Australians' Stored Metadata Could Be Used In Any Civil Case, Including Against Copyright Infringement
from the not-what-they-said dept
It was bad enough when the Australian government announced that it was joining the growing club of countries that would be retaining huge swathes of its citizens' metadata. But now people are beginning to realize that once that store of metadata exists it not only can, but probably will, be used for many other purposes that have nothing to do with the avowed aim of fighting terrorism. The first hint that this might happen came from a slip made by the Australian Federal Police Commissioner, reported here by Gizmodo Australia:
When asked if stored metadata could be used to combat piracy, Australian Federal Police Commissioner, Andrew Colvin, replied at a press conference that the stored data of Australians could be used for a whole number of things, including anti-piracy:
Understandably, this caused such a storm that the Australian government tried to backtrack. The country's Attorney-General, George Brandis, was quoted in TechWorld Australia as saying:
“Absolutely. Any interface or connection someone has over the internet, we need to be able to identify the parties to that collection. Illegal downloads, piracy, cyber crimes, cyber security. Our ability to investigate them is pinned to the ability to retrieve metadata,” Colvin told journalists."The mandatory metadata retention regime applies only to the most serious crime -- to terrorism, to international and transnational organised crime, to paedophilia, where the use of metadata has been particularly useful as an investigative tool," Brandis told ABC's Q&A program last night.
So that's a return to the original script: metadata is for fighting terrorism and serious crimes. But Brandis then went on to say:
The laws will apply "only to crime and only to the highest levels of crime," the attorney-general said. "Breach of copyright is a civil wrong. Civil wrongs have got nothing to do with this scheme."
The trouble with that argument is that infringing on copyright can also be a criminal offense, as the Australian Federal Police (AFP) site explains:
The AFP is committed to taking action against those believed to be the organisers, major importers and/or wholesalers of infringing products.
Moreover, the recent leak of the TPP IP chapter shows that one of its measures aims to lower the bar for the criminalization of copyright infringement, even when there is no commercial intent:
The AFP is committed to building partnerships with industry and other law enforcement agencies to combat IP crime and wherever possible ascertain links to organised crime.Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. {For the purposes of this Article, [US propose, CA/MY oppose: such acts of [NZ: willful] copyright or related rights piracy {on a commercial scale} include at least:] [CA/MY propose: In respect of copyright or related rights piracy, acts carried out on a commercial scale include at least:] [CL propose:181] [182]
Since it's still a draft, that's a bit of a mess, but the important parts are at the beginning -- "Each Party shall provide for criminal procedures and penalties to be applied" -- and at the end, where Australia wants criminal penalties even if "not carried out for commercial advantage or financial gain", but simply if they have "substantial prejudicial impact on the interests of the copyright or related rights owner in relation to the marketplace". It's not hard to see how uploading a single music file might be claimed to do that, since potentially it could be copied thousands of times. That non-commercial upload would therefore be subject to criminal penalties under TPP, which opens up the possibility of using stored metadata to track down the person responsible.
(a) acts carried out for commercial advantage or financial gain[CA propose:183]; and
(b) significant acts [CA oppose: of copyright or related rights piracy], not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights owner in relation to the marketplace.} [AU propose:184]
The transcript of an interesting radio program from the Australian broadcaster ABC reveals another way in which stored metadata might be applied to cases involving alleged copyright infringement:
the Government not using metadata to fight internet piracy is one thing, the rights holders themselves using the metadata trove to expose customer details is an entirely different scenario.
But this route could be used for any civil case, despite claims from the Australian government that data retention is only about serious crimes. A lawyer who works for Marque Lawyers, the law firm acting for the copyright owners of the film Dallas Buyers Club, explained on the program:
[Australia's Communications Minister Malcolm Turnbull] admitted as much this morning, saying that under legislation, stored metadata would be accessible by third parties via a court order. That could mean that copyright holders could sue ISPs for customer information, forcing them to reveal which user was responsible for a download, opening up the user to claims for damages.
Any civil litigation where a question arises about a person's conduct or activities or where they've been and when they've been there, which often can arise in all sorts of civil cases. This kind of information could be extremely useful.
It will doubtless be especially popular among copyright trolls, who will be able to use it to track down people before sending in their "speculative" invoices....
...
It's historically been quite difficult to get information out of telcos because they hold an enormous amount of data and not always in the most easily accessible way and they don't like handing it over. But if they're forced under this new regime into a protocol which establishes a very clear and consistent methodology for storing data for a particular period, then that becomes a much more easily accessible resource and much more difficult to say, "Oh, you know, we can't find it." Yeah, I think, I think it'll be quite popular.
Retaining everyone's metadata in order to tackle terrorism was always a bad idea, given the attendant risks, but it looks like it could turn into a legal and political nightmare once the lawyers start applying to Australian courts for routine access to this highly-private information. That's yet another good reason not to proceed with this ill-advised scheme at all.
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Filed Under: australia, copyright, data retention, george brandis, metadata, piracy
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Oh, so it's been just as "useful" as in US - as in NOT AT ALL?
Where's the evidence?
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The big problem with collect it all is that there is more data than they can make sense of until they get a definite person and event to to start their search from. Such huge collections of data are very good at providing 20/20 hindsight, while losing the trees for the forest when carrying out an general search to find the bad guys, or even when trying to keep tabs on the excessive number of suspects that they have on various lists.
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the quietude will be a blessing...
thought it was inevitable, given how stupid we are, and how we let greedy and psychopathic uber-klass rule us into oblivion...
'well, they know what they're doing...' *snort*
thought it would be within a hundred years after my death, but it appears we are accelerating our planet's demise within my lifetime...
ain't that a bitch...
my worst paranoic prognostications are lagging behind reality...
1984, here we are ! ! !
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Says every Digital "Rights" "Management" policy ever. This is just one of them.
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Hey-- infringement is a crime
And it can be a big crime. One person can easily supply more than a million copies of some movie, all the while pretending that he's only "sharing" them with close friends. If someone robs a million banks or hijacks a truck with a million DVDs on it, that's a serious crime.
IT should be treated seriously. Only in your warped, GOOG-apologizing mind is it anything but a crime. So don't be surprised when the police actually treat it that way. These folks deserve to be in jail.
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Re: Hey-- infringement is a crime
Because as long as the supply exists, there will always be demand. That goes for black markets, too. And I can't see any other way to even jump the first hurdle in stopping the supply.
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Re: Hey-- infringement is a crime
What about corporations? Should the CEO be in jail for perverting the course of justice and bribery?
What about DMCA abuse? Should content go to jail for perjury when they make false claims?
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Re: Hey-- infringement is a crime
What about corporations? Should the CEO be in jail for perverting the course of justice and bribery?
What about DMCA abuse? Should content go to jail for perjury when they make false claims?
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Re: Hey-- infringement is a crime
Since when is breach of contract a criminal matter?
How many CEOs have gone to jail for breaching a contract in history? Can you point to one?
Or are you just a shill for BIG Corporations?
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Re: Hey-- infringement is a crime
1) copyright infringement falls under criminal statutes in limited cases in some jurisdictions -- in most of the world, copyright infringement is a civil matter between the person whose copyright is infringed and the person doing the infringing. This, of course, puts undue burden on both the rights holder and the alleged infringer, but there's no easy solution to that.
So, saying infringement is a crime is misleading. Infringement /may be/ a crime, depending on the circumstances.
2) There's nothing wrong with killing jobs for artists. And why pick on artists? Every bit of "speech" created by anyone, any time, in limited countries, is covered by copyright protection.
In other words, this post is covered by copyright, as is yours. However, my job's not going to be "killed" by someone copying this and re-posting it elsewhere.
Likewise, I've produced a fair bit of music at my own expense, and while it might kill some artist's job (if people decide to listen to my stuff instead of theirs), the act of copying my work won't deprive me of anything. I'd probably get upset if someone tried to pass it off as their own and sell it for a profit, but they haven't deprived me of anything, as I had no agreement with anyone ahead of time that there was going to be any sort of payment regarding the work.
Recording studios work on speculation -- producing a film or audio recording is a form of gambling similar to insurance -- they produce a bunch of flops, but use statistical models that predict that the stuff that really takes off will more than cover those costs. And as far as that goes, that means that any copying of the flops has zero impact on the production houses. The artists themselves have already entered into a contract with the studios and have given up their copyrights, so they really don't have much of a say here.
3) Sharing this or that: Any creative work is a rip-off of something that came before. There's pretty much no way to avoid this, and you even get two independent people producing really similar works on a regular basis. They're not necessarily copying each other -- they're copying what came before. This is part of what it means to live in a culture or a society. This is how people naturally function, and copyright is a construct designed to impede this for a temporary time to give limited monopolies to people to encourage them to create more works.
Well, there's the blathering. What about the end of the day?
I think I already pointed out, sharing isn't a crime -- there is criminal sharing, but that's just like there's criminal shooting: the intent in both cases, as well as the result, matters MUCH more than the act, which is in itself a neutral thing.
4) Big crime: Yes, it can be a big crime if it's been defined to be and accepted by law. But making copies is not the same as copyright infringement. If I have five kids, I've made five copies of my DNA. Likewise, I can make five copies of a DVD. That's my perogative. However, as soon as I start distributing either DVDs or children to others, I start to get into legal difficulties. And if I deal in DVD or child trafficking (distributing in volume over time), it becomes a criminal issue. But in most countries, it is THIS act that is a serious crime, not the prior act of making copies.
5) I*P* should be treated seriously. This means that people should treat intellectual property as its own entity with its own rules and issues and not try to conflate it with contract law, unfair competition, criminal behaviour, and actions against finite resources.
Creating something does not give you the right to be compensated by someone -- contracts are used for that.
In your examples:
a) supplying more than a million copies of some movie -- this would be a SINGLE act of mass distribution, comprising more than a million instances of copyright infringement.
b) robbing a million banks -- this would be a million cases of robbery (taking a physical thing of value belonging to someone else without their consent) -- but THAT would be further compounded because a bank is somewhere that holds other people's things -- so on top of robbing the bank, you're also stealing something finite of value from each person who stored it in the bank -- something that unlike watching a movie, can be returned.
c) hijacking a truck with a million DVDs in it: the crime here is hijacking the truck -- it could be empty, and it would still be a crime. There would be FURTHER crimes if the person then distributed the contents for free to first-comers, or started selling them on eBay. But at no point did they duplicate anything, so the crime would have nothing to do with copyright; it would have to do with dealing in stolen goods.
6) Which folks deserve to be in jail exactly? Everyone who has committed the offense of sharing intellectual property without the express permission of the copyright holder? That'd be everyone in the world.
Or is it everyone who infringes copyright that should go to jail? Good luck being recompensed for any perceived losses if the person who infringed your copyright is locked away from society but still has access to your intellectual property (as jails have internet, show movies, etc.).
Or is it everyone who infringes copyright in a criminal manner? You might be slightly closer to the point here, but remember points 1-5 above. Locking people up for being an active part of society doesn't sound like a good plan. Locking them up for being detrimental to society by consistently exhibiting anti-societal behaviours such as profiting off of materials supposedly under the care of another without due compensation? Here we might be getting somewhere.
But in this article, we're not talking about any of this: this article is talking about collecting private data on all citizens for the express purpose of snooping on all of them to see if they're guilty of civil copyright infringement.
See the problem? YOU are guilty of civil copyright infringement; the only difference between you and the guy bootlegging DVDs is in variety, scale, intent, and consequence to others in society. THESE are the things that police should be targeting, not sifting through the entirety of online interactions looking for some that might not be on the up-and-up between an individual and a foreign production company.
That said, Dallas Buyer's Club actually has one good point, and something I agree with: the new system will require ISPs to store their data in a defined way, which means they'll have to respond to the police with "do you have a warrant?" instead of "Oh, I'll try to find something for you, but there's no guarantee we even still have it." I think this is a GOOD thing, as people (and companies) will have to be more transparent as to what they will and won't do -- and hopefully this will also require LEOs to be more transparent with judges, citizens and corporations as well.
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This one has nowhere near the level of egomania the real one is demonstrating these days.
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Re: Hey-- infringement is a crime
In the context of this article Copyright Infringement when under the jurisdiction of Australian law is NOT a criminal act unless it can be proven beyond a reasonable doubt that the person(s) charged are using it for production and distribution in commercial quantities of TANGIBLE goods!
ie: the downloading of films, sounds, and other works by an individual even if constant and egregious cannot be classified as a criminal act (and this is also under the proposed TPP Glynn) unless that person then produces specific product for financial gain.
As for jail.. nope it's gaol here though it's extremely rare that even the criminal prosecution of commercial copyright infringers (there has only been a few) results in any period of incarceration and most likely results in a suspended sentence with a period of parole (or even just good behaviour)
Just because YOU and your agenda think something should be something doesn't mean it is no matter how much you jump up and down and act like a petulant child
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Re: Hey-- infringement is a crime
The others have covered the rest fairly well I'd say, but I just wanted to touch on this one a bit. You know what filing a false DMCA claim is supposed to be treated as? Perjury. That is something that absolutely does carry a jail sentence to it, unlike civil copyright infringement.
And yet, time after time after time you hear about clearly bogus claims being filed, on something that obviously is not the property of the one filing the claim, and none of them go to jail for it.
So then, my question is this: If you believe that those that infringe copyright deserve punishment, do you also believe that those that perjury themselves under the law attempting to stop copyright infringement also deserve to be punished for their actions?
If the 'pirates' deserve to go to jail for their actions, it would be only fair if the other side also faced punishment for their actions would it not? Personally I consider trying to silence someone by lying and claiming you 'own' something they've posted when you do not, to be more serious than copyright infringement, so it seems only fair that the punishment handed out to those that perjure themselves 'fighting piracy' be even more severe than those committing copyright infringement.
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Re: Hey-- infringement is a crime
Art.
/s
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Re: Hey-- infringement is a crime
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Re: Hey-- infringement is a crime
[citation required] Now that infringement has been stretched to singing Happy Birthday or listening to your radio in public, I'd be interested to learn exactly how that kills jobs for artists. Sharing this and that builds awareness and opens markets and opportunities for artists to connect with fans. Result: more jobs for artists.
And it can be a big crime. One person can easily supply more than a million copies of some movie, all the while pretending that he's only "sharing" them with close friends. If someone robs a million banks or hijacks a truck with a million DVDs on it, that's a serious crime.
Infringement is not theft. Get that tattooed to the inside of your eyelids. Now. Sharing movies on the internet becomes a thing when legal alternatives to getting the movie right now aren't available. We are not obliged to support outdated business models. Infringement reduces when viable alternatives exist. Try making your product available at a price your customers can afford, in formats they can use any time, anywhere. Mind you, sometimes the product is simply not popular enough to sell well. If people don't want it, that's your problem, not ours.
IT [sic] should be treated seriously. Only in your warped, GOOG-apologizing mind is it anything but a crime. So don't be surprised when the police actually treat it that way. These folks deserve to be in jail.
Other search engines link to infringeing material. The police should not be obliged to enforce an outdated business model, which is what infringeing about; people interpret licensing and distribution restrictions as damage and route around them. You know who belongs in jail? The people who bribe our politicians to make laws that only benefit themselves. And those politicians who whore themselves out to them.
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Re: Hey-- infringement is a crime
Piracy helps the world have a meaning to life, but what do you do? You just love servitude to capital. Piracy is a way of stopping this abject capital from spreading, so its fecking awesome.
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Re: Hey-- infringement is a crime
get your priorities straight, numbnuts, copyright violations are approximately 234697326660065 on the list of problems threatening the actual EXISTENCE of human beans on this planet...
you'd think it caused global climate change, kiddie porn, ebola, and all wars from the way you and KORPORATE SLIMEPIGS over-react to copyright issues...
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IP address
In Denmark, the government passed a data retention law requiring telco providers to store session logs of source, destination IP address, port number and the contents of every 500th IP packet.
The law did not catch a single criminal.
The law has also been used by anti-piracy organizations -- the copyright trolling lawfirm Johan Schlütter -- who was disciplined by the Law Society for ethics violations.
But the law is quite useless since the information does not establish the identity of the actual user.
Next step, change the law or legal precedent so that the subscriber is presumed responsible for any crime, unless he can prove his innocence.
In a very recent hacking case, a lower court convicted a user of hacking the police, because he as an expert had to be presumed responsible for illegal activity done from his computer.
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Governments have gone to great lengths to ignore things like murder, rape and corruption because a disc wasn't licensed or an IFPI clone wasn't a few dollars richer.
For them, copyright infringement takes top priority. Skewed priority, but top priority.
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sue every Aussie politician and civil servant
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