Court fight is just a shot across the pirates’ bows

It is fitting that the movie that is the latest battleground in Australia over Internet piracy is the story of a man who defies government agencies to obtain illegal material and share it with others.

The methods used by Matthew McConaughey’s character in The Dallas Buyers Club to circumvent the law in order to obtain lifesaving anti-AIDS drugs show the difficulties of stopping determined citizens from getting what they want.

Professor Andrew Christie, the University of Melbourne’s foundation Professor of Intellectual Property at Melbourne Law School, says The Dallas Buyers Club case is just the latest in a long line of legal skirmishes in the war on illegal downloading.

The piracy battleground is constantly changing and evolving with new legislation and lawsuits. Technological developments are becoming an increasingly important factor in the cat and mouse game between rights holders and pirates.

Professor Christie’s best guess is that the next front in the war will be in relation to technological measures such as electronic encryption and copyright protectors built into devices and discs.

“Copyright owners will constantly try to find ways to lock up and make inaccessible material for copying and illegally downloading.

“That technology will evolve and I think that what we will find is the next legal battle will be where people are hacking or cracking these sorts of technological protection measures or providing the means for others to do so. Giving them code or devices.

Professor Christie believes it is a war that the rights holders will never win. “Copyright owners will continue to fight the fight on as many fronts as they can identify,” he says.

“People will continue to download in varying degrees, depending on their motivation, thoughts and philosophies. What we will see is downloading continuing, and an increase in fronts on which copyright owners seek to fight the fight.

“The war will never be won because people, pre-digital era, pre-internet, have always chosen to infringe for their own personal reasons and have continued to do so in the digital era,” he says.

“Whatever technical and legal mechanisms copyright owners use there will be philosophical and technical motivations and reasons that allow people who want to acquire material illegally to do so.”

Earlier this year, Voltage Pictures won the right to obtain the names and addresses of 4,700 customers of six Australian telcos who allegedly illegally downloaded The Dallas Buyers Club.

In the latest Federal Court development Justice Nye Perram ordered the US studio to lodge a bond of $600,000 before it can obtain the information. The judge was worried the company would engage in “speculative invoicing”, where people receive excessive demands for payment under the threat of being sued.

However, Professor Christie says that Voltage is not engaged in a money making exercise.

“The money they would get would be dwarfed by the costs of getting it.

“They are simply trying to minimise it by sending a public set of warning messages to people who’ve been identified as downloading. In other words to try scare them but more realistically to limit or stop a whole group of others.”

However, the company probably has no choice but to lodge the bond and continue with its case.

“They’ve got themselves into a position where it’s rather embarrassing now so they probably will proceed,” Professor Christie says.

“They started digging and they’ve got themselves into a somewhat different hole than the one they expected to be in.“

According to Professor Christie the Dallas Buyers case breaks no new legal ground and it illustrates that the problem for rights holders is the enormous cost of fighting through the courts.

“They’ve spent a lot of money and they would have planned to spend a lot of money and they’ve done that because they feel there’s a lot more at stake, which is illegal downloading,” he says.

“They are not expecting to recover their costs from illegal downloaders. That would just be completely impossible.

The battle will shift again in Australia with the passing of the Copyright Amendment (Online Infringement) Act 2015.

It allows copyright owners to seek a court injunction to force ISPs to block overseas-hosted copyright-infringing websites such as the Pirate Bay and Kickass Torrents. It is also rumoured that the Trans Pacific Partnership (TPP) will contain provisions that would impose much stricter laws on 11 other countries including Australia and New Zealand.

Professor Christie says that it is important to consider the broader implications of piracy.

“The legalities are clear, but the morality is not. I ask students to think about what sort of range of popular culture do they want to have in the future?“

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