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A law firm hoping to secure the identities of Internet users who allegedly shared copyright material without permission is likely to find itself in a sticky situation today. The firm has reportedly approached ISPs in Australia with demands that they hand over subscribers’ details, but according to their own published literature the company has little faith in IP address-based evidence.Yesterday, Renai LeMay of Delimiter broke the news that mass piracy lawsuits are headed back to Australia.LeMay revealed that a lawfirm has written a series of letters to major Aussie ISPs asking that they hand over the personal details of individuals said to have downloaded and shared their clients’ copyright material without permission.After confirming with several sources, Delimiter revealed that the company in question is Sydney-based law firm Marque Lawyers.So far, several of the ISPs contacted have informed Marque that they will not be handing over the information requested. In response the law firm said it is considering using the courts to force them to do so.Delimiter contacted Marque both by telephone and email yesterday morning requesting an interview, but when we spoke with LeMay last night nothing had yet been heard back. However, when that call does come it is likely to be an uncomfortable one.Yesterday morning, just after the Delimiter article went live, a tipster sent TorrentFreak an interesting document. Titled “It wasn’t me, it was my flatmate! – a defense to copyright infringement?” the paper, a newsletter published by Marque themselves, details the company’s stance on file-sharing accusations.The paper begins with a potted history of the Joel Tenenbaum case in the United States but gets the facts wrong straight from the beginning.“You may have heard that the US Supreme Court recently refused to hear the appeal of a college student who was ordered to pay $675K in damages for illegally downloading and redistributing thousands of songs through BitTorrent,” the Marque paper begins, wrongly mentioning BitTorrent and the number of songs in the case.The company then moves on to the big issue of the day – U.S.-based companies who write to ISPs in the hope of identifying alleged pirates so that cash settlements can be obtained. This is where it gets awkward – really awkward.Referencing a previous case in New York, Marque notes that a court refused to hand over the personal details of Internet subscribers to the plaintiff.“The judge, rightly in our view, agreed with the users that just because an IP address is inone person’s name, it does not mean that that person was the one who illegallydownloaded the porn,” Marque Lawyers write.“As the judge said, an IP address does not necessarily identify a person and so you can’tbe sure that the person who pays for a service has necessarily infringed copyright.”The law firm then goes on to back up its assertion with scenarios in which the account holder would not be the infringer.“For example, in an office or at home, where there is a WiFi connection, only one IPaddress will be allocated to that wireless connection. This means that every user of eachdevice (computer, iPad, iPhone etc) connected to that WiFi connection will use the sameIP address. Even a random passerby accessing the WiFi network would be using thesame IP address,” the company explains.“This decision makes a lot of sense to us. If it holds up, copyright owners will need to be a whole lot more savvy about how they identify and pursue copyright infringers and, perhaps, we’ve seen the end of the mass ‘John Doe’ litigation,” they conclude.The big question is whether Marque’s clients have indeed become “more savvy” or whether they still intend to rely on IP address-only evidence. If so, the Marque Lawyers document (which can be downloaded here and also from Marque’s own server) will come in very handy for letter recipients.If the lawfirm writing the letter doesn’t believe that the evidence is up to much, there’s no reason the recipient should either. A simple denial is going to be difficult to argue with.
Yesterday several sources confirmed to Delimiter that Sydney law firm Marque Lawyers this month issued a number of Australian Internet service providers with letters requesting they reveal the identities of users belonging to IP addresses linked with peer to peer file sharing activity on platforms such as BitTorrent. The firm has signalled that it is considering using the courts system to apply for what are known as ‘preliminary discovery’ orders to retrieve the information, which may lead to lawsuits against the users themselves. It is not known which client the company is acting on behalf of.However, late yesterday it was revealed by several commenters on social media platforms that the firm had actually publicly argued that such a practice was not 100 percent legally watertight due to the difficulties of associating IP address data with specific individuals.The firm’s website contains a ‘Soapbox’ section where it regularly publishes brief views by its employees commenting on legal issues of the day. One of those papers, published in June 2012 (PDF), dealt with a decision by the US Supreme Court to refuse to hear the appeal of a college student who was ordered to pay $675,000 in damages for infringing copyright through peer to peer platforms.Marque Lawyers’ paper on the issue, produced by partner Nathan Mattock and lawyer Christopher Toole, pointed out that the case was only one of a large number of similar cases. However, the pair wrote, a recent decision in New York had cast the validity of those cases into doubt. In that case, as Marque Lawyers has been seeking to do in Australia this month, lawyers acting for the content industry had sought to use IP address data to identify alleged copyright infingers.“To find out the actual identities of the users, the owners asked the Court to force the ISPs to reveal the names and addresses of each of the subscribers to which the IP addresses related,” wrote the two Marque lawyers. It is precisely this activity which the firm is carrying out this month in its letters to Australian ISPs.However, in its paper, the firm took a different view. “The users went on the attack and won,” the paper’s two authors wrote. “The judge, rightly in our view, agreed with the users that just because an IP address is in one person’s name, it does not mean that that person was the one who illegally downloaded the porn. As the judge said, an IP address does not necessarily identify a person and so you can’t be sure that the person who pays for a service has necessarily infringed copyright.”“For example, in an office or at home, where there is a WiFi connection, only one IP address will be allocated to that wireless connection. This means that every user of each device (computer, iPad, iPhone etc) connected to that WiFi connection will use the same IP address. Even a random passerby accessing the WiFi network would be using the same IP address. This decision makes a lot of sense to us. If it holds up, copyright owners will need to be a whole lot more savvy about how they identify and pursue copyright infringers and, perhaps, we’ve seen the end of the mass “John Doe” litigation.”
