Leaked State Department Cable Confirms What Everyone Already Knew: MPAA Was Behind Bogus Australian ISP Lawsuit

from the pulling-the-strings dept

Thu, Sep 1st 2011 10:17pm — Mike Masnick

When it comes to copyright issues, the various State Department leaks via Wikileaks have only served to confirm what pretty much everyone already knew. Earlier we'd covered revelations about US diplomatic involvement in new copyright laws in Spain, and the latest (as a bunch of you sent in) is the rather upfront admission that the MPAA was absolutely behind the decision to sue iiNet in Australia. As you may recall, the lawsuit, which was officially organized by the Australian Federation Against Copyright Theft (AFACT) along with the Australian arms of various movie studios, complained that Australian ISP iiNet didn't do enough to stop unauthorized file sharing. This was really a trial balloon of a case, because the MPAA knew damn well that blaming ISPs for the actions of their users was a tricky game to play. So, they tried to hit up iiNet from a slight tangent, sending over examples of infringement and then freaking out when iiNet didn't somehow magically stop all infringement.

Of course, the reality was that this was all driven directly from the MPAA in the US and iiNet was carefully chosen as a trial balloon given its size. As Richard Chirgwin notes, iiNet got to enjoy this experience because of its "Goldilocks status. iiNet was just right: Telstra is large, loud, litigious, and possessed of significant lobbying experience; too small a target and the case risked inviting the �bullying� perception that the MPAA was keen to avoid."

Despite the lead role of AFACT and the inclusion of Australian companies Village Roadshow and the Seven Network, this is an MPAA/American studios production. Mike Ellis, the Singapore-based President for Asia Pacific of the Motion Picture Association, briefed Ambassador on the filing on November 26. Ellis confirmed that MPAA was the mover behind AFACT's case (AFACT is essentially MPAA's Australian subcontractor; MPAA/MPA have no independent, formal presence here), acting on behalf of the six American studios involved. MPAA prefers that its leading role not be made public. AFACT and MPAA worked hard to get Village Roadshow and the Seven Network to agree to be the public Australian faces on the case to make it clear there are Australian equities at stake, and this isn't just Hollywood "bullying some poor little Australian ISP."

Why iiNet? Ellis said they were the right target on several levels. First, they are big enough to be important - iiNet is the third largest ISP in Australia. (Telstra, owners of top Australian ISP BigPond which has about half of the market, are the "big guns", Ellis admitted. It was clear Ellis did not want to begin by tangling with Telstra, Australia's former telecom monopoly and still-dominant player in telephony and internet, and a company with the financial resources and demonstrated willingness to fight hard and dirty, in court and out.) Ellis also said iiNet users had a particularly high copyright violation rate, and that its management has been consistently unhelpful on copyright infringements.

Amusingly, the cable claims the case is "very strong." Turns out that was wrong. iiNet famously won the case, and AFACT was even told to pay iiNet's legal costs. While an appeal somewhat limited the original (excellent and perceptive) ruling, it still crowned iiNet the winner. Perhaps the US government shouldn't trust the MPAA in setting the odds on its own lawsuits.

Anyway, while most people already knew that the MPAA was the key player here, it's nice to see it laid out in black and white. I'm also curious if the folks who usually rush to the comments to claim that the MPAA/RIAA aren't involved in some of the lawsuits we talk about will have any comment on this, since we've explained that most of these legal actions are coordinated from those two groups.

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Filed Under: australia, copyright, state department, wikileaks
Companies: afact, iinet, mpaa

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The eejit (profile), 1 Sep 2011 @ 11:20pm

Cue madcap "These cables are like the Moon Landings" conspiracy theory bullshit in 5, 4, 3...
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PaulT (profile), 2 Sep 2011 @ 12:05am

I've said it before and I'll say it again - if the MPAA/RIAA and their cronies just put half the effort into adapting to the modern marketplace as it does trying to lawsuit it back to the 90s, fears about "piracy" would be moot. The only things the lawyers need to be hired for is to work out how to resolve the complex licensing and copyright maze that makes adapting to the internet so much more difficult and expensive than it should be.

If Australians are "pirating" so much then I suspect it has the same incentive as here in Spain - regional restrictions, high prices and lack of legal digital services. Resolve these and there goes half your problem, along with a large chunk of any social acceptability file sharing has.
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That Anonymous Coward (profile), 2 Sep 2011 @ 12:05am

Re:
I wonder if one would be able to use the FOIA to get a "confirmation" copy of the document.

We all know these are US cables, but being able to kick out the "Julian Assange made it all up with his military boytoy!" pillar of the argument.

Something else that I think would be interesting would be an indepth study pushing for answers as to why some of these things were secret in the first place. Some most likely should have been secret, but they tend to just slap the blanket over the whole pile because we let them. And given the government idea that if we do it in secret its not breaking the law... yeah... we need to reserve "secret" for real things not just embarrassing things.
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Alan, 2 Sep 2011 @ 12:08am

Hmm
I remember reading about this in an Australian PC Magazine (the court case), and knowing defiantly that it was this, really makes me resent ever more the American Gov't and Business's way of trialing and testing things, and operating for the money, not for the people.

Some Allies....
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Papa Fox, 2 Sep 2011 @ 12:19am

The Judge worked it out
While it is nice to see that AFACT is actually an MPAA sock-puppet confirmed, the important point is that the Judge worked this out during the trial. He considered throwing the case out, but decided that that would just duck the issue - so he dealt with it.

To quote Justice Cowdroy from Roadshow Films v iiNet:

"AFACT is an organisation set up for the purposes of benefiting its members. The exact nature of the relationship between the applicants and AFACT is not clear. Mr Gane, the Executive Director of AFACT, suggested that there was no formal membership process by which one can become a member of AFACT, whether by application or agreement. The Motion Picture Association (�MPA�) and the Motion Picture Association of America (�MPAA�) have a membership of the major American film studios. They are not associated with AFACT by any formal written agreement. However, AFACT does report to the regional branch office of the MPA which is based in Singapore. In respect of operations in the Asian region, the Singapore office of the MPA prepares a business plan or budget for AFACT which is approved by the Los Angeles head office of the MPA. [...] [I]t must be remembered that the applicants were not the entities making the allegations of copyright infringement in the lead up to these proceedings: rather, AFACT was doing so. [T]he exact relationship between AFACT and the actual copyright owners (the applicants) is, at best, unclear."
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Anonymous Coward, 2 Sep 2011 @ 12:22am

Re: Re:
When they break the law though, they can just claim that all of the facts behind it are secret, and therefore there is no way to actually present any sort of evidence to hold them accountable.

Lawyers would have a field day if half of the crap that happens inside of the cables were to happen out in the public eye, but instead the cables are "off limits". And everything else is "classified".
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fogbugzd (profile), 2 Sep 2011 @ 1:01am

In the last paragraph Mike says that the MPAA and RIAA are the driving force behind most legal actions. I am not sure that is accurate now. I think that the main driving force is the MPAA. The RIAA goes along with the MPAA, but I think the RIAA is mainly lending moral support at this point. I think the RIAA's main contribution now is that it can provide the image of the poor, starving musicians as victims of piracy; musicians are generally much more sympathetic victims than movie producers and actors.

The RIAA is a economically weaker than it was ten years ago. Any company or industry that is shrinking is forced to pull back on activities that don't show a profit, and the war on piracy falls in this category for the RIAA. Suing private music infringers cost a lot of money and produced very little income while having a plethora of negative effects. Lobbying is expensive and fighting piracy does little if anything to actually increase sales. At the end of the day retracting industries are forced to be pragmatic, and pragmatically fighting pirates is not productive for the RIAA.

The RIAA still has plenty of execs who chant the "Pirates are killing us" mantra. But they also have people working quietly in the opposite direction. I think the MPAA is fortifying the RIAA and keeping it on the bandwagon publicly, but behind the scenes you have a lot of RIAA people promoting bands and artists, especially the ones who have signed "360" deals. Promoting 360 artists means getting their music heard by just about any method possible.

The movie industry and the music labels are in very different situations. The music industry really needs to promote bands and artists. For the music industry, the songs themselves are promotional. The songs bring the fans out to concerts and provide other potential revenue streams. On the other hand, the MPAA sees the movie itself as the revenue stream. For music there is a very plausible argument that a pirated song may very well create a concert ticket sale. It is harder to sell the idea that a pirated movie will sell a movie ticket. There is also a scale factor involved -- it is easier for a music exec to stomach giving away a 99 cent song when it might sell a 100 dollar concert ticket. It is a lot harder for the movie producer to see how giving away a 20 dollar copy of a movie makes sense for getting a one dollar Redbox rental. (Yes, I know that the marginal cost for reproducing the song and the movie are near zero for the industry, but I am talking about the modern business exec who doesn't understand basic microeconomics.)

The final analysis will probably show that unauthorized copying is not hurting the movie industry nearly as much as the MPAA currently believes. However, the movie industry is still doing rather well. At least they can still afford to spend $300 million to pump out mediocre movies. If the industry can afford to that, they can afford to live in fantasy worlds for at least a little while longer. However, as the movie industry continues to price itself out of the market it is going to have to face reality. I am just hoping that they don't manage to do severe damage to the Internet, the rest of the economy, and the First Amendment before that reality sets in for the MPAA.
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anonymous, 2 Sep 2011 @ 1:24am

typical USA. trying to rule the world yet again! only benefit would have been to US industries, not to any in Australia. in fact, could have been detrimental to Australian industries and people, but they weren't even thought about!
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LyleD, 2 Sep 2011 @ 1:39am

Re:
If Australians are "pirating" so much then I suspect it has the same incentive as here in Spain - regional restrictions, high prices and lack of legal digital services. Resolve these and there goes half your problem, along with a large chunk of any social acceptability file sharing has.

Spot on.. Australia's in a worse position than most.. Prices here are ridiculous, easily among the highest in the world.. Combine that with regional restrictions and no decent digital services at all.. We're basically screwed...
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G Thompson (profile), 2 Sep 2011 @ 2:09am

Teh Appeal is not over yet, AFACT recently were granted the ability to appeal the decision to our High Court (thing SCOTUS) on a few grounds.

So the case is still ongoing, due to this even though this is new evidence, it could still be used in some way against what AFACT told the court way back in original case ie: outright falsehoods.

No time at moment, but if possible I will put a summary of what the grounds for appeal are in either a comment, or submission to mike. Until then here is an ok report from zdnet Australia regarding the appeal.

http://www.zdnet.com.au/afact-wins-iinet-high-court-hearing-339320303.htm
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G Thompson (profile), 2 Sep 2011 @ 2:11am

Re:
ack.. should read

"The Appeal & therefore case is not over yet, AFACT recently were granted the ability to appeal the decision to our High Court (think SCOTUS) on a few grounds."

Too much blood in my caffeine system I think!
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G Thompson (profile), 2 Sep 2011 @ 2:17am

Re: Re:
Actually in this case with the new appeal the onus is on the studios to now prove it is not a true and accurate note.

And then why they knowingly made false statements to the original court and iiNet barristers. Though it will be a small part, it will make a lot of AFACT executives and their own counsel squirm and could get interesting for us involved in the case
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Anonymous Coward, 2 Sep 2011 @ 3:33am

Re:
Funny, legal digital services like Netflix haven't been personally embraced by Pirate Mike himself, so how are we supposed to believe what you say?
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PaulT (profile), 2 Sep 2011 @ 3:57am

Re: Re:
A wise man once said "Better to remain silent and thought a fool, than to speak out and remove all doubt.". Maybe you should listen and save your comments for when you have an intelligent one to make.

A single sentence, and you out yourself as a moron, throw in an ad hominem attack and make a "point" that's so astoundingly stupid it would take a full paragraph to explain everything wrong with it. Bravo.

You have 2 people from different continents stating exactly what's wrong with the industry from their point of view, and how this actively encourages infringement. Maybe you people should listen for once, instead of attacking a 3rd party for actions he never endorses?
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JMT (profile), 2 Sep 2011 @ 4:05am

Re:
Really good comment, well done. The only thing I'd slightly disagree on is this:

"For music there is a very plausible argument that a pirated song may very well create a concert ticket sale. It is harder to sell the idea that a pirated movie will sell a movie ticket."

I personally think a pirated movie will sell a movie ticket, if the movie's good. Even if the person who viewed the pirated movie doesn't go, so much of a movie's promotion is through word-of-mouth that non-paying eyeballs can definitely result in paying ones. However the flip side is also true, pirated copies of bad movies probably do result in less people paying to see it, and I'm not too cut up about that. It might improve the average quality of the Hollywood's output.

I have bought tickets to movies I first saw in an unauthorized manner and I've gone out and bought DVD's even when I already have a digital copy. The reason is simple; both offer a superior experience to a downloaded version, but only if the movie is a good one.
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JackHerer (profile), 2 Sep 2011 @ 4:47am

Re: Re:
This must be trolling as whatever you may think of Mike's views he is very specific in all of his posts that he does not download unauthorized content and does not encourage or approve of other people doing do.
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Bengie, 2 Sep 2011 @ 4:52am

Anti-trust
MPAA and RIAA, whom represent nearly the entire USA movie and music big names, should be tried with anti-trust.
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LyleD, 2 Sep 2011 @ 5:11am

Re: Re: Re:
A Spaniard and an Australian. I can't think of two nationalities more likely to be ignored and abused by the mafiaa and their ilk...
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The eejit (profile), 2 Sep 2011 @ 5:23am

Re: Re: Re: Re:
You forgot the actual mafia who are jealous of the MAFIAA and their ways.
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The eejit (profile), 2 Sep 2011 @ 5:27am

Re: Anti-trust
Can't, they might win by "donating".
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PaulT (profile), 2 Sep 2011 @ 5:34am

Re: Re: Re: Re:
An Englishman and an Australian, to be exact. But, that's the point isn't it? The people they're trying to attack and control due to "piracy" are the very same people they're refusing to service via the normal marketplace. they're literally causing the demand for the services they're trying to stop, while simply meeting said demand would stop their industry from disintegrating.
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Anonymous Coward, 2 Sep 2011 @ 5:42am

Re:
Maybe you should invest in your education system a bit more. First off when you say USA you mean everyone in the United States, I know for a fact I had nothing to do with this. Please say Us government or something that refers to that.
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Anonymous Coward, 2 Sep 2011 @ 6:12am

Oh kewl! Now if you could just talk about Hotfile.
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Anonymous Coward, 2 Sep 2011 @ 6:26am

Re: Re: Re: Re: Re:
To be honest I believe they will abuse anyone who is French, Australian, Canadian, British, Spanish or Swedish.

Those are the countries most likely to comply with anything the MPAA wants.

Although in France there is an scape from any crimes, all pirates should join the L�gion �trang�re(French Foreign Legion) :)
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Anonymous Coward, 2 Sep 2011 @ 6:38am

Re: Re: Re: Re: Re:
For those wondering about the fine French tradition of surrender they can put those worries to rest.
"One practice popular in the main French army at certain times � surrendering � is not encouraged in the Legion, members of which are routinely expected to fight to the death."
http://www.telegraph.co.uk/news/worldnews/europe/france/3546207/The-French-Foreign-Legion-t he-last-option-for-those-desperate-to-escape-the-UK.html
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CommonSense (profile), 2 Sep 2011 @ 7:49am

Re: Re:
This. Spot on.

I've even skipped seeing a movie in the theater because I caught some of a downloaded/bootlegged version, and it turned out the movie was crap and not worth the ticket price. Of course, I only ever did that after I was so fed up about paying ticket prices for too many movies that weren't worth it, so really, Hollywood is their own worst enemy here. They drove me to piracy. If I felt any confidence about a movie being worth the price, I wouldn't even question myself about going to see it. But they put out too much crap, and so I need to protect my own bank account.

Sure, a lot of people will say, "Then just don't watch them, you don't have to pirate the things and rob the people who worked on it of their financial reward!" or something like that. The thing is, I'm not robbing anyone of anything. If I liked the movie for free, I'll go see it on the big screen and have no problems paying for the theater experience. If I didn't like it for free, then it's one that I'd have either opted not to watch in the theater, or I would have seen it, gotten pissed cuz it sucked, and then made up my mind not to watch anything from that studio/producer/director...whoever, without a 5 star, two thumbs up, glowing review from a close, trusted friend. The ability to watch a bad movie without paying for it actually makes the chances that I'll go to the theater for a later movie from that studio significantly higher.
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ethorad (profile), 2 Sep 2011 @ 7:57am

Re: Re:
Um, how do you know what he meant by USA?

Using a country's name to refer to the country's government or policies is common. For example, when the news says "The UK is bombing targets in Libya" I doubt anyone thinks all 60 million of us are out there with explosives (well, except you - so let me assure you we're not).

Also sometimes the name of the capital city is used similarly - diplomatic stories often talk about "the view from Washington" and they're not referring to the Potomac.
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Anonymous Coward, 2 Sep 2011 @ 8:20am

I boycott the whole MAFIAA.I do not give them a dime of my money and I never will again.No theaters,no netflix & itunes,no buying new products in other words you get jack shit from me.
If I want something bad enough I will find it used somewhere.
MAFIAA the only thing you can get from me is you sucking out my dirty dog's asshole !!!
FUCK YOU
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Anonymous Coward, 2 Sep 2011 @ 8:58am

Re:
I hope you don't watch TV, listen to the radio, or anything like that, otherwise you are giving them money too!

Go find a cave.
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Anonymous Coward, 2 Sep 2011 @ 10:04am

Hey Australia
All your laws are belong to US
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Anonymous Coward, 2 Sep 2011 @ 10:42am

Re: Re: Re:
Exactly... If you have any doubts, go watch 'Burn after reading'.... OMG what a horrible movie, the only good and/or funny parts are what were shown in the commercial (trailer) promoting the movie. It should have been 'Burn your eyes out after watching'....

Not only did I feel sick after sitting through that piece of crap, I wondered what on earth could have been worse... even old dubbed Kung-Fu movies on TV where the voice dubbing was so bad that the characters lips moved for 2 minutes before we hear 'Your Kung Fu is not strong, HA..' were more entertaining.

Keep selling people crap and expecting them to keep paying for it is no longer a sustainable business model..

Fool me once, shame on you
Fool me twice, shame on me
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MikeVx (profile), 2 Sep 2011 @ 11:49am

Re: Burn After Reading
So the title might have been better listed as "Burn Before Watching".
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hmm (profile), 2 Sep 2011 @ 1:12pm

US sues
US sues saying that the fact that they feel they can break the law whenever they want as long as it is 'classified' is now 'classified' therefore you shouldn't talk about the fact that you shouldn't talk about the fact that something is 'classified'

And by deliberately NOT talking about certain 'classified' subjects that means by a process of elimination you are telling people which things you will talk about and which you won't which means they can work out what's 'classified" and whats not..................

and buried in an unmarked . rest assured good citizen that is no longer a threat to our national security, and soon we will take his family and them until they are all .>
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hmm (profile), 2 Sep 2011 @ 1:14pm

grrr
US sues saying that the fact that they feel they can break the law whenever they want as long as it is 'classified' is now 'classified' therefore you shouldn't talk about the fact that you shouldn't talk about the fact that something is 'classified'

And by deliberately NOT talking about certain 'classified' subjects that means by a process of elimination you are telling people which things you will talk about and which you won't which means they can work out what's 'classified" and whats not..................

-interruption by the US government - This evil terrorst has been -classified- and buried in an unmarked -classified- rest assured good citizen that is no longer a threat to our national security, and soon his family will all be -classified- until they are all -classified-
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Anonymous Coward, 4 Sep 2011 @ 5:14pm

Re:
If we had NetFlix for $8/m like Canada does (and a similarly priced net infrastructure) there'd be a dramatic decrease in piracy
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Anonymoose, 4 Sep 2011 @ 5:19pm

Re: Re: Re: Re:
Aww, I liked Burn After Reading... but then I didn't pay anything for it... might be related?
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Anonymous Coward, 4 Sep 2011 @ 10:52pm

every time I read an MPAA article all I can think about is the good old days when I could go to Tijuana and grab a better bootleg than you can get online and the border patrol gave to sh!ts, a VHS recorder on my TV and Cassette recorder on my AM/FM/CD Radio, me and my friends would rerecord things we wanted from another friend and when we were tired of the songs we have we would record over it, whats the difference now how is this just now hurting the economy? because they have an IP to hunt your ass down
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