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Privacy update: The changing landscape — Infringing online content and new metadata laws

Jun 29, 2015

Recent legal developments are changing the privacy landscape and the practical consequences of online piracy, even for ‘small time’ offenders.

Dallas Buyers Club decision

In the Dallas Buyer Club LLC v iiNet Limited case, Internet Service Providers (ISPs) were ordered by the Court to disclose to the film’s copyright owner the identities and contact details of some 4,726 customers who had unlawfully shared the film Dallas Buyers Club using peer-to-peer file sharing networks.

Once identified, the 4,726 customers were able to be sent letters by the copyright owners seeking compensation for their piracy.

Justice Nye Perram imposed upon the copyright owners two sets of constraints. The first was that the relevant information could only be used for the purposes of recovering compensation and could not be publicly disclosed. The second was that before any letter of demand was sent by the copyright owners its terms would need to be approved by the Court so as to prevent ‘speculative invoicing’, which is the practice of sending demands for sums far greater than would be rewarded by a Court.

In a similar action, Warner Brothers Studios has sent letters of demands to those who have illegally ‘torrented’ episodes of Friends, demanding $20 from each as settlement for their piracy.

That both Dallas Buyers Club LLC and Warner Brothers have sought compensation for online piracy is a clear indicator that copyright owners now have the ability to detect and demand compensation for piracy – and that many more claims are to follow.

Metadata laws

On 13 April the Telecommunication (Interception and Access) Amendment (Data Retention Bill) 2015 (Metadata Act) received assent and became law. The Metadata Act now requires ISPs to store the metadata of all customers for 2 years. Metadata has no fixed definition in the Act but includes information such as the details of the websites a given user has visited or phone numbers called and for what duration. This means that, with the exceptions of journalists, any customer of a telecommunications provider will soon be having their metadata stored and made immediately available to a government authority should they request it.

While the Metadata Act is intended to be used for the purposes of National Security and preventing serious criminal offences, customers should be aware that ISPs are now by law required to record practically all of their online activity.

The Communication Alliance is the primary telecommunications body in Australia and has recently released a draft Copyright Notice Scheme that aims to facilitate cooperation between ISPs and copyright holders in order to deter online piracy. The Copyright Notice Scheme serves as the telecommunication industry’s self-regulation code and contains provisions allowing copyright owners to access information about customers who download content illegally.

Under the Copyright Notice Scheme when a user downloads content illegally they may be sent a warning by their ISP. Once three warnings have been received within a 12 month period, the owner of copyright in one of the downloaded items can apply to a court to get the details of the infringer in order to seek compensation.

What does this all mean?

The combination of recent legislation and the Dallas Buyers Club decision suggest that ISPs will be revealing customers’ information to copyright owners and the Government far more frequently in the future.

Interestingly, two of the ISPs involved in the Dallas Buyers Club decision are working with law firms to offer pro-bono services to their customers who receive letters of demand from copyright owners. However going forward, it is unlikely that such help will be offered to internet users by their ISP when they continue to download pirated content and receive 3 warnings under the Copyright Notice Scheme. As such, customers need to be aware that their information is being stored by the ISPs both for the purposes of National Security and copyright owners seeking compensation.

These developments in copyright enforcement and the introduction of metadata retention laws will undoubtedly have an impact on the privacy of internet users. As a result of the Dallas Buyers Club decision and new legislation, copyright owners now have the capability to demand details of infringers from ISPs thereby enabling them to easily demand compensation from individuals who illegally download their content.

More information

If you would like further information about copyright, privacy or related matters, please contact Daniel Kovacs, Principal Lawyer on (03) 8600 8859 or dkovacs@kcllaw.com.au.

Note: This update is a guide only and is not intended to constitute legal advice.