Australian ISP Promises Free Lawyers For Targets Of Copyright Trolls

from the good-move dept

Wed, May 20th 2015 9:23am — Andrew "K'Tetch" Norton

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

36 Comments

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YOU WOULDN'T DOWNLOAD A LAWYER!

—Anonymous Coward

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Ninja (profile), 20 May 2015 @ 8:22am

You know, I've never seen any Voltage movies but in my view (that is shared by others) if they feel the need to extort money out of people then I don't need to watch any of them because they must be so shitty that they made little money so the company turned to trolling. I mean, you see anti-piracy efforts for huge hits like the Avengers but they don't rely on petty schemes like this. And it usually comes from the MAFIAAs of the world, not the studios themselves.
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Anonymous Coward, 20 May 2015 @ 9:58am

YOU WOULDN'T DOWNLOAD A LAWYER!
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Anonymous Coward, 20 May 2015 @ 10:11am

TorrentFreak has a story today about Voltage Pictures being sued for copyright infringement: http://torrentfreak.com/voltage-pictures-sued-for-copyright-infringement-150520/
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Anonymous Coward, 20 May 2015 @ 10:15am

First, it's not "extortion" if the content was viewed.
Yes, you can claim IP isn't identity and the other usual excuses which are irrelevant to my statement.

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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DannyB (profile), 20 May 2015 @ 10:23am

Re: First, it's not "extortion" if the content was viewed.
> Second, "iiNet has dealt Voltage another blow" makes
> 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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Anonymous Coward, 20 May 2015 @ 10:29am

iiNet FTW.

Damn, wish I lived in Australia now just to use their service :)
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Anonymous Coward, 20 May 2015 @ 10:30am

what a shame other nations didn't have companies that were concerned enough about them to help! rather, they go the other way, as in the UK, Sweden, for example, and do almost everything imaginable to help the entertainment industries, regardless of whether there cases are bona fide or fishing expeditions!
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Just Another Anonymous Troll, 20 May 2015 @ 10:34am

Re: First, it's not "extortion" if the content was viewed.
If your Hollywood paymasters stopped making videos, piracy would decrease. Therefore, Hollywood is supporting piracy and therefore breaking the law. You say so yourself.
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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Andrew (profile), 20 May 2015 @ 10:38am

Re: First, it's not "extortion" if the content was viewed.
First, it IS extortion.
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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Anonymous Coward, 20 May 2015 @ 10:38am

Re: First, it's not "extortion" if the content was viewed.
Everyone deserves their day in court.
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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DannyB (profile), 20 May 2015 @ 10:43am

Re:
Hey, Australia may have iiNet, but at least the US has Comcast.
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James Burkhardt (profile), 20 May 2015 @ 10:46am

Re: First, it's not "extortion" if the content was viewed.
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.
Ignoring the assertion that copyright is a 'natural right' that corporations can't have and the distinction of rights that doesn't exist in common law or statute, You are wrong. Nothing in copyright law requires imposes a 'positive duty' to enforce copyright law. Common law and statute are very clear on that point, and the courts have made that very clear.

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...Actively objecting to court orders is certainly lawful, and expected of any company respecting your privacy. Remember, the customers have not yet been proven to have committed any crime, and therefore are presumed innocent (Australia does hold to this principle). iiNet is arranging for pro-bono legal council to help people understand the legal missives being sent to them. In no way is that helping the customers infringe. What it does do is help iiNet's customers understand the merits of Voltage's case, and help them judge if settlement is the correct action. In no way does that make iiNet an accessory to an actual infringement case. Even if the lawyer helps an actual infringer in an illegal manner to avoid the penalties of infringement, iiNet could only be held partially responsible if they instructed the lawyer to do so. And here is where the IP is not identity statement IS applicable to your argument. Because that means customers innocent of the copyright accusations levied against them CAN exist, and so we have to run with the assumption that they DO exist, and therefore getting pro-bono assistance to these people is a great public service (and accordingly help develop goodwill). Or do you think that allowing Voltage to coerce a settlement from someone who does not understand the law and/or is scared of a lawsuit from the deep pocketed corporation is a valid use of copyright?
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Anonymous Coward, 20 May 2015 @ 11:22am

Re: Re: First, it's not "extortion" if the content was viewed.
Tell me how could you POSSIBLY tell whether 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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Hephaestus (profile), 20 May 2015 @ 11:50am

Re:
If this was an MPAA style lawyer, of course I would. I would then hog tie, strip naked, tar, feather, and then drop the downloaded, and printed lawyer, in a men's prison.
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Just Another Anonymous Troll, 20 May 2015 @ 11:58am

Re: Re: Re: First, it's not "extortion" if the content was viewed.
AC, methinks you replied to the wrong comment.
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Anonymous Coward, 20 May 2015 @ 12:11pm

Re: Re: Re: Re: First, it's not "extortion" if the content was viewed.
ahh.. true!
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Anonymous Coward, 20 May 2015 @ 1:52pm

Re: First, it's not "extortion" if the content was viewed.
Yes, you can claim IP isn't identity and the other usual excuses which are irrelevant to my statement.

They are not irrelevant. They mean the person being targeted may well not be guilty even if the content WAS viewed by someone.

Second, "iiNet has dealt Voltage another blow" makes the ISP a partisan co-conspirator.

Techdirt's coverage on the matter does not make iiNet a co-conspirator, partisan or otherwise.

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.

*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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That One Guy (profile), 20 May 2015 @ 2:16pm

A Pyrrhic victory at it's finest
Sure they may have 'won' in court, but between not being allowed to send out the standard ridiculously overblown threat letters, and their targets having access to legal advice, I imagine they're just going to drop the matter as not profitable enough for their time.

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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Anonymous Coward, 20 May 2015 @ 3:38pm

Re: Re: First, it's not "extortion" if the content was viewed.
"take the word of Federal Appeals Court Judge Pregerson", take it where? To Australia?

You need to be looking at Australian law here buckaroo, otherwise you risk being irrelevant.
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Andrew (profile), 20 May 2015 @ 5:16pm

Re: Re: Re: First, it's not "extortion" if the content was viewed.
You know what, I think the judges might well take 'judicial notice' of it (and have).

Anyway, let's look shall we?
18 UCS §875(d)
Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.

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
415 Extortion
(1) A person (the demander) who, without reasonable cause, makes a demandâ€”

(a) with intent toâ€”
(i) gain a benefit for any person (whether or not the demander); or
(ii) cause a detriment to any person other than the demander; and
(b) with a threat to cause a detriment to any person other than the demander;
commits a crime.

Maximum penaltyâ€”

(a) if carrying out the threat causes, or would be likely to cause, serious personal injury to a person other than the offenderâ€”life imprisonment; or
(b) if carrying out the threat causes, or would be likely to cause, substantial economic loss in an industrial or commercial activity conducted by a person or entity other than the offender (whether the activity is conducted by a public authority or as a private enterprise)â€”life imprisonment; or
(c) otherwiseâ€”14 years imprisonment.
(2) It is immaterial thatâ€”

(a) the demand or threat is made in a way ordinarily used to inform the public rather than a particular person; or
(b) the threat does not specify the detriment to be caused; or
(c) the threat does not specify the person to whom the detriment is to be caused or specifies this in a general way; or
Exampleâ€”
a threat to cause a detriment to the public or any members of the public
(d) the detriment is to be caused by someone other than the demander.
(3) A reference to making a demand includes causing someone to receive a demand.

(4) A reference to a threat to cause a detriment to any person other than the demander includes a statement that gives rise to a threat of detriment to the other person.

(5) A prosecution for an offence in which it is intended to rely on a circumstance of aggravation mentioned in paragraph (a) or (b) of the penalty can not be commenced without the consent of the Attorney-General.

(6) In this sectionâ€”

threat includes a statement that may reasonably be interpreted as a threat.

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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Anonymous Coward, 20 May 2015 @ 5:48pm

Re:
Aw, looks like someone just took your advocacy for maximum penalty and told you to go suck it.

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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Anonymous Coward, 20 May 2015 @ 6:38pm

Re: Re: Re: Re: First, it's not "extortion" if the content was viewed.
But if Voltage has your IP address then they've got "probable cause".
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Andrew (profile), 20 May 2015 @ 7:12pm

Re: Re: Re: Re: Re: First, it's not "extortion" if the content was viewed.
Sorry, probable cause is an American thing, not an Aussie thing. Oh, and it's an American CRIMINAL thing.

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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Anonymous Coward, 20 May 2015 @ 7:50pm

Re: Re: Re: Re: Re:
You keep wanting randomly generated IP addresses to magically mean you get to sue whoever you like without scrutiny. Sorry, blue boy, that's not how the law works.

You want maximum penalties under the law, you're going to work for it.
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Anonymous Coward, 20 May 2015 @ 7:58pm

Re: Re: Re: Re: Re: Re: First, it's not "extortion" if the content was viewed.
415 Extortion
(1) A person (the demander) who, without reasonable cause, makes a demandâ€”

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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PaulT (profile), 21 May 2015 @ 12:45am

Re: First, it's not "extortion" if the content was viewed.
"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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PaulT (profile), 21 May 2015 @ 1:05am

Re: Re: First, it's not "extortion" if the content was viewed.
You forgot a few other valid reasons why the claim might be incorrect. The kinds of people have logged the wrong IP before and/or the wrong time (meaning that the IP was assigned to a different customer to the one who downloaded), they have claimed that file with a similar name was infringing when in fact it was a legal download, they have claimed that devices incapable of downloading torrents were doing so.

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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G Thompson (profile), 21 May 2015 @ 1:09am

Re: First, it's not "extortion" if the content was viewed.
Until you actually learn about Australian Law, you will always be in my eyes a complete and utter fool and idiot.

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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G Thompson (profile), 21 May 2015 @ 2:20am

Re: Re: Re: First, it's not "extortion" if the content was viewed.
Oh Australia calls what Voltage Pictures and other speculative invoicers extortion as well.

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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G Thompson (profile), 21 May 2015 @ 2:29am

Re: Re: Re: Re: Re: Re: Re: First, it's not "extortion" if the content was viewed.
That case was in relation to a CRIMINAL matter. Also it was in regards to malicious prosecution by an LEO and NOT in NSW but instead in High Court of Australia where the State of NSW was the respondent.

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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Anonymous Coward, 21 May 2015 @ 2:48am

Re: Re: Re: Re: Re: Re: Re: Re: First, it's not "extortion" if the content was viewed.
The case was by the by, I was just looking for the term "probable cause" used in an Australian court
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nasch (profile), 21 May 2015 @ 6:12am

Re:
Not sure you want to judge the quality of a movie by the amount of money it made...
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Anonymous Coward, 21 May 2015 @ 2:52pm

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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G Thompson (profile), 21 May 2015 @ 3:50pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: First, it's not "extortion" if the content was viewed.
In that case the relevant Bench Books are probably a better guide. I cannot link directly to the html (due to agree cookies being used.. they are free) but there is both pdf and html versions of each one available (NSW only these.. but criminal and civil is very similar except for some things like voir dire between states)

http://www.judcom.nsw.gov.au/bench-books

The Civil trial and the crim trial ones are probably best
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Andrew (profile), 21 May 2015 @ 9:41pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: First, it's not "extortion" if the content was viewed.
Yep, when I was looking for the NSW extortion statute, I found the bench book first, and it was pretty clear that standard (c)trolling would be extortion.

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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G Thompson (profile), 21 May 2015 @ 10:22pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: First, it's not "extortion" if the content was viewed.
No worries Andrew and UK law is more geared towards our structures since we are part of the Commonwealth especially in regards to common law torts. UK rulings guide our courts more than US ones.

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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