iiNet, the second biggest ISP in Australia, has been a bit of a magnet when it comes to BitTorrent lawsuits. In 2008 they were sued by the Australian Federation Against Copyright Theft (AFACT) for failing to prevent its subscribers from infringing copyright via Bittorrent, a case it won, as the court found it was not iiNet’s responsibility.
In late 2014, Voltage Pictures – the company behind Oscar winning movie ‘Dallas Buyers Club’ – started proceedings against Australian users it accused of downloading its movie, just as it has in both the US and Canada. The alleged Australian infringements all occurred between 2 April 2014 and 27 May 2014.
iiNet refused to hand over the account details of the 4,726 IP addresses demanded by Voltage, and took it to court, where, in early April, the judges sided with Voltage. However, in a massive blow to Voltage, they required that any letters sent out to people be approved by the court, undermining the key tactic of exaggerating claims in these kinds of cases. Most such cases rely on threatening significant damages at court in order to ‘encourage’ the recipient to settle, but Justice Perram has indicated that the damages could be as low as AU$10 (US$8), although there could be significant court costs as well.
Now iiNet has dealt Voltage another blow, announcing in a blog post:
“If you do receive a letter you may want to get legal advice. iiNet is working with a law firm that has offered to provide pro-bono services for any of our customers”
This would be a major setback to the speculative invoicing model used by Voltage, which relies on the high potential damages, plus the significant cost of defending a case (greater than the settlement demanded) to ensure a steady revenue stream. With the court restricting the intimidating language, and the offer of free legal counsel to defend the cases, it may end up being far more costly for Voltage to pursue claims than they can hope to recoup.
And while iiNet has jumped to the defense of its customers in this way, it may not be alone. The M2 group has also indicated it may provide pro-bono legal assistance in similar cases, although they have refused to commit prior to a court hearing on May 21st when a date for the transfer of customer information will be agreed.
It is not looking like Australia will be a fruitful venue for copyright trolls.
Tag: Australia
Border Force bureaucrats become super-spooks
Australia’s long sleepwalk into a surveillance state continued last week, with the largely-uncontested passage of the suite of bills creating the Australian Border Force (ABF).
As well as telecommunications metadata access, the legislation wrapped the Australian Border Force (ABF) in a protective coating of spook-power.
Last week, Senator Scott Ludlam warned that the ABF – a mash-up of the “border control functions” of the Departments of Immigration and Customs – was being designated a law enforcement agency under the Telecommunications Interception Act.
That means that Australian citizens who haven’t committed a crime, or even travelled overseas, might still be swept up in a metadata request.
However, as an anonymous reader pointed out to Vulture South, the law goes even further than that.
In the digest of legislation needed to create the ABF, it’s also noted that “the Bill gives significant law enforcement powers to all officers of Department of Immigration and Border Protection (DIBP).”
What that means is that the ABF will be able to conduct controlled operations which, under the government’s new national security regime, means the agency now has the power to block reporting of its activities and pursue whistleblowers.
That’s more than a trivial change, since it’s already known that the Australian Federal Police (AFP) has been investigating journalists reporting on asylum-seeker issues to try and uncover their sources.
Greatest Threat to Free Speech Comes Not From Terrorism, But From Those Claiming to Fight It
We learned recently from Paris that the Western world is deeply and passionately committed to free expression and ready to march and fight against attempts to suppress it. That’s a really good thing, since there are all sorts of severe suppression efforts underway in the West — perpetrated not by The Terrorists but by the Western politicians claiming to fight them.
One of the most alarming examples comes, not at all surprisingly, from the U.K. government, which is currently agitating for new counterterrorism powers, “including plans for extremism disruption orders designed to restrict those trying to radicalize young people.” Here are the powers which the British Freedom Fighters and Democracy Protectors are seeking:
They would include a ban on broadcasting and a requirement to submit to the police in advance any proposed publication on the web and social media or in print. The bill will also contain plans for banning orders for extremist organisations which seek to undermine democracy or use hate speech in public places, but it will fall short of banning on the grounds of provoking hatred.
It will also contain new powers to close premises including mosques where extremists seek to influence others. The powers of the Charity Commission to root out charities that misappropriate funds towards extremism and terrorism will also be strengthened.
In essence, advocating any ideas or working for any political outcomes regarded by British politicians as “extremist” will not only be a crime, but can be physically banned in advance. Basking in his election victory, Prime Minister David Cameron unleashed this Orwellian decree to explain why new Thought Police powers are needed: “For too long, we have been a passively tolerant society, saying to our citizens ‘as long as you obey the law, we will leave you alone.’” It’s not enough for British subjects merely to “obey the law”; they must refrain from believing in or expressing ideas which Her Majesty’s Government dislikes.
You Can’t Read the TPP, But These Huge Corporations Can
The Senate today is holding a key procedural vote that would allow the Trans-Pacific Partnership to be “fast-tracked.”
So who can read the text of the TPP? Not you, it’s classified. Even members of Congress can only look at it one section at a time in the Capitol’s basement, without most of their staff or the ability to keep notes.
But there’s an exception: if you’re part of one of 28 U.S. government-appointed trade advisory committees providing advice to the U.S. negotiators. The committees with the most access to what’s going on in the negotiations are 16 “Industry Trade Advisory Committees,” whose members include AT&T, General Electric, Apple, Dow Chemical, Nike, Walmart and the American Petroleum Institute.
The TPP is an international trade agreement currently being negotiated between the US and 11 other countries, including Japan, Australia, Chile, Singapore and Malaysia. Among other things, it could could strengthen copyright laws, limit efforts at food safety reform and allow domestic policies to be contested by corporations in an international court. Its impact is expected to be sweeping, yet venues for public input hardly exist.
Industry Trade Advisory Committees, or ITACs, are cousins to Federal Advisory Committees like the National Petroleum Council that I wrote about recently. However, ITACs are functionally exempt from many of the transparency rules that generally govern Federal Advisory Committees, and their communications are largely shielded from FOIA in order to protect “third party commercial and/or financial information from disclosure.” And even if for some reason they wanted to tell someone what they’re doing, members must sign non-disclosure agreements so they can’t “compromise” government negotiating goals. Finally, they also escape requirements to balance their industry members with representatives from public interest groups.
The result is that the Energy and Energy Services committee includes the National Mining Association and America’s Natural Gas Alliance but only one representative from a company dedicated to less-polluting wind and solar energy.
The Information and Communications Technologies, Services, and Electronic Commerce committee includes representatives from Verizon and AT&T Services Inc. (a subsidiary of AT&T), which domestically are still pushing hard against new net neutrality rules that stop internet providers from creating more expensive online fast-lanes.
And the Intellectual Property Rights committee includes the Recording Industry Association of America, the Pharmaceutical Research and Manufacturers of America, Apple, Johnson and Johnson and Yahoo, rather than groups like the Electronic Frontier Foundation, which shares the industry’s expertise in intellectual property policy but has an agenda less aligned with business.
VPN and Site Blocking Attacked By Consumer Group
After Attorney-General George Brandis and Communications Minister Malcolm Turnbull asked the Australian Cabinet to approve the development of a new legal mechanism allowing rightsholders to obtain site-blocking injunctions, legislation was introduced to parliament last month.
What followed is a still-current six-week consultation period for additional submissions, with various groups invited to voice their opinions and concerns.
While the site-blocking elements of the Copyright Amendment (Online Infringement) Bill 2015 are likely to please rightsholders, concerns remain that not only will the legislation fail to achieve its aims, but may also have unintended consequences that could stifle consumer choice.
In its submission the Australian Communications Consumer Action Network (ACCAN), the body that represents the interests of consumers on communications issues including broadband and emerging Internet services, three key issues are raised – VPN use, efficacy and cost of blocking, plus consumer interests.
The VPN problem
ACCAN is concerned over some of the wording employed in the amendments. Instead of referencing “website blocking”, the legislation speaks about “online locations”. While this appears to be an effort to future-proof the Bill, it also has the potential for additional consequences should rightsholders decide to exploit the ambiguity.
“Our first concern relates to the scope of activities that may be picked up by an interpretation of an ‘online location’ which ‘facilitates an infringement’ of copyright,” ACCAN writes.
“Without clear legal precedent, there is ambiguity under the Copyright Act about what constitutes infringement in relation to the use of a Virtual Private Network (VPN) to gain access to geo-blocked products and services. If this ambiguity is not cleared up, this amendment may have the unintended consequence of blocking these services and in turn harm competition and consumer choice.”
And confusion does exist. On his website Minister for Communications Malcolm Turnbull says that the Copyright Act does not make it illegal to use a VPN to access overseas content. On the other hand, the Australian Copyright Council believes that using a VPN to download content licensed overseas is “likely to be an infringement of copyright in Australia.”
While it was previously reported that the Bill had been delayed due to modifications aimed at protecting VPN-like services, ACCAN says that it would prefer clarity on the matter.
“While this ambiguity exists there is a risk that rights holders will attempt to use this injunctive power to block VPN websites and limit consumer access to paid content overseas,” the group writes.
And the threat is real. As reported last week, New Zealand based media companies report that they are on the verge of suing local ISPs who provide VPN services designed to unlock overseas content. Avoiding the same thing Down Under is a priority for ACCAN.
Agency Overseeing Obama Trade Deals Filled With Former Trade Lobbyists
The Office of the United States Trade Representative, the agency responsible for negotiating two massive upcoming trade deals, is being led by former lobbyists for corporations that stand to benefit from the deals, according to disclosure forms obtained by The Intercept.
The Trans-Pacific Partnership (TPP) is a proposed free trade accord between the U.S. and 11 Pacific Rim countries; the Transatlantic Trade and Investment Partnership (TTIP) is a similar agreement between the U.S. and the E.U.
The Obama administration is pushing hard to complete both deals, which it says will increase U.S. trade opportunities. Critics say the deals will provide corporate interests with sweeping powers to challenge banking and environmental regulations.
Here is information on three major figures in the Trade Representative’s office, gleaned from their disclosure forms:
— Sharon Bomer Lauritsen, the assistant U.S. trade representative for agricultural affairs, recently lobbied for the Biotechnology Industry Organization, a trade group for biotech companies. Lauritsen’s financial disclosure form shows she made $320,193 working to influence “state, federal and international governments” on biotech patent and intellectual property issues. She worked for BIO as an executive vice president through April of 2011, before joining the Trade Representative office.
— Christopher Wilson, the deputy chief of mission to the World Trade Organization, recently worked for C&M International, a trade consulting group, where he represented Chevron, the Biotechnology Industry Organization, British American Tobacco, General Electric, Apple and other corporate interests. Wilson’s financial disclosure shows he made $250,000 a year, in addition to an $80,000 bonus in 2013, before he joined the Obama administration. Wilson left C&M International in February of 2014 and later joined the Trade Representative’s office. C&M International reportedly lobbied Malaysia, urging it to oppose tobacco regulations in Australia.
— Robert Holleyman, the deputy United States trade representative, previously worked as the president of the Business Software Alliance, a lobbying group that represents IBM, Microsoft, Adobe, Apple and other technology companies seeking to strengthen copyright law. Holleyman earned $1,141,228 at BSA before his appointment. Holleyman was nominated for his current position in February of last year.
Music Industry Wants Cross Border Pirate Site Blocks
In recent years blockades of “pirate” websites have spread across Europe and elsewhere. In the UK, for example, more than 100 websites are currently blocked by the major ISPs.
In recent weeks alone several new countries adopted similar measures, Australia, Spain and Portugal included.
Opponents of this censorship route often argue that the measures are ineffective, and that people simply move to other sites. However, in its latest Digital Music Report music industry group IFPI disagrees, pointing at research conducted in the UK.
“Website blocking has proved effective where applied,” IFPI writes, noting that the number of UK visits to “all BitTorrent” sites dropped from 20 million in April 2012 to 11 million two years later.
The key to an effective blocking strategy is to target not just one, but all leading pirate sites.
“While blocking an individual site does not have a significant impact on overall traffic to unlicensed services, once a number of leading sites are
blocked then there is a major impact,” IFPI argues.For now, however, courts have shown to be among the biggest hurdles. It can sometimes take years before these cases reach a conclusion, and the same requests have to be made in all countries.
To streamline the process, copyright holders now want blocking injunctions to apply across borders, starting in the European Union.
“The recording industry continues to call for website blocking legislation where it does not already exist. In countries where there is already a legal basis for blocking, procedures can be slow and burdensome,” IFPI writes.
ISP Pulls VPN Service After Geo-Unblocking Legal Threats
While VPN services have always been associated with privacy, in recent years they have bloomed into tools providing much more than a simple way to stay cloaked online.
For a relatively small fee, users of the most popular VPN services can tunnel out of their country of origin and reappear in any one of dozens of countries around the world. This opens up a whole new world of media consumption opportunities.
Citizens of the United States, for example, can access BBC iPlayer just like any other Brit might, while those in the UK looking to sample the widest possible Netflix offering can easily tunnel right back into the U.S.
This cross-border content consumption is not popular with entertainment companies and distributors. It not only undermines their ability to set prices on a per-region basis, but also drives a truck through hard-negotiated licensing agreements.
Tired of dealing with ISPs including Slingshot who offer a dedicated ‘global mode‘ VPN service for customers, last week media companies in New Zealand ran out of patience.
“We pay considerable amounts of money for content rights, particularly exclusive content rights. These rights are being knowingly and illegally impinged, which is a significant issue that may ultimately need to be resolved in court in order to provide future clarity for all parties involved,” Lightbox, MediaWorks, SKY, and TVNZ said in a joint statement.
“This is not about taking action against consumers; this is a business-to-business issue and is about creating a fair playing field.”
Before being granted limited local access to Netflix just last month, Kiwis were required to level their own playing fields by paying for a VPN service and an account at an overseas supplier in order to legally obtain a decent range of premium content. However, the media companies now want to bring an end to that free choice via legal action. Today they claimed their first scalp.
This morning Unlimited Internet became the first ISP to respond to media company pressure by pulling its geo-unblocking service known as “TV VPN” after receiving a warning letter from a lawfirm.
The letter, which has been sent out to several local ISPs, informs Unlimited Internet that its VPN service infringes the Copyright Act of 1994.
Unlimited Internet director Ben Simpson says that while his company doesn’t necessarily agree with that assertion, it has taken down the service nonetheless.
“Geo-unblocking services are a direct result of consumer demand for access to content that is not made available to the New Zealand market,” Simpson says.
“To be on the safe side, we have taken legal advice on this matter and I have made a firm call that we will sit on the sideline until a legal precedent has been set.”
iiNet loses Dallas Buyers Club Piracy Case
Back in 2012, the Australian High Court ruled that ISP iiNet was not responsible for the copyright infringements of its customers. Stymied by that ruling, many Australian file-sharers breathed a sigh of relief, as Antipodean users are usually amongst the last to get content, forgotten in the long-tail of media distribution.
Conversely, it also meant that they were one of the last English-speaking (and English common-law) countries to see the appearance of so-called ‘Speculative Invoicing’, more commonly known as copyright trolling. However, “Down Under” couldn’t escape forever, and eventually the trolls washed up on the shore, in the shape of mega-troll “Dallas Buyers Club” (DBC).
The model should be familiar to most of our readers. A company (or its representative) joins a BitTorrent swarm, and “observes” a number of peers on the torrent. It then applies for a court order for the ISP to hand over the identities behind all those IP addresses so they can be pressured for cash settlement.
The big question was whether the Australian courts would allow for the discovery of subscriber details but in a decision released just minutes ago the courts said ‘yes’. Letters to be sent out to the 4,726 consumers involved will first have to be approved by the court, a move designed to reduce DBC’s ability to overstate the case and the potential penalties involved.
Following a similar ruling in Canada last February, this is the second time these kinds of restrictions have been placed on Dallas Buyers Club/Voltage Pictures. UK ‘trolls’ are also subjected to the same oversight in their initial letters to consumers but subsequent correspondence flies completely under the radar with no court involvement.
In today’s case the judge also ruled that the privacy of the 4726 accounts should be protected but placed no cap on damages. The precise restrictions and justifications will become clear when the verdict is published later today.
Australia Outlaws Warrant Canaries
In the US, certain types of warrants can come with gag orders preventing the recipient from disclosing the existence of warrant to anyone else. A warrant canary is basically a legal hack of that prohibition. Instead of saying “I just received a warrant with a gag order,” the potential recipient keeps repeating “I have not received any warrants.” If the recipient stops saying that, the rest of us are supposed to assume that he has been served one.
Lots of organizations maintain them. Personally, I have never believed this trick would work. It relies on the fact that a prohibition against speaking doesn’t prevent someone from not speaking. But courts generally aren’t impressed by this sort of thing, and I can easily imagine a secret warrant that includes a prohibition against triggering the warrant canary. And for all I know, there are right now secret legal proceedings on this very issue.
Australia has sidestepped all of this by outlawing warrant canaries entirely:
Section 182A of the new law says that a person commits an offense if he or she discloses or uses information about “the existence or non-existence of such a [journalist information] warrant.” The penalty upon conviction is two years imprisonment.
Expect that sort of wording in future US surveillance bills, too.