Pirates Uncovered - Dallas Buyers Club's Landmark Case in Australia

Piracy is considered by many in the entertainment industry to be the plight of the 21st century creative minds and pockets (and the pockets' of many shareholders, one would think). What ever your thoughts on copyright piracy, the topic remains a hot-button issue, and the courts have been, and will undoubtedly continue to, battle with for years to come. With this in mind, the enforcement of rights online has proven difficult, especially when a user, either downloading or sharing said infringing content, is effectively hidden behind a single Internet Protocol (IP) number, which does not accurately identify the given user (as discussed here in some manner relating to the US). The battle between Internet Service Providers (ISPs) and copyright holders has been an active one regarding this, and a recent decision in Australia seems to have opened the door to potentially combating this issue on the copyright holders' end, at least for now.

The case in question was Dallas Buyers Club LLC v iiNet Limited, which dealt with the very successful movie Dallas Buyers Club that was, among other things, nominated for 6 Oscars in its year of release. Due to the movie's immense success, it was promptly shared online, and in an action for preliminary discovery, the movies' rights holder Dallas Buyers Club LLC sought to identify the individuals behind all 4726 unique IP addresses associated with sharing the movie online through the 6 respondent ISPs in the action. The ISPs contested this application on several grounds, but the first instance decision lay with the Federal Court of Australia.

Although the respondents actively contested the ownership of the copyright in the work (decided as being held by Dallas Buyers Club LLC, with very little resistance from the Court), and other matters underpinning the case at hand, the meat of the discussion lay in the possible allowance of discovery in relation to the aforementioned IP addresses.

The secret life of a copyright infriger (Source: Bizarro Comics)

Under the Australian Federal Court Rules 2011 a party can seek for the identification of an unknown party should they have a cause of action against that person under certain requirements: "(a) there may be a right for the prospective applicant to obtain relief against a prospective respondent; and (b) the prospective applicant is unable to ascertain the description of the prospective respondent; and (c) another person (the other person): (i) knows or is likely to know the prospective respondent’s description; or (ii) has, or is likely to have, or has had, or is likely to have had, control of a document that would help ascertain the prospective respondent’s description." Clearly, as the individuals sharing the movie are behind an IP address, and therefore hard to identify without information from the ISP as to who is behind said IP address, Dallas Buyers Club, at least prima facie, had a case to find out who these people are under the Act.

Regardless of the ISPs' rejection of Dallas Buyers Club's assertions under the three requirements of the Act, the Court saw that they had fulfilled the requirements and were therefore entitled to disclosure as to the users' identities. They had a right to seek relief as to a potential breach of their copyright; they could not identify the individuals committing that infringement; and the ISPs knew or were likely to know who they were, or at least would be in possession of their subscriber details based on fixed IP addresses.

Even though Justice Perram allowed the disclosure of the users' information to Dallas Buyers Club, he did however set certain restrictions on it, which will be set by the parties later in the process. Dallas Buyers Club have indicated that they want the details disclosed by May 6th, but the letter that will be sent out will be determined on a later note as well.

Although the case is an important landmark in the fight against piracy, the disclosure of individuals' details in relation to copyright infringement is nothing wholly new. In Canada, under the Federal Court Rules, the disclosure of such information is very similar to the Australian provision; and Voltage LLC, the parent company of Dallas Buyers Club, has successfully used the provision to gain such information in Canada in the case of Voltage Pictures LLC v John Doe. Similarly, in the UK, a Norwich order (the equivalent of the Australian provision's application) was issued for copyright infringement through which subscribers' details were disclosed to the copyright holder in Golden Eye (International) Ltd & Anor v Telefonica UK Ltd. Both cases also discuss the restrictions needed in the event of such disclosure, such as: "[p]utting safeguards in place so that alleged infringers receiving any “demand” letter from a party obtaining an order under Rule 238 or a Norwich Order not be intimidated into making a payment without the benefit of understanding their legal rights and obligations... [s]pecific warnings regarding the obtaining of legal advice or the like should be included in any correspondence to individuals who are identified by the Norwich Order... [l]imiting the information provided by the third party by releasing only the name and residential address but not telephone numbers and e-mail addresses... [and] [r]equiring the party obtaining the order to provide a copy of any proposed “demand” letter to all parties on the motion and to the Court prior to such letter being sent to the alleged infringers". These, among others, will undoubtedly be considered by the Australian courts in their application of such orders in the future, and in this case specifically.

As one could imagine, the case has spawned a huge amount of discussion, especially relating to Voltage Pictures' previous strong-arm tactics in their letters to infringers. Nevertheless, the cold application of the law, at least to this writer, seems to be quite accurate, and individuals who engage in such activities need to understand the risks associated with illegal copying of media online. The Dallas Buyers Club case clearly sets the stage for more direct, stronger enforcement of copyright within Australia, and it remains to be seen how the provision will be utilized in the future, and what restrictions the courts ultimately put on the disclosure of subscribers' details and the usage thereof.

Source: Sydney Morning Herald

Streams of Infringers - Germans Face Infringement Allegations over Adult Material

People's Internet browsing habits can be incredibly personal, especially when it relates to certain materials of an adult nature. As such pornographic materials have been used to coerce people into paying for alleged cases of copyright infringement, mostly because of the potentially embarrassing effect a publicly accessible litigation process would have on those individuals. Recent instances have been noted in Australia and more prominently in the US by Prenda Law (something which will be discussed on this blog very soon in more depth). Although seemingly a much rarer vehicle for short-term profits for some entities, recent times have shown an increase in behavior deemed as "copyright trolling"; much akin to patent trolling discussed on this blog prior.

The Germans are the current recipient of such claims, with thousands of Germans being targeted as alleged copyright infringers after visiting the streaming website RedTube (no affiliation with the more known YouTube I'm sure). With numbers having been reported as high as 30,000 Germans as recipients of these letters, the potential value sought by the firm U+C would be over 7,5 million euros.

As such web streaming has been deemed to not infringe copyright in many jurisdictions due to no copy being created in the process of streaming; however U+C argue that "...watching videos on sites such as Redtube can qualify as a proliferation of copyrighted material as a small copy of the file is created in the memory of the viewer’s computer", thus making a copy of the work and potentially infringing copyright. Commenting on behalf of RedTube Alex Taylor, their Vice-President. stated that "RedTube stands by its firm opinion that these letters are completely unfounded and that they violate the rights of those who received it in a very serious manner".

Many are unsure of how to pay the pizza delivery man, if some videos are any indication

Alongside the potential precedent that could be set by the case should it be taken further, potentially causing web streaming to be deemed to infringe copyright, the issue of whether this does infringe the privacy of German citizens can be raised. As stated by Christian Solmecke for the Guardian "...there was not only no legal basis for the fines, but that it was possible that the law firm behind the letters may have broken the law...[and] [i]t is hard to imagine how the IP addresses of the users could have been obtained on a legal basis". More notably this could be an infringement of the right to a private and family life under the European Convention on Human Rights, in addition to any specific German legislation.

The issue of the temporary copies has been argued by Tim Worstall as being potentially correct, stating that "If the original streaming site hasn’t been paying the right royalties it is possible that the viewers owe them. for that idea of a copy existing in the browser would not be, in at least some jurisdictions, be rejected out of hand". This writer for one can see the potential argument as being valid given the right line of argument or set of facts; however due to the current precedent surrounding web streaming it would be unlikely for it to be deemed a form of infringement.

As it stands the matter has not been taken to court, but due to the sheer visibility of the matter it seems unlikely it would avoid litigation entirely, assuming U+C have belief in their argument and are not simply trying to use peoples' embarrassment as a way to make a quick buck. Whether this will go further will remain to be seen, but this writer for one would love for U+C's argument to be tested in court.

Source: The Guardian

Retrospective - Breach of Trust in Intellectual Property

Intellectual property, in essence, carries its worth and value in the knowledge or ingenuity of the inventor, or the creation of the author of a work, not necessarily in the tangible (or at times, intangible) property that is created from that. With this comes a great deal of risk, in modern days in terms of industrial espionage or the accidental or intentional leaking of details related to books etc, which renders the subsequent intellectual property much less valuable or even worthless. Through this one can understand that a great deal of trust is often placed on those with special access to particular information or details, which can be broken and cause potential damage to the creator. The modern doctrine of breach of trust is well-established, but it stems its roots from the mid-19th century.

One of the first cases that dealt with breach of trust in relation to intellectual property was Prince Albert v Strange all the way back in 1849. The case concerned a collection of etchings and drawings made by both Queen Victoria and Prince Albert of various domestic subjects for their own enjoyment, subsequently being commissioned to be printed as a collection. These etchings were made in a private press, due to their personal nature and thus Prince Albert's wish was for them to remain fully private. William Strange was a printer and publisher in London who somehow obtained copies of some of the etchings, allegedly through the aforementioned private press where the etchings were commissioned from. The prints made by Mr. Strange were made from plates held by Prince Albert and Her Majesty, thus bringing their acquisition into question. Mr. Strange (and the other defendants) wished to print a catalog of the etchings under the title of "A Descriptive Catalogue of the Royal Victoria and Albert Gallery of Etchings", which contained detailed descriptions of 63 etchings with additional critique of those works. Mr. Strange argued that he had the right to publish the works, even though disapproved by the Royal plaintiffs, and the Court of Chancery had to decide whether he was indeed entitled to do so, thus dissolving the initial injunction granted to the plaintiffs.

The case brought about the consideration of property and trust in relation to that property. This is best illustrated by the comments of Lord Chancellor Cottenham, where his Lordship stated that "[t]he property of an author or composer of any work, whether of literature, art or, science, in such work unpublished and kept for his private use or pleasure, cannot be disputed". What his Lordship is clearly saying is a property right of trust (or privacy in a sense) in personalty which is created by someone. This applied, prior to the case, for example to personal correspondence in the form of letters. The defendant did not contest the ownership of the property by the plaintiffs, but still argued that any person who obtains such property would still have the right to publish it. Even though the defendant merely intended to publish descriptions of the works, the Court saw that this would be akin to the publishing of the etchings themselves from imprints, which the defendant would not be entitled to do.

Lord Cottenham agreed that the right of privacy in property did exist and that the defendant would not have the right to use and publish them even if he had acquired copies of those works. Although an interesting notion, what is of importance for us in the case at hand is whether there would be a breach of trust should the defendant have published the catalog; this being the need for the injunction itself.

An artist's rendition of the Royals' etchings

The potential breach of trust related to the actual possession of the etchings, which were potentially obtained through illicit means. Mr. Strange's possession of the etchings, in his Lordship's mind, had to have originated in a breach of trust, confidence or contract on part of the printer's employees or the printing press' owner (one of the other defendants in the case). How the etchings were obtained remains unknown, but as his Lordship observed, this would not matter as mere possession by Mr. Strange was enough to establish that fact. This was further expanded on by his Lordship, demonstrating this very point, using the case of Tipping v Clarke: "If the Defendant has obtained copies of [artistic works], it would very probably be by means of some clerk or agent of the Plaintiff; and if he availed himself surreptitiously of that information, which he could not have had except from a person guilty of a breach of contract in communicating it, I think he could not be permitted to avail himself of that breach of contract". Mr. Strange was subsequently denied the dissolving of the injunction due to this breach of trust.

The Court's observations do match a common law notion of copyright in unpublished works (something which even exists today); however the Court's observations could potentially extend to a right of privacy over property of confidential nature, irrespective of it being copyrighted work or not. Although the case is of little relevance in the sphere of modern breach of trust or confidentiality, it goes to show the importance of certain types of works, especially in relation to intellectual property.