THE legal system has rarely been able to keep up with technology. And so it has been with the question of the illegal downloading of music and movies from the internet. This week much has been made of the legal victory of the copyright owners of the Dallas Buyers Club in the Federal Court. They successfully sought an order for six internet services providers to disclose the names and addresses of people suspected of illegal downloading. But this was more a technological victory than a legal one.
The key to it has been the Maverik Monitor software.
In the early days of the battle between illegal downloaders and copyright owners – mainly over music — the copyright owners got orders to close down websites providing the wherewithal to do illegal downloading. This was because those early websites housed whole songs or movies.
Then came bit-torrenting. With this, illegal downloaders did not download a total song or movie from a single website. Rather through peer-to-peer software they could obtain numerous slivers of a given movie from different places – mainly the computers other people who had downloaded the movie or who were in the process of downloading it. The bit-torrenting software would then piece together all the bits to make a full song or movie.
This made life very difficult for copyright owners. They could no longer point to a single source for the illegal copying. The target was moving and changing all the time.
In 2012 they tried to force the internet service providers to block all bit-torrenting websites, but they got knocked back in the High Court.
The ISPs successfully argued that they could not know what websites people were accessing or know if any breach of copyright was occurring.
Enter the Maverik Monitor software. It monitors traffic on the BitTorrent network and identifies the IP addresses of users and records the time of the data transfer. This information would enable ISPs to identify the subscriber whose internet connection was used to conduct the alleged copyright infringement.
Every internet user has an IP address. Very often, however, the IP address of a given user will change from time to time. That is called a dynamic IP address.
But the ISPs can find out which subscriber had which IP address at which time.
So the copyright owners in this case asked the Federal Court to force the ISPs to deliver the names and addresses of the 4726 subscribers who had the IP numbers recorded by the Maverik Monitor software at the time copyrighted material was being copied.
The ISPs disagreed, arguing that the copying was only a sliver and the breaches would not result in anything more than trivial damages.
Justice Nye Perram disagreed.
Ominously, he pointed out, aggravated damages were available under the Copyright Act and one of the reasons for awarding aggravated damages would be to impose a deterrent.
However, Justice Perram’s judgment was not totally in the copyright owners’ favour. He imposed conditions on the use of the names and addresses – no intimidating letters (as has been done in the US). And he ordered that the copyright owners pay the costs.
In short, it has been a long costly legal battle by the owner of the copyright in one film. My guess is that even if they take the case to finality and get damages from all or some the 4,726 subscribers, by then someone will have found a way to stymie the operation of the Maverik Monitor software, or otherwise get around it.
This has been the pattern with the endless war between copyright owners and illegal copiers. The owners win a battle here or there and the copiers find a technology by-pass.
Governments past and present have sided with the copyright owners, almost uncritically. They have consistently strengthened the Copyright Act and extended copyright owners’ rights.
As it happens, the copyright owner of the Dallas Buyers Club is not some massive, greedy multinational. It is more of a cult film. However, there has been a major push by the really big multi-nationals to get the government and the courts to close down illegal copying.
And it is somewhat hypocritical for them to turn to Australian courts and governmental authority to enforce their rights while at the same time doing their damnedest to avoid paying the very taxes which fund those institutions.
It is also somewhat hypocritical for copyright owners (including the owners of copyright in software) to call on the Australian Government and Australian courts to help enforce their rights when they do their damnedest to charge Australians more for copyrighted material than they do for people who live in Europe or the Americas.
The questions governments should be asking is why is illegal downloading so prevalent and how can it be sensibly reduced without always resorting to the blunt instrument of the force of the law.
Illegal copying will undermine the incentive for people to create works and copyright owners should get a fair return for their work. But Australian consumers are sick of being taken for mugs.
Why should people with Australian IP addresses pay more for music and software than people overseas? And why should copyright holders get away with holding material back from people with Australian IP addresses when it is available overseas.
Why should producers of film and music assume they should get the same price for a download of a work that they used to get when they delivered through high-cost retail outlets in the form of costly CDs and DVDs. Whereas, delivery through additional downloads cost the copyright owners almost nothing.
Also, the Copyright Act permitted the taping of material of free-to-air TV for later viewing. So consumers argue, why should something which has already been on free-to-air TV be charged for at an exorbitant DVD-level price.
I have every sympathy for a small film producer like the Dallas Buyers’ Club, but if governments and the film industry want to deal with illegal downloading and its threats to creativity, they should start with reasonable pricing and availability.
Legal blunt instruments will only result in technological get-arounds.
CRISPIN HULL
This article first appeared in The Canberra Times and in Fairfax Media on 11 April 2015.