Illicit downloading: How the Dallas Buyers Club case will affect you
April 8, 2015 - 4:52PM
If you're an iiNet, Internode, Dodo or Adam Internet customer with a love of Hollywood movies there's a chance you are worried about legal threats coming in the mail.
If you're an iiNet, Internode, Dodo or Adam Internet customer with a love of Hollywood movies there's a chance you are worried about legal threats coming in the mail. Photo: Pinnacle Films
The Dallas Buyers Club case is a tipping point for online piracy in this country, with the balance of power shifting from the ISPs and end users back to the rights holders. In one year's time I expect illicit downloads will be down by half.
This has profound implications for internet users, but, as outlined below, the judgment leaves wriggle room for downloaders - particularly those who don't use BitTorrent - to obtain pirated content. The unreliability of the data and the difficulty of linking IP addresses to individual people will also make cases difficult for rights holders to run in court.
What does this mean for downloaders?
This case sets a precedent in Australia for ISPs to hand over customer details to rights holders. It is a huge issue for illicit downloaders because it now makes it more difficult to download content in secret. The film industry saw the music industry get smashed by piracy and they do not want to go the same way.
The enforcement strategy of the rights holders is two-fold. Part one of the strategy is to go hard on people with enforcement letters (speculative invoicing) and part two of the strategy is a new code that has been proposed to the Australian Communications and Media Authority by rights holders and ISPs.
On February 20, a joint body that includes Australian rights holders and ISPs released a draft code in relation to online piracy. Under the code, the ISPs would issue three warnings to their customers before the rights holder could apply for access to a customer's details. The code would streamline the discovery process in court for rights holders to enforce their rights as ISPs would much more readily give the details of their customers directly to the rights holder without much of a fight. This code would not work retrospectively, but the message is clear - this is a tipping point. Illicit downloaders can now be traced and your personal information handed over to rights holders and their lawyers.
Who is being targeted?
At this stage, only users on the BitTorrent platform are being targeted. Users who share files (known as seeders) or "make available online" files and content that infringe copyright are liable.
It's not a defence to argue you shared the content unintentionally or by accident - if you install a BitTorrent client and it shares a sliver of a file, you can be targeted.
How do you get caught if you don't seed?
Maverick Eye (the technology that tracks illicit downloads) works by pretending to be a BitTorrent user and requests files. It then traces the file to its original source and records the IP address that is "making available online". iiNet argued that "slivers" of files shared peer-to-peer using BitTorrent were not substantial and therefore not copyright infringement. But the judge ruled only a "sliver" of file (a few bytes) needed to be shared for copyright to be infringed. Therefore, it is only sharers who are liable ... However, most BitTorrent programs automatically default users to seeders and often require and encourage all user to share files. More often than not you will be a "leecher" and a "seeder".
Can they prove that an individual downloaded the content?
They will struggle to prove you actually downloaded it, especially if there is more than one person in your house. Under Australian law, internet users are not required secure their internet connection (for example their Wi-Fi). Therefore it can be argued that another individual downloaded the infringing copyright. Where it gets complicated is that, according to Steve Dalby, iiNet's former chief regulatory officer, "Most of the agreements state the account holder is responsible for the use of the account."
There is still doubt as to how the IP addresses of the downloaders was collected. Dallas Buyers Club LLC hired German-based company Maverick Eye UG to track the users. Maverick Eye technology targets BitTorrent "seeders" (users who allow others to download pieces of a complete file), rather than "leechers" (users who only download pieces and do not share). Posing as a BitTorrent user, Maverick Eye invites a seeder to share a piece of the file with their server, and then matches that file against any copyrighted film.
Under examination in court, iiNet's lawyer suggested that the system is not always accurate. It was said that between the time that Maverick Eye assembles the data on its system and when that data is shared by another user, the IP address associated with the packet of data could have changed.
The inability to prove which individual accessed your internet connect coupled with the unreliability of IP information from Germany will mean that proving illicit downloading will be difficult.
What is speculative invoicing?
One of the main concerns of the judge in the case was the use of speculative invoicing. Speculative invoicing is a practice not yet seen in Australia to a great extent. The practise has caused significant problems in the US and UK where it has been widely used by rights holders and their legal representatives.
In the US and UK rights holders engage in the mass distribution of template style letters of demand to suspected infringers. These letters are used to exert pressure on infringers to 'pay-up or else'. In the US these letters are sent demanding $US7000 (claiming they could get $US150,000 if it went to court) and people paid the $US7000 because they were fearful of how much a court case would cost.
But these letters may have little legal effect under Australian law.
In Australia, if the downloading was for private or domestic use, damages are generally compensational as opposed to punitive. This means that the correct calculation of damages would be based on the amount that the rights holder would have received if the infringing content was purchased legally. The Dallas Buyers Club film is currently available on iTunes for $14.99.
This means the rights holders wouldn't get $US7000 - they would get the $14.99 fee that should have been paid legally (actually less, as the producers have to give Apple 30 per cent of the $14.99).
The Federal Court has ordered that any letters to be sent by the rights holders are to be received by the court before they are sent to the suspected infringers. It is hoped that this will lower the risk of "pay-up or else" tactics being used.
Dominic Woolrych is a lawyer and Legal Product Manager at LawPath. LawPath has over 600 specialists lawyers around Australia including leading technology and Intellectual property lawyers.
http://www.smh.com.au/digital-life/...lub-case-will-affect-you-20150408-1mgj63.html
Well China are no different but they always conveniently left her out. 
