In fact, the illegal redistribution of copyrighted materials has been a problem since the dawn of the internet – most notably in the form of movie piracy. Be it through shady websites or various torrenting platforms, the anonymity, accessibility and unmediated nature of the internet results in the perfect environment for this type of illegal activity to flourish with little to no backlash – especially here in Australia.
Consider the act of torrenting. Torrenting itself isn’t inherently illegal, it’s simply a networking technology utilising peer-to-peer (P2P) file-sharing as a means to efficiently deliver content to a user. Unfortunately, often these files can contain copyrighted materials – be it designs, music or in the case of DBC, a film.
Obviously, these files being distributed is in direct breach of Australian Copyright Law. However, the question is less so about the legacies of piracy, but who takes the blame for it all. Between an increased prevalence in VPN’s (Virtual Private Networks), the notorious ‘Tor Browser’ and the difficulty of exercising international laws on individuals, both those hosting the film and those downloading the copyrighted material can remain virtually untraceable. Even if an individual doesn’t mask their steps, the only authentic, and therefore actionable, information about them is held by ISP’s (Internet Service Providers).
So, when an industry is losing nearly $97.1 billion globally, who pays?
This is exactly the question that Voltage Pictures set out to investigate in 2014, a copyright case that set a precedent for not only Australian filmmakers for years to come, but simultaneously helped reform Australian Copyright Law in 2018.
The Case – Dallas Buyers Club LLC v iiNet Limited
Between April and May of 2014, Voltage Pictures traced the IP addresses of 4,726 individuals that had illegally downloaded their latest feature film, Dallas Buyers Club. These individuals had pirated the film via the aforementioned BitTorrent client, and had failed to take any necessary precautions to prevent their IP addresses from being traced.
Armed with these addresses, DBC LLC. on behalf of Voltage Pictures, took to the Federal Court of Australia, demanding that iiNet, alongside five other ISP’s, reveal the names and contact details of the users associated with the addresses (in a process known as ‘preliminary discovery’).
As many companies dealing with private user-data would, these ISPs’ feared that providing this information would discredit their company. iiNet argued against both the legalities and authenticity of the IP tracing, however after a thorough review, were ruled to provide this information to Voltage Pictures… for a $600,000 bond.
Alongside this $600,000 price tag, came a series of rules. Referencing a European case, Golden Eye (International) Ltd v Telefonica UK Ltd, Judge Perram ruled that the courts would oversee all correspondence with the account holders, in order to help reinforce the importance placed upon retaining user privacy, and prevent DBC from ‘speculative invoicing’.
Speculative invoicing is a frowned upon practice, where a company issues an unreasonable and congested settlement, in the hopes that an infringer will simply pay the bill and move on. Voltage Pictures had used this technique in Singapore, justifying the hefty prices with the assumption that these individuals were only a miniscule percent of the true losses Dallas Buyers Club faced and, therefore, could be charged for more.
However, due to the vague and potentially malicious nature of the letters, they were knocked back numerous times. A year later, Voltage Pictures finally presented a concrete list of all the costs they sought.
These included :
- The price of a physical copy of ‘Dallas Buyers Club’
- A damages claim, based on the costs associated with tracking the user.
- A claim for punitive damages (a further fee for participating in illegal copyright activity)
- The price of a distribution licence, claiming users were in violation of 115(4), due to potential reuploading via the BitTorrent client.
Referencing Autodesk Australia Pty Ltd v Cheung, the courts ruled that DBC would only be able to fine for the first two options, dismissing the other fines. Judge Perram even went as far to state that the implications that individuals were in breach of 115(4) was ‘surreal’.
After much back and forth, the case was finally dropped towards the later months of 2016. With DBC unable to make a return on their legal fees they gave up, stating to the press :
“It’s certainly a disappointing outcome for us. It doesn’t do anything to mitigate the infringement that’s going on” – Michael Bradley, Lawyer for Voltage Pictures
And the pirates? Well, they were never followed up on.
“The idea that any court would assess DBC’s damages on the basis that BitTorrent users who were going to share the film over the BitTorrent network would have avoided infringement by approaching DBC to negotiate a distribution arrangement in return for a licence fee is so surreal as not to be taken seriously.”
So, what did this really achieve in the realm of copyright law?
As is the case with anything, law can become obsolete or irrelevant, and by no one’s fault. To conceptualise not only the advancements in modern technology over the next 50 years, but also to provide a definite answer to legal issues these technologies may produce is fundamentally impossible. As this case, and many others before it, have highlighted, the 1968 Copyright Act does not account for modern technologies, hence the 2018 Copyright Reform.
Unfortunately however, even after a multitude of amendments made in 2018, there still isn’t really a definite answer on ‘fixing movie piracy’. The passing of the 2018 Copyright Reform helped reinforce a proactive approach to pirate sites, rather than a reactive one – all while bringing search engines into the equation. The amendment gives copyright holders the rights to force both ISPs and Search Engine’s to completely disable access to identified pirate sites. However, due to the sheer scale of the internet and its user base this has resulted in what’s essentially an ineffective game of Whack-A-Mole. Sure, one site can get blacklisted – however, nothing’s stopping them from vaguely changing names and placing the site on a similar domain.
So… who pays? Well, regrettably, no one. Thanks to the sheer scale and anonymity of the internet, illegal distribution of copyrighted content is something that is fundamentally unable to be managed. No single entity is responsible, other than the individual downloading the copyrighted content and, with access to legal anonymity software, the greater majority of pirates are completely hidden. And, the sliver that slips through? The individuals DBC did try and fine?
Well, is 4,726 DVD sales really worth 3 years of your time?
