news A Sydney-based law firm has issued a series of letters to major Australian ISPs requesting they hand over the details of users who have allegedly used peer to peer Internet file sharing platforms to pirate content owned by the firm’s clients, in a move which appears set to reopen the debate about how such cases should be handled in Australia.
Several sources have confirmed to Delimiter that the firm in question is Marque Lawyers, a small firm based in Sydney which counts intellectual property law as one of its specialities. However it is not yet clear who the firm’s clients are. This month the firm issued a number of Australian Internet service providers with letters requesting they reveal the identities of users belonging to IP addresses linked with peer to peer file sharing activity on platforms such as BitTorrent.
Several of the ISPs concerned immediately responded to Marque denying access to the details of the users concerned. The firm has signalled that it is considering using the courts system to apply for what are known as ‘preliminary discovery’ orders to retrieve the information.
The use of the discovery mechanism to source the user details of ISP customers suspected of committing online copyright infringement is a mechanism which has been popularised in the United States over the past several years. It involves copyright owners asking a court to force ISPs to release user details so that those users — rather than the ISP itself — can be prosecuted directly or otherwise targeted by the content owners.
In a 2010 lawsuit filed by one of the more high-profile US organisations involved in this kind of practice, for example, known as the US Copyright Group, a Washington District Judge approved subpoenas relating to more than a thousand Time Warner Cable customers. An article published by Arstechnica in 2010 lays out a timeline involving such cases.
In Australia, the potential use of this kind of legal mechanism to target alleged Internet pirates was first raised during the long-running court battle between local ISP iiNet and the Australian Federation Against Copyright Theft and a cohort of film and TV studios. The judgement in April 2012 affirmed earlier judgements that iiNet had not authorised its customers to infringe copyright online and appeared to give ISPs some legal protection against being held responsible for their users’ behaviour. However, some observers believe that it left the door open for copyright holders to target alleged Australian Internet pirates more directly.
In October 2011, for example, a group known as Movie Rights Group came to public attention in Australia as it issued a series of letters to major Australian ISPs seeking to use the legal discovery process to target some 9,000-odd Australians who the group alleged had pirated a certain film, ‘Kill the Irishman’, owned by its clients.
It appears that its effort to seek users’ details failed and Movie Rights Group has been shut down. However, it appears that Marque Lawyers is proposing to use a similar approach to use the legal discovery mechanism to seek the details of ISP customers who have allegedly infringed the copyright of the firm’s clients. According to one source, the firm has informed ISPs that following the High Court ruling in the iiNet case, the legal discovery option is the only avenue open to ensure those who commit copyright infringement can be pursued.
The firm is known to have issued ISPs with something of an ultimatum in some of its communications — giving ISPs only seven days to make an initial response to the issue.
Delimiter has contacted Marque Lawyers by telephone and email this morning to request a statement or interview on the situation, and will publish any statement received from the firm or its clients in full as a right of reply to this article.
The news comes as ongoing talks on the subject of Internet copyright infringement between the telecommunications industry and rights holders under the auspices of the Federal Attorney-General’s Department appear to have collapsed, with each side being unable to reach consensus on the appropriate way to tackle the issue in Australia.
The most recent scheme proposed by the ISPs in November 2011 would see Australians issued with warning and educational notices after content owners provided evidence that the users had breached copyright online, with the ultimate penalty involving the ISPs potentially participating in some form of legal discovery process to hand some user details over to rights holders. However, it is believed that the scheme was quickly rejected by local representatives of rights holder organisations.
Copyright infringement of major works continues to be an issue in Australia. Analysis by file-sharing news site TorrentFreak published in April, for example, showed that Australia continued to be the world’s most enthusiastic nation globally in terms of illegally downloading popular US TV show Game of Thrones, despite the fact that the series was made available legally, cheaply and in high quality in Australia shortly after it was broadcast in the US, through platforms such as Apple’s iTunes and the Foxtel pay TV service.
Foxtel has subsequently confirmed reports that it will block the remaining seasons of HBO’s popular Game of Thrones series from being offered in Australia hours after the show is released in the US, due to an exclusive deal with the show’s producer HBO signed in October last year. Commentators immediately hailed the deal as a move that would further stimulate illegal downloads of the show.
Internationally, the issue is also still hotly debated. For example, last week a report commissioned by the French Government recommended that the country should soften its controversial ‘three strikes’ law, which allocates the HADOPI agency in the country the power to cut off the Internet access of those accused of Internet copyright infringement. The report also reportedly recommended HADOPI be shut down.
It’s interesting to see this discovery mechanism pop up again courtesy of the letters sent by Marque Lawyers this month. To be honest, I knew that the issue would come up again at some point. The discovery process for obtaining ISP users’ details is, right now, perceived as being the only real legal option which content owners have for tackling Internet copyright infringement in Australia, and it was only a matter of time before one or more of the rights holders decided to test the process in court.
It will be interesting to see how serious Marque and its clients are about pursuing the issue. I would guess, given the common interest in this ongoing issue, that some of the larger players in the ISP industry would be likely to be jointly currently discussing the Marque letters behind closed doors, and that the law firm and any others who go down this route will find something of a unified industry response, instead of isolated legal defences by specific ISPs. We saw this same phenomenon during the iiNet court case, with much of the ISP industry rallying behind iiNet, either publicly or giving assistance behind closed doors. I think Australia’s ISP industry has more or less had enough of being bullied by the global copyright industry at this point; a lot more steel has come into ISPs’ backbones following the conclusive victory iiNet won in its High Court defence against AFACT and its clients.
Of course, there are also other options open to rights holders concerned that their content is being pirated online by Australians. Commercial options. Such as making that content available online through widely accessible platforms, in a reasonable time frame, at a reasonable cost, and in a reasonable technical format. You know, the way many in the video games industry have done with Steam, Xbox Live and the PlayStation Store, the way many in the music industry have done with Apple iTunes, and the way many in the book industry have done with the Amazon Kindle store. Heck, even the film and TV industry has started to come to the party on this issue, through platforms such as iTunes, Netflix (at least in the US), and FetchTV and Quickflix locally.
However, like many who have written on this subject, I suspect this kind of sensible response to its customers’ demands is just not in the DNA of many in the content production industry, and that as a result, this kind of legal action will come up again and again until those dinosaurs die out and the rest successfully adjust to the new digital commercial reality.