That said, US-based Dallas Buyers Club LLC are not of the same opinion. They care about money and to that end they’re now attempting to obtain the identities of iiNet users for the purpose of extracting cash settlements from them.

Yesterday additional information on the case became available. An Optus spokeswoman told SMH that it had been contacted by Dallas Buyers Club about handing over subscriber data but its legal representatives had backed off when it was denied. The movie outfit didn’t even try with Telstra – but why?

So-called copyright trolls like the easiest possible fight and through iiNet they know their adversaries just that little bit better. According to Anny Slater of Slaters Intellectual Property Lawyers, documents revealed in the ISP’s earlier fight with Village Roadshow show that Telstra could well be a more difficult target for discovery.

The business model employed by plaintiffs such as Dallas Buyer’s Club LLC (DBCLLC) requires a minimum of ‘difficult’ since difficulties increase costs and decrease profits. To that end, part of the job of keeping things straightforward will fall to DBCLLC’s lawfirm, Sydney-based Marque Lawyers.

Unfortunately for DBCLLC, Marque Lawyers have already shot themselves in the foot when it comes to convincing DBCLLC’s “pirate” targets to “pay up or else.”

In 2012, Marque published a paper titled “It wasn’t me, it was my flatmate! – a defense to copyright infringement?” which detailed the company’s stance on file-sharing accusations. The publication provided a short summary of cases in the US where porn companies were aiming to find out the identities of people who had downloaded their films, just as Dallas Buyers Club – Marque’s clients – are doing now.

“To find out the actual identities of the users, the [porn companies] asked the Court to force the ISPs to reveal the names and addresses of each of the subscribers to which the IP addresses related. The users went on the attack and won,” Marque explained.

And here’s the line all potential targets of Dallas Buyers Club and Marque Lawyers should be aware of – from the lawfirm’s own collective mouth.

“The judge, rightly in our view, agreed with the users that just because an IP address is in one person’s name, it does not mean that that person was the one who illegally downloaded the porn.

As the judge said, an IP address does not necessarily identify a person and so you can’t be sure that the person who pays for a service has necessarily infringed copyright.

This decision makes a lot of sense to us. If it holds up, copyright
owners will need to be a whole lot more savvy about how they identify and pursue copyright infringers and, perhaps, we’ve seen the end of the mass ‘John Doe’ litigation.”

So there you have it. Marque Lawyers do not have faith in the IP address-based evidence used in mass file-sharing litigation. In fact, they predict that weaknesses in IP address evidence might even signal the end of mass lawsuits.

Sadly they weren’t right in their latter prediction, as their partnership with Dallas Buyers Club reveals. Still, their stance that the evidence is weak remains and will probably come back to bite them.

The document is available for download from Marque’s own server. Any bill payers wrongly accused of piracy by the company in the future may like to refer the lawfirm to its own literature as part of their response.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

In a lawsuit filed in the Southern District of Texas, Voltage sought to identify illegal downloaders of the movie by providing the IP addresses of Internet subscribers to the court. Their aim – to scare those individuals into making cash settlements to make supposed lawsuits disappear.

Now, in the most significant development of the ‘trolling’ model in recent times, Dallas Buyers Club LLC are trying to expand their project into Australia. Interestingly the studio has chosen to take on subscribers of the one ISP that was absolutely guaranteed to put up a fight.

iiNet is Australia’s second largest ISP and the country’s leading expert when it comes to fighting off aggressive rightsholders. In 2012 the ISP defeated Hollywood in one of the longest piracy battles ever seen and the company says it will defend its subscribers in this case too.

Chief Regulatory Officer Steve Dalby says that Dallas Buyers Club LLC (DBCLLC) recently applied to the Federal Court to have iiNet and other local ISPs reveal the identities of people they say have downloaded and/or shared their movie without permission.

According to court documents seen by TorrentFreak the other ISPs involved are Wideband Networks Pty Ltd, Internode Pty Ltd, Dodo Services Pty Ltd, Amnet Broadband Pty Ltd and Adam Internet Pty Ltd.

Although the stance of the other ISPs hasn’t yet been made public, DBCLLC aren’t going to get an easy ride. iiNet (which also owns Internode and Adam) says it will oppose the application for discovery.

“iiNet would never disclose customer details to a third party, such as movie studio, unless ordered to do so by a court. We take seriously both our customers’ privacy and our legal obligations,” Dalby says.

While underlining that the company does not condone copyright infringement, news of Dallas Buyers Club / Voltage Pictures’ modus operandi has evidently reached iiNet, and the ISP is ready for them.

“It might seem reasonable for a movie studio to ask us for the identity of those they suspect are infringing their copyright. Yet, this would only make sense if the movie studio intended to use this information fairly, including to allow the alleged infringer their day in court, in order to argue their case,” Dalby says.

“In this case, we have serious concerns about Dallas Buyers Club’s intentions. We are concerned that our customers will be unfairly targeted to settle any claims out of court using a practice called ‘speculative invoicing’.”

The term ‘speculative invoicing’ was coined in the UK in response to the activities of companies including the now defunct ACS:Law, which involved extracting cash settlements from alleged infringers (via mailed ‘invoices’) and deterring them from having their say in court. Once the scheme was opened up to legal scrutiny it completely fell apart.

Some of the flaws found to exist in both UK and US ‘troll’ cases are cited by iiNet, including intimidation of subscribers via excessive claims for damages. The ISP also details the limitations of IP address-based evidence when it comes to identifying infringers due to shared household connections and open wifi scenarios.

“Because Australian courts have not tested these cases, any threat by rights holders, premised on the outcome of a successful copyright infringement action, would be speculative,” Dalby adds.

The Chief Regulatory Officer says that since iiNet has opposed the action for discovery the Federal Court will now be asked to decide whether iiNet should hand over subscriber identities to DBCLLC. A hearing on that matter is expected early next year and it will be an important event.

While a win for iiNet would mean a setback for rightsholders plotting similar action, victory for DBCLLC will almost certainly lead to others following in their footsteps. For an idea of what Australians could face in this latter scenario, in the United States the company demands payment of up to US$7,000 (AUS$8,000) per infringement.

_{Photo: Michael Theis}

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

—

The Australian Government recently called for submissions into its plans to introduce a range of measures that are the long-standing dreams of the copyright lobby: ISP liability, website blocking for alleged pirate sites and graduated response.

The Government’s discussion paper specifically asked respondents to ignore other Government inquiries into copyright. This meant ignoring an inquiry by the Australian Law Reform Commission (ALRC) into copyright in the digital economy and an IT pricing inquiry. These reviews both covered important aspects of sharing culture in the 21^st century, yet they were completely ignored by the Government’s paper and respondents were instructed to ignore issues covered in them.

The ALRC review examined issues around the emerging remix culture, the ways the Australian copyright regime limits options for companies to take advantage of the digital environment and issues around fair dealing and fair use. It recommended a raft of changes to update Australian copyright law to modernize it for the digital age. Whilst the recommendations were modest, they were a step in the right direction, but this step has been ignored by the Australian Parliament.

The IT pricing inquiry held last year, looked into why Australians pay exorbitant prices for digital content, a practice that has been dubbed the Australia Tax. Entertainment and Tech companies were dragged in front of the inquiry to explain why Australians pay much more for products than residents of other countries. The review found that, compared to other countries, Australians pay up to 84% more for games, 52% more for music and 50% more for professional software than comparable countries. The result of this review was to look at ways to end geographic segmentation and to continue to turn a blind eye to people using Virtual Private Networks (VPNs) to circumvent the higher prices in Australia.

Between the Australia Tax and the substantially delayed release dates for TV shows and movies, Australians don’t feel too bad about accessing content by other means. According to some estimates, over 200,000 people have Netflix accounts by accessing the service through VPNs.

Pirate Party Australia (PPAU) responded to the latest review with a comprehensive paper, outlining the need to consider all of the evidence and what that evidence says about file-sharing.

To say the Government’s discussion paper was biased understates the single-mindedness of the approach being taken by the Government. A co-author of the Pirate Party submission, Mozart Olbrycht-Palmer summed it up:

The discussion paper stands out as the worst I have ever read. The Government has proposed both a graduated response scheme and website blockades without offering any evidence that either of these work. Unsurprisingly the only study the discussion paper references was commissioned by the copyright lobby and claims Australia has a high level of online copyright infringement. This calls into question the validity of the consultation process. The Government could not have arrived at these proposals if independent studies and reports had been consulted.

The entire review was aimed at protecting old media empires from the Internet. This is due in part, to the massive support given to the Liberal (Conservatives) and National Party coalition in the lead-up to the 2013 federal election which saw Murdoch owned News Ltd media, comprising most major print-news outlets in Australia, actively campaign for the in-coming Government. There is also a long history of media companies donating heavily to buy influence. Village Roadshow, one of Australia’s largest media conglomerates, has donated close to four million dollars to both major parties since 1998: in the lead up to the 2013 election alone, they donated over $300,000 to the LNP.

The sort of influence being wielded by the old media is a big part of what Pirate parties worldwide were formed to counter. The Internet gives everyone a platform that can reach millions, if the content is good enough. The money required to distribute culture is rapidly approaching zero and those who built media empires on mechanical distribution models (you know, physical copies of media, DVDs, cassettes etc) want to turn the clock back, because they are losing their power to influence society.

Much of the Pirate Party response centred on the need to allow non-commercial file-sharing and dealing with the wrong, bordering on fraudulent assumptions, the paper was based on. From the paper:

Digital communications provide challenges and opportunities. Normal interactions, such as sharing culture via the Internet, should not be threatened. Creators should seize the new opportunities provided and embrace new forms of exposure and distribution. The Pirate Party believes the law should account for the realities of this continually emerging paradigm by reducing copyright duration, promoting the remixing and reuse of existing content, and legalising all forms of non-commercial use and distribution of copyrighted materials.

The discussion paper asked, ‘What could constitute ‘reasonable steps’ for ISPs to prevent or avoid copyright infringement?’ This was of particular concern because it is aimed at legally overturning the iiNet case, which set a legal precedent that ISPs couldn’t be sued for the behavior of their users. This section was a not-so-subtle attempt to push for a graduated response (‘three strikes’) system which has been heavily criticized in a number of countries.

The agenda laid out in this discussion paper was very clear, as demonstrated by Question 6: “What matters should the Court consider when determining whether to grant an injunction to block access to a particular website?”

The Pirate Party obviously disagrees with the implication that website blocking was a foregone conclusion. Censorship is not the answer to file-sharing or any other perceived problem on the Internet. Government control of the flow of information is not consistent with an open democracy. The Pirate Party submission attacked website blocking on free speech grounds and explained how measures to block websites or implement a graduated response regime would be trivial to avoid through the use of VPNs.

On Tuesday September 9, a public forum was held into the proposed changes. The panel was stacked with industry lobbyists, no evidence was presented while the same tired arguments were trotted out to try to convince attendees that there was need to crack down on file-sharing. It wasn’t all bad though, with the host of the meeting, Communications Minister Malcolm Turnbull, flagging a Government re-think on how to tackle piracy after the scathing responses to the review from the public.

Despite signalling a re-think, the Australian Government is still intent on implementing draconian copyright laws. Consumers may have won this round, but the fight will continue.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

While the movie industry’s anti-piracy proposal demonstrates a desire to put ISPs under pressure in respect of their pirating customers, it comes as no surprise that their trade group, the Communications Alliance, has other things in mind.

The studios would like to see a change in copyright law to remove service providers’ safe harbor if they even suspect infringement is taking place on their networks but fail to take action, but the ISPs reject that.

ISP liability

“We urge careful consideration of the proposal to extend the authorization liability within the Copyright Act, because such an amendment has the potential to capture many other entities, including schools, universities, internet cafes, retailers, libraries and cloud-based services in ways that may hamper their legitimate activities and disadvantage consumers,” they write.

But while the ISPs are clear they don’t want to be held legally liable for customer piracy, they have given the clearest indication yet that they are in support of a piracy crackdown involving subscribers. Whether one would work is up for debate, however.

Graduated response

“[T]here is little or no evidence to date that [graduated response] schemes are successful, but no shortage of examples where such schemes have been
distinctly unsuccessful. Nonetheless, Communications Alliance remains willing to engage in good faith discussions with rights holders, with a view to agreeing on a scheme to address online copyright infringement, if the Government maintains that such a scheme is desirable,” they write.

If such as scheme could be agreed on, the ISPs say it would be a notice-and-notice system that didn’t carry the threat of ISP-imposed customer sanctions.

“Communications Alliance notes and supports the Government’s expectation, expressed in the paper that an industry scheme, if agreed, should not provide for the interruption of a subscriber’s internet access,” they note.

However, the appointment of a “judicial/regulatory /arbitration body” with the power to apply “meaningful sanctions” to repeat infringers is supported by the ISPs, but what those sanctions might be remains a mystery.

On the thorny issue of costs the ISPs say that the rightsholders must pay for everything. Interestingly, they turn the copyright holders’ claims of huge piracy losses against them, by stating that if just two-thirds of casual infringers change their ways, the video industry alone stands to generate AUS$420m (US$392) per year. On this basis they can easily afford to pay, the ISPs say.

Site blocking

While warning of potential pitfalls and inadvertent censorship, the Communications Alliance accepts that done properly, the blocking of ‘pirate’ sites could help to address online piracy.

“Although site blocking is a relatively blunt instrument and has its share of weaknesses and limitations, we believe that an appropriately structured and safeguarded injunctive relief scheme could play an important role in addressing online copyright infringement in Australia,” the Alliance writes.

One area in which the ISPs agree with the movie studios is in respect of ISP “knowledge” of infringement taking place in order for courts to order a block. The system currently employed in Ireland, where knowledge is not required, is favored by both parties, but the ISPs insist that the copyright holders should pick up the bill, from court procedures to putting the blocks in place.

The Alliance also has some additional conditions. The ISPs say they are only prepared to block “clearly, flagrantly and totally infringing websites” that exist outside Australia, and only those which use piracy as their main source of revenue.

Follow the Money

Pointing to the project currently underway in the UK coordinated by the Police Intellectual Property Crime Unit, the Communications Alliance says that regardless of the outcome on blocking, a “follow the money” approach should be employed against ‘pirate’ sites. This is something they already have an eye on.

“Some ISP members of Communications Alliance already have policies in place which prevent any of their advertising spend being directed to sites that promote or facilitate improper file sharing. Discussions are underway as to whether a united approach could be adopted by ISPs whereby the industry generally agrees on measures or policies to ensure the relevant websites do not benefit from any of the industry’s advertising revenues,” the ISPs note.

Better access to legal content

The Communications Alliance adds that rightsholders need to do more to serve their customers, noting that improved access to affordable content combined with public education on where to find it is required.

“We believe that for any scheme designed to address online copyright infringement to be sustainable it must also stimulate innovation by growing the digital content market, so Australians can continue to access and enjoy new and emerging content, devices and technologies.

“The ISP members of Communications Alliance remain willing to work toward an approach that balances the interests of all stakeholders, including consumers,” they conclude.

Conclusion

While some harmonies exist, the submissions from the movie studios and ISPs carry significant points of contention, with each having the power to completely stall negotiations. With legislative change hanging in the air, both sides will be keen to safeguard their interests on the key issues, ISP liability especially.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

The draft, a response to a request by Attorney-General George Brandis and Communications Minister Malcolm Turnbull for submissions on current anti-piracy proposals, shows a desire to apply extreme pressure to local ISPs.

The authors of the draft (obtained by Crikey, subscription, ) are headed up by the Australia Screen Association, the anti-piracy group previously known as AFACT. While local company Village Roadshow is placed front and center, members including the Motion Picture Association, Disney, Paramount, Sony, Twentieth Century Fox, Universal and Warner make for a more familiar read.

Australian citizens – the world’s worst pirates

The companies begin with scathing criticism of the Australian public, branding them the world’s worst pirates, despite the ‘fact’ that content providers “have ensured the ready availability of online digital platforms and education of consumers on where they can acquire legitimate digital content.” It’s a bold claim that will anger many Australians, who even today feel like second-class consumers who have to wait longer and pay more for their content.

So what can be done about the piracy problem?

The draft makes it clear – litigation against individuals isn’t going to work and neither is legal action against “predominantly overseas” sites. The answer, Hollywood says, can be found in tighter control of what happens on the Internet.

Increased ISP liability

In a nutshell, the studios are still stinging over their loss to ISP iiNet in 2012. So now, with the help of the government, they hope to introduce amendments to copyright law in order to remove service providers’ safe harbor if they even suspect infringement is taking place on their networks but fail to take action.

“A new provision would deem authorization [of infringement] to occur where an ISP fails to take reasonable steps – which are also defined inclusively to include compliance with a Code or Regulations – in response to infringements of copyright it knows or reasonably suspects are taking place on its network,” the draft reads.

“A provision in this form would provide great clarity around the steps that an ISP would be required to take to avoid a finding of authorization and provide the very kind of incentive for the ISP to cooperate in the development of a Code.”

With “incentives” in place for them to take “reasonable steps”, ISPs would be expected to agree to various measures (outlined by a ‘Code’ or legislation) to “discourage or reduce” online copyright infringement in order to maintain their safe harbor. It will come as no surprise that subscriber warnings are on the table.

‘Voluntary’ Graduated Response

“These schemes, known as ‘graduated response schemes’, are based on a clear allocation of liability to ISPs that do not (by complying with the scheme) take steps to address copyright infringement by their users,” the studios explain.

“While this allocation of liability does not receive significant attention in most discussions of graduated response schemes, common sense dictates that the schemes would be unlikely to exist (much less be complied with by ISPs) in the absence of this basic incentive structure.”

While pointing out that such schemes are in place in eight countries worldwide, the movie and TV companies say that a number of them contain weaknesses, a trap that Australia must avoid.

“There are flaws in a number of these models, predominantly around the allocation of costs and lack of effective mitigation measures which, if mirrored in Australia, would make such a scheme ineffective and unlikely to be used,” the paper reads.

It appears that the studios believe that the US model, the Copyright Alerts System (CAS), is what Australia should aim for since it has “effective mitigation measures” and they don’t have to foot the entire bill.

“Copyright owners would pay their own costs of identifying the infringements and notifying these to the ISP, while ISPs would bear the costs of matching the IP addresses in the infringement notices to subscribers, issuing the notices and taking any necessary technical mitigation measures,” they explain.

In common with the CAS in the United States, providers would be allowed discretion on mitigation measures for persistent infringers. However, the studios also imply that ISPs’ ‘power to prevent’ piracy should extend to the use of customer contracts.

“[Power] to prevent piracy would include both direct and indirect power and definitions around the nature of the relationship which would recognize the significance of contractual relationships and the power that they provide to prevent or avoid online piracy,” they write.

Voluntary agreements, required by law, one way or another

The key is to make ISPs liable first, the studios argue, then negotiations on a “voluntary” scheme should fall into place.

“Once the authorization liability scheme is amended to make clear that ISPs will be liable for infringements of copyright by their subscribers which they know about but do not take reasonable steps to prevent or avoid, an industry code prescribing the content of those ‘reasonable steps’ is likely to be agreed between rightsholders and ISPs without excessively protracted negotiations.”

However, any failure by the ISPs to come to the table voluntarily should be met by legislative change.

“In the absence of any current intention of and incentive for ISPs in Australia to support such a scheme (and the strong opposition from some ISPs) legislative recognition of the reasonable steps involved in such a scheme is necessary,” they write.

Site blocking

Due to “weakness” in current Australian law in respect of ISP liability, site blocking has proved problematic. What the studios want is a “no-fault” injunction (similar to the model in Ireland) which requires ISPs to block sites like The Pirate Bay without having to target the ISPs themselves.

“Not being the target of a finding against it, an ISP is unlikely to oppose the injunction – as long as the procedural requirements for the injunction are met. Once made, a blocking injunction would immediately prevent Australian internet users from being tempted to or accessing the blocked sites,” the studios explain.

Despite The Pirate Bay doubling its traffic in the face of extensive blocking across Europe, the movie companies believe that not blocking in Australia is part of the problem.

“The absence of a no-fault procedure may explain the very high rates of film and TV piracy in Australia when compared with European countries
that have such a procedure,” they write.

Unsurprisingly, the studios want to keep the bar low when it comes to such injunctions.

“The extended injunctive relief provision should not require the Court to be satisfied that the dominant purpose of the website is to infringe copyright,” they urge.

“Raising the level of proof in this way would severely compromise the effectiveness of the new provision in that it would become significantly more difficult for rightsholders to obtain an injunction under the scheme: allegedly non-infringing content would be pointed to in each case, not for reasons of freedom of access to information on the internet, but purely as a basis to defeat the order.”

The studios also want the ISPs to pick up the bill on site-blocking.

“[Courts in Europe] have ordered the costs of site blocking injunctions be borne by the ISP. The Australian Film/TV Bodies submit that the same position should be adopted in Australia, especially as it is not likely that the evidence would be any different on a similar application here,” they add.

Conclusion

If the studios get everything they’ve asked for in Australia, the ensuing framework could become the benchmark for models of the future. There’s a still a long way to go, however, and some ISPs – iiNet in particular – won’t be an easy nut to crack.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Consumer groups and citizens, on the other hand, want any response to be measured and coupled with assurances from entertainment companies that Australians will stop being treated like second-class consumers. Local ISPs have varying opinions, depending on the depth of their Big Media affiliations.

Back in July a discussion paper leaked revealing government proposals that include measures such as the tweaking of ISP liability right through to ‘pirate’ website blocking. Communications Minister Malcolm Turnbull later indicated that a public Q&A would be held in September for representatives from the entertainment industries, ISPs, and consumer groups to air their thoughts on the proposals.

While the opportunity was welcomed by the majority of stakeholders, it’s now clear that not everyone will be there.

Village Roadshow is the company that mounted the most aggressive anti-piracy legal action ever against iiNet, one of Australia’s largest ISPs. They have a deep interest in how this debate pans out. This morning, however, co-CEO Graham Burke told ZDNet that his company wouldn’t be attending the discussions because he’ll be overseas at the time.

While that may be true, an email Burke sent to Turnbull and other participants shines rather more light on the topic.

“My company is not prepared to participate in the forum. As expressed to you previously these Q and A style formats are judged by the noise on the night and given the proposed venue I believe this will be weighted by the crazies,” Burke told the Minister.

According to ZDNet, attendees from the ISP industry will include iiNet CEO David Buckingham, Telstra executive director Jane Van Beelen and Foxtel CEO Richard Freudenstein.

On a musical front the Australasian Performing Right Association (APRA) will be in attendance, as will writer and producer Peter Duncan. Looking after the interests of citizens will be consumer group Choice, but it appears Burke and Village Roadshow are concerned about potential dissent from the “crazies”.

“What is at stake here is the very future of Australian film production itself and it is too crucially important to Australia’s economy and the fabric of our society to put at risk with what will be a miniscule group whose hidden agenda is theft of movies,” Burke told the Minister.

It’s perhaps understandable for the movie boss to avoiding walking into a losing battle, but referring to those that do wish to participate in an open debate as having a hidden agenda of “movie theft” isn’t going to win over potential allies.

Boycotting discussions in which people get the opportunity to air their perhaps opposing opinions doesn’t indicate a willingness to enter a dialog or negotiations either.

But that might be the nail on the head right there.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Not only has the chasm between some of the key ISPs and rightsholders remained large, but even those expected to be on the same page have been showing signs of division. The two key government ministers in the debate, Malcolm Turnbull and George Brandis, last week contradicted each other over who should pick up the tab for any online piracy scheme.

Brandis balked at the idea of ISPs being “innocent bystanders” in respect of piracy, instead insisting that their role in infringement must lead to them financially supporting rightsholders. Turnball, on the other hand, said that he didn’t find that a “persuasive argument.”

But if Turnbull thought he was only at odds with Brandis, he’s now been shown as out of touch when it comes to rightsholders. The minister recently said that if rightsholders want to send a message that they’re serious over piracy, they need to strategically sue a few people – “moms and dads and students”.

As expected the comments weren’t well received by the public, but now the very people Turnbull said should take action have dismissed the idea as unworkable.

Speaking with Fairfax Media, Village Roadshow chief Graham Burke said that suing people only makes lawyers rich, but above all it simply doesn’t work.

“We don’t want to sue 16-year-olds or mums and dads. It takes 18 months to go through the courts and all that does is make lawyers rich and clog the court system. It’s not effective,” Burke said.

Village Roadshow famously dragged local ISP iiNet through the courts for many years over the issue of service provider liability. They not only lost that case, but also sparked a rift between rightsholders and iiNet that continues today, often being played out in public.

Still, at some point all sides will have to come to the table. Despite the disputes, Burke and Turnbull are on the same page when it comes to ISPs being involved in an educational program to deter would-be pirates, and punish them if necessary. Both believe that Australia needs a three-strikes style system to deter online infringement, ending in Internet throttling for the most persistent infringers.

However, if current indications are anything to go by, there is a lot of work still to be done before all parties are on the same page. Whether consensus will be reached voluntarily of by force remains to be seen.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

This week, however, PIPCU delivered a surprise. Instead of going after sites that host or link to infringing material, they targeted a series of sites that have never done so, arresting their alleged operator in the process.

Reverse Proxies

So-called ‘reverse proxies’ are not file-sharing sites, they merely restore access to third-party sites that have been rendered inaccessible by ISPs, as the result of a court order for example. The sites that were closed down this week enabled users to access The Pirate Bay and KickassTorrents, even if their ISP actively blocks the site.

The police intervention raises many questions, none of which will be officially answered while an investigation is underway. So, in order to try and fill in some of the blanks, TorrentFreak spoke with expert intellectual property lawyer Darren Meale to explore a possible basis for this week’s arrest of a proxy site operator.

“Internet users have sought ways to continue to access the sites by getting round the blocking put in place by the ISPs. One of the ways to do this is to use proxy servers. This operation is a major step in tackling those providing such services.” – FACT director Kieron Sharp commenting this week on the proxy shutdowns.

Breach of a High Court order?

Darren Meale: “The individual has been accused of helping Internet users access websites which the English High Court has ordered the major UK ISPs to block. That order arose in a civil, not a criminal action, and only applies to the ISPs in question. If it applied to the individual and he ignored the Court order, he would be in contempt of court and a judge could commit him to prison. But I don’t understand that to be what is going on here.”

Assisting a criminal enterprise?

So, with the High Court blocks a potential red herring, our attention is turned to the activities of the sites being unblocked by the proxies, and how merely facilitating access to those sites might be perceived as an offense by the Police Intellectual Property Crime Unit.

Darren Meale: “Sites like The Pirate Bay and KickassTorrents have been the subject of all sorts of civil and criminal actions around the world, but are tricky to target because of where they are based and the way they operate. That’s why initiatives like site blocking have become popular in the UK.

“The rights owners, police and other authorities can’t get their hands on the sites directly, at least not practically. Of course, that doesn’t mean that those sites aren’t still committing criminal offenses.

“Although we tend to think of copyright infringement as a civil wrong, it is also a criminal offense provided it is carried out ‘in the course of business’. Sites like KAT run as a commercial enterprise and make a lot of money out of advertising, so there is a pretty strong case that they are committing criminal offenses, including in the UK.”

If sites like The Pirate Bay and KickassTorrents are committing crimes, others can also commit crimes by helping them, Meale says.

Darren Meale: “The Serious Crime Act 2007 makes it a crime to intentionally encourage or assist someone else committing a crime, in the same way as it used to be a crime to ‘incite’ someone to commit a crime.

“The UK’s National Fraud Intelligence Bureau (NFIB) has previously accused operators of file-sharing websites of committing crimes of this nature. PIPCU’s statement in this matter also refers to its intention to ‘come down hard on people believed to be committing or deliberately facilitating such offenses’.

“These kinds of ‘inchoate‘ offenses are, in my view, the most likely candidate for what this individual has been arrested for.”

But other ISPs are facilitating access to illegal sites too..

Only six ISPs in the UK have been ordered to block sites like The Pirate Bay and KickassTorrents, the others are, at this very moment, knowingly facilitating access to these potentially criminal sites. How is it that a proxy service operator now finds himself in hot water while these ISPs continue with no repercussions?

Meale points out that the L’Oreal v eBay decision found that service providers (eBay in that case) had no duty to police their services for infringement. Also, service providers benefit from safe harbors under the E-commerce Directive, rendering them immune from prosecution in certain circumstances.

Darren Meale: “However, there is a difference between providing Internet access generally (which ISPs do) and providing a service or website which sets out to link to another, illegal, website. An attempt to make ISPs liable for what flows through them in the same way as someone running a file-sharing site failed in Australia in a case called iiNet. I think the same distinction would be drawn in Europe and the UK.

“Providing general Internet access: OK subject to exceptions such as if the ISP is hosting. But setting up a service designed to help people access illegal websites: that’s much more dubious. That’s not to say that the legal issues that surround all this are straightforward – they’re not.”

Conclusion

What shines through following the events of this week is how untested the waters are in cases such as these. Whether PIPCU intends to follow this matter through to the bitter end (risking a potentially unfavorable outcome) remains to be seen, but it’s possible that won’t be needed.

At this point they have already achieved the total closure of all targeted sites along with the seizure of their domains. That, along with a clear message to others mulling the same course of action might, in the overall scheme of things, be considered “mission accomplished.”

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Instead of pure head-on attacks against websites, their finances are being undermined through deals with advertisers and their sites blocked online. Rather than attempting to batter ISPs into submission through the courts, partnerships are sought instead. And when it comes to the end user, it’s largely education and more education.

In Australia the debate is familiar. On top of a legal framework to have websites blocked at network level, rightsholders are now seeking friendly cooperation from ISPs in order to deliver a message to subscribers that content should be purchased, not pirated.

The debate is well underway with the government seeking input from interested parties. Communications Minister Malcolm Turnbull has been putting pressure on rightsholders to ramp up their game in respect of pricing and availability too, which is definitely a step in the right direction.

But yesterday, during a televised interview with Rupert Murdoch’s Sky News, Turnbull made comments that transport the debate back many years, raising the specter of tough punitive action to send an anti-piracy message.

At first things started as expected, with the Minister telling Sky that people need to be educated. He raised the usual shoplifting and stealing analogies, noting that taking content from supermarkets is no different from downloading content online.

Then, after outlining New Zealand’s “three strikes” system, he noted that if content owners are suffering losses, then it should be them who foot the bill for any introduced anti-piracy measures. Content owners aside, few would disagree there.

Turnbull also noted that disconnections for persistently pirating Internet users would be met with a lot of resistance so were probably off the table, but then the bombshell.

“Rightsholders are not keen on taking people to court, because it doesn’t look good, because it’s bad publicity. What happens if the person you sue is a single mother, what happens if it’s a teenager, what happens if it’s a retiree on a low income?” Turnbull said.

“The bottom line is though, rightsholders are going to have to be tactical about who they take to court, who they want to sue.”

Education, it seems, only goes so far in Turnbull’s eyes. In addition there will need to be punishments for those who don’t get the message and that in turn will help to solve the problem.

“What you do is that when you raise awareness of this, and as people recognize that there is a risk that they will be sued, and have to pay for what they have stolen, then the level of infringement and theft will decline,” the Minister said.

So who should the rightsholders “strategically” target?

“It is absolutely critical that rightsholders…are prepared to actually roll their sleeves up and take on individuals. They have got to be prepared to sue people. Sue moms and dads and students who are stealing their content. They can’t expect everybody else to do that for them,” Turnbull said.

This kind of aggression from a key Minister in this debate is bound to raise alarm bells. As rightholders head down the cooperation and education route, here is a clear sign that the government thinks that yet more legal action against the public will solve the problem.

It won’t, and ISPs such as iiNet almost certainly won’t like the sound of this either. Whether this will hurt cooperation moving forward remains to be seen, but it’s likely to paint a picture of a government and an industry holding up new carrots, but keeping the same old tired stick in reserve, just in case.

The whole interview can be seen here.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Much of the negotiations have Attorney-General George Brandis at their core, with the Senator regularly being accused of lacking transparency.

This week Aussie news outlet Crikey obtained (subscription) a leaked copy of a discussion paper in which Brandis and Communications Minister Malcolm Turnbull seek industry feedback on new anti-piracy proposals.

The discussion paper

Dated July 2014, the paper begins by outlining the Government’s perception of the piracy threat, noting that all players – from content creators to ISPs and consumers – have a role to play in reducing the illegal consumption of content.

It continues with details of schemes operating in the United States (Six-Strikes), UK (VCAP) and New Zealand which aim to develop consumer attitudes through education and mitigation. Inevitably, however, the paper turns to legislation, specifically what can be tweaked in order to give movie studios and record labels the tools they need to reduce infringement

ISP liability

The 2012 High Court ruling in the iiNet case signaled the end of movie and TV studio litigation against service providers. With their dream of holding ISPs responsible for the actions of their pirating users in tatters, copyright holders would need new tools to pursue their aims. It’s clear that Brandis now wants to provide those via a change in the law.

“The Government believes that even when an ISP does not have a direct power to prevent a person from doing a particular infringing act, there still may be reasonable steps that can be taken by the ISP to discourage or reduce online copyright infringement,” the paper reads.

“Extending authorization liability is essential to ensuring the existence of an effective legal framework that encourages industry cooperation and functions as originally intended, and is consistent with Australia’s international obligations.”

“The Government is looking to industry to reach agreement on appropriate industry schemes or commercial arrangements on what would constitute ‘reasonable steps’ to be taken by ISPs,” the paper notes.

Website blocking

Given several signals on the topic earlier this year, it comes as no surprise that website blocking is under serious consideration. The paper outlines blocking mechanisms in Europe, particularly the UK and Ireland, which allow for court injunctions to be issued against ISPs.

The Irish model, which has already blocked sites including The Pirate Bay and KickassTorrents, is of special interest to the Australian Government, since proving that an ISP had knowledge of infringing conduct is not required to obtain an injunction.

“A similar provision in Australian law could enable rights holders to take action to block access to a website offering infringing material, without the need to establish that a particular ISP authorized an infringement,” the paper notes, adding that such provisions would only apply to websites outside Aussie jurisdiction.

It’s likely that most copyright holders will be largely in favor of the Government’s proposals on the points detailed above, but whether ISPs will share their enthusiasm remains to be seen.

Stakeholders are expected to return their submissions by Monday 25th August.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.