John Linton My holiday memories are fading fast having been back three days. The equivocal judgment in the iinet/AFACT law suit seems to have provided new hope for copyright holders with an entirely new 'group' contacting Exetel's lawyers in my absence and taking an entirely new approach (at least as far as I'm aware of) to the problems of internet users illegally downloading/uploading copyright material. Apparently a very popular pirated movie is something called "Kill The Irishman" the rights to which are owned by Lightening Entertainment in the USA but whose interests are being pursued by a Brisbane law firm in Australia who claim that this movie was the number one pirate target in May 2011.
They go on to say that they have a list of 9,000 Australian IPs of which 150 belong to Exetel (about right as a percentage of the market Exetel has) and they have enquired as to whether Exetel (and presumably other ISPs) can accept a subpoena from them requiring Exetel to provide the end user details of those end users at the time the illegal downloads were made. They aver, though our lawyers have yet to see the rationale, that they are legally able to require Exetel to provide this information which, first pass, it appears they are entitled to do as they claim to have a legitimate interest in requiring that information to pursue the alleged illegal down/uploaders loaders. We could, physically, comply with at least parts of such a subpoena provided the issuer paid any costs involved in providing the requested information and it will be interesting to see if there is a legal rationale for complying with such a demand. The lawyers acting for Lightening Entertainment claim to be certain of their rights to demand this information and our lawyers accept that it is almost certainly the case under 'standard' commercial Australian law. They will review the cited references but their opinion is that, subject to final validation, if a subpoena is issued then no company, Exetel or any other ISP has any option but to comply with it....assuming the information was actually avaialable....and there could obviously be some scenarios where such information would not exist at some future point in time under our processes and presumably any other ISP's processes.
A very different approach to the legal path taken by AFACT, and so ineptly defended by iinet, which attempted to make the ISP the 'guilty party' in illegal downloading of copyright material. Perhaps Lightening Entertainment has reached an agreement with AFACT along the lines of AFACT continuing to target ISPs and Lightening now targeting end users as has been the practice in the USA from what I know of the issue. The most interesting thing I found in their 'approach' was their request for IP records going back 12 months or more. This would allow them to issue one subpoena (assuming the law does in fact allow that) that covers 12 months plus of illegal downloading and thus allow them to take action against tens/hundreds of thousands of end users at a time on an ongoing basis. I obviously don't know what large ISPs such as Telstra Retail will do if such demands are legal in Australia - perhaps plead their records are not able to comply with the demand? It would be an interesting response for any ISP to take as it would call in to question the validity of how they actually bill their customers.
Only having been appraised of this situation yesterday evening I have no real idea as to what this new group has in mind (perhaps its a US extortion scam) but it seems to be likely to be 'real' and it seems to be properly thought through. What may or may not transpire from here is not possible, at least for me, to assess. However it will reduce the smugness felt by the more blatant of the illegal down loaders that they will never have to face up to the consequences of their actions....perhaps they will at some future time? If this group launch 9,000 individual law suits demanding money with menaces against Australian internet users in the not too distant future I think a lot of attitudes to illegal downloading will change.....if only by parents.
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