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.
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.