At the end of last month, it came to light that Sydney-based Marque Lawyers has issued letters to Australian ISPs to ask them to hand over details about the identity of their users who have allegedly used peer to peer Internet file sharing platforms such as BitTorrent in a way that infringes copyrighted content owned by Marque's clients.
The exact identity of Marque's clients is still unknown. Apparently some of the ISPs immediately responded to Marque, refusing to provide the details of their users. In response to that, Marque made known that it was considering applying to a court for a 'preliminary discovery order' to access this information. Ironically, Marque has previously argued that this kind of lawsuit is not entirely appropriate due to the difficulties in associating an IP address with a real person.
In recent years, the use of discovery for copyright owners to find out users' personal details from ISPs has been prevalent in the US. In Australia the use of this process to target suspected Internet pirates was raised in the litigation between iiNet and the Australian Federation Against Copyright Theft. The decision in this case held that iiNet itself had not authorised its users to infringe copyright online, but may have left open the door for rightsholders to pursue ISPs' customers directly.
This is not the first time in Australia that rightsholders have tried to go after Internet users directly. In 2011, the 'Movie Rights Group' tried its hand at mass litigation against Australian Internet users, by contacting all major ISPs seeking the details of users who had allegedly infringed copyright online. However, the MRG does not seem to have be a success since its vice-president left the organisation and its website was shut down later in 2011.
EFA believes that this kind of bullying of Australian Internet users by rightsholders' lawyers is unethical since it scares users, who may not be able to afford legal advice themselves into settling with rightsholders by paying sums of money when what they have done may not actually be infringing copyright. Furthermore, IP addresses used to 'identify' users alleged to be infringing copyright are not a foolproof link to a 'real-life' individual.
In addition, EFA thinks that these rightsholders would be better off spending their time and money on providing legal, timely and reasonably priced distribution models for digital content in Australia rather than overzealously pursuing individual users.