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Telecommunications - Written by Renai LeMay on Saturday, October 1, 2011 14:29 - 77 Comments
US-style mass piracy lawsuits come to Australia
news Thought AFACT was the only game in town when it came to enforcing copyright in Australia? Think again. Another front has opened up in content holders’ war on file sharing, with a new and separate firm named ‘Movie Rights Group’ proposing to engage in mass legal action against thousands of individual Australians who have allegedly pirated content in the past 12 months.
The company’s existence first came to light today as a result of a blog post published this week by John Linton, the chief executive of national broadband provider Exetel. Linton noted that US film distributor Lightning Entertainment had contacted his company with a list of 150 IP addresses, seeking the details of the equivalent 150 Exetel customers who had allegedly downloaded the film ‘Kill the Irishman’, which was released this year. Exetel’s 150 were just a fraction of the 9,000-odd Australians which the company claimed had pirated Kill the Irishman, and whom it is pursuing.
Following Linton’s post, Delimiter has confirmed that Lightning is being represented in Australia on the matter by a new company called ‘Movie Rights Group’. It is unclear who precisely is behind the company, but it was registered as a Queensland-headquartered private company in November 2010, with its only known executive so far being its vice president of sales and marketing Gordon Walker.
Speaking in an interview this afternoon, Walker said his company had nothing to do with the other prominent group representing film and TV studios in Australia, the Australian Federation Against Copyright Theft, which is currently engaged in controversial legal action with ISP iiNet in the High Court over copyright infringement issues. Movie Rights Group had not been in contact with AFACT, Walker said.
However, like AFACT, Movie Rights Group has started contacting Australian ISPs in respect to the behaviour of their users.
Walker confirmed the company had contacted all major ISPs in Australia seeking information on users who had allegedly infringed copyright online, with Kill the Irishman being just one of the films which the company was tracking and Lightning being just one of the clients which the company is representing locally. The company’s requests appear to be targeting a large number of Australians, with some 9,000 locals alleged to have downloaded Kill the Irishman alone.
Walker said once the company had received information from the ISPs on which user accounts were connected to the IP addresses who had allegedly infringed his clients’ copyright, Movie Rights Group would be sending letters to those users through its law firm, Brisbane-based Lloyds Solicitors, giving them a choice between various options they could pursue.
The executive wouldn’t say what those options were – although he recommended those who received the letters to seek legal advice. In addition, Movie Rights Group’s web site has a prominent notice informing visitors that one of its chief services is settling lawsuits with infringing users. “We intend enforcing our copyright owners’ rights in Australia through the Federal Magistrates’ Court,” said Walker.
If the company is seeking to settle cases of alleged copyright infringement with Australians out of court, it will be one of the first cases where this approach has been taken in Australia. So far in Australia, most legal action aimed at those who infringe copyright has focused on ISPs such as iiNet who provide the mechanism – Internet access – for it to take place.
However, in the US, for example, the practice is widespread, with the Recording Industry Association of America, for example, launching an early settlement program in 2007 which targeted thousands of users with offers to settle cases of copyright infringement. According to Arstechnica, the average amount being settled was about $3,000 at the time.
Walker wouldn’t answer what his company considered the value of damage an individual Internet pirate who downloaded a film for their own personal use was. However, he pointed out that anyone using the BitTorrent protocol, due to the restrictions of the protocol, was simultaneously downloading content as well as uploading it to other users.
It seems inevitable that if Movie Rights Group is successful in persuading – through the courts or otherwise – Australian ISPs to give up information on their users, that copies of its letters to users will be posted on sites such as broadband forum Whirlpool, fully disclosing the company’s approach. However, Walker said if that publication of what he described as confidential material occurred, that was an issue which Movie Rights Group would have to take up with the individual concerned.
And it does seem likely that at least some ISPs will provide the company with the information it needs to target users.
Although Exetel’s Linton has not yet disclosed what his company’s approach to Movie Rights Group’s approach will be, in his blog post this week, the executive noted that his own company’s lawyer had accepted that it was “almost certainly the case under standard commercial Australian law” that Movie Rights Group could legally subpoena the users’ information it needs. “They will review the cited references but their opinion is that, subject to final validation, if a subpoena is issued then no company, Exetel or any other ISP has any option but to comply with it,” wrote Linton.
“The information we’ll have on the downloading activity is 100 percent cogent and unequivocable evidence,” said Walker, noting Movie Rights Group had conducted extensive legal research before commencing its operations.
It is believed that Move Rights Group’s approach to ISPs is deeply informed by the initial judgements in iiNet’s fight against AFACT. Although iiNet successfully defended the trial and its appeal, a number of commenters believed the judgement did open the door for the film industry to achieve more success through approaching ISPs with a modified approach. For example, industry sources said Movie Rights Group will carefully target those it sends letters to — excluding public locations such as schools and libraries from its efforts — and even offer to compensate ISPs for the time it will take them to retrieve user details.
The wider problem
A widely held view in Australia is that the poor availability of legal online content locally – compared with countries such as the US – and the delay it takes for the latest television shows and movies to arrive in Australia is a major contributing factor to the nation’s high degrees of online piracy. The Federal Government seeking to arbitrate an agreement between the content and ISP industries over the matter.
Walker said he wasn’t sure whether Kill the Irishman was available through legal online channels in Australia such as Telstra’s T-Box platform, although he noted you could have seen the film in cinemas, and it was available for rent or purchase on DVD. However, the executive defended Movie Rights Group’s approach by stating that the issue of online copyright infringement was one which hadn’t been dealt with well globally by governments.
“Other jurisdictions around the world have attempted to legislate and police illegal downloading. Has it worked? No,” he said. The UK, Walker pointed out, had set up a parliamentary investigation into the area half a decade ago. “They had a series of meetings and more meetings and sub-committees and what have you,” he said. “The outcome of all of those committees and sub-committees was absolutely nothing. Trying to control the Internet is like trying to control the [Japanese] tsunami which hit those poor people.”
For example, Walker said, in the case of Wikileaks, government attempts to force the maverick organisation to take down its content had simply resulted in many mirror sites popping up instantly all over the world to keep the content available. “Everybody knows that the Internet is the ultimate unkillable beast,” he said.
In this context, Movie Rights Group was “a commercial solution” to what had previously been seen as a legislative problem, Walker said. Service providers themselves weren’t the infringing parties — but merely provided the “road” of the Internet, which most people drove on safely, but there were always some who “wanted to drive up the inside land, drive down the breakdown lane and drive at 200Km/hour.”
“You’ve got to have policemen and women in cars,” Walker said. “This is where we see our role.”
And just who is Movie Rights Group? Walker wouldn’t say who was behind the company, but he did note everyone involved was Australian, although it also had operations and legal representation in the US and Europe. The parties behind the group had been in the Internet business for about 16 years, he said, in areas such as hosting and affiliate marketing programs. The copyright infringement program was “a new direction” for those parties, Walker said.
Ultimately, it remains unclear what the reaction from Australian ISPs and end users will be to Movie Rights Group’s activities. The area in which it is operating is a dynamic one, with the iiNet versus AFACT trial still underway and the Federal Government’s Department of the Attorney-General also very active in discussing the issue with the industry.
However, there appears no doubt that some impact will be felt. “If this group launch 9,000 individual lawsuits against Australian Internet users in the not too distant future I think a lot of attitudes to illegal downloading will change … if only by parents,” wrote Exetel’s John Linton this week.
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