news The Sydney-based law firm which has issued a series of letters to major Australian ISPs seeking details of alleged Internet pirates has previously publicly argued that such a practice was not legally justifiable, and also that content owners such as movie studios should do more to make their content available online legally.
Yesterday several sources confirmed to Delimiter that Sydney law firm Marque Lawyers this month 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. 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, which may lead to lawsuits against the users themselves. It is not known which client the company is acting on behalf of.
However, late yesterday it was revealed by several commenters on social media platforms that the firm had actually publicly argued that such a practice was not 100 percent legally watertight due to the difficulties of associating IP address data with specific individuals.
The firm’s website contains a ‘Soapbox’ section where it regularly publishes brief views by its employees commenting on legal issues of the day. One of those papers, published in June 2012 (PDF), dealt with a decision by the US Supreme Court to refuse to hear the appeal of a college student who was ordered to pay $675,000 in damages for infringing copyright through peer to peer platforms.
Marque Lawyers’ paper on the issue, produced by partner Nathan Mattock and lawyer Christopher Toole, pointed out that the case was only one of a large number of similar cases. However, the pair wrote, a recent decision in New York had cast the validity of those cases into doubt. In that case, as Marque Lawyers has been seeking to do in Australia this month, lawyers acting for the content industry had sought to use IP address data to identify alleged copyright infingers.
“To find out the actual identities of the users, the owners asked the Court to force the ISPs to reveal the names and addresses of each of the subscribers to which the IP addresses related,” wrote the two Marque lawyers. It is precisely this activity which the firm is carrying out this month in its letters to Australian ISPs.
However, in its paper, the firm took a different view. “The users went on the attack and won,” the paper’s two authors wrote. “The judge, rightly in our view, agreed with the users that just because an IP address is in one person’s name, it does not mean that that person was the one who illegally downloaded the porn. As the judge said, an IP address does not necessarily identify a person and so you can’t be sure that the person who pays for a service has necessarily infringed copyright.”
“For example, in an office or at home, where there is a WiFi connection, only one IP address will be allocated to that wireless connection. This means that every user of each device (computer, iPad, iPhone etc) connected to that WiFi connection will use the same IP address. Even a random passerby accessing the WiFi network would be using the same IP address. This decision makes a lot of sense to us. If it holds up, copyright owners will need to be a whole lot more savvy about how they identify and pursue copyright infringers and, perhaps, we’ve seen the end of the mass “John Doe” litigation.”
The paper is not the only occasion on which Marque Lawyers has taken a position against the content industries. In a separate paper published in April 2012 (PDF), by Mattock and senior associate Jessica Vartuli, the firm discussed the landmark court case between ISP iiNet and a federation of film and TV studios represented by the Australian Federation Against Copyright Theft.
“The High Court decision only gives further ammunition to the case for legislative reform to put ISPs squarely in the firing line for copyright infringements,” wrote the two lawyers. “There’s also a code of conduct between content creators and owners and internet companies which is in the wings.”
“But in the balance of legislative and regulatory reform, we think the better solution is to tackle the direct infringements by users instead. One way to do this is to make online content more accessible and cheaper. It’s more “foreign film ending” than Hollywood ending, but we think it’ll be more of a crowd pleaser.”
Delimiter contacted Marque Lawyers yesterday by telephone and email to request a statement or interview on the situation with respect to the letters it has sent to ISPs, and will publish any statement received from the firm or its clients in full as a right of reply. The firm has stated that it will ask its clients in the matter whether they wish to comment.
opinion/analysis
It’s not the best look for Marque Lawyers to be acting on behalf of clients in a way directly contrary to its published opinions on the matter. The firm has already been labelled as being hypocritical by online commenters. However, of course this is nothing new in the legal scene. For starters, different lawyers have different beliefs about how the law should be interpreted; and secondly, of course each firm will do its best to argue for each client in each separate case.
Corporate lawyers, like other professionals, must take a ‘professional’ attitude to their work and be able to bend a little with the wind. So I do think we should cut Marque’s staff a bit of slack in this one; after all, who hasn’t had to act in a way they didn’t necessarily prefer, because of the needs of their employer? Even as a small business owner, I sometimes have to do things which I don’t personally agree with.
When international content providers stop raping Australian customers all because we can’t “skip over the boarder” to get cheaper items or Geographically IP block us from international sites.
Then i’ll come to the party and stop pirating.
Is Tom Waterhouse running a market on how soon Marque takes the earlier papers down?
Heh I have copies anyway ;)
hehehe i think everyone is copying those pages
now comes back to bite them
Be careful, they may sue for breach of copyright for copying their anti-copyright documents.
Now that would be irony.
It’s as bad as getting the details of the person who registered a shared car involved in a hit and run accident. Without proof of who was driving do you charge the owner of the car? I’m pretty sure no prosecutor would try that tactic in court, so why is it feasible to do so in this case?
Criminal vs Civil – burden of proof is less in a civil case than criminal, that’s why.
“I do think we should cut Marque’s staff a bit of slack in this one; after all, who hasn’t had to act in a way they didn’t necessarily prefer, because of the needs of their employer?”
Thats as valid as saying the News of the World crims should be forgiven because Ruperts redhead told them to be naughty…
Yes, lets cut the poor little corporate shyster hypocritical sell my private school botty to the nearest gatekeeper carpetbagger thugs so we can have a few more bollys at the old boys watering hole, eh what?
Hypocrites all, lets give ’em some brownie points as they attempt to gouge the little guys for the Hollywood swill… my ar.e…
There is a big difference professionally between journalists and lawyers.
One profession, lawyers, is required to do it’s best and advocate for it’s clients within the law, the other is supposed to be unbiased and report news to inform the public, within the law which even allows specific exemption for them to achieve this.
In this case I think Marque Lawyers are being much more true to their professional remit than the Murdoch Media journalists.
Even lawyers are supposed to act ethically – charging a client for doing something you don’t think will achieve their objectives (or even garner progress towards their objectives) is ethically dubious.
They’re just after money of course. All law firms are like that
There not even interested in taking anyone to court. They are relying on fear to encourage defendants to pony up rather than go to court. Look at similar cases in the USA, pre-court ‘go away’ settlements are set at slightly less than the typical solicitor fee.
They’re, not there. Sigh.
Like all law firms Marque Lawyers will do their hirer’s bidding regardless of personal or corporate opinions. It would be a rare law firm that turned away business in an area they expressly list as a specialty.
Regardless of the opinions expressed, by publishing the opinion pieces the law firm has demonstrated that it has staff who actually follow and think about copyright infringement litigation. If I were a foreign company wanting to launch copyright actions (or settlement shakedowns whichever this turns out to be) in Australia I’d be looking for a firm that demonstrates some knowledge of copyright cases and the way they’ve been lost in the past.
What are the chances they’re being paid to pursue this avenue, but hold the view that it will be ruled against by a judge?
Anyway, is the Soapbox necessarily the official opinion of the Firm as a whole?
@ Nich
“Anyway, is the Soapbox necessarily the official opinion of the Firm as a whole?”
Good question, and I suppose it’s reasonable to assume they ought to argue from the point of view of whoever has hired them to pursue their rights – even if it goes against their own personal belief.
It would be a bit hard to understand, though, if the same partner that authored that ‘soapbox’ piece also signed the letter to the ISPs.
When I say ‘hard to understand’ I’m wondering why they left the piece up on the company website, for all the world to see.
They’re lawyers. Their job is to argue the case that they’re asked to pursue. Having expressed prior opinions of any form just indicates that they have looked into the details of that legislation.
Practicing law isn’t about taking a moral position. That’s for the people who make laws in the first place.
If a computing spec calls for equipment A, and the technician properly installs equipment A, but then it turns out the engineer should’ve used equipment B in the spec, you don’t blame the technician who dealt with the case.
And in looking into the legislation they formed the opinion that what their client wants isn’t going to happen – if they don’t advise the client as such then at the least they’re acting unethically.
If the technician knows that equipment A won’t meet the intended specifications but doesn’t tell anyone, then they will (and should) share some of the blame.
Its like Bravehearts defending Denis Ferguson
But I do like it when Lawyers publicly reaffirm why the ‘rest of us’ despise them so much.
I feel that The law firm would be acting as was requested by the client, they must act on the behalf of the client if it is lawful to do so. Even if it is on poor advice.
You wouldn’t steal a hand bag would you?
You wouldn’t change your time zone location just so you didn’t have to fast forward this scene every time? :P
I agree with your analysis/opinion on this.
It is interesting though that this law firm prides itself on being different to other law firms, full of unique individuals.
Quote from their careers page:
“Now please, we’re not impressed that you’ve built an orphanage in the Sudan or that you speak Russian or worked at every community legal centre in Sydney or organised the Law Ball. Everyone’s done that. But if you’ve had a drink with the Dalai Lama, okay that’ll get you an interview.”
You would think if they have the balls to say that then they would want to avoid this type of publicity reserved for the more traditional legal professionals…
http://www.marquelawyers.com.au/work-with-us/hiring/
The lawyers will say, whatever they’re paid to say. They exist to achieve an outcome for the client, morals don’t really enter into it. Ethics do, but that is in relation to law and the execution of it, perhaps more than anything else.
What the law thinks is “ethical” isn’t always what you or I might think is “ethical”.
They may have sided with the “common man” in a feel-pinion, but that’s hardly an officially published standpoint. Clearly if they are seeking business from, courting and working with an industry that leans heavily on litigation, they’re not exactly standing strong for the very same common folk.
Viva le subpoena!
This same methodology (IP as sole identifier, obnoxious demands to ISPs, et-all) comes up time and time again. It’s the modus operandi of an industry bent on retaining control.
And it’s still, AFAIK open to court interpretation.
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