news One of Australia’s largest ISPs, iiNet, has indicated it supports the legal approach taken by a new company planning to target thousands of Australians over pirated downloads through platforms like BitTorrent, and would hand over customer information to the company if ordered to by a court.

Over the weekend, it was revealed that the company — named Movie Rights Group — had approached every major Australian ISP seeking information on users who had allegedly infringed copyright online, initially seeking the details of some 9,000 Australians who it claimed had downloaded the film Kill the Irishman. There are plans to broaden the company’s efforts to other films.

Unlike the other major Australian organisation representing the film industry, the Australian Federation Against Copyright Theft, Movie Rights Group is taking a different approach to piracy. Instead of legally targeting ISPs for the actions of their users, it will merely seek to subpoena customer information from the ISPs and contact those who had allegedly infringed its copyright directly, seeking to settle the matter out of court or through legal action.

Every other major Australian ISP has so far declined to comment on whether they had received a communication from Movie Rights Group and how they planned to respond. However, in an emailed statement yesterday, iiNet regulatory chief Steve Dalby noted Movie Rights Group’s legal process indicated “a similar approach to what which we have publicly supported in the past” – and iiNet saw now reason to recant that support now.

It is believed that most of Australia’s ISPs sees their networks as being similar to a road, in that while they are responsible for maintaining the infrastructure, they believe they should not be responsible for the actions of users on that road. Movie Rights Group has professed a similar belief.

“We have constantly stated we don’t support copyright infringement. It obviously follows, therefore, that we do support infringements being dealt with in accordance with Australian law,” said Dalby. “The current framework means civil prosecution through the court system. If I understand the proposed model, it uses existing legislation and process, it removes the intermediary from the dispute, it follows due process and protects the rights of both the alleged infringer and the claimant.”

Dalby said that the telecommunications industry proposed “a streamlined version” of the process which Movie Rights Group appears to be proposing to the Federal Attorney-General in 2008, prior to the high-profile court case between iiNet and AFACT over copyright infringement beginning. At the time, however, the film studios “ignored it”, Dalby said, arguing at the time that iiNet was being uncooperative.

Dalby didn’t directly answer questions on whether iiNet had been contacted by Movie Rights Group, and how the ISP planned to respond. However, he said if the ISP received a court order to release information, regardless of who to, “we would comply with our obligations under the law”.

The iiNet executive pointed out this was clearly stipulated in iiNet’s public privacy policy, which notes the company may disclose customers’ personal information when required to by a legislative instrument such as a court order, for example. Dalby agreed customers had a right to know when their information was handed over to external parties.

In other posts commenting on the issue over the past week on broadband forum Whirlpool and on Delimiter itself, Dalby has appeared quite pessimistic about the chances of Australians targeted by an organisation like Movie Rights Group with this type of legal approach. “If you think they will just turn up without a reasonable case,” he told Whirlpool users, “you don’t understand corporate and legal process. Maybe they’ll be successful and maybe they won’t. But alleged infringers will probably need more than the Bart Simpson defence (“I didn’t do anything, nobody saw me do it”).”

The executive also stated that collecting the IP address information of those who were allegedly infringing copyright online would not breach Australian legislation around telecommunications interception.

“There is no interception required in order to generate or view IP logs,” Dalby wrote on Whirlpool. “… in the normal course of events, when users of BitTorrent software make available (unauthorised or otherwise) copies of stuff, they advertise their IP address to the world. That’s where your IP address is collected. It’s public information. No interception is necessary at either the ‘making available’ stage or the IP log generation stage.”

In addition, the executive noted he didn’t believe it was a legal defence if a customer already owned a legal copy of the material they had downloaded. “Having a legally obtained copy is not the point,” he wrote on Delimiter. “If you infringe copyright by making copies of it available online, without permission, the legal copy probably makes no difference.”

So far, iiNet and Exetel (whose chief executive John Linton published news of the Movie Rights Group case on his blog) are the only major Australian ISPs to comment on the issue. Over the past week, spokespeople from Telstra and Internode have declined to comment on how they will handle the matter, while spokespeople from Optus and TPG have not responded to requests for comment.

Linton has also stated his belief — based on legal advice — that Exetel would be forced to comply with a court order regarding customer information if it received one.

opinion/analysis
It’s hard to see how iiNet could take any other approach than ‘we will comply with the law’, given the arguments the company made during its high-profile trial versus AFACT. However, this still leaves a sour taste in my mouth. I know a lot of ISP customers are looking for a little bit more gumption from ISPs on this issue right now. It could be something as simple as saying that they would uphold the law if forced to, although they would fight the issue if they could, and will look out for the interests of their customers as much as they can.

But then, in today’s fraught legal environment when it comes to online copyright infringement, perhaps that’s too much to ask.

Related posts:

1. Movie Rights Group website shut down, VP leaves
2. Exetel may balk Movie Rights Group’s demands
3. iiNet supports Govt’s ‘streamlined’ piracy process
4. Anti-piracy scheme throws users to the legal wolves
5. Mass piracy lawsuits: ISPs go completely silent

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1. Anonymous
   Posted 06/10/2011 at 10:53 am | Permalink | Reply

   Hey lets go after the downloaders instead if you know, building a service to offer this content up to them.

2. trog
   Posted 06/10/2011 at 10:57 am | Permalink | Reply

   This is, as noted, exactly what iiNet (and every other ISP) has said in the past. If they get a court order, your details will be handed over. This is a Good Thing. It is how the justice system works and it is precisely how it should work.

   It is EXACTLY what the media industry are lobbying to change – they don’t want it to work like this; they want broad powers to be able to just ask ISPs for details for any of their customers and for their ISPs to have to hand them over. Getting individual court orders for each individual suspected infringement is a time consuming – and thus expensive – process.

   If it is what the media industry does not want, then it is probably in everyone else’s best interests – this should be obvious by now.

   • Martin Eddy
     Posted 06/10/2011 at 1:54 pm | Permalink | Reply

     That’s right. You can’t blame iiNet for complying with the law.

3. Lea
   Posted 06/10/2011 at 11:02 am | Permalink | Reply

   Its just so frustrating that the will happily spend the money to chase people for downloading, but they won’t offer the goods for sale.

4. Anonymous
   Posted 06/10/2011 at 11:41 am | Permalink | Reply

   Grow some balls iiNet … wtf happened to you guys.

   • trog
     Posted 06/10/2011 at 12:52 pm | Permalink | Reply

     iiNet are saying “we will comply with a court order”. They can’t “show balls” when it comes to doing this.

     They know it will cost the media companies time and money to get a court order. This is what you want ISPs to say.

     • Anonymous
       Posted 06/10/2011 at 3:25 pm | Permalink | Reply

       Point taken
       I’m not a lawyer, and it shows. ;-)
       I originally got the impression that the AFACT stance iiNet took seemed to be protecting the interests of users, and this article seemed to be contradicting that.

       • Mentasm
         Posted 07/10/2011 at 9:23 am | Permalink | Reply

         iiNet are protecting customers by taking this stance. They support forcing copyright owners having to go through the existing legal process to be able to obtain ISP records. AFACT tried to sidestep that requirement and wanted ISPs to just cough up the details on their say so.

   • Dbremner
     Posted 06/10/2011 at 1:26 pm | Permalink | Reply

     Balls for what? You think they have the opinion that their customers should be allowed to pirate stuff and that they should help them avoid facing the consequences?
     What moral high ground are they taking by letting users continue to do it and protecting them? Right to privacy? There is none other than what they agreed in their terms and the terms say they will hand your details over if the court asks them.

5. Chad
   Posted 06/10/2011 at 1:29 pm | Permalink | Reply

   the title of this story is misleading………

6. Doug Rathbone
   Posted 06/10/2011 at 2:38 pm | Permalink | Reply

   [Comment censored due to potential legal concerns -- Renai. I am looking into the issue you raised.]

   • DodgyBrothers
     Posted 06/10/2011 at 5:07 pm | Permalink | Reply

     Thanks Doug.

     [Paragraph censored due to potential legal concerns -- Renai. I am looking into the issue you raised.]

     I’m surprised that:

     1. Mr Dalby is publicly coming out advocating the suing of end users. I thought this process would be more onerous on an ISP given that they would need to be joinded to the court cases each and every time that an IP address is required – along with the process required by a subpoena as distinct to forwarding on notices like Westnet were doing prior to acquisition at nearly 0 cost??

     2. They are publicly backing a process which is potentially launched by some shonks in Broadbeach. Has iiNet done due diligence on this company given what’s at stake? This could be embarrassing if this company gets exposed as a dodgy one.

     @Renai – maybe someone needs to dig some more on these guys….

     • Dbremner
       Posted 06/10/2011 at 6:41 pm | Permalink | Reply

       I did notice he keeps saying upload, make available online. I think that is a different legally to just downloading and can attract criminal prosecution.

       • DodgyBrothers
         Posted 06/10/2011 at 6:56 pm | Permalink | Reply

         Can do I suspect – but in this context MRG is certainly only looking at Civil prosecution.

         • Dbremner
           Posted 06/10/2011 at 7:31 pm | Permalink | Reply

           I doubt they it will be a huge ongoing thing though. They make some money this time. Next time it’s harder as it scares people off downloading movies or moves them into the underground more. Whether the license holders make anything from it or not it should reduce piracy. Who knows, maybe even TPGs evening speeds will improve because of it :)

7. Anonymous
   Posted 06/10/2011 at 3:40 pm | Permalink | Reply

   Any lawyers in the house?

   Does anyone know if MRG would potentially have to apply for 9000 separate court orders to get this moving or would they just have to get a single court order listing all 9000 infringers? If its the former, then this may take up a huge amount of time.

8. Fumanch
   Posted 06/10/2011 at 4:47 pm | Permalink | Reply

   Just out of curiosity, why couldn’t iinet or other ISP’s simply delete IP addresses from its records so that no data can be recorded. I recall a swedish ISP doing something similar when IPRED was introduced:

   http://www.geek.com/articles/news/swedish-isp-bahnhof-renders-ipred-useless-by-destroying-ip-addresses-20090417/

   Or is there a law which stipulates ISP need to retain data of users for a set amount of time?

   Either way seems like VPN’s are going to get more and more attractive in the face of this nonsense.

   • Mentasm
     Posted 07/10/2011 at 9:25 am | Permalink | Reply

     Pretty sure they are legally required to keep records. They can be used for actual important things like catching terrorists or real criminals. They are also used in the billing process internally by the ISPs.

9. Guest
   Posted 06/10/2011 at 5:39 pm | Permalink | Reply

   nice misleading title to get page hits

10. Zpan
    Posted 06/10/2011 at 7:21 pm | Permalink | Reply

    Wonder what Australia’s Pirate Party has to say and if they have done anything

    • Poo
      Posted 07/10/2011 at 1:44 am | Permalink | Reply

      how about anonamous, they like this sort of thing

11. The G33K
    Posted 06/10/2011 at 8:22 pm | Permalink | Reply

    Mr Dalby has not said anything new about how iiNet would hand over IP records, and in fact if a court orders the handing of records over under discovery rules then all ISP’s would have to comply with it.

    Interestingly it is how Steve has stated the answer that will annoy Movie Rights Group. iiNet will ONLY hand over identifiable information to any organisation (ie: MRG, AFACT et.al) when the appropriate due process has been completed. This was the crux of their winning argument with AFACT and the reason why AFACT cannot stand the idea that they have to actually pay fees to a court to get an order to obtain records. Since without that order if iiNet or any other ISP hands over some customers details they could be liable under current privacy statutes at the very least .

    Steve’s answer should be what all ISP’s state, and for them not too at this stage is an indication of them not doing best practice to their contractual customers and/or shareholders. iiNet as per normal is leading the way in consistent, timely, ethical and concise statements and practices.

    • TheReader
      Posted 07/10/2011 at 10:03 am | Permalink | Reply

      If you think that was the crux of the victory – then you’re sorely mistaken. The single reason which AFACT lost at the full federal court was that at the time the notices were sent, it was believed that iiNet did not have enough information to make a fair determination on the content of the infringement notifications. This is what is now being taken to the high court. I suggest you read the ruling….

      Insofar as any determination on costs and indemnity – these are minority decisions and certainly not binding.

      As for the notion you are now raising about privacy – which does not enter into the AFACT dispute – it is moot in that process as the personal details of the subscriber were never requested. But in the MRG implementation of rights ownership, then yes, there is privacy at stake as the representative of the rights owner is asking for the personal details of the customer and one would think a court order is required.

      You need to understand these are two distinct applications of law – one is attempting to put the onus on the ISP – the other using the ISP to directly deal with the customer directly

12. Harquebus
    Posted 07/10/2011 at 9:29 am | Permalink | Reply

    http://torrentfreak.com/nothing-new-under-the-copyright-eclipsed-sun-110218/

13. Anonymous
    Posted 07/10/2011 at 9:32 am | Permalink | Reply

    I’m thinking of downloading this piece of crap film and then deleting it before I even watch it.

    is it infringement if you don’t view the film? ;)

14. Guest
    Posted 07/10/2011 at 9:37 am | Permalink | Reply

    Edit: Why is the website registered anonymously WITHOUT the directors names appearing on it.

    • Terry Green
      Posted 07/10/2011 at 9:15 pm | Permalink | Reply

      Why are you incapable of running a whois ?

      Registrant: LEMAY, RENAI JOHN
      Registrant ID: ABN [I've removed the #, if anyone wants it they can find it themselves]
      Eligibility Type: Sole Trader

15. Joerach
    Posted 07/10/2011 at 9:40 am | Permalink | Reply

    Just shows that the law is a complete utter ass

16. Mafioso
    Posted 07/10/2011 at 11:39 am | Permalink | Reply

    What’s the difference, Australian consumer is being extorted at the till, why not in the court system as well.

17. Renai LeMay
    Posted 07/10/2011 at 3:10 pm | Permalink | Reply

    Hi guys,

    I’ve deleted a couple of comments from this thread due to people investigating the background of the people behind Movie Rights Group. I have to protect myself here so I can’t host this material on Delimiter until it’s more fully investigated. Reading between the lines … I hope you understand ;)

    Cheers,

    Renai

    • Test
      Posted 08/10/2011 at 6:27 am | Permalink | Reply

      The Age broke the story with the directors names this morning http://www.theage.com.au/national/plot-turns-nasty-on-illegal-movie-downloads-20111007-1ldw3.html

      • Terry Green
        Posted 08/10/2011 at 11:35 am | Permalink | Reply

        … Gordon Walker, told online magazine Delimiter. …

        Online magazine, hehehehe :)

        • Renai LeMay
          Posted 08/10/2011 at 1:02 pm | Permalink | Reply

          Yeah I saw that, “online magazine” :) Hilarious!

          • Brett
            Posted 08/10/2011 at 5:25 pm | Permalink | Reply

            It’s interesting that here, whirlpool, dailytech – almost everywhere this is being covered, the comments detail the previous businesses of these guys….but still it’s not been published in an actual news story.

            [Deleted -- Renai]

            Where the hell did gutsy, hard hitting journalism go? Too scared of being sued? – then you should find a different job, because journalism is supposed to be about exposing the truth and until a journalist runs with the parts of this story that, by now, almost every geek in Australia knows.

            [Deleted -- Renai]

            I wonder what would have happened if Woodward and Bernstein said to deep throat, “I’m sorry, we really need to protect ourselves here”.

            • Anthony
              Posted 08/10/2011 at 10:54 pm | Permalink | Reply

              Feel free to put your money where your mouth is Brett. Make a proper article, and submit it to Slashdot, Boing Boing or something similar. Put your real, full name on it too. No pen name crap. Then I might read your comment without sniggering.

              Defamation law is not something to be treated lightly. Renai needs to know more than Internet gossip before he can publish that sort of stuff.

            • Brett
              Posted 09/10/2011 at 6:59 am | Permalink | Reply

              @Anthony – “Feel free to put my money where my mouth is”….well, that’s interesting….see I never claimed to be a journalist :) I didn’t chose a career in journalism, I certainly don’t run a news website….what would you tell your mechanic if he said “don’t like it, fix it yourself”, what would you tell a lawyer who said “sorry I didn’t defend you, but you should have put your money where your mouth is and defended yourself”…a ridiculous argument.

              And as for defamation law not to be “treated lightly”…again, I question the chosen career of someone scared of defamation in relation to very public information that the directors themselves have put into Internic and ASIC records (hey, theage didn’t seem too scared?).

              How many journalists have been threatened with treason, violence and even death and still done their job. It’s very easy to throw up a website and claim to be a journalist – anyone can do that…it’s very difficult to actually BE a journalist.

              And finally – internet gossip? I think you’ll find that their history is a matter of public record, both Internic and ASIC

              And I did put this information up – Renai deleted it :)….sure, not under my real name…are you suggesting that journalists sources should all be required to make their identities public, because that seems to be in direct opposition to what every journalist in history has wanted? Would you have outed deep throat? Pulled him aside and said “put your money where your mouth is”?

              I guess I just dream of a different media, “One where Australian journalists get back to our job of holding the nation’s rich and powerful to account.” – wish I could remember who said that…..

            • Renai LeMay
              Posted 09/10/2011 at 3:24 pm | Permalink | Reply

              Brett mate … I do what I can, but I don’t run a multi-billion dollar corporation. I’m one guy. Delimiter’s readers are intelligent enough, as I know they have, to do their own research on this particular issue.

            • Richard Hockey
              Posted 11/10/2011 at 11:12 am | Permalink | Reply

              This is not internet gossip, its information on the public record. Not really sure why Renai will not publish this.

18. Krystin Dix
    Posted 09/10/2011 at 2:26 am | Permalink | Reply

    You have raised some valid shaping options for once users go past their quota. But in reality how many of the Australian population will use 100GB? How many would hit the 500GB limit per month. You talk about the bigest plans of been 1TB right, Per day this is about 33GB a DAY!!!. Who today does that for a single user. I mean a whole family may push that limit with say 3 kids youtubing. A couple of different game downloads maybe. Renting a HD movie yeah might get to it. But that is ONE HD MOVIE a DAY to push that Limit.

    Now you go to the storage of that data. Lets say you store a Generous %25 of that each month say it movies / tv shows / other data. Where do you store it. If your winging over the plan prices at the moment You will whinge about buying additional Hard Drives. You will whinge about the archival process. I understand that with NBN speeds there is no need to store the files but somewhere it needs to be stored (either on the content providers side or home users).

    The simple fact that the majority of users on the internet use around 20 – 30GB a month.

    Now for all of those power users. There is nothing stopping you having 4TB a month. Just have 4 subscriptions. You have 4 different ports on your ONT box – why not use them. One from one providor at slow speed but high quota. One at fast speed but low quota for when you want a file now not in 2 mintues time.

    I honestly don’t get why people are cringing over the current price offerings when other means of internet in Australia are of either a lower quality or a more adsorbent price.

    And as for shaping 100mbit plans to 10mbit. Say if I subbed a 100/40 plan with 20gb of data – got shaped on the first day – I could still push over 3TB going full speed for 30 days. I certainly think this is not in the RSP’s budget for those cheep plans.

19. Thomas
    Posted 17/04/2012 at 10:14 pm | Permalink | Reply

    Even of they get the ip address and details of the user. The letters they send out are only bluffs, in the hope the that people pay up out of fear of going to court.

    If you operate a wireless network, they have to prove who downloaded the movie. to do that they need to come into your house / office which would require a warrant. Then they have to find the file on one of the many computers / phones / ipads or whatever. Then they have to prove this device was online at the time in that location.

    Considering that whomever downloaded the file would delete it straight away, they know they will not win. Hence if you are one of the 20% who ask them to prove who, when, where. You do not hear back.

    Also a wireless network can have open access, like at a hotspot at startbucks. They can’t locate the user at all. Your home network may have had no password on it and anyone within 50meters of your house could have downloaded the file. Someone could have guessed your password,then used your netwok, a staff mamber may have downloaded. The point here is how do they prove who did it.

    As the owner of the network you are not responsible, just like the isp.

    I agree to non-piracy. but spamming possibly innocent people is also not right.