Monday, 3 October 2011

Australia Joining the Club

piracy is a crime

File this under breaking news, literally: According to Delimiter, Australia is about to join the prestigious club of countries where copyright holders are filing mass pretend law suits against collections of IP addresses from which they allege their contents was downloaded via bit-torrent.
The massive lawsuit phenomenon has been going on for years now in countries like the UK but especially in the USA. It works this way:
  1. The copyright holder, usually a porn company or a frustrated movie studio, decides they need the extra cash. They contact an external company specializing in bit-torrent lawsuits.
  2. That company, usually a small time company that calls itself a law firm, uses the services of another technology company to collect the IP addresses from where their contents is being downloaded via bit-torrent. That information is rather easy to collect: all they need to do is take part in the peer to peer action themselves (that is, join the downloading).
  3. With the IP addresses at hand, they can now contact the ISPs in charge of these addresses and ask for the personal details of the real people or companies behind them.
  4. Currently, there is nothing that forces the ISPs to comply with providing the details. It actually takes a lot of effort for the ISPs to comply. It therefore looks like the copyright holders are planning to provide the ISPs with some incentive to forward user details.
  5. The company running the show can now use another law firm to send threatening letters to the alleged downloaders, asking them to pay a settlement fee (the USA average is $3000) or go to court.
  6. At this point the alleged downloader is expected to pay, giving the copyright holder their extra cash.

For the moment I will ignore the issue of whether allegations based on an IP address are meaningful (e.g., lots of different people can use a single wifi network, especially at an office or a library and especially as it is perfectly legal to run an open, non encrypted, wifi network); that is a matter for the courts to decide. Another matter that should be in the courts' court is the ongoing lawsuit filed by American copyright stakeholders against iiNet and its effect on ISPs' behavior. What I do want to point out is that this whole mass lawsuit affair is not designed to ensure justice is done, but rather as an additional revenue stream.
The companies behind the threat letters do not want to go to court. All they want is to threaten people enough to scare them into paying the settlement fee, a fee that is significantly lower than the cost of defending oneself at court and winning. Cases that do get to court tend to stagnate there for years, and as far as I know other than lawyers hardly anyone gets to see actual money out of them (if at all). In other words, these companies abuse a shortcoming of our justice system – that is, the extreme cost of defending oneself at court, including justifiably defending oneself at court – in order to make money. In other words, we are dealing here with leeches.
If you are after further evidence for the leech factor look no further than the guise of secrecy behind the process. The companies dealing with the lawsuits like to keep themselves in secrecy and maintain the processes through which they acquire IP addresses and personal details from ISPs quietly behind closed doors. However, they have no secretive inhibitions when it comes to holding the private information of the real people behind the IP addresses.
While none of the discussion thus far is unique to Australia, there is something in Australia that makes these mass threat letters campaigns worse than in other countries. Australia severely lacks legal alternatives to bit-torrent piracy: movie releases are severely staggered here, both at the cinemas and upon DVD or Blu-ray release; and facilities for legal downloads are incredibly rare and usually non existent. There is no Netflix equivalent service for videos here, nor is there a Spotify or a Rhapsody for music.

What can one do about this threat of receiving potentially legal extortion letters?
It is extremely hard to avoid all forms of copyright infringements. As discussed here in the past, each time you forward an email without asking for the explicit right to do so you are breaching copyrights; the fact of the matter is, copyright legislation is so twisted and convoluted, especially in the direction of the powerful copyright lobbies, that you can only try to reduce the risk of being picked upon.
The easiest answer to the above question of threat mitigation is to stop pirating. Now, before you go on saying “well that’s bloody obvious”, please consider the repeated surveys that indicate around a third of Australia’s adult population openly admits to having illegally downloaded material off the Internet. Look around you: many if not most of the people you see have committed Internet piracy. The majority of the rest of them probably settle for buying illegitimate DVDs during their last holiday to Bali.
The more complicated answer is to stop downloading newly released films and porn, the two areas where the majority of the threat letter campaigns come from. There are also the various options of keeping oneself downloading under relative anonymity (e.g., the use of various proxy servers or VPN services).
Then again, quitting your Internet piracy now or hiding your personal trail would still be exposed for downloads you’ve made in the past.
If you do get a threat letter, I would advise contacting EFA (Electronic Frontiers Australia) and EFF (Electronic Frontier Foundation). EFF has a reputation of helping people out in such circumstances, and although American based they may like to prevent nasty precedents in Australia; EFA has local know-how.
What should you do even if you do not receive a threat letter? Well, you could consider joining EFA and/or EFF and support the causes they stand for. To quote from EFF, you should "champion the public interest in every critical battle affecting digital rights".


Image by orangeek, Creative Commons license

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