analysis Worried that AFACT will start suing individual users, now that it has lost its High Court case against iiNet? You needn’t be. The organisation itself has denied any such plans, and even the legal case to identify Australian Internet pirates is on shaky ground at the moment.
Over the past few days since the High Court handed down its judgement in the high-profile court case between a coalition of film and TV studios represented by the Australian Federation Against Copyright Theft and iiNet, a great deal of speculation has arisen that the organisation, bruised and bloody from its battle with the ISP, will go after individual users next, targeting those actually doing the alleged copyright infringing, rather than the ISPs on whose networks it takes place.
And, to some extent, it’s a legitimate fear. Well, on paper, at least — if not in reality.
The threat of this kind of ‘mass piracy lawsuit’ behaviour has been held to Australia’s throat before. In October last year, for instance, a new and somewhat shadowy firm dubbed ‘Movie Rights Group’ sprung up and proposed to engage in just such mass legal action. Movie Rights Group’s initial targets consisted of some 9,000 Australians who had allegedly pirated the little-known film Kill the Irishman over the past 12 months.
Such programs of legal action — which commentators have commonly analysed as profit-making exercises rather than actions aimed at pure copyright enforcement — are relatively common in the US. 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. And there have been a number of other similar programs, with similarly high-profile results.
The most visible face of the fear that this kind of behaviour could hit Australia is an article published by the Financial Review newspaper over the weekend. With the flagrant headline “Users warned they could be next”, it struck fear into the hearts of Australian broadband users that Big Brother was watching their Internet connections, cataloguing their downloads and preparing the legal writs. It cited eminent sources such as IP lawyer and Electronic Frontiers Australia secretary Kimberley Heitman, Theresa Corbin from the Australian Communications Consumer Action Network and iiNet chief executive Michael Malone and regulatory chief Steve Dalby, all discussing the issue of AFACT suing end users.
Just reading the article, I’m sure, gave many readers a chill down their spine. After all, we all know people who religiously download the latest episode of Game of Thrones every week. Could they become the subject of multi-million-dollar lawsuits?
In a word: No.
Buried in the Financial Review’s article was an extremely salient point against this scenario, made by none other than … AFACT executive director Neil Gane, who you might expect to be an expert on the copyright lobby’s plans in the area. Gane, as a number of other media outlets have also noted, categorically denied any plans to sue individual Australians over Internet piracy, in an open press conference last Friday.
“I can say at the current stage, at the current time, we have no plans to sue end users in Australia,” he said. “We have always maintained that we prefer a more proportionate and effective approach, which is for ISPs to notify their customers.”
Well. It doesn’t get much clearer than that. The Financial Review’s headline should have been: No plans to sue end users, says AFACT. But of course, that wouldn’t stoke the fear (and page impressions) amongst readers, would it? Truth rarely does.
But wait, you may say. AFACT could be lying — it’s not exactly the most transparent of organisations, and if Movie Rights Group could start suing thousands of Australians, what’s to stop AFACT and the many film and TV studios that it represents from doing the same?
Well, to start with, it’s important to note that it looks like, following a rash of negative publicity, Movie Rights Group appears to have shut down, with its web site deleted from the Internet and its chief spokesperson having moved on to other roles. However, there are also deep questions about whether it is actually possible for content owner organisations like film and TV studios to directly sue individual Australians for allegedly pirating their content online.
The legal mechanism which Movie Rights Group’s litigation was to rely on is a very similar one which is used in the US. In short, a rights holder such as a film or TV studio approaches an ISP like iiNet with a subpoena from a court. That ISP is then more or less compelled to provide the individual’s details to the rights holder so that they can be sued directly, leaving the ISP out of the legal equation. Typically, in the US, the rights holder will approach the ISP with a list of thousands of users’ details which it wants — and then the mass piracy lawsuits begin, after the necessary identification details are handed over.
Now, some Australians — such as the late chief executive of Exetel, John Linton — have had a strong belief that this mechanism can be used in Australia. This belief was fuelled by the judgement of the full Federal Court in the iiNet/AFACT case, which some legal experts had believed opened the door for this kind of discovery process, and mass lawsuit process, in Australia. And this is also what Movie Rights Group had believed, after what it had said last year had been extensive investigation of the area.
However, this kind of legal approach hasn’t yet been tested in Australia, and even Linton was planning to tell Movie Rights Group to go take a long jump off a short pier if it tried it. In practice, we don’t quite know what would happen, should an organisation like AFACT seek to subpoena thousands of user details from an ISP like iiNet. In addition, last week’s High Court judgement brought further evidence that such action was unlikely. The High Court, in its judgement, stated:
“The appellants [AFACT and so on] have brought no legal action against any individual user of the internet services provided by iiNet for any primary infringements of copyright … and it did not appear to be in contention that it would be somewhat impractical to do so.”
In addition, the judgement referred to another prior judgement, in which the judge had “referred to the possibility of copyright owners taking action against individual infringers as a “teaspoon solution to an ocean problem”.”
What I’m saying here is that there is both a lack of desire on the part of organisations like AFACT, and the content owners they represent, to conduct mass piracy lawsuits in Australia as well as a lack of legal clarity about to what extent they’re possible at all, especially if ISPs like iiNet continue to push back against rights holders legally. And let’s not forget that iiNet is not alone in its approach to the issue — it has been broadly supported in its court defence by Telstra, for example.
Most legal commentators on the iiNet case have been quite clear (see Nic Suzor’s excellent analysis here, for example) that the next steps in the issue in Australia will very likely involve lobbying by groups like AFACT for a legislative solution to its woes. In fact, that lobbying has already begun. In addition, many feel that we will shortly see more compromise behaviour from rights holders in making their content more widely available in Australia.
In this context, articles speculating that ‘users could be next’ in the legal gun barrels are not useful contributions to the discussion about online copyright infringement in Australia. They are nothing short of fearmongering. Internet piracy and the legal availability of content are important issues which need to be discussed honestly and transparently in Australia so the nation can move forward on becoming a leader in the digital economy sphere. Consequently, any debate about these issues should be based on truth — not groundless conjecture.