On an ordinary weekend roughly 6,000 days ago, news that so-called ‘copyright trolls’ had arrived in Britain came as a big surprise to the country’s file-sharers.
Aside from the well-publicized RIAA lawsuit campaign in the United States, in 2007 ‘trolling-as-a-business-model’ was considered a mostly German problem by the minority who’d even heard about it.
Despite thousands of international headlines over the next several years, the same ‘surprises’ replicated themselves across the EU, Australia, the United States, Brazil, and anywhere else where courts were prepared to accommodate actions against thousands of ISP subscribers.
Not Even Canadians Can Escape
Despite efforts to render internet subscribers less accessible and in theory, less lucrative targets, Canadians haven’t escaped the global industrial-scale settlement machine. Reports over the last few days suggest that things may be getting worse.
An RCI article published Friday mentions a lawsuit that lists more than 1,900 IP addresses allegedly linked to piracy of the Ryan Reynolds movie Hitman’s Wife’s Bodyguard. The publication notes that opponents of these cases claim they monetize the “fear and uncertainty” associated with threats of being sued.
Of the 10,000 subscribers already sued in Canada, few would disagree; their names are on the internet bill, so they’re first to feel the heat. Regardless of whether they’re the actual infringers, subscribers are often pressured until they offer to settle, incriminate themselves, or provide the details of someone in the household who may have more information about what actually happened.
Having spoken to scores of letter recipients over more than 15 years, the heartbreak for some innocent subscribers is very real. The existence of actual, correctly targeted infringers is also non-trivial, and easily matched by often devious rightsholders who stop at nothing to turn a ‘speculative invoice’ into hard cash.
Fundamentally, Nothing Has Changed
For most readers here, little of the above will come as a surprise. For a worrying number of people posting in huge discussion threads on RedFlagDeals and other platforms, 15 years of lawsuits, warnings, advice, and the unprecedented VPN explosion, may as well have happened in a different dimension.
Despite an abundance of quality local advice from groups such as CIPPIC, there are many reports of internet subscribers contacting the claimants directly by telephone or email, hoping to sort everything out as quickly as possible. With all due respect to those who posted reports suggesting that their negotiations were successful, for the inexperienced it’s a high-risk strategy the claimants positively welcome.
In short, IP address evidence alone is useful to a claimant, but an IP address coupled with a subscriber’s real name is exponentially more valuable. The general rule of thumb is that a claimant with big evidence will be better placed and more likely to demand big money. The most likely route to obtain that big evidence is when a defendant opens their big mouth and tells the claimant something relevant they didn’t already know.
Information is currency here, and it is not uncommon for innocent subscribers to incriminate themselves or ruin someone else’s defense. Having an innocent but nervous human on the phone dramatically increases the likelihood that they will a) reach into their own pocket or b) provide information about someone in the household more familiar with the allegations. Logical, yes. Predictable outcome? Not so much.
For example, the subscriber may feel it’s only fair that the correct infringer is pointed out; unfortunately, the transcript on the claimants’ end may conclude the subscriber authorized the infringement so is still liable. That means there are now two possible routes to obtain a settlement and new leverage to obtain even more money. That’s just one of many negative outcomes available to those who foolishly take on people who do law for a living.
Of course, none of this detracts from the fact that if the claimants have a case, paying a settlement will be preferred by some defendants, and understandably so. There’s just no real reason to maximize the amount when offering compensation for a legitimate claim since that’s taken care of by the claimants.
On the basis that people who pirate movies must know enough about pirating movies to be able to pirate them, it seems inconceivable that hundreds of thousands of mainly BitTorrent users remain oblivious to the risks. For example, adult entertainment company Strike 3 is the most litigious in the business yet appears to have absolutely no problems obtaining huge numbers of new IP addresses every month which form the basis of new lawsuits and settlement claims.
In the first half of this year alone, Strike 3 filed 1,600 lawsuits against people who allegedly shared its relatively niche content, sold under blatantly obvious names. Yet somehow these fans didn’t know or didn’t care that the chances of being caught on Strike 3 torrents are very high indeed. At this very moment one public torrent site has a 1.2TB torrent that is almost certainly being harvested for lawsuits, yet remarkably the peers keep on coming.
Kenneth Clark, a lawyer at Toronto-based law firm Aird Berlis which represents Hitman Two Productions Inc., has a theory that newer style download apps may be part of the problem. Where users previously used traditional streaming apps associated with a low risk of legal issues, apps that also share downloaded content with other pirates aren’t always advertised as such, leading users into a false sense of security. It’s hard to confirm, but it does sound plausible.
Deterrence vs. Profit
That neatly brings us to the stated aim of these lawsuits. Clark told CBC News what these and similar companies have said from the beginning; deterrence.
“There’s a lot of online piracy that people think have no consequences. Our mandate is to show people that illegal conduct has legal consequences,” Clark said.
While Clark’s mandate may indeed be just that, any deterrent effect is less than obvious, as evidenced by the constant flood of lawsuits and 15 years of deterrence that remains completely unknown to the people who matter. The more cynical of observers believe this is just part of a broader business model that monetizes infringement rather than simply succumbs to it.
In this controversial game, anything is possible but for those who follow it, new revelations are increasingly rare. Revelations apparently set to arrive later this week may put settlement models like these in a whole new light.