Three strikes and you're out

An Australian court has ruled that some of its largest internet service providers (ISPs) must provide the contact details of 4,762 users who have illegally downloaded Voltage Pictures' film Dallas Buyers Club.

The users may face legal action for illegally downloading the film on peer-to-peer file sharing services such as BitTorrent, thereby committing copyright infringement. This ruling has set a precedent for rightholders, such as Voltage Pictures, to obtain the information of all those individuals suspected of breaching copyright and downloading content illegally.

Warning letters

The ruling preceded an increase in measures to crack down on online copyright infringement in Australia. A day after the ruling, the final version of
a draft proposal was released.
It detailed a 'three strikes' anti-piracy policy to help detect repeated copyright infringement offenders.

Following regulatory approval, the policy will allow rightholders to create lists of the internet protocol (IP) addresses of repeat infringers, and the ISPs will then have to distribute warning letters to each address. If they receive three letters in a 12-month period, the ISP will be obligated to help identify the user, who can then be prosecuted.

The verdict in the Voltage Pictures trial raises concerns about how users' private information will be accessed
and whether this is a violation
of privacy.

The ruling also raises questions about how online piracy cases will progress in future and whether other countries will adopt the same approach. Voltage Pictures have already implemented similar legal cases in other jurisdictions and have been granted access to a list of repeat infringers in Singapore.

UK ISPs are becoming more proactive in the war against online piracy after the High
Court ruled ISPs should block websites that facilitate illegal downloading. However, the UK is yet to start seeking the individual offenders.

Before this case, Voltage Pictures aggressively pursued similar cases in the US and Denmark through the use of 'speculative invoicing'. With
the help of US ISPs, Voltage's lawyers listed the names and IP addresses of those in breach of copyright and sent invoices with the threat of legal action if fines, of up to $150,000, were not paid.

This scare tactic is the main reason ISPs are concerned about handing over contact lists. However, if the 'three strikes' policy is implemented, rightholders will have to follow a strict procedure to attain customer information, rather than pressuring the ISPs.

High cost

Although many rightholders may be in favour of this approach, there seems little feasibility in pursuing every individual that illegally downloads a film or file.
The process of pursuing every persistent offender would be time-consuming and costly
for rightowners.

While it may act as an effective deterrent to many, the high cost of such a policy may prevent it from being adopted internationally.

Nonetheless, this case is important in preventing online piracy, which is becoming a significant issue amid the development of streaming services and virtual private networks.

A case, such as this, was necessary to highlight to users that hiding behind ISPs does not protect them from the law and, as individuals, they can be targeted when downloading content illegally.

The Voltage Pictures' ruling not only sets a precedent for future litigation, but may also reduce the amount of individuals downloading copyrighted content, through fear of being prosecuted.

Alternative methods to curb the increase of online piracy have been employed in different countries. Some film studios in the US are tackling the issue by using warning letters, not too dissimilar from the 'three strikes' policy, while in Canada, ISPs have been slowing down the internet connections of those downloading illegal content.

Many people would argue that the divulgence of personal information by ISPs is an invasion of privacy. Personal details need to be protected and the aggressive nature of 'speculative invoicing' should
be avoided.

However, others may question the morality of ISPs withholding information of those they know to be illegally downloading content. The Voltage Pictures' ruling highlights the lengths rightholders will go to protect their intellectual property and how individuals must still be held accountable for their actions.

Formal procedures should
be implemented to ensure the private information given to rightowners, such as Voltage Pictures, cannot be misused.
This may eliminate concerns about 'scare tactics' that have too often been a welcomed method
from rightholders. If the 'three strikes' policy proves to be successful, courts in the UK and internationally may follow suit. SJ

John Illsley is the valuation director at Intangible Business

Copyright & permissions