“Extortion”: Pirate Party slams piracy letters



news The Pirate Party of Australia has described as “extortion as a business model” action by a Sydney-based law firm which has seen Australian ISPs issued with a series of letters requesting they hand over the details of users who have allegedly used peer to peer file sharing platforms to pirate content owned by the firm’s clients.

Last week Delimiter revealed that Sydney-based firm Marque Lawyers, which counts intellectual property as amongst its specialities, had 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.

Several of the ISPs concerned immediately responded to Marque denying access to the details of the users concerned. 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. It is believed by some commentators that this avenue is one of the only ones available to rights holders to tackle piracy in Australia, following the conclusive judgement in the High Court piracy case involving iiNet, the Australian Federation Against Copyright Theft and a number of film and TV studios.

The use of the discovery mechanism to source the user details of ISP customers suspected of committing online copyright infringement is a mechanism which has been popularised in the United States over the past several years. It involves copyright owners asking a court to force ISPs to release user details so that those users — rather than the ISP itself — can be prosecuted directly or otherwise targeted by the content owners.

In a 2010 lawsuit filed by one of the more high-profile US organisations involved in this kind of practice, for example, known as the US Copyright Group, a Washington District Judge approved subpoenas relating to more than a thousand Time Warner Cable customers. An article published by Arstechnica in 2010 lays out a timeline involving such cases.

In response to the revelation, late last week Pirate Party Australia issued a statement noting that it ‘condemned’ the firm’s actions, describing them as reminiscent of “US-style copyright shakedowns”.

“The iiNet ruling, while protecting ISPs from liability for the activities of customers, opened the way for this sort of predatory suit which had thus far not yet materialised in Australia, as groups like AFACT had been attempting to negotiate a deal with ISPs to deal with file sharing, which ultimately failed,” the party said in a statement.

Pirate Party Candidate for the Senate in Victoria, Joe Miles, aded: “Ambulance-chasing legal action does nothing to support content creators, who are the reason we have copyright. This kind of
extortionate behaviour only benefits the commission based pay packets of opportunistic Lionel Hutz-like lawyers. It’s nothing more than an exercise in intimidation through litigation.”

The party said it opposed litigation of non-commercial file sharers, and added that it was “high time” that sections of the content industry moved with the times. Platforms like Steam, iTunes and the Amazon Kindle Store showed, according to the party, how there is a thirst for legal, paid content when it is provided in a way that is convenient and timely.

“We once again see extortion as a business model raise its ugly head in the Australian media landscape. Attacking your fans is not a well devised method of conducting business in this day and age.” said David W. Campbell, Pirate Party President and candidate for the Senate in New South Wales.

“Distribution monopolies are worth nothing if you cannot distribute what the people want; fast, uncrippled and appropriately priced access to content. Predatory litigation continues to ride the fail train that bypasses the lessons which successful modern businesses have already learned. The free sharing of cultural works aka piracy, is primarily a customer service issue[2].” continued Campbell.

The party said it was concerned by the international trend of predatory litigation techniques used by the likes of ACS:Law in the UK and Prenda Law in the US, and would resist and highlight any attempts to use similar shakedown litigation techniques in Australia.

Delimiter has contacted Marque Lawyers by telephone and email last week to request a statement or interview on the situation, and will publish any statement received from the firm or its clients in full as a right of reply to this article and other articles.

The news comes as ongoing talks on the subject of Internet copyright infringement between the telecommunications industry and rights holders under the auspices of the Federal Attorney-General’s Department appear to have collapsed, with each side being unable to reach consensus on the appropriate way to tackle the issue in Australia.

The most recent scheme proposed by the ISPs in November 2011 would see Australians issued with warning and educational notices after content owners provided evidence that the users had breached copyright online, with the ultimate penalty involving the ISPs potentially participating in some form of legal discovery process to hand some user details over to rights holders. However, it is believed that the scheme was quickly rejected by local representatives of rights holder organisations.

Copyright infringement of major works continues to be an issue in Australia. Analysis by file-sharing news site TorrentFreak published in April, for example, showed that Australia continued to be the world’s most enthusiastic nation globally in terms of illegally downloading popular US TV show Game of Thrones, despite the fact that the series was made available legally, in an affordable manner and in high quality in Australia shortly after it was broadcast in the US, through platforms such as Apple’s iTunes and the Foxtel pay TV service.

Foxtel has subsequently confirmed reports that it will block the remaining seasons of HBO’s popular Game of Thrones series from being offered in Australia hours after the show is released in the US, due to an exclusive deal with the show’s producer HBO signed in October last year. Commentators immediately hailed the deal as a move that would further stimulate illegal downloads of the show.

Internationally, the issue is also still hotly debated. For example, last week a report commissioned by the French Government recommended that the country should soften its controversial ‘three strikes’ law, which allocates the HADOPI agency in the country the power to cut off the Internet access of those accused of Internet copyright infringement. The report also reportedly recommended HADOPI be shut down.


  1. This article does not mention that generally the tactic is to threaten the account holder with court and offer to drop it for out of court cash settlements. The cases rarely (if ever) end up in court thus why it is termed extortion. “we think you did it, we’ll tarnish your name in the courts and it’ll cost your bazillions but if you send us money directly now we can avoid the courts and make all this go away….”.

  2. The trouble with peer-to-peer technologies such as BitTorrent is that you simultaneously upload files as you download them. There’s no way to avoid this; it’s simply how the technology works.

    So along comes the ambulance chasing lawyers, who “estimate” (i.e. make shit up) about how many other people must have downloaded the file that you didn’t even know that you were uploading. Rather than sue you for the revenue lost by your own downloads – which would be peanuts and not worth chasing – they can make up a figure of millions of dollars for all the revenue they “lost” via the people who downloaded it from your PC. And that’s the killer.

    Stop using Torrents. Now!

    • Maybe in America but Australia courts have tests that are more aligned to commonsense (at least in this case). They need to prove to a far greater extent the damages they’re claiming are realistic.

      Litigation in Australia is extremely expensive. This tends to keep frivolous and vexatious matters from entering the courts.

      Most parties and law firms in fact have litigation insurance, to cover the mainly the cost in the event its award to either party. Look at the trial with iiNet. They had insurance provide cashflow/funding for their defence.

      No insurer would touch copyright infringement with a ten foot pole considering the costs just to get the details of a subscriber/infringer. There is simply no return even if you sued thousands and settled for thousands its just not enough.

      I was prepping for a court case last year and asked the silly question of what a days cost was. For a very simple matter i was told it around $25k a day! In America costs are significantly lower. Thus the economics work out in terms of settling for a few grand per defendant.

      To mount a trial against someone who would have dozens of bono lawyers and groups provide free assistance in mounting a defence only to have them go bankrupt in the event they lost (and that’s not even guaranteed unlike in the US) but only after you’ve spent millions is just a stupid plan.

      It’d be a black hole and what for? So you can prove a point and pay millions to do so?

      No i said this before. This is FoxTel and a subsidiary of theirs Multi Channel Network who’s lawyers are Marquee (what a coincidence). The story leaked before they were ready. What their trying to do is scare people into buying subscriptions to access Game of Thrones. Even 500,000 thousand subscriptions would translate into billions over the free seasons of the show. This would be enough to fund a law firms initial cost into discovery.

      Once it hits the headlines that FoxTel is going after people and that they’re “serious” you’ll see zillions flock to FoxTel.

      Once FoxTel has milked it they’ll drop the case(s).

      If you look at the executive management of MCN what you can see steering this is greed. Rich man greed. These 1% of the 1% live in disgusting wealth and have no care for what is reasonable and fair. They just want as much money as they can cookie monster away into their voluminous demonic guts.

      This is just some poor ole business trying to make a buck. This is a business who stands to make billions ontop of the disgusting amounts of money they’re already making and paying themselves (ignore net, Gross/EBITDA is the real figure that shows you how awful these people really are, strip miners of society)

      • Well if this really IS Foxtels GoT attack dogs (and I hasten I don’t wish to disparage dogs by comparing them with these legal penii with ears parasites) I hope they come at me. Yep they would have me cold for downloading a HD version of GoT every week for viewing on my big screen pc monitor, albeit a little after the Foxtel viewing times… but I also have a platinum subscription to Foxtel and therefore am paying my fair share of the producers costs. Would really love a chance to tell these slimes to shove it up their fundamentals though…

  3. Brownieboy, yes a torrent can have a tracker list of all IPs that have even a portion of a file. This is the list that is used by these people. If it shows 1000 IPs, you must have uploaded the file to them….

    With the way TCP works, the process confirms that you are on the IP address that is advertised.

    Of course there are other laws that should be in effect, such as a time limit from when an infringement is detected to when it is acted apon. There is such protection for offences.

    Of course as the ACMA have recently learned (and others have known for a long time), an IP address is not just an individual or a single site.

    • Doesn’t the tracker list, contain every one who has initiated that particular torrent?
      Whoever is attempting to gain the list of IPs, would also have the own IP address added to the list.

      It’s about here where the creative side of my brains says, it would be awesome if someone wrote a app populate the tracker list with spoofed IPs. Perhaps with IPs from the lawyers, and movie production companies.

  4. I don’t believe they’d be able to get the damages side of things here in Australia (for non-commercial infringement), so if it went to court and you lost, other than the legal expenses it may only be the cost of the episode (or season) you’d be expected to pay. I think there was a case in NZ recently where this happened. Guy lost, had to pay $30 to pay for the movie.

    Be interesting to hear from someone in the know on this. EFA?

  5. And the conten mafia continue to try and cling to their outdated broken business models by any means necessary!!

    Pure fail!!!

  6. I can’t say I’m a fan of this tactic from lawyers – but let me pick up on a few points of this political band wagon wannabes.

    1. Extortion is illegal. As political candidates you should probably refrain throwing about wanton allegations so frivolously which imply that the lawyers in this case are acting illegal. Nothing so far is illegal. Maybe undesirable in your opinion – but not illegal.

    2. Joe: “Ambulance-chasing legal action does nothing to support content creators, who are the reason we have copyright” Maybe, but nor does taking content for free thinking that because it’s only for you (and possibly others in your immediate household, and close friends and family) that it’s some how justifiable not to pay anything. But you know, whatever. How about you read this one by Elmo Keep and condition that the people who you want to vote for you to actually pay for the content they consume: http://junkee.com/the-case-against-free-2/1421

    3. David. “The free sharing of cultural works aka piracy, is primarily a customer service issue”. No, it’s because people don’t place any value on the content of the creator. As Renai showed last week (and again highlightd in this current piece) in his article referencing Game of Thrones, despite having things available, at a reasonable price, at a reasonable time did nothing to abate piracy levels. http://delimiter.com.au/2013/05/14/foxtel-locks-up-game-of-thrones-no-more-fast-tracked-itunes-downloads/

    4. Finally, can I just say – you guys are great. Everything you prattle on about is based on a giant bull shit misnomer. I mean seriously, what’s this? “Distribution monopolies are worth nothing if you cannot distribute what the people want; fast, uncrippled and appropriately priced access to content.”.

    Your policy platform is to decriminalise “non-commercial file sharing”, which essentially sums up 99% of online piracy. Your policy platform is nothing to content creators and is all about consumers. Your policy of take everything is based on some bullshit premise that people will go and pay after they watch, listen or play something. Utter crap. The academic research is fairly conclusive that piracy is damaging. In fact, for your benefit, here is a link to something useful providing an empirical analysis on papers which have attempted to determine the impact piracy has on sales. Surprisingly, nearly every study came back that yes it does.http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2132153

    So how about you get off your self-inflated, uneducated, misguided high horses and instead of berating anyone who dares attempt to defend copyright, read the research, read the creators perspectives (see above links provided – you can also check what Radiohead had to say post-experiment with “In Rainbows” here: http://www.theverge.com/2013/3/4/4054634/musics-pay-what-you-want-pioneers-sour-on-giving-away-songs) and stop proclaiming you actually give a shit about artists or otherwise.

    • Pete: How much is Australian piracy of US content costing the Australian economy? What percentage of profit generated from US content actually goes to actual Australian citizens (not shell companies) versus the amount that goes to foreign entities?

      As an Australian, I am far more concerned about being overcharged for US product, when compared to US buyers, than I am about the losses of greedy foreign companies that have no problem ripping consumers off.

      Now, with that said, is it not the job of our government to govern in the best interests of this country and its people? So the Pirate Party seem to be aiming to do just that, don’t they? Overall consumers in Australia would be much better off taking advantage of the US media cartels, even factoring in the amount of money generated by our local media content creators when compared to the amount going to foreign creators.

      And all of that aside, how much of this money would go to the poor starving content creators like actor Charlie Sheen versus the amount that would instead go to middle men cartels like publishers, their shell companies and the MPAA, who have proven time and time again that they use selective interpretations of sales to screw not only consumers but the actual artists who have no chance to work outside of them due to their imposing a forced monopoly.

      Look also at the many posts countering the claims regarding Game of Thrones which you have no doubt selectively ignored because they don’t meet your limited views as to what is an acceptable excuse for not buying from Apple/Foxtel.

      So pirates are immoral, but the companies are not? Get a clue.

      I say all the above as a Foxtel subscriber who also purchased game of thrones from Apple in the hope of encouraging other companies to release content simultaneously across the globe at reasonable prices, only to later be disgusted and disappointed by Foxtel getting a monopoly on next season.

      • @Shane: Thanks for your comments, and I take your point – but there is issue with opening up to say some piracy is ok, especially against certain countries. First off, to throw back one of the “free internet” arguments – its a slippery slope. Which content is it ok to pirate because it’s not our own? Have you ever looked at credits of a movie and looked at how many companies world wide are involved in the production of a single movie? Just because a Universal, or Fox produced it, doesn’t mean to say an Australian post-production house didn’t contribute to it in some way.

        Secondly, this kind of approach ignores the fact we are signatories to a number of treaties, Berne Convention, TRIPS etc. Saying that you authorise the ‘non-commercial’ piracy of content from another jurisdiction brings into play any number of sanctions which can be taken against the country through WIPO and the WTO. It is inherently short sighted to think that it’s a one way street to punish US content producers and there will be no retaliation that may impact Australia. This is what the Pirate Party fundamentally do not comprehend. The content industries are not siloed into US|UK\Australia|etc. They are all cross contaminated and intrinsically linked. You cannot take unilateral action to ‘punish’ one for perceived misdeeds and not expect impact on local industry.

        The other reasons? Oh you mean, I don’t like Apple? Look, the further things become available, the more excuses people will rely on to justify their behaviour. Starts with – It’s not available when I want it. Then when that excuse goes, it’s too expensive. Then when that excuse goes…. it’s always something. Giving credence to every argument makes them seem more justifiable, where in actual fact, they are excuses.

        I don’t recall taking the view that companies are immoral or not. But trying to maximise a return on investment is a capitalist ideal. Taking something, copying it, downloading, whatever you want to call it, without compensating the content owner does not fit into this general model of societal norms. That said, distribution models *should* be expedited. I don’t agree normalising non-payment for content producers is the way forward.

        @Duke. Forgiving the fact you can’t read very well. I reiterate my first line: “I can’t say I’m a fan of this tactic from lawyers”. The rest of my comments I don’t think condoned this tactic. In fact, I think having read it again it was directed at the Pirate Party’s misguided attitude towards content. So if that makes me a ‘sanctimonious popinjay’, so be it. But I will revel in the knowledge I can read, make a cohesive argument, rely on facts, and not rely on the junk that comes out of Mike Masnick’s mouth as gospel. Because pointing to that as a response, would make me…. what’s the word….. oh yes, a sanctimonious popinjay.

    • So how about you go to the Techdirt site and read any articles on Prenda Law before having the unmitigated gall to attempt to preach copyright and wrong to me you sanctimonious popinjay…

  7. Back a few years ago, I think it was the second season of the new Doctor Who series, it was common to see DVD’s of the new series on shelves in the ABC shops (and others like JBHIFI), within a few weeks of airing on TV.
    A few weeks after the season was finished, you could get the boxset instead.

    How long do we have to wait for Game of Thrones?

  8. Q: Has anyone ever calculated the value of free marketing piracy generates for content owners ?.

    Imagine for a moment the popularity of The Game Of Thrones without the 1 Million free Australian promoters.
    Id say the makers of The Game Of Thrones would be saving literally $Millions in marketing costs as a result of this model.

    I first came across The Game Of Thrones after watching a low quality downloaded copy (don’t have FoxTel), now I own all the DVD’s and the books.
    Put simply I am a fan because of this free marketing concept.

    Suggestion to the content owners:
    Release a low quality copy of the show as it’s being aired in the US and write it off as a marketing expense.
    People that like the show enough will then buy the DVD’s/Books/Subscriptions as I did.
    Those that didn’t like it wont purchase it but will promote/signup to your site as a result.

    These days people like to try everything before they buy it, so why not leverage off this concept and gain a subscriber base like you’ve never seen before.

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