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”.
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.
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.