Australia: Net Piracy and Metadata

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Australia: Net Piracy and Metadata

A landmark piracy case could be linked to the controversy over metadata retention.

Australia: Net Piracy and Metadata
Credit: Online privacy via Shutterstock.com

There’s always a new story about the internet in Australia, a G20 nation with a ranking of 44th in terms of speed, worldwide. Thailand is 28.  Right now, the story is piracy, streaming services and metadata. They are, in fact, all issues in their own right but importantly connected.

Fist off, on Tuesday the makers of Dallas Buyers Club successfully petitioned Australia’s Federal Court to compel ISPs such as iiNet to hand over details of customers who allegedly illegally downloaded the film. In what has generally been called a “landmark” decision against piracy Justice Nye Perram ruled in favor of the studio and ruled that the ISPs must identify those who shared the film. There are some 4,726 names.

One detail is important: It is those who uploaded the thing, or seeded it, to be downloaded by others who are in trouble and may receive letters in the mail, not the downloaders. iiNet, however, fought the company, not wishing to disclose the addresses of its customers and to prevent “speculative invoicing.” This means, in other words, that people may at a later date receive a letter suggesting it is better for them pay a fee now rather than to possibly face far heavier copyright infringement fees later. The judge, to prevent this, will order the studio to submit a draft of any letter that might be sent. How much they may ask for is unknown but figures from $5,000 to $7,000 have been suggested in various media.

iiNet has 28 days to appeal and the consensus from experts seems to be that anyone who gets a letter should not pay up without seeking legal advice first. It’s also been suggested that this is being trialed as something of a disincentive given Australians’ predilection for pirating content. It sets a good precedent which Michael Bradley, a senior partner at Marque Lawyers who represented the Dallas Buyers Club, says can be used by other copyright holders. It is something of a pyrrhic victory for the complainants given they must not only get approval for any draft of that letter but also pay iiNet’s costs. Other large ISP / telcos such as Telstra and Optus have not and possibly will not have to go to court at any point. In 2012, the High Court ruled that iiNet could not be held responsible for what its customers downloaded.

One reason that Australia has such as a high rate of piracy is that much content either arrives far later than when it airs overseas or else it is extremely highly priced or only available on expensive cable channels. Streaming services, such as Netflix, have not been available previously.

A representative of Electronic Frontiers Australia told independent Melbourne radio station Triple RRR that Australians were sick of being treated like second class consumers by large international corporations. There have been mentions of this before. A report last year by the Australian Broadcasting Corporation noted that Game of Thrones set a record for illegal downloads worldwide and Australia was one of the top offenders. It also noted that episodes of the show can be purchased at a relatively low cost not long after they air. What Australia has not had, until very recently, was a decent streaming service. Now Netflix is available in Australia and there are also local offerings, such as Stan.

Interestingly, the demand for Netflix has been so high that iiNet’s speeds have actually slowed significantly as it struggles to handle the traffic during peak hours. It has, said one unnamed insider quoted by the Sydney Morning Herald, “crippled” the network. Added to this, iiNet has been offering Netflix “quota free” meaning that say, a Game of Thrones marathon will not count towards their download quota for the month. In Australia, such things matter as consumers pays substantially more for a large download capacity in their monthly bill.


What has not been discussed much during this recent ruling is the role metadata might be able to play in being used to stop piracy, though during metadata debates the prospect of the retained information being used to trap pirates, and not just would-be terrorists, has often been mentioned.

Last week Parliament passed mandatory metadata retention laws, requiring all ISPs to retain all user metadata for two years, as we’ve previously reported. ISPs, again, such as iiNet, have kicked up a fuss, especially as they will have to shoulder much of the cost of the scheme. As Marque Lawyers have pointed out, some 20 government agencies can look at metadata or apply for a warrant. Could content holders also do this? Andrew Colvin, chief of the Australian Federal Police, said yes last year, “Illegal downloads, piracy, cyber crimes, cyber security. Our ability to investigate them is pinned to the ability to retrieve metadata.” Communications Minister Malcolm Turnbull said not really, as copyright holders tended to participate in the “swarm” that uploads films for file sharing and then uses software to identify the other IPs doing the same. This, in fact, is what the Dallas Buyers Club did, using the name Maverick Eye.

Turnbull rather notably also went on national television recently and explained that if citizens are worried about the government having their metadata well, there are plenty of ways to circumvent it including using chat apps or Skype. There are also VPNs. This all made many ask: If it so utterly simple to circumvent metadata, why introduce something that will essentially invade Australians’ privacy and possibly charge them twice for the privilege via their tax dollars and a possible increase in internet costs?

Services such as Gmail are also exempt as they are based offshore and cannot be compelled by Australia warrant to share their customers’ information, says Marque. However it’s also been pointed out that under the Five Eyes agreement they may do so anyway.

Helen Clark was based in Hanoi for six years as a reporter and magazine editor. She has written for two dozen publications including The Diplomat (as Bridget O’Flaherty), TimeThe Economist, the Asia Times Online and the Australian Associated Press