It’s been an eventful time for stakeholders in the online piracy debate. Perth ISP iiNet found itself in the High Court on 30 November to face an appeal mounted by film studios against last year’s Federal Court decision in their favour.
And last week the EU Court of Justice found blanket ISP filtering to be an infringement of net neutrality and personal privacy, to the detriment of Belgian company Sabam.
Following up on all this, a coalition of Australia’s entertainment sector, the Australian Content Industry group, rejected the Australian Communications Authority’s plan to settle the dispute between ISPs and rightsholders as falling "well short of expectations".
One other little skirmish may have passed you by.
Diwana.org, (a now former filesharing community) run by an Australian expat now based in Central Europe, was forced to shut down after the Australian Federation Against Copyright Theft (AFACT) found out that its users were uploading the hit Australian produced TV series The Slap as it was airing on ABC1 in Australia. The site’s Dutch ISP, Leaseweb, was threatened with legal action by notorious Dutch based industry-backed BREIN, a group known for its willingness to take ISPs to court, and its propensity to win.
Launched in March 2006, Diwana.org specialised in Australian and New Zealand free-to-air television content which its 40,000 strong community shared among itself. The owner of the site, an Australian man known as "fr3ak", claims that the community was aimed at Australians and New Zealanders overseas who, due to restrictive television licensing or lack of commercial availability, are unable to access home-grown content. "We didn’t have commercial rips of DVDs of anything, well as far as we knew, I’m sure there’s some stuff that snuck in there because it wasn’t available anywhere else, but in general if people asked us or put up something ripped from DVD we would take it down. That was our modus operandi," he told New Matilda.
Unlike their compatriots back home, expats can’t stream The Slap on the ABC website or access content through catch-up services like iView due to geo-lock. "All of this content comes from Australian television, where it was released for free in the first place. So all that stuff is already bought and paid for as far as I’m concerned," says fr3ak. "It was for expats to gain access to content they can’t legally get access to outside of Australia. So we were providing a service."
Of course, that’s not how anti-piracy groups or the television industry views it.
According to official correspondence from BREIN’s legal affairs department, fr3ak was told they are "not in the least impressed with your indignance".
The producer of The Slap, Matchbox Pictures (in which NBC has owned a large stake since May this year), have sole right of distribution of the series overseas. AFACT said in a statement, "The only way we can have a sustainable content industry in Australia so that more quality content like The Slap can be created is if producers and rights holders are able to sell the rights to local productions both in Australia and overseas".
Fr3ak claims that, had he received any notification from either Matchbox or BREIN regarding copyright infringement, he would have immediately removed The Slap and informed his users, a process he has been through once before in the past. Instead, he claims he only received one letter from BREIN indirectly, forwarded to him by Leaseweb, giving him just 24 hours to remove his website. In the email, Leaseweb admitted "In the past we have lost court cases to BREIN and are therefore forced to obey…".
Leaving aside the ongoing international debate about copyright law and file sharing, the power such industry groups are wresting from civil institutions is troubling.
In Europe, and in particular The Netherlands, BREIN is certainly the most notorious anti-piracy outfit. Daphne van der Kroft from Dutch digital rights organisation Bits of Freedom tells New Matilda that BREIN is extremely aggressive in its tactics towards service providers and due to its vast sums of industry money, is successful in cowing providers into shutting down websites rather than face court. "ISPs are frightened of the demands of BREIN. And in BREIN’s eyes success is measured by causing people to be unsure of their rights," van der Kroft says.
Milica Antic of The Netherlands based law firm Solv Advocaten has defended several high-profile cases against BREIN. She agrees that the group has a bad reputation in The Netherlands. Antic represents Dutch service provider XS4ALL. BREIN wants the court to force her client and another ISP, Ziggio, to block all access to the Swedish file-sharing site Pirate Bay. In preliminary proceedings, the Dutch court ruled in the ISP’s favour but the final verdict won’t be delivered until January 11 next year.
Antic is also familiar with BREIN’s policing tactics, which she believes are extreme. Indeed, BREIN appears to operate beyond its own jurisdiction as a private company. In February 2010 BREIN attempted to take down one of the largest piracy sites, Swan. In a major breach of privacy and without a court order or warrant, BREIN seized 12 servers from the ISP and confiscated them. Most of those servers belonged to a small Costa Rican web host run by Craig Salmond, who had nothing to do with the piracy investigation. BREIN gained access to his business and private details and emails. Represented by Antic, Salmond sued BREIN for financial and reputational damages but in the end, he couldn’t afford the legal costs and they settled out of court for a much smaller amount.
This incident brought BREIN a lot of criticism, even spurring two members of Dutch Parliament to question the Minister of Justice on BREIN’s reach. BREIN was not worried about being sued, however, and, according to Antic, this is where their ultimate power lies. "That’s why they are successful. They have the resources to go all the way, to the Supreme Court if they like. They have the most expensive attorneys and experts who are willing to go all the way".
BREIN’s policing strategies also raise questions about evidence gathering for the court cases they pursue.
In June 2010, the Court of the Hague adjourned criminal proceedings against peer-to-peer site ShareConnector then re-opened it and summoned the Dutch public prosecutor as a witness because it felt that the Dutch Department of Justice had relied too heavily on evidence provided by BREIN, rather than by law enforcement agencies. The court also wanted to know why the matter was being prosecuted as a criminal case, and not a civil one, as other copyright infringements are in The Netherlands. In the end, the court dismissed the case due to "faulty evidence".
BREIN also has an uneasy reputation with Dutch politicians since it has made little positive contribution to policy change in the online piracy debate — and has used some questionable tactics to pursue its cases.
Daphne van der Kroft from Dutch Bits of Freedom points out that while BREIN are succeeding in court, they are not very good at finding ways for entertainers and artists to make more money from the online market. "They don’t see that as their task", she says.
This focus on law enforcement is similar in Australia. The AFACT website goes into a lot of detail
on how they assist law enforcement agencies using a "multi-pronged
approach" that involves working "closely with police". Not only can they
help out during a search warrant, they can provide surveillance
footage, expert witnesses and help destroy seized materials.
AFACT outsources its technical evidence gathering to Dtecnet, a company that has ties to the Danish entertainment industry. Dtecnet’s forensic information has been used to support the case against iiNet in the High Court.
Until government, industry and internet service providers engage in some constructive dialogue on the future of digital content distribution, these well-backed industry representatives will continue to fill the gaps.