Warner Bros. And Rightscorp Argue That Copyright Trolling Is Protected By The First Amendment

Australian Court Says Dallas Buyers Club Copyright Trolling May Proceed, With Some Caveats

from the the-details-will-matter dept

Tue, Apr 7th 2015 11:33am — Mike Masnick

Late last year, we noted that Australian ISP iiNet -- well-known for pushing back against anti-consumer practices in both surveillance and copyright enforcement -- had decided to go to court to fight a copyright trolling attempt by Voltage Pictures, the Hollywood studio behind Dallas Buyers Club. Voltage Pictures has also made a name for itself as a major copyright troll, shaking down people around the globe and loudly insulting anyone who questions the strategy.

As iiNet explained at the time, it had no problem with going after copyright infringers, but it wasn't comfortable with the copyright trolling practice of "speculative invoicing" -- which is the nice term for shaking people down by sending them an invoice and telling them the only way to avoid a lawsuit is to pay up. iiNet basically said that it would turn over user information only if ordered by a court, which is the proper response. Even though, during the course of the court case iiNet raised serious concerns about Voltage Pictures' "expert" Daniel Macek (a name you may recognize as also being a key figure in Malibu Media's copyright trolling game via a variety of shell companies), the court has now said that iiNet has to turn over the info.

However, the court appears to recognize at least some of how copyright trolling works, and says that the shakedown letters sent to iiNet subscribers must "first be submitted [to the court] for approval." It remains to be seen what the court will approve concerning such letters, but at the very least, hopefully this will prevent the aggressive shakedown actions seen concerning Dallas Buyers Club/Voltage Pictures in other countries.

Also, it's worth noting that last month, another Australian ISP, TPG, announced plans to acquire iiNet (subject to regulatory review), leading many to (reasonably) wonder if iiNet was going to continue its pro-subscriber advocacy in the future. Given the strong efforts made by iiNet over the years to stand up for the rights of its customers, it would be a shame to see the new company turn into yet another ISP with little concern for its subscribers.

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Filed Under: austalia, copyright, copyright trolling, dallas buyers club, daniel macek, privacy
Companies: dallas buyers club llc, iinet, voltage pictures

22 Comments

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Anonymous Coward, 7 Apr 2015 @ 11:56am

"However, the court appears to recognize at least some of how copyright trolling works, and says that the shakedown letters sent to iiNet subscribers must "first be submitted [to the court] for approval." It remains to be seen what the court will approve concerning such letters, but at the very least, hopefully this will prevent the aggressive shakedown actions seen concerning Dallas Buyers Club/Voltage Pictures in other countries. "

If the court approves of the letter then will the next letter that is sent by DBC/VP be reveiewed by the court? If that second letter is not reviewed then DBC/VP could end up with threats, extortion etc. that wasn't in the first letter and so the reviewing by the court would be a complete waste of time.
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Anonymous Coward, 7 Apr 2015 @ 12:33pm

Eyes ---> you
It will be interesting to see if Voltage Pictures abides by the terms, or whether they will submit the letters to the court only after sending out some.

After all... if the recipients don't lawyer up, or if the lawyer isn't following this particular branch of the story, they might not get caught. A particularly observant court clerk *might* catch it, if it's in the same district, but it's a stretch.
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Kronomex, 7 Apr 2015 @ 3:04pm

Re: Eyes ---> you
I'm betting that a number of demands will "accidently" be sent out and the lawyers will be sad and contrite that this occurred and will promise to be more careful. And, anyway, we sacked the staffer who allowed this to happen.
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enjaysee (profile), 7 Apr 2015 @ 3:20pm

Piracy in Australia rates as one of, if not the, highest in the world.

Thanks to this decision, the next statistics will rate Australia as the highest VPN users in the world.
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Douglas Robbie, 7 Apr 2015 @ 3:49pm

Dallas Buyers Club
It appears that the Australian Court has stated that it is acceptable for commercial overseas interest can use spy ware developed in Germany to access Australian internet users accounts, demand users personal, location details etc., for the purpose of obtaining a financial advantage and putting the internet users at great financial risk through the cost of defence and possible penalties. Metadata laws were one thing. This is a massive attack on our privacy and independence. Copyright is one thing spying is another and demands immediate Government action to protect Australian citizens.
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charliebrown (profile), 7 Apr 2015 @ 4:18pm

TPG Customer Service
I was with TPG. Their service was OK but their customer service was abysmal, with overseas call centre operators who would parrot out a script ("Reboot your modem, while you're on the phone with us, or we won't talk to you!") then get stuck and send out a technician.

We jumped ship to Internode, who were a little more expensive but we figured it would be worth it. We have had almost no problems with the service and their customer service is the best in the world! A self-owned call centre full of people who know what they are talking about and very helpful and very friendly and not in the least bit patronising. If you want a lesson in customer service, they are a shining example.

Shortly after we joined Internode as our ISP, they were bought by iiNet, about a couple of months later. So far nothing has changed. But if TPG's customer service is anything to go by, God help iiNet's customers! We are rapidly turning into the U.S. in terms of how many ISP's we have available. In fact, many TPG customers joined iiNet or Intenode to get away from TPG and are now considering Telstra and Optus for their ISP's, something previously unimaginable.

So if TPG's customer service is anything to go by, all iiNet customers will soon be merely a cash cow with no care and little responsibility taken, if any.
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Critique, 7 Apr 2015 @ 4:29pm

Dallas Buyers Club
What little I saw of that particular movie was so bad (mind numbingly boring) that I would rather watch dead grass grow. As a movie, anyone who has downloaded it has just wasted their time, bandwidth, money and life-force on it.

Anyone who has actually watched it has reached the lowest depth's of American insensibility. The only phrase that I can think appropriate to this particular movie is "The Emperor Clothes are Not There".
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Craig Welch (profile), 7 Apr 2015 @ 6:11pm

Re: Re: Eyes ---> you
Voltage will be required to submit a [b][i]draft[/i][/b] of the letter.

I'm quite sure there will not be any 'accidental' letters. Australia is not the US.
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Craig Welch (profile), 7 Apr 2015 @ 6:13pm

Re: TPG Customer Service
Now that's off your chest, what does it have to do with the story?
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G Thompson (profile), 7 Apr 2015 @ 9:32pm

Re: Eyes ---> you
If they send ANY letters out before the court approves them they Voltage Pictures would be in direct violation of the orders and iiNet and the other ISP's involved would initiate contemptuous proceedings. Also the individuals that had been sent the letters could initiate action against the senders and also be exempted fully from any future actions against them.

It's a lose-lose for Voltage to not abide by the court here, oh and the monetary fines are immense for an organisation (they could even be brought up on criminal charges - though that would be highly unusual)
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G Thompson (profile), 7 Apr 2015 @ 9:35pm

Re: TPG Customer Service
TPG (which is Total Peripherals Group - interestingly I used to sell peripherals to them wholesale when they were two guys in a small shop in Sydney in 90's) are not buying or even considering buying iiNet anymore.
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That One Guy (profile), 8 Apr 2015 @ 12:53am

Re: Re: Eyes ---> you
While you may be right, I think you grossly underestimate their arrogance and greed.

It wouldn't surprise me in the least if a few 'accidental' letters were sent as the AC mentioned, with Voltage banking on a light slap of the wrist at worst if they get caught(you know, like what happens in the US when a copyright extortionist blatantly flaunts a court order).
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Craig Welch (profile), 8 Apr 2015 @ 11:07am

Re: Re: Re: Eyes ---> you
I'll say it again.

"I'm quite sure there will not be any 'accidental' letters. Australia is not the US".

Why do you think they would be so stupid as to go down a path which their Australian lawyers will advise them will ensure that they will then lose this case and lead to other sanctions from the Federal Court of Australia?
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Craig Welch (profile), 8 Apr 2015 @ 11:18am

Re: Dallas Buyers Club
1) What does it matter where the 'spy ware' was developed?

2) The Australian users' accounts have not been accessed.

3) The 'commercial overseas interest' [sic.] alleges copyright infringement. They are entitled to do so.

If I write a book and you re-publish it without permission, does it matter how I find out about it? Should I not pursue you for copyright infringement.

There are certainly arguments against the tactics used by the movie copyright holders. Let's make those arguments, instead of focussing on red herrings.
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That One Guy (profile), 8 Apr 2015 @ 12:11pm

Re: Re: Re: Re: Eyes ---> you
Because I've seen other copyright trolls act in just that fashion. A judge will tell them, 'Do not do X', they'll do X anyway, and in return they get nothing more than a 'No really, do not do X or I'm going to get mad and tell you not to do X again' from the judge.

Now, I'd certainly love it if the Australian courts actually had a spine when dealing with these kinds of parasites, but so far my experience has been that they will ignore court orders as much as they want, because they know nothing will happen to them as a result if they do.
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Craig Welch (profile), 8 Apr 2015 @ 12:31pm

Re: Re: Re: Re: Re: Eyes ---> you
Your experience with the Australian court system?
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That One Guy (profile), 8 Apr 2015 @ 2:40pm

Re: Re: Re: Re: Re: Re: Eyes ---> you
None, I'm basing my comments on how judges have responded to such activity in the US.

Like I said, I'd love it if the Australian judges were different, but so far it has seemed that the parasites can pretty much do whatever they like, and the legal systems just sit back and hand out sternly worded 'warnings'(that are then ignored) when the parasites get a little too blatant in their actions. I'd love to be proven wrong, but experience doesn't exactly inspire me to think I will be.
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G Thompson (profile), 8 Apr 2015 @ 10:29pm

Re: Re: Re: Re: Re: Re: Re: Eyes ---> you
My experience of the FCA Judges leads me to believe they would very much throw the book at them if they were as idiotic as going against any part of the courts orders.
This case has been ALL over our media and has caused a lot of interest to be back into the stupidity that is copyright in Australia.

It's quite telling when even law professors are now getting on main news channels and stating that even if the letters were approved by the court Australians should basically ignore them anyway since there is NO criminality involved here.

I for one have had numerous clients question me personally now on the implications of this case.

Voltage Pictures whole case would be destroyed if they even had one letter go out before a court approves it, and then they have the problem that they can not send further letters either due to our very onerous privacy restrictions here and lets not forget its a loser pat system here in Aust for civil cases. the MPAA found that out the hard way with iiNet :)
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G Thompson (profile), 8 Apr 2015 @ 10:35pm

Re: Re: Dallas Buyers Club
True, though this does not dissuade any criminal investigation being commenced (or maybe already running) into whether or not Voltage Pictures, the German company, Daniel Macek, and/or Australian investigators wconsulting for the above have breached Australian Telecommunications or other numerous laws.

Though if any criminal investigation concludes that so called evidence was obtained criminally then that evidence's reliability is brought into question and is extremely tainted. It doesn't mean the evidence cannot be used, it just means that that evidence is going to need a lot more supporting evidence to back it up
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Craig Welch (profile), 9 Apr 2015 @ 1:05pm

Re: Re: Re: Re: Re: Re: Re: Eyes ---> you
I'll add a further point. Voltage does not have the names and addresses. The Judge said that privacy would be protected, but not how. No doubt he will elaborate on that when he actually issues his rulings. It could well be that Voltage have to produce the letter for approval, but it gets sent by an escrow service. We'll know in a couple of weeks.
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Eth, 10 Apr 2015 @ 1:41am

Re:
Piracy in Australia rates as one of, if not the, highest in the world.

If you are wondering why this is, the woeful release dates for both TV series and films in this country contributes greatly to it.

Factor 2 is the local price gouging for downloadable content and pay TV. If you can get it in the US for $10, why do we have to pay sometimes double or more for the same thing here?

If Voltage wants people to play fair, instead of looking into the intricacies of the Australian legal system, why don't they spend their hard earned on fixing both the issues above?
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2xv4, 20 Oct 2015 @ 10:33pm

The main issue with PCAP timestamps
Apparently the main issue was regarding timestamps in captured files (.pcap) that computer expert was unable to answer. This technical aspect of the evidence has been explained by one of the AU Computer Forensic Company: https://www.elvidence.com.au/understanding-time-stamps-in-packet-capture-data-pcap-files/
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