Australian ISP Promises Free Lawyers For Targets Of Copyright Trolls
from the good-move dept
iiNet, the second biggest ISP in Australia, has been a bit of a magnet when it comes to BitTorrent lawsuits. In 2008 they were sued by the Australian Federation Against Copyright Theft (AFACT) for failing to prevent its subscribers from infringing copyright via Bittorrent, a case it won, as the court found it was not iiNet's responsibility.
In late 2014, Voltage Pictures – the company behind Oscar winning movie 'Dallas Buyers Club' – started proceedings against Australian users it accused of downloading its movie, just as it has in both the US and Canada. The alleged Australian infringements all occurred between 2 April 2014 and 27 May 2014.
iiNet refused to hand over the account details of the 4,726 IP addresses demanded by Voltage, and took it to court, where, in early April, the judges sided with Voltage. However, in a massive blow to Voltage, they required that any letters sent out to people be approved by the court, undermining the key tactic of exaggerating claims in these kinds of cases. Most such cases rely on threatening significant damages at court in order to 'encourage' the recipient to settle, but Justice Perram has indicated that the damages could be as low as AU$10 (US$8), although there could be significant court costs as well.
Now iiNet has dealt Voltage another blow, announcing in a blog post:
If you do receive a letter you may want to get legal advice. iiNet is working with a law firm that has offered to provide pro-bono services for any of our customers
This would be a major setback to the speculative invoicing model used by Voltage, which relies on the high potential damages, plus the significant cost of defending a case (greater than the settlement demanded) to ensure a steady revenue stream. With the court restricting the intimidating language, and the offer of free legal counsel to defend the cases, it may end up being far more costly for Voltage to pursue claims than they can hope to recoup.
And while iiNet has jumped to the defense of its customers in this way, it may not be alone. The M2 group has also indicated it may provide pro-bono legal assistance in similar cases, although they have refused to commit prior to a court hearing on May 21st when a date for the transfer of customer information will be agreed.
It is not looking like Australia will be a fruitful venue for copyright trolls.
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Filed Under: australia, copyright trolls, lawyers, legal help, pro bono
Companies: iinet, voltage pictures
Reader Comments
The First Word
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First, it's not "extortion" if the content was viewed.
Second, "iiNet has dealt Voltage another blow" makes the ISP a partisan co-conspirator. An ISP doesn't want to annoy its customers is obvious and reasonable motive, sure, but actively objecting to court orders and in any degree helping its customers to infringe goes well beyond lawful. I say this makes IINet an accessory if any of the cases are run through, so Voltage should pick the top infringers and get a conviction, then go after the deep pockets of the ISP...
Third, you pirates just love that it's difficult to enforce copyright, but that's the only reason you get away with your thefts. You have no more moral standing than rats. Tricks like this from ISPs will likely be bring increased statutes so that we all suffer.
Since copyright is valid under common law and statute, ALL corporations -- which are legal fiction permitted to exist so long as serve the public, not persons with natural rights such as controlling copies -- have some positive duty to suppress infringement, or at very least not HELP infringers.
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Re: First, it's not "extortion" if the content was viewed.
> the ISP a partisan co-conspirator.
No. It just means they have an interesting in helping their customers. iiNet hasn't done anything illegal.
> actively objecting to court orders
Are you saying there is something wrong with this? Ordinary legal process.
> helping its customers to infringe
ISP's don't help their customers infringe. They merely provide a connection to the internet. Otherwise, the electric utility also helps customers infringe in the very same way as ISPs do.
ISP's can help their customers get due process, and there is nothing wrong with that.
But we all know how you feel about due process.
Guilty as accused! Off with their heads!
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Re: Re: First, it's not "extortion" if the content was viewed.
> actively objecting to court orders
Are you saying there is something wrong with this? Ordinary legal process."
Yeah, by that logic defense attorneys "help their clients break the law". What a load. Typical.
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Re: First, it's not "extortion" if the content was viewed.
in any degree helping its customers to infringe goes well beyond lawful.
*hands blue some rope with which to hang himself*
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Re: Re: First, it's not "extortion" if the content was viewed.
You can't:
- show an actual download
- let alone identify the downloader...
The math if this is that AT BEST they are targeting the right person around 10% of the time - probably less.
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Re: First, it's not "extortion" if the content was viewed.
Don't take my word for it, take the word of Federal Appeals Court Judge Pregerson, who called it extortion (a good dozen times, in fact) earlier this month.
When you demand money 'or else', that's extortion. These cases use the court as an 'or else', but refuse to follow through. Their refusal to undertake the full legal process, and just leave it as a threat makes it extortion.
As for the second point, it follows from the first. A company that is attempting to make money from extortion is quite rightly being dealt a blow. If they were legitimately concerned with enforcing copyright, they'd be all for pursuing the case to its conclusion, must as Capitol V Thomas or Tennenbaum did. They don't, in fact they deliberately shy away from doing so, showing it's just an attempt to make money, through threats. I think that's quite rightly been dealt a blow.
Finally, your third point about 'duty to suppress infringements', is kinda true, but only for PROVEN infringements. Otherwise, it's just a baseless accusation. Now, what iiNet also knows is that such cases are expensive and that they're often too expensive to contest for the average person, plus it's specialist law. All companies also have a duty to generate profit, and as a member of society, the rule of law and justice'. In standing up for its customers in what it feels like a perversion of justice, they're making the company prove their accusations of infrignement before they demand enforcement (which would be costly for iiNet) as well as a positive PR move for the ISP, which will encourage customers.
in short, your claims make 3 assumptiosn - Voltage is concerned about stoppin infringement, that their accusations are flawless, and that requiring voltage to actually prove their infringements in court is somehow aiding infringement.
The reality is that Voltage has stated it's not about infringement, but money. Their evidence is notoriously bad, unreliable and at best flimsey, and finally if you're going to make a threat through the courts, you'd best be able to back it up, and an assisting people in proving that is not 'helping infringes', as if they have proof of infringement, then it's still going to be found as such in court.
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Re: Re: First, it's not "extortion" if the content was viewed.
You need to be looking at Australian law here buckaroo, otherwise you risk being irrelevant.
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Re: Re: Re: First, it's not "extortion" if the content was viewed.
Anyway, let's look shall we?
18 UCS §875(d)
highlighted the appropriate section.
Wonder what Aussie law says. Let's look shall we?
Let's look at Section 415 of the criminal code of Queensland
Yep, looks like it's basically the same, if not broader.
How about New South Wales?
Pretty much the same (don't have a citeable reference, only the text of the 2007 Crime Amendments bill).
Now, if the threats in the lawsuits were CREDIBLE (they're not, which is why they've backed off from pursuing them when a fight is made) or if it wasn't made with Menace (defined as "A threat against an individual does not constitute a menace unless:
(a) the threat would cause an individual of normal stability and courage to act unwillingly in response to the threat, or
(b) the threat would cause the particular individual to act unwillingly in response to the threat and the person who makes the threat is aware of the vulnerability of the particular individual to the threat.". They specifically dismiss cases against some people to avoid part b there) then they wouldn't be extortionate, but they are. And the credible and menacing aspects were also why the courts wanted oversight of the letters.
So yeah, looking at the facts of the cases, comparing them to the laws, yep, 'extortion' still pretty much fits the bill.
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Re: Re: Re: Re: First, it's not "extortion" if the content was viewed.
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There's ways to enforce copyright without having to resort to extortion. You could, for instance, litigate the case, rather than trying to intimidate settlements. See, it's the intimidating settlements bit that makes it extortion, nothing else, as the statutes clearly show.
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Re: Re: Re: Re: Re: Re: First, it's not "extortion" if the content was viewed.
(1) A person (the demander) who, without reasonable cause, makes a demand—
Oops, I meant reasonable cause.
though a quick search turned up this....
"A v STATE OF NEW SOUTH WALES AND JOHN FLOROS
Succumbing to pressure to lay a charge with no reasonable and probable cause constituted a malicious prosecution, the High Court of Australia held today."
There it is in NSW. Go figure
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Re: Re: Re: Re: Re: Re: Re: First, it's not "extortion" if the content was viewed.
It holds no relevance in this matter whatsoever and there are far more relevant cases dealing with extortion and what reasonableness within that context is. Also if you are going to cite cases at least get them correct
A v State of New South Wales [2007] HCA 10 [ found at http://www.austlii.edu.au/au/cases/cth/high_ct/2007/10.html ]
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http://www.judcom.nsw.gov.au/bench-books
The Civil trial and the crim trial ones are probably best
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BTW, nice to have an Aussie Digital forensic consultant to backcheck me; i'm pretty decent with US and UK law (one being where I am, the other being where I'm from) but I'd never really looked at the law in Foreecks, glad I wasn't too far off the marker.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: First, it's not "extortion" if the content was viewed.
On the criminality structures, well our Crimes Act is originally mostly plagiarised from the UK Acts (it was written originally way back in 1914 when "God Bless the Ruling Monarch" was our Anthem LOL) so other than some things that are different, mostly from after 1976 when the Privy council was removed as our highest arbitrator the basics are the same.
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You want maximum penalties under the law, you're going to work for it.
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Re: Re: Re: First, it's not "extortion" if the content was viewed.
And the Australian courts take on board absolutely what American courts have stated obiter or otherwise in cases like this. In fact the Judge in this instant has specifically talked about other cases IN THE USA.
your move...
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Re: First, it's not "extortion" if the content was viewed.
Its up to Voltage to prove the specific person being sued is the individual who was pirating.
Some of the defendants likely are pirates.
Some of them might have had their wifi hacked and the hacker is responsible. ( If someone will use their neighbors wifi to download child porn I am sure some of them pirate on their neighbors wifi too.)
It could even be a friend that used your wifi to pirate. You let your buddy use the wifi with his laptop and the buddy is the one that bad bittorent running.
When it costs more to defend yourself then it does to settle the claim, its extortion.
If you live paycheck to paycheck like the majority of people what you gonna do? Defend yourself paying a lawyer $thousands or pay a $200 settlement?
Even innocent people will pay the settlement because its the only way they can possibly make ends meet.
These copyright trolls are no better than the mafia.
"Yea we know you could pay Benny there $1000 to protect yourself from us, but if you just pay us $500 we will refrain from busting you up and you won't need Benny"
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Re: Re: First, it's not "extortion" if the content was viewed.
Assuming competence and accuracy on the data itself is dangerous, even before you get to the real issues with the tactics being used to use it and the very real claims of innocence that are applicable even to valid data.
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Re: First, it's not "extortion" if the content was viewed.
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Re: First, it's not "extortion" if the content was viewed.
They are not irrelevant. They mean the person being targeted may well not be guilty even if the content WAS viewed by someone.
Techdirt's coverage on the matter does not make iiNet a co-conspirator, partisan or otherwise.
*Alleged* infringers. And it's a corporation that's making the allegations against actual people, so I'm not sure this argument helps you. If one accepted your premise of an active duty for corporations to protect the rights of individuals, then one must conclude that this ISP is behaving EXACTLY CORRECTLY by protecting its customers by making sure the demand letters are approved by a court and by making sure the customers have legal representation.
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You want maximum penalty, you'd better prepare for innocent people to fight it, especially when your supposed evidence isn't worth the toilet paper it's shat on.
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Re: First, it's not "extortion" if the content was viewed.
OK, explain how they know the content was viewed. They don't even know the identity of the people they're suing yet, how in hell do they know what happened with the file they claim was downloaded?
It would still be extortion given the tactics used and the amount being claimed, but you've just claimed a scenario that requires knowledge Voltage cannot possibly have.
"Third, you pirates"
Yet again, attacking fictional strawmen does not help you make your case, even if you were able to do it without lying about the audience you're addressing.
"Since copyright is valid under common law and statute"
As are concepts like due process, punishments proportional to the crime, assumption of innocence before guilt and all the things you people love to pretend don't exist when you're afraid someone hasn't paid you. But, it's OK to trample over other peoples' rights when you want money, right?
"have some positive duty to suppress infringement, or at very least not HELP infringers."
So why do they use tactics like this rather than use the proven business methods that reduce piracy?
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Re: First, it's not "extortion" if the content was viewed.
The ISP is not a co-conspirator or whatever of what weird conspiracy theory you have concocted. Since they have NOT objected to the court orders and are working WITH the court.
iiNet are helping there customers under what they consider to be a strategic and ethical stance in their Corporate Social capacity (something a lot of other companies should start doing)
Your last paragraph though shows even moreso how idiotic and wrongful your ideas actually are since corporations are PERSONS (not natural persons) and can own property, copyrights, and have a responsibility to the common good.
Personally I think iiNet has given a mighty 'comatmebro" to Voltage Pictures and anyone else that thinks they can make a business out of speculative invoicing in Australia. Oh and remember loser pays here.. and most solicitors will not do pro-bono work unless they have a good chance of winning. As they do in this case
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Damn, wish I lived in Australia now just to use their service :)
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A Pyrrhic victory at it's finest
They're in it to shake down accused pirates, nor protect their copyrights or punish the guilty, and if the most they can get is a couple of bucks, and they know they can't just frighten their targets with scary and confusing legal threats into 'settling' for ridiculous amounts, I doubt they'll bother.
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