Reality check: AFACT is not planning mass lawsuits


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.


  1. Great piece Renai.

    Beyond whipping up more fear among end users, this sort of lazy journalism also deflects attention from the continued closed-door negotiations between content owners and ISPs.

    The irony is that even more scrutiny should now be placed on those talks because the High Court has ruled that the level of evidence AFACT is able to produce against alleged pirates isn’t legally actionable.

    • Cheers, much appreciated!

      “The irony is that even more scrutiny should now be placed on those talks because the High Court has ruled that the level of evidence AFACT is able to produce against alleged pirates isn’t legally actionable.”

      +1 to this.

  2. Obivously AFACT can’t be a party to a copyright suit because it doesn’t own the copyright in the matter the subject of dicussions here.

    Presumably they’re speaking obo their members, who are the big end of town in the a/v production industry, but by no means cover the field (it shoud also be noted thet AFACT’s membership does not extend to the music industry, the games industry or the publishing industry).

    But otherwise yeah, as you say, business as usual for pirates in oz – continue paying your ISP for big data plans so that you can downlaod any content you want, whenever you want, free of charge, in a consequence free environment.

    • I have a big data plan, but as iiNet would know, that’s because I do a huge amount of legal streaming of StarCraft II e-sports broadcasts, in high quality. I wish I could download more movies, too – instead, I’ve been forced to rent DVDs physically from places like QuickFlix, which is a pain as you can’t always get what you want.

      • If only there was a way for people to pay for content when they wanted and could do what they wanted with it over the internet.

        Why should I have to avoid spoilers for six months or a year because Then have to try and catch my show as it is moved from timeslot to timeslot to timeslot when I am willing to pay quite a bit to just get it now I would pay about $5-7 for an episode of Game of Thrones in HD when it is released as it is at the moment I will buy it on blu-ray when it is released that is what I had to to with BSG and SG-Atlantis Downloaded then paid for a DVD version on release.

        I feel like a broken record sigh

        • That’s all fair enough AJ.

          But for some (and not necessarily you) this argument is boiling down to “if you don’t give me the product I want, when I want it, in the medium I want, at a price I’m willing to pay; then I’m just going to take it instead”.

          If that argument is considered fair and just, why shouldn’t it be applied to all products and services across the economy?

          • Indeed like the latest Adobe products, fair and balanced pricing for all… oh, wait, except in the antipodes…

          • Where is the logic Wilson? That product is what I need, but I cannot have it because the distributor has licensed it for a pittance from the manufacturer, who may or may not get the correct royalty, depending on how devious or corrupt the distributor may be. Now the distributor has given 1 or 2 % to the manufacturer, he wants to onseel it to me for a 300% markup, and not allow me to use it as I want to anyway, due to hidden ‘rights’ mechanisms or the threat of legal sanction for the next 100 or so years.

            Aw, shucks, that ok then, its the system baby, and we may as just bend over and let ’em have our butts as well as our bucks…

          • Right – correct me if I’ve misinterpreted but what you’re saying is, the business model is broken and that justifies the acitons of pirates.

            I don’t agree or disagree. I’m just saying that the same argument could be used to justify the unlawful taking of other property. Eg. I wish my ISP bill, electricity bill, dentists bill, newspaper subscription bill etc. were less on the basis that I think those business models are crook too.

          • In all of the cases you just specified; if you were to take any of those products or services, you would have denied someone their own share of said products or services.

            The difference, is that by taking without paying, sure you are stealing, but you aren’t denying them the ability to sell it to someone else. (other than yourself).

            It is a very different thing to take something that someone could have sold to someone else, than it is to take something that someone was never going to sell you in the first place.

            Finally, it isn’t like the pirates aren’t spending money. They earn money, they spend it. So claims of losses to the economy are bunk. Its losses to the *movie industry* for a particular movie, that wasn’t selling at a price the pirater wanted.

            Just today in fact, I wanted to get Thor to watch before I went and saw The Avengers. I don’t want to rent it, I wanted to buy it. So I pull up iTunes, 24.99 to buy. Great. I could get the 2 disc + digital bluray+dvd edition for 20 dollars with free shipping from

            Instead I drove around the corner to my friends house and borrowed their DVD. I could have just as easily pirated the movie, the industry is no better off for my actions. I know it is a single anecdote. But things are just not changing.

          • It really all boils down to the fact that IP laws are now an unconscionable contract. The laws are becoming so biased in favour of the powerful, so ridiculous on their face, and so obvious an example of a disconnected elite, that not only do the lower and middle classes routinely break this law, they are losing their respect for government in general.

            Frankly, if the government had any damn common sense left, it would realise that all this corporate lobbying is undermining the government’s own position. It’s a takeover attempt, and a hostile one.

          • Wilson, dissatisfied consumers will continue to find the content they want until it is provided cheaply, quickly and easily. Bemoaning downloaders’ weak justifications won’t change anything. Responding to demand will.

            Where does it differ from other parts of the economy? This industry deliberately and explicitly stops consumers consuming. It goes out of its way to put up roadblocks. Without those roadblocks, Australians would be able to consume through approved channels, and we probably wouldn’t be having this conversation.

          • @ Adam “Bemoaning downloaders’ weak justifications won’t change anything. ”
            Well, we’re yet to see whether it changes the law.

          • what exactly are you suggesting that a watch is released in the USA but not here and it only works in the USA that it would be wrong for me to obtain one say on ebay and then change it to make it work here?

            and that it would be illegal for me to have that watch because I am using it in a country other than intended.

          • If you won’t sell me a car, them I should be able to copy and build my own.
            If you wont sell me a meal, I should be able to make one the same, myself.

            If there is huge demand for Video on demand at a reasonable price. Why would you not fulfill it? If you can’t, then stick to the creation business and get out of the distribution business.

    • “But otherwise yeah, as you say, business as usual for pirates in oz – continue paying your ISP for big data plans so that you can downlaod any content you want, whenever you want, free of charge, in a consequence free environment.”

      Sorry? You seem to be suggesting everyone is a pirate. Never mind that said term has the following meaning:

      – One who robs at sea or plunders the land from the sea without commission from a sovereign nation.
      – One who makes use of or reproduces the work of another without authorization.

      The problem with the emotive term, is that it has zero, and I mean ZERO reflection on infringement. You cannot steal “something” when there is nothing to steal. Content owners offer rights to use content, not the ownership of it.

      It’s also hard to legally prove theft (as apposed to infringement) if the content in question isn’t actually available within the state it’s supposed to have been infringed. How can you ‘steal’ something that, technically, doesn’t exist?

      IANAL, but it’s far from a black-and-white “you are all pirates, ye scurvy dogs!” situation. Even a simple lay-person can see that.

      Unlike the very litigious US, laws here don’t make that kind of behaviour as easy.

      Futher, those rights can be overshadowed by existing laws that may impinge on, or otherwise negate certain assumed rights. For example, an EULA cannot obviate you from murder/ man-slaughter charges, due to stabbing someone, simply because an EULA demands a sacrifice of a virgin prior to installing software.

      IP rights doen’t typically usurp other laws and rights; further, if there were actual, genuine legal grounds – the iiNet outcome would be very different. AFACT is hamstrung by the fact it’s simply an industry body, not a content owner.

      Equally, some property use restrictions may not apply equally in all locales. Recent MSFT and GOOG run-ins with the EU prove that point, nicely.

      The industry itself has to likely raise any such claims to have any standing.. as has been noted above. And it seems they have other matters to attend to; like making god-awful remakes of great movies and taking rather dodgy liberties with peoples’ childhoods.

      Oh, and making obscene amounts of money.

      This is why AFACT really don’t care so much for the people consuming content; it’s always been about people profiting by selling, or making available content that would otherwise send money to the distributor (if you cut int their business model, that’s where they get shirty; hardly surprising).

      But please, continue to paint the consumer as “the devil” as the industry bodies have done (to their detriment).

      • @ Brendan “Sorry? You seem to be suggesting everyone is a pirate.”

        I’m sorry you feel that way, but that’s not what i wrote.

        @ Brendan ” Never mind that said term has the following meaning:
        – One who makes use of or reproduces the work of another without authorization.”

        Exactly. That aptly describes the unlawful act of a person who downloads copyright material without the licence of the copyright owner.

        @ Brendan “IANAL”
        Oh get out! Really?

    • @Wilson – For that matter, how would YOU know?

      You seem to have some very sympathetic knowledge about the Hollywood corporation view of the world. Now how could that possibly be?

      • I don’t think socrates really fits you as an alias. Socrates was found guilty, even though it he wasn’t really. And had such a high regard for the law, and thought it so important for the law to be seen to be done, he drank the poison to end his own life. That hardly fits with someone who has distain for the law and believes it should be broken because some luxury item isn’t provided to them just how they want it.

        • @Noddy – my apologies for leaving you out of my previous post. So to make amends:

          @wilson and Noddy – For that matter, how would EITHER of you know?

          And the answer’s obvious, since you sound like a couple of shills in the offices of the usual suspects.

  3. Ah, very comforting to speculate that them individual pirating, thieving, criminal scumbags who have the anti capitalistic desire for prompt, reasonably priced, drm free products may not be sued by the leeching legalbois of the bloated middlemen sucking their artists dry…

    … but wait, who is that on the horizon ready to charge to the defence of the cruelly exploited rights holders and preserve their business methodology for western democracy? Oh, its the good ol’ Aussie government and their AG departmental deputies, ready with three strikes loaded pistoleros, courtesy of the secret cabal of afacteers, ispfellow travellers, and loads of good ol’ political donations…

    Phew, almost thought sanity was about to raise its head and interfere with business as usual…

  4. Don’t believe it whenever I’m downloading something that may be dodgy I always use my VPN that doesn’t keep logs.
    AFACT may say things like that just to make us feel safe and in the near future start mass lawsuits.
    With whats going on in the US with SOPA PIPA and the latest one CISPA it’s only a matter of time before these control issues comes our way.
    Play it safe use a VPN that doesn’t keep logs.
    That being said if TPTB start something like netflix is Aussie land I’ll be the first to sign up.

  5. An interesting read. However I don’t necessarily agree with all of it. While Renai insists that AFACT have no desire to sue individuals, really the only thing we have to support that is AFACT’s word on the matter – and an analysis of some of the difficulties for them if they were interested.
    As mentioned, this sort of lawsuit is common in the US – which indicates there absolutely is a desire to sue individuals. Whether it is difficult or untested in Australia doesn’t mean that the desire is not there.
    I believe that AFACT do have that desire, and wouldn’t be surprised if they try to test out the waters at some stage.

  6. Well its good to hear. But realistically,

    The Liberal Party keep complaining on the cost of the NBN. The MPAA and AFACT should chip in with it. This will then allow them access to the core network. Why? Because then they can setup up their own distribution network.

    As the music industry has proven, piracy levels drop when there is alternate distribution models available. But they dont appear to want to change.

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