Apr 15, 2015

Illegal Downloads and Film Piracy - Dallas Buyers (or rather not to buy) Club

All too often film viewers avoid paying for films and download what they want to watch, when they want to watch it, in contravention of the law.  A recent landmark Australian decision makes some interesting points in relation to the illegal downloading of films, in this case the Hollywood hit, Dallas Buyers Club.

Australian law does not criminalise the illegal downloading of movies.  However, there are civil rights of recovery from those who have illegally downloaded films and film makers and producers pursue this form of recovery in the alternative.

In the landmark ruling, some of Australia's largest internet service providers ("ISP's") (including iiNet, Internode and Amnet Broadband) were forced to hand over the names and addresses of 4,726 Australian users who allegedly shared the film on filesharing services including BitTorrent.

The ISP's, in particular iiNet, fought to keep the details of their customers secret but were unsuccessful.

Gathering the Details of Users

Voltage Pictures, the claimant in the case, used software called Maverik Monitor, which mimics the offering of a movie online without actually providing it, instead recording the details of who intends to download the work before dropping the connection.

A witness who operated the Maverik Monitor software was a part-time employee, someone else wrote his affidavit for him and he wasn't completely sure how it worked, only how he had to use it.  iiNet called into question the reliability of the tool but weren't able to establish sufficient doubt about it's abilities and/or reliability.

The Judge was of the view that the "attacks" on the credit of the witness had no substance, considering the cross-examination to be "largely of entertainment, as opposed to forensic, value".

Speculative Invoicing

The case highlights a variation on copyright settlement called "speculative invoicing".  This is one method the film industry has been using to enforce their rights and receive compensation but which can avoid adverse publicity and the corresponding damage to their brand.

Under the model, rights holders sign up to unauthorised file sharing mediums and make their product available.  They then record information such as the IP address of who tries to download it - in this instance Voltage used Maverik Monitor (see above). The problem with this is that IP addresses are not one-to-one mappings for customers and rights holders need the ISP's to either volunteer or be compelled to provide the names and addresses of their customers using those IP addresses at those times.

When those details are handed over, the rights holder knows whom they should 'target' which normally takes the form of a letter setting out their rights and the potential costs involved, but offering to waive their rights if the person making the illegal download pays a "settlement fee".

In the US, aided by American ISP's, Voltage's attorneys have been lining up names and IP addresses of people who had illegally downloaded the movie and filing suit against them citing a 1976 statute that allows for a fine of up to $150,000. The alleged pirates largely settled out of court for around $5,000 each, but occasionally for more.

During the case, iiNet's lawyers accused Voltage of using letters to threaten those who had infringed its copyright into making settlements.

In a final twist the Court, rather than the rights holder i.e. Voltage, will now assess what form the remedy will take amid fears that Voltage used "scare tactics" to bully settlements from suspected pirates.  "I will also impose a condition on the applicants that they are to submit to me a draft of any letter they propose to send to account holders associated with the IP addresses which have been identified," justice Nye Perram said.

Another stipulation of the ruling was the the identities of the alleged pirates remain confidential.

For information on illegal downloads and streaming see our previous article on streaming TV channels/programmes in the UK and EU.

in: Case Law, Companies, Copyright, Digital/Tech, News

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