As AFP Commissioner Andrew Colvin confirmed to a press conference in Canberra yesterday, mandatory data retention will include data that will enable copyright holders to chase people they believe have infringed their copyright.
Communications Minister Turnbull tried to play this down, saying,
“They do this pretty much in real-time, so the two year holding of data doesn’t make a big difference in terms of copyright infringement, they’re dealing with the here and now.”
That statement however is simply untrue, as demonstrated by last week's news about Dallas Buyers Club taking a number of Australian ISPs to court.
Dallas Buyers Club LLC, a media company with a film of the same name, has requested that iiNet (and four other ISPs) provide the private personal information ‘behind’ the IP addresses of people who have downloaded infringing copies of their film. This is, in contradiction of Mr Turnbull's claims noted above, all about historical data.
This has direct, and serious, ramifications for Australians as it is likely to result in a situation where individuals are targeted with ‘speculative invoicing’. This basically means that the end user of an IP address associated with a download of an infringing copy of the film could be demanded to ‘pay or else’. iiNet believes that this could be up to $7,000. This is a fairly hefty sum, particularly considering that it would be entirely speculative as an IP address is not a direct link to the person who actually infringed the copyright (for example, friends and family members using your home internet, schools and public wifi spots).
The practice of speculative invoicing is widely criticised as a form of ‘copyright trolling’. This is basically a deviation of ‘patent trolling’, where a company, or group of companies, attempts to enforce its right(s) on person(s) in an aggressive and excessive manner for the purpose of making money from the threat of litigation. A similar case to the present application against iiNet was heard in May this year in the United States where the discovery process was used “before the plaintiff has named a defendant and the discovery is targeted to identify unknown individuals associated with the IP addresses”. Although this is a United States case, the Court of Appeal found that this was not an acceptable use of the discovery process and rejected the applicant’s argument.
It's also important to note that this figure would be outrageously excessive as the movie itself retails at A$29.99 via iTunes in Australia. Also, note that the movie retails for US$9.99 on iTunes in the US, so if they're wondering why some Australians might choose not to pay, there may be a clue in that.
As this situation has not been tested within the Australian legal system and would result, at this stage, in a system of ‘pay or else’, this would clearly be a disproportionate disclosure of personal information.
The application is set for the first directions hearing in New South Wales on 4 November 2014.
Should Dallas Buyers Club LLC succeed in their claim, this also paves the way for other large rights holders to follow the same path, and should the government's mandatory data retention legislation pass the parliament, expect to see this sort of copyright trolling becoming much more prevalent down under.
Concerned about indiscriminate mandatory data retention? Support our Citizens, Not Suspects campaign by:
- AU: https://itunes.apple.com/au/movie/dallas-buyers-club/id804306187
- US: http://www.canistream.it/search/movie/dallas%20buyers%20club