Articles are surfacing about the Ballas buyers club letter they intend to send
http://www.itnews.com.au
What I want to know is how can they "decide a penalty" (my words not theirs).
As far as I am aware no private company is allowed to apply a penalty. This is why the banks have come under class action lawsuits. They are allowed to recoup reasonable costs but are not allowed to apply a penalty.
For the same reason it is entirely legal for a phone company to give an on time discount but as far as I am aware it is still illegal for them to charge a late fee.
It has been my belief that penalties can only be applied as the result of a legal proceeding or from a statutory body.
Personally my offer back to them would be $10.00 for the copy plus $5.00 management fee
Not that I ever even heard of Dallas buyers club until the court case.
Offering back is admitting guilt. Better off just ignoring it or replying saying something like "I deny any liability in this matter".
More details in the Age:
I think they have overstepped the mark with these letters. Not sure if targeting children under the age of 18 will help their cause.
Wow. That is nasty. I assume iiNet & the other involved ISP's will be advising people to not respond to these letters.
think they have overstepped the mark with these letters.
Considering the final draft that is mailed out has to be approved by the judge, are you in any position to judge a judge?
Considering the final draft that is mailed out has to be approved by the judge, are you in any position to judge a judge?
I am unclear as to exactly what kind of point you are attempting to make. We are all entitled to have an opinion on the draft letters; as you point out the letters haven't been approved or denied yet so I fail to see any connection with "judging a judge."
who the hell do they think they are � threatening & sending intimidating letters to thousands of ordinary Australians just for downloading one of the crappiest movies ever --everyone should blackball any movie that company ever puts out
Just a thought..
Call Centre operators cost money to answer calls.
Calls can be made cheaply.
Just thinking.
will be advising people to not respond to these letters.
On Victorian Traffic Law Forums, the barrister has said if you get a letter from a company wanting you to pay "liquidated damages" for parking in private car parks, bin the letter and never respond. I would say that this is s similar situation.
Furthermore, if somehow they did talk to you, just say opps I did not realise I had an open wireless network. Could be any of my neighbours.
Dont give you information up, it was a hacker got into my system and downloaded it, end of story.
They dont need to know any more info, scum bags.
I've just had a read of some of the excerpts from this letter and I am shocked and pretty disgusted. I would like to know more about how a company can calculate their losses based on how long I have been using BitTorrent in general and what other totally unrelated titles I may have downloaded with it. What does my income or anyone else's have to do with any of this? The last time I checked, JB don't check income levels at the door and charge high earners more for DVDs they buy � why are they even permitted to ask this?
Likewise, whether I work full time, part time or not at all and whether I happen to drive tanks for the army surely has no bearing on the actual amount of damages anyone can request from me if I happen to download this film.
As for requesting information from people over how long the have had the film on their PC and how many times it may have been downloaded, that's the information they should be providing themselves if they wish to build a case against anyone. I'm no lawyer but isn't the burden of proof on the accuser?
What happens IF you said you where Un-Employed or Disabled or Terminal Ill?
Would they not fine you are fine you a very little bit.
Though it shows how the Corrupt Companies are trying to Exploit People to Make money over Piracy.
But Government would do nothing to stop these guys because they will lose Funding from the Big Entertainment Companies
Good point. If someone just happens to download this film on my poorly secured WiFi network and I am a typical 'mum and pop' user who just got the internet to send email to my kids, I think it will be hard to prove anything.
The threatening tone of this letter worries me though. There is sure to be some innocent people out there who are in just this situation and last time I checked, securing your WiFi was not a mandatory requirement.
I don't think the Wi-fi excuse is going to fly. The Iinet T&Cs that people agree to under their contract specifically state the the user is responsible for the security of the users equipment.
Plus I think that if DBC does go to court they'll be careful who they pick to set the precedents. Maybe they'll pick IT people where that deniability of the lack of knowledge about securing devices can be questioned. Or someone people will have no sympathy for like weathly people. They could do lots of things like postcode/affluence analysis or other investigations.
Considering the final draft that is mailed out has to be approved by the judge, are you in any position to judge a judge?
Because judges are infallible right and their decisions are never overturned?
It will be interesting when they eventually send the letters out.
I can imagine a typical "Mum and Dad" internet user responding to the letter with things like:
"I have no idea what you are talking about, what is the bitorrent thing?
What is this movie you are talking about? We only watch the news and Days of Our Lives on the TV.
When I got the internet they just sent me a box which I plugged in. Wifi encryption, sorry what is that?
Feel free to come and look at my computer. It keeps "playing up", so some friends keep fixing it for me, I think they said they formatted it or something."
I find it very hard to imagine that they will commence court proceedings in such a case. Even the cost of a discovery process against "Mum and Dad" will be prohibitive and will get them nowhere.
I very much doubt that a magistrate will impose a penalty on a middle aged couple who have the internet just so that they can look at their grandkids pictures on facebook, even if it can be shown that their IP address was used to download a movie.
And if we are talking about younger computer savvy people, even if a court would issue a Search Order for the copyright holder to inspect the computer of the "alleged" offender, this would be happening many months after the alleged infringing, and as any savvy IT expert would testify at court, it is quite normal for computer geeks to regularly format their computers due to viruses, software problems, or even because they simply want to try out the latest Linux distro.
It would also not be unusual for a computer savvy person to say "I have an unlimited internet connection, so I don't bother encrypting my wireless network."
I don't think the Wi-fi excuse is going to fly. The Iinet T&Cs that people agree to under their contract specifically state the the user is responsible for the security of the users equipment.
This is totally irrelevant to any alleged copyright infringement.
I don't think the Wi-fi excuse is going to fly. The Iinet T&Cs that people agree to under their contract specifically state the the user is responsible for the security of the users equipment.
Plus I think that if DBC does go to court they'll be careful who they pick to set the precedents. Maybe they'll pick IT people where that deniability of the lack of knowledge about securing devices can be questioned. Or someone people will have no sympathy for like weathly people. They could do lots of things like postcode/affluence analysis or other investigations.
Won�t be going back too IINET then, IF That�s the Case.
Just shows that IINET has come a Sell-Out on what they use to stand for.
Seems they are Going After People instead of the Torrent Trackers � Which is very sad
I had an open wireless network
Agree with you Andypandy, a non secured wireless connection for the monitored period would be a very valid reason why an IP address would be flagged. This very thing seems to have happened to me.
Oops. Just read the other replies.
You are responsible for the security of your internet connection to your ISP true. Your internal network setup, wired, wireless, including security is up to you.
Don't confuse the two.
Plus I think that if DBC does go to court they'll be careful who they pick to set the precedents.
Definitely.
Given the potential precedent that could be set, I would imagine that they would be very selective about the first few people they take action against.
I wouldn't be surprised if they join forces with other copyright mobs and pick a "serial" offender, so that when the matter gets to court they can introduce "similar fact" evidence to show a pattern of misconduct showing how the person regularly downloads copyright movies.
I wouldn't be surprised if they join forces with other copyright mobs and pick a "serial" offender, so that when the matter gets to court they can introduce "similar fact" evidence to show a pattern of misconduct showing how the person regularly downloads copyright movies.
and a Better Chance to make an Example out of them.
To Try and Scare other People from using Torrents
and a Better Chance to make an Example out of them.
To Try and Scare other People from using Torrents
I think the thing that the DBC haven't thought through is that AUS courts are not like US courts.
We do not have elected judges like they do in the US, who often make ridiculous judgments, that are eventually overturned on appeal to a "real" superior court.
If we are talking about a "Mum and Dad" person taken to court, I would find it hard to imagine that an AUS court would find that the loss suffered by DBC is any more than the cost of hiring or buying the DVD.
The one negative would be that DBC would no doubt be seeking an order for their costs, which could be substantial.
If you have any experience in AUS courts for civil matters, you will know that the courts are VERY generous in making payment terms. I have been involved in several cases (in the ACT) were defendants have had million dollar judgements made against them and they have payment terms of something like $50 a week, i.e. just a token amount. These are for people who have jobs, but are on the lower paying scale with few assets.
I strongly suspect that the whole DBC thing will fall apart and disappear before the end of the year.
For those that want to 'avoid' Voltage Pictures and DBC in the future I would steer clear of downloading anything on this list, Courtesy of IMDB.com :
The ones with (????) are currently in production.
A Certain Justice (2014) ... Distributor (2014) (Non-USA) (all media) (international sales)
A Good Man (2014) (V) ... Distributor (2014) (worldwide) (all media) (sales)
Absolute Deception
Acolyte
Ambushed (2013) ... Distributor (2013) (Non-USA) (all media)
Blank Slate (TV Movie)
Born to Raise Hell (2010) ... Production Company (in association with)
Breathless (2012/I) ... Distributor (2012) (Non-USA) (all media)
Burying the Ex
Cabin Fever
Colossal
Dallas Buyers Club
Don Jon
Empire State
Faces in The Crowd
Fathers and Daughters
Fire & Ice (TV Movie)
Force of Execution (2013) ... Distributor (2013) (worldwide) (all media) (sales)
Four Towers
Game of Death (2010) ... Production Company
Gaturro (2010) ... Distributor (2011) (worldwide) (all media)
Generation Um
Good Kids
Good Kill
Henry Joseph Church
Home Invasion
In the Company of Lies (????) ... Production Company
Killer Joe
Knock Knock
Lady Bloodfight (2015) ... Distributor (2015) (worldwide) (all media)
Leverage(TV Series)
Life on the Line
Maximum Conviction (2012) ... Distributor (2012) (worldwide) (all media) (sales)
Navy Seals vs. Zombies (2015) ... Distributor (2015) (worldwide) (all media)
Near Death (????/II) ... Production Company
Officer Downe
Playing It Cool
Reasonable Doubt
Return to Sender
Revolt
Rites of Passage (2012/I) ... Distributor (2011) (Non-USA) (theatrical)
Robo-Dog (2015) ... Distributor (2015) (worldwide) (all media)
Sacrifice (2011/I) ... Distributor (2011) (non-USA) (all media)
Seal Team Six: The Raid on Osama Bin Laden (TV Movie)
Soulmates
Standoff
The Blood Spoon Council
The Canyons (2013) ... Distributor (2013) (Non-USA) (all media)
The Cobbler
The Company You Keep
The Dreamer (2015) ... Distributor (2015) (USA) (all media)
The Effects of Blunt Force Trauma
The Frozen Ground (2013) ... Distributor (2013) (Non-USA) (all media)
The Guns of Christmas Past (????) ... Production Company (production)
The Hurt Locker (2008) ... Production Company (presents)
The Librarian: Return to King Solomon's Mines (TV Movie)
The Librarian: The Curse of the Judas Chalice (TV Movie)
The Magic of Belle Isle
The Mermaid from Marbella (2016) ... Distributor (2015) (USA) (theatrical)
The Mule
The Sleeping Shepherd
The Traveler (2010/I) ... Production Company (presents)
The Whistleblower (2010) ... Production Company
The Worst Marriage in Georgetown (????) ... Production Company
The Zero Theorem
Tortured (2008/I) (V) ... Foreign Sales (uncredited)
True Justice (TV Series)
Untitled Detective Comedy (????) ... Production Company
Warbirds (TV Movie)
The one negative would be that DBC would no doubt be seeking an order for their costs, which could be substantial.
If you have any experience in AUS courts for civil matters, you will know that the courts are VERY generous in making payment terms. I have been involved in several cases (in the ACT) were defendants have had million dollar judgements made against them and they have payment terms of something like $50 a week, i.e. just a token amount. These are for people who have jobs, but are on the lower paying scale with few assets.
I strongly suspect that the whole DBC thing will fall apart and disappear before the end of the year.
That would not surprise that they know that getting a Full Payment would be just about Impossible to get from someone who not Rich.
That is maybe asking how much people earn is about. To know how much they can get per Week.
I doubt they would Seattle for nothing as these guys have no idea about the Real World
I don't think the Wi-fi excuse is going to fly. The Iinet T&Cs that people agree to under their contract specifically state the the user is responsible for the security of the users equipment.
If you read the letter, they have asked if it was not you who downloaded, then who else could it be.
If you read the letter, they have asked if it was not you who downloaded, then who else could it be
Blame the Neighbour or someone else�s Kid?
But isn't justice blind ? So your income shouldn't be a factor, share the costs equally amongst the offenders.
Mind you there probably wouldn't be a huge cost if they just got the offenders to pay the $30 or whatever for the cost of the movie.
But if I was in this position I wouldn't be giving some muppet on the phone all my personals. Bloody hell it's still innocent til proven guilty (beyond reasonable doubt) or have we tossed that ?
["But if I was in this position I wouldn't be giving some muppet on the phone all my personals. Bloody hell it's still innocent til proven guilty (beyond reasonable doubt) or have we tossed that ?�]
Would not put it past them to Toss it out
Won�t be going back too IINET then, IF That�s the Case.
Was not their fault, they are the only ones who fought tooth and nail against this shit and they were made an example of.
Why do u think no other isp got picked on because they all let the new laws pass without giving a shit. Welcome online citizens you are now being watched for everything including everything u pirate.
Was not their fault, they are the only ones who fought tooth and nail against this shit and they were made an example of.
Why do u think no other isp got picked on because they all let the new laws pass without giving a shit. Welcome online citizens you are now being watched for everything including everything u pirate.
Actually read more and They did fight for us and Even won in Court.
Then Village paid off the Government to change the Law.
Laws should not be Changed because of Corruption
I don't think the Wi-fi excuse is going to fly. The Iinet T&Cs that people agree to under their contract specifically state the the user is responsible for the security of the users equipment.
Breaching your ISP's T&C's doesn't mean you are suddenly responsible for someone else's crime. If you opened your wifi to be nice and share with your neighbours and then one of them committed a crime over your wifi you don't become the criminal responsible for their act.
The intent of the letter is very obvious. To pursue damages they have to prove the crime. So they scare you with a letter and tell you to call them, they record the call and get you to admit to this small thing because it will all just be easier if you admit it and pay a little bit of damages. Then they test how really stoopid you are by asking how many other times you've broken the law by downloading and how much evidence you currently have lying around at home on your computer in the form of more downloaded stuff, then they profile you for ability to pay and how it will look on them taking you to court (pensioner versus investment banker.....). Then they take the recorded admission and force some law enforcement by showing there is cause for a warrant based on your own words they have recorded and they try to get the police to come and seize your computer (if you are the investment banker that is cos they don't wand the bad publicity of doing it to the pensioner an also the pensioners' only going to get told to pay damages at $5 per month), once your computer is in custody and you have admitted the crime already to them where do you think it goes from there......... a lot more than the cost of the DVD that's for sure, they will want to recoup all the legal costs they have incurred so far in AU getting them to this point then they will want to end up in front financially.
^^^
So IF you are a Pensioner they would not Chase you because it be waste of there Time and Money?
So IF you are a Pensioner they would not Chase you because it be waste of there Time and Money?
If they view it that way. But if they think they could get the money I'm sure they'd chase anyone. At first though I assume they would be thinking of the media profile of it all and how that plays back to the public response to decisions in court and how that may affect their court cases.
.
Wow, talk about going fishing.
Hi there, we think you did something wrong, please call us and tell us your life story so we can blackmail you.
Have a nice day.
I don't think the Wi-fi excuse is going to fly. The Iinet T&Cs that people agree to under their contract specifically state the the user is responsible for the security of the users equipment.
Cracking WPA is supposed to be relatively easy for someone determined enough.
So if you ear $20k you pay less in damages than if you ear $100k, bloody bizarre because the "damages" to the film company are still the same .
Read this from lawyers:
http://www.lynnandbrown.com.
The damages would be around $20...cost of the DVD but in the US the sharks (briefs) were trying for $100 to $10k from punters.
The damages would be around $20...cost of the DVD but in the US the sharks (briefs) were trying for $100 to $10k from punters.
So here in Australia they can only get $20 off someone?
Can the Bigger Sueing Happen Here?
So here in Australia they can only get $20 off someone?
Don't know but was reading that in Oz these letters have to go through the judge but overseas they didn't. So they reckon the company wont go full on because there is a judge looking over what they are demanding, which didn't happen in the US.
What happens IF you said you where Un-Employed
I reckon the unemployed would be the prime candidates as they wouldn't be able to afford a lawyer, whereas a wealthy person might be more in a position to cause an upset.
I'm genuinely interested in how this all plays out though, to see how accurate this 'Maverick Eye' system is with its timestamps. If the software logged a downloader's IP address moments before a new IP is assigned, what happens if the original IP address is given to an innocent user? Is there a delay before previously-used addresses are reassigned? And then all the questions relating to the timestamps themselves � which time server was being used, and how well do these timestamps line up with iinet records and data use? Did they need to convert the timezone or apply daylight savings calculations?
And then you'd have to wonder how easy it would be to manually add a few extra IP addresses onto the list to make it look as though the software is doing its job. Did you give the film a bad review? Hope they don't have your IP address!
Are people actually thinking of responding to these people?
Can I point out that the claim is a civil matter and not criminal. So, if you are worried about legal costs, look up the law in your state for small claims court, if such exists.
In NSW, my understanding is <=$10K is Small Claims Matter and they have to file a claim against you, which is then sent to you by the courts. You do need to respond to this, otherwise you'll get a default judgement against you and the sherrif will eventually turn up an take stuff to sell at auction to cover the amount awarded. The claim will probably be filed in Central Court, but you can have it shifted to a local court to get it heard locally and more convenient to you.
I think the general advice is not to talk to them prior and give no information. Also check advice posted by EFF Australia and if you're on iinet(others?), they are offering assistance.
The questions are funny to me as I've been torrenting since 1998. You can blame Sony & Blizzard for a lot of it. Then there is Archive.Org, the us government site, public domain torrents, academic torrents, all the linux distro torrents, VODO, et all, a few free to share mp3s, etc
I think the general advice is not to talk to them prior and give no information. Also check advice posted by EFF Australia and if you're on iinet(others?), they are offering assistance.
If they don't get a response from you with their initial fishing expedition they will attempt further research to discover incriminating evidence or more details about you. They wouldn't target a random person on the list to go after, they will do searches on social media and various web searches based on the details they have (name and address) to potentially discover how affluent you are and the probability that you downloaded the material.
This will allow them to selectively target candidates from their list that will be worth pursuing through the courts (they need to make an example out of someone to elicit a fear response from others to comply with their demands).
So if you are on their list it would be wise to remove as much information about yourself from the (searchable) internet as you can before the minions start to target you.
Yep.
And I want to know why they ask if you are in the military?
Is it OK to pirate DBC is you are in the military? Perhaps there is a special combination of being terminally ill whilst in the military that allows you unlimited downloads of DBC via torrent?
And I want to know why they ask if you are in the military?
I am guessing the follow on question to that one is... what is your kill ratio while in the military? Very strange questions I agree. I think they need to take off their police officer hat. Don't anyone answer their rubbish unless it comes from a court of law!
And I want to know why they ask if you are in the military?
They have previously said that they will not take action against military personnel. No idea why, but that is what they said.
There's a couple of basic unwritten rules that I tend to follow due to my, um, dealings with Courts. First and foremost, don't prosecute yourself: that's the prosecuters job, so let him/it do it without your input. By this reason, never ever admit to any wrong doing. Absolutely do not answer any questions to any person or organization before it gets to Court, for it WILL be used against you, regardless of what is said. Finally do not apologize, either verbally or written for this is an acceptance of culpability. If you are eventually taken to Court, do not attempt to represent yourself. Always remember, you are innocent until proven guilty beyond all reasonable doubt, and the burden of proof lies with the prosecution. Most settlements and convictions are the direct result of what people admit to.
If these clowns are gonna treat Australia like it's 'merica then respond to their letter by pleading the 5th amendment right.
Nosurrenda's advice is good,admit to nothing and keep your mouth shut until the time comes when/if you get a summons to court.
If these clowns are gonna treat Australia like it's 'merica then respond to their letter by pleading the 5th amendment right.
No good pleading the 5th here in Australia, however wasn't there a lawyer in the news recently � trying to get out of a speeding fine by claiming some hundred year old law that protects him from having to name his wife as being the actual driver of the car when it was caught speeding.
If that worked for him then it would also work in this case where you are being asked to name who actually downloaded the movie
-everyone should blackball any movie that company ever puts out
Does that mean you won't pirate any more of their movies?
I think if they want like $5k for damages then jog on.
They surely cant ask you for $400 and somebody else for $1000 on how much they earn. I reckon this is just putting the frighteners on an they might settle for $50 or $100.......link I put up earlier from the briefs reckon about $20 (cost of the DVD).
This isn't the US and the judge has already kinda said this isn't a free for all to loot Aussies and he's gonna see and approve the letters. This mob are trying it on, they have no business knowing your download history of other stuff .
Does that mean you won't pirate any more of their movies?
I doubt it.
The excuses people have used to continue to do it have probably added 10% to the posts on this forum.
In that regard they are actually ensuring the demand level keeps growing exponentially.Ergo, the piracy level will grow until another round of court cases pops up etc etc until the level of demand is similar to the USA.
The TPP will probably facilitate(speed up as well) that outcome .
You can lead a horse to water..........
Also, a suggestion if you downloaded this film & think you might get such a letter...
Back up & format your computer now, rather than after they send the letters out. In other downloading cases, wiping your PC after being charged/subpeonaed has been viewed as trying to hide evidence, but if you do it before you were ever notified? Well, you can get a virus any time...
iiNet & the other involved ISP's will be advising people to not respond to these letters.
Yes.
Iinet is definitely the guy in the white hat.I am sure they intend to act as your broker/lawyer and confidant.Let them know if you cannot afford to pay for your piracy escapades and I am sure they will cough up,too.
But seriousl,
Now that the first (won't be the last) judgement has been formalised, and iinet has (constantly) said (repeatedly) they will obey court orders and law, do you seriously expect them (any ISP) to flout the law to protect your personal wealth?
I wish iinet went as hard at getting a better outcome for their customers when it comes to negotiating with supplying a reliable contiguous internet service, as they did with the court case.
you are innocent until proven guilty beyond all reasonable doubt
Not so much
Civil action has a different burden of proof from memory.
Criminal is beyond reasonable doubt
Civil cases are actually "Balance of Probabilities"
Edit: That is if i remember VCE legal studies correctly
I think if such a letter were to arrive in my letterbox and given that I dont get much mail it'd probably be identifiable with a strong torch and arriving at the same time as 1000's of others in other letter boxes.. ie.. you'd know when to expect it based on news reports and whirlpool...
I'd be returning it to sender as a first step.
What are they going to say as a response to the unsecured-wifi excuse? Oh but you did it anyway so pay up?
They have ZERO legal ground.
An IP address does not equal an individual, Look at all the exploits happening lately, it wouldn't suprise me if a weak WPA2 password could be cracked without much effort. It's not my fault if my modem isn't 100% secure, I took 'reasonable' steps to ensure it was secure.
Will be quite amusing when the phone number for these dickheads gets posted on many websites and the flood of spam calls to it begins.
Pretty sure it's Ian Pike from http://elevenwentworth.com/ involved with at least making iinet hand over the details of customers.
I notice that in the preliminary discovery it will ask for your computer to investigate.
simple solution, take the hard drive out and give them the shell
I notice that in the preliminary discovery it will ask for your computer to investigate.
simple solution, take the hard drive out and give them the shell
This is a civil matter for dollars and cents. Let's not jump to seizing of computers or anything like that.
The letter hasn't even been approved yet.
I notice that in the preliminary discovery it will ask for your computer to investigate.
simple solution, take the hard drive out and give them the shell
They can take a look around my Laptop....., as I am sure that their software cannot (And does not) know which PC on your network did the infringing.
Failing that, they can take a a looksie at my RasperryPI.
my theory as it has developed is along the lines of Voltage Pictures is a member of MPAA, they are funding this not the plaintiffs
How did you go from Voltage Pictures being a member of MPAA to this organization paying for the court action?
Also someone else posted that the three strikes policy would be retrospective in nature when implemented, this is not the case and would essentially collect half of Australia in one swoop.
I notice that in the preliminary discovery it will ask for your computer to investigate.
simple solution, take the hard drive out and give them the shell
I'll be happy to supply them with my computer....they can come and pick it up after leaving a ten thousand dollar cash security deposit.
How did you go from Voltage Pictures being a member of MPAA to this organization paying for the court action?
Also someone else posted that the three strikes policy would be retrospective in nature when implemented, this is not the case and would essentially collect half of Australia in one swoop.
Yep the big Hollywood studios and I'd assume the MPAA have been lobbying for a 3 strikes policy precisely because they don't want the bad publicity that comes with suing consumers.
Whether the 3 strikes code could operate retrospectively or not is kind of irrelevant since there is nothing stopping copyright holders from bypassing the code altogether and taking action through the courts similar to DBC. I'd guess the existence of an industry code may be a consideration taken into account when deciding discovery but I'd doubt it would be enough to block it.
It shows you had the intention to share, breaking copyright.
How does that show intention to share? Who knows, someone could have accidentally left the torrent running � that doesn't mean they had an intention to upload the movie to other users.
If they take anyone to court on the evidence they have they will fail
How do you know they will fail? They have and continue to win in the states.
I would argue they may well win but (hopefully) in Australia the penalty applied is nothing like the horrifying level of cost they have inflicted on individuals in the states.
How do you know they will fail? They.....
Because harvesting IP addresses and suing an account holder of that IP address does not meet the balance of probability required to succeed.
And that is the total of all their evidence, so they can't win. Hell, they're not even going to take anyone to court....just threaten account holders and hope some of them pay up...that's it.
Because harvesting IP addresses and suing an account holder of that IP address does not meet the balance of probability required to succeed.
I think the same question still remains, how do you know this? can you list cases that made this determination in Australia.
As has already been noted, the software is only capturing from a few kb uploaded (not some magical percentage)
If you are downloading, you will almost always be uploading, the whole concept of p2p
This cant be taken as a given.
Say you attempt to download the latest linux ISO. but the torrent you downloaded was for something else either by human error or deliberate deception (something DBC practised by deliberately seeding the movie)
Your torrent client starts to download and also upload. some time later maybe even after the torrent completed you realised the mistake and deleted the torrent and corresponding files.
DBC would have to try and prove intent. They could only do that by monitoring over a period of time and determining how much you shared.
If the software is relying only only a few KB it could not show intent. Maybe that's what they do do. but any competent lawyer could destroy their argument
How did you go from Voltage Pictures being a member of MPAA to this organization paying for the court action?
Because this limits the damage done to big studios if there is a lashback against DBC. For the MPAA its a hedged bet.
Say you attempt to download the latest linux ISO. but the torrent you downloaded was for something else either by human error or deliberate deception (something DBC practised by deliberately seeding the movie)
I don't reckon DBC would be stupid enough to try and pin people for downloading a file that was incorrectly named or otherwise misrepresented.
My guess is that the torrents they've monitored will all be clearly and obviously named.
I think people are grasping at straws if they think they can get off the hook by saying it was unintentional. IANAL but I wonder if this type of defence might even make things worse because it requires admitting that the event actually occurred.
You might find this interesting, especially if a defence of someone using Wi-Fi to illegally download is made.
Who knows, someone could have accidentally left the torrent running � that doesn't mean they had an intention to upload the movie to other users.
Irrelevant in a civil case.
What their intention may or may not have been is not defense.
Irrelevant in a civil case.
What their intention may or may not have been is not defense.
I'm not the one that mentioned intention, you are.
Perhaps you should go back and edit your posts? And regardless, it will be in consideration if DBC manage to establish a claim for damages. Simply leaving the torrent on won't justify as attempting to maliciously infringe copyright law.
I'm not the one that mentioned intention, you are.
Perhaps you should go back and edit your posts?
No need to edit my posts.
Your intention, as I said is irrelevant in terms of what you did.
The fact you did is intent in terms of a case.
What you intended isn't relevant � see the distinction ...
maliciously infringe copyright law.
Again irrelevant.
The fact you did is all that is important in civil cases.
The fact you did is all that is important in civil cases.
Huh? The flagrancy (or maliciousness) of an infringement is most definitely a part the matter (of which intention to infringe copyright is considered). While it's not used to determine if they are liable, it is used to determine how much they may be liable for.
What you intended isn't relevant � see the distinction ...
I have no idea what you're getting at.
I have no idea what you're getting at.
You don't have to demonstrate a particular state of mind...
As you say though, it could be malicious or accidental, but this will only probably have an influence on the amount of damages...
i can tell you that NO ONE has ever been taken to court in Australia for online copyright infringement by a movie studio.
And I hope it stays this way but I wont be taking the risk at thumbing my nose at these companies. Also as I believe a 3 strike policy is under review I wont be risking that either so time to hide your activity.
And I hope it stays this way but I wont be taking the risk at thumbing my nose at these companies. Also as I believe a 3 strike policy is under review I wont be risking that either so time to hide your activity.
IMHO i think it will most likely stay that way - i was simply putting it out there that people need not panic if they receive one of these letters.
Link below is very interesting considering - Marque expressing opinion that they dont believe Ip address is strong enough evidence to bring a copyright infringement against someone. As to why there view has changed will only be discovered if and when they take someone to court i guess.
http://www.marquelawyers.com
There was one court case in the UK that is relevant in these circumstances. No other case in the world that I am aware of is relevant in these circumstances.
In the relevant case the plaintiff lost the case, was made bankrupt and the lawyers bringing the case were disbarred from practising law by the responsible legal authority.
I do believe that any attempts to take these matters to court will result in similar outcome/s....
Just another of the many reasons why the account holder will never be taken to court in this matter with DBC/Voltage.
I can assure you that if they had stronger evidence than an IP address & the Australian civil court system had punitive damages you would see many many cases before the courts.
The fact they are asking the account holders in the proposed letter to inform them who they believe are the infringers goes to show just how much they are reaching here. If they had more evidence than an IP address then they wouldnt need to be asking that question would they?
Assuming the account holder didn't download/share DBC � how the hell are they going to remember who did download/share it for a time period that was over a year ago now! ridiculous !
There was one court case in the UK that is relevant in these circumstances. No other case in the world that I am aware of is relevant in these circumstances.
Can you link to this please?
Did they go to court today?
I've followed this thread with interest particularly the significant difference in "legal" interpretations!
I wonder though if all this debate is causing a smoke screen. How long before we find that DBC have their sights on some clauses in the Trans-Pacific Partnership agreement that will let the US "Justice" system extradite down-loaders to the US where the Australian view of Justice is not practiced in their courts.
"Will never happen" you say well go searching the interwebs for Richard O'Dwyer. He was extradited by the UK to the US just for posting links on a webpage to potential piracy download sites NOT even downloading.
http://www.theguardian.com/l
A judge ruled on Friday that a 23-year-old student can be extradited to the United States for running a website posting links to pirated TV shows and films, despite significant doubts over whether such sites break any UK laws.
....
Richard O'Dwyer, a computing student at Sheffield Hallam University, faces a potential 10-year term in a US jail despite never having been to America or using web servers based in the country.
...
http://www.theg
A British student's two-year fight to avoid extradition to the US ended in less than five minutes on Thursday, when Richard O'Dwyer signed an agreement in a New York court to avoid prosecution and a potential 10-year jail term for breaking copyright laws with the file-sharing website he set up as a teenager.
The 24-year-old spoke only to confirm his name and his understanding of the three-page agreement, which was reached last week by his legal team and US prosecutors.
....
The brief hearing in lower Manhattan marked the end of an ordeal that dates back to October 2010, when O'Dwyer was arrested by City of London police, accompanied by US customs officials, in his student room in Sheffield.
....
He was also ordered to pay the US dollar equivalent of �20,000, which represents profits earned by his website between December 2007 and November 2010. The money will be used to "repay victims whose copyrights were infringed by TVShack", according to the agreement.
So even though he avoided US gaol it cost him a fortune in lawyers, airfares and a $40,000 fine.
Anyone want to be the first?
I think the key difference between the example you gave outlined and I suspect the majority of not all of the dbc alleged infringers is that the gentleman in your example made money/profit from his website which clearly made copyright material available to thousands therefore making it a criminal offence.
Cleary different from the scenario at play at the moment.
Not to mention the tpp still hasn't been officially signed off and activated yet.
.....in your example made money/profit from his website which clearly made copyright material available to thousands therefore making it a criminal offence.
The balance of UK legal comment is that it was not a criminal activity in the UK and a case heard in the UK Courts would fail. Hence the extradition approach.
e.g.
https://www.techdirt.co
In this case, it was doubly bizarre, because O'Dwyer, a UK citizen, was running a site that was nearly identical to some other sites that had been found to be perfectly legal in the UK -- and one of the pre-requisites for a criminal copyright charge is that the person needs to be willfully violating the law. Given that other comparable sites were found to be legal, it's difficult to see how US officials could meet that bar.
Remember this guy did not download a single scene of any movie (as far as we know) but still the US corporations wanted their pound of flesh - which they got.
While the TPP has not yet been activated I suspect that similar events could eventuate here when it is active.
i did hear that the less fortunate will be excluded from such letters ...is this true ?
i did hear that the less fortunate will be excluded from such letters
And just how do you think they'll know who are the "less fortunate"?
By asking you the following question and a bit of googling
1. How much money do you earn per annum?
Google your name and if you pop up as a nice target on say linked or a company profile then bingo, they'll hound you for money and as much as they can, a bit like a crack dealer would if they knew your income.
2.
1. How much money do you earn per annum?
Exactly. So the foolish will answer the question hoping to be 'let off' and in doing so incriminate themselves.
Did they go to court today?
I thought they did too. But I cannot find any news articles.
Some websites stated July 15, others 'mid July'. So I suspect any info will be dropped on us randomly at some point over the next week.
i did hear that the less fortunate will be excluded from such letters ...is this true ?
And that in itself is a contradictory statement, how do they know someone is 'Less fortunate' before they send the letters, you need to respond to the letter and INFORM them you are on a government allowance/pension in order to be excluded ? Your ISP certainly doesnt know your financial details, only that you either pay your bill, or you do not (In which case you get your Internet cut off anyway).
The way I *THINK* it works, is that they gain your IP from their program, they go to get a court order for your ISP to release your details, then send you the letter. This is exactly how its done in open car parks (Pay and display) with PRIVATE car park companies. Vic roads (or your licensing authority in your state) will rightly so tell the PRIVATE company to rack off, so they toddle off to get a court order for the registered owner, then your details are handed over, but this is the REGISTERED OWNER, the Private company does NOT KNOW who it was that parked at the time (And formed a contract of parking), so they send a letter hoping you will incriminate yourself, and you pay up their demands.
This of course is Different to council fines, and police issued (Speed, Red light etc), as these are backed up by state and local government laws.
https://www.comcourts.gov.au
The respondents (iiNet) had until yesterday to make a submission on DBC's proposed approach.
I wouldn't just chuck the letter in the bin.
People who have for years received the letters forwarded on by ISPs like TPG have had no further contact from the copyright trolls.
Nothing happens. The very letters are simply designed as a mechanism to elicit a response from the customer, in this case money. It's essentially extortion and it defies believe that as a society it's allowed. I think Justice Perrim got this one very wrong but the future will tell I guess.
seeking your own legal advice
Lawyers want to make money. They will recommend a course of action that ensures they get some cash off you. The action they recommend will almost certainly be unnecessary and lead to further interaction with the copyright trolls which in turn will require lawyer services even more. They will get into into a very expensive legal trap.
People who have for years received the letters forwarded on by ISPs like TPG have had no further contact from the copyright trolls.
Except in those circumstances the personal details of TPG's customers were not handed over to the copyright trolls...
People are in very new territory this time around and there is currently no known definitive way to handle this as nobody knows exactly what will happen. Throwing the letter in the bin is definitely an option but could turn out to be a foolish decision.
This is all about setting a precedent that favours the copyright trolls and they have already made one in their favour (in respect of being able to get personal details that would otherwise have not been accessible)! Now they want to push even further...this is actually quite scary along with all the other things going on in this country (including decisions the government have been making).
Those who throw the letter in the bin will hear nothing else from them.
Yeh good idea, ignore it and then DBC take legal action, once they get a judgment in your absence they could sell it off to a debt collection agency, bang goes your credit rating. Excellent idea.
but could turn out to be a foolish decision.
Exactly.
Those who throw the letter in the bin will hear nothing else from them.
Hmmmm not this time
Interesting read.
https://torrentfreak.com/sta
It explains a lot about why they want alleged offenders to answer some questions.
great read, thanks for the share.
If you do not respond to the letter you won't end up in court. They will need to summons you to court.....all correspondence from the trolls should be ignored. A legal summons should not be ignored.
DBC are relying on the letter recipients to engage with them and then settle. If you refuse to engage with them the matter will end. DBC'S own lawyer has made statements in the federal court to this effect....
Do not engage with them at all and I will put my house on it that the matter will go away, eventually.
Whatever you do, do not engage and do not send them money. Providing financial support to these trolls is reprehensible in my view.
once they get a judgment in your absence
based on what evidence? an IP address, filename, a time stamp wrapped up in threats? lol. this is exactly why nobody should ever reply to these parasites.
Throwing the letter in the bin is definitely an option but could turn out to be a foolish decision.
you would be a fool to engage with these parasites in any form of communication.
Yeh good idea, ignore it and then DBC take legal action, once they get a judgment in your absence they could sell it off to a debt collection agency, bang goes your credit rating. Excellent idea.
That's not true at all. What can possibly be true but unlikely is that if you do not respond via a lawyer you may light up a 'lowest hanging fruit' trigger as possibly you're less likely to want to spend money on legal fee's & more likely to just pay their settlement.
So then you have to ignore the summons that follows which ofcourse nobody would do.
If you do not respond to the letter you won't end up in court.
How do you know that it won't end up in court?
if you do not respond via a lawyer
What "low hanging fruit" has the resources to lawyer up?
....I will put my house on it that the matter will go away, eventually.
Really? Even though you post with such conviction it's only just your opinion. Suspect you probably wouldn't back this up if some poor bastard did end up in court, but you never know....
The question of whether anyone ends up in court is an interesting one. I like to think about these types of scenarios as if I was the other guy.
So if I'm DBC and I'm considering this thing right at the start then I'd want to try and find a couple of individuals amongst my list of thousands that I can properly go after in court. I'd be telling Maverick Eye not to bother getting back to me until they had a few really heavy uploaders that had been monitored to within an inch of their lives. I'd let the letters go out and see what happens. If I think there's still a return to be made then I'd be into court with my targets. If I win then I can leverage the crap out of it and surely there will be a wave of settlements in response. If I lose then it's probably all over and I've done some dough on legals but that's the risk I take. Maybe I can mitigate these costs to some extent by incentivising the fees (and possibly that's why they end up with these small legal firms - basically someone gambling on making a name for themselves).
Is any of this close to the mark? No idea, but I think it's very risky to assume these guys are a bunch of dumb yanks that will pack up and leave without much of a fight. I just can't imagine they have entered into this without a full understanding of their risk and how they're going to minimise their exposure and maximise any potential returns.
It's for this reason that I think that iinet have thrown a real spanner in the works, not directly by fighting discovery (tbh the actual court case seemed kind of meek) but by the publicity they have created. So now DBC have to make a decision whether they're going to invest in obtaining people's details against the backdrop of a much better informed public that are (hopefully) going to be a lot more difficult to extract settlements from.
How it will all end up I don't know, but it is quite interesting to follow.
So if I'm DBC and I'm considering this thing right at the start then I'd want to try and find a couple of individuals amongst my list of thousands that I can properly go after in court.
They have the precedent, this result is the tip of the iceberg, stay tuned for more rights holders to instigate proceedings based on this precedent.
What "low hanging fruit" has the resources to lawyer up?
In 2011 we had the first case of trolling with the movie "Kill the Irishman" . This caused me to do a fair bit of research into who the trolls actually sue. It's the lowest hanging fruit model and one indicator of such a fruit is the reluctance to spend money on replying to a copyright troll's initial letter. The theory is they will not be willing or unable to spend the legal fee's required in a defence.
It's said this is a strong positive indicator when choosing the fruit when calculated with other triggers. These are the thoughts of UK & US solicitors analysing various cases.
once they get a judgment in your absence they could sell it off to a debt collection agency
You are making stuff up here mate.
There is no judgement unless they actually take you to court. The letter they are sending out to people is NOT a court notice. It is a request to settle with the inference / threat that they CAN / MIGHT take court action, in the hope that it scares you into paying them money.
The debt collection agency, wow. I don't even know where you pulled that from. Makes no sense at all. These are speculative invoices mate. There is no proof that anyone has even done anything wrong, let alone owe anyone else money. Stop sprouting your lies and disinformation mate.
bang goes your credit rating
Because someone doesn't reply to a speculative invoice? Link me evidence of someone losing their credit rating based on them not responding to a speculative invoice please.
No. Only those that engage with the copyright trolls will be pursued for money.
^ This. There is absolutely no requirement or obligation to respond to a speculative invoice. Responding is EXACTLY what they want you to do.
Anyway, feel free to ignore my advice but if you did download it and you respond, you have been warned.
Edit: I'd just like to point out that there is a very good reason its called a speculative invoice. It's because it is speculative on pretty much everything it contains. The only things it probably gets right are your name and address, everything else is all circumstantial and would NEVER hold up in a court of law, which is why that there have been very few cases around the globe of the trolls suing individuals. The whole exercise is designed for the copyright trolls to make their money OUT of court. Taking people to court will lose them money. They do NOT want to do this.
Really? Even though you post with such conviction it's only just your opinion
No. Only those that engage with the copyright trolls will be pursued for money.
I make this statement backed by facts, it's what legal counsel for DBC have stated in the federal court when explaining how costs were to be apportioned amongst the alleged infringers and he stated " only with those that engage"
Therefore, it is not my opinion but a fact.
These are speculative invoices mate.
The Judge has ruled that there will be no speculative invoices, repeat no speculative invoices.
The Judge has ruled that there will be no speculative invoices, repeat no speculative invoices.
The letters are going to be the equivalent of speculative invoicing. What the judge says he doesn't want to happen doesn't mean jack.
Did you even see the draft letter that the judge is going to rule on in a day or two?
http://www.scribd.com/doc/26
Newsflash: The letter is almost identical to many speculative invoices sent to alleged infringes over in the states.
Regardless of how many changes that are made to the letter itself and the final form it takes doesn't change the fact that you are spreading disinformation in the aim of scaring people, suggesting that they will have a judge rule in their absence and that not replying will affect their credit rating. What a load of rubbish and you know it.
Regardless of how many changes that are made to the letter itself and the final form it takes doesn't change the fact that you are spreading disinformation in the aim of scaring people, suggesting that they will have a judge rule in their absence and that not replying will affect their credit rating.
Ever heard of a default judgment? the ISP hands over the punters information under discovery, the punter ignores the subsequent DBC letter, DBC take it to court obtain a default judgment, defence not filed, damages awarded and not paid, then DBC take proceedings to recover the damages, plus costs, onsell it to a debt collection agency is one way to recover the damages, credit rating down the tube.
What the judge says he doesn't want to happen doesn't mean jack.
Of course what the Judge says matters, if they don't comply he will force them to comply, he recently ruled the first draft not to be suitable, back to the drawing board they went.
Ever heard of a default judgment?
You are intentionally skipping over many parts of the process here.
There are many hoops the plaintiff needs to go through before they can go to court for a ruling.
The plaintiff needs to contact the defendant (whether its directly or via the court) outlining their intentions to sue. This is normally followed up with subsequent correspondence. This whole process takes time.
You are making it out that this first letter (which is sent by the rights holder or their representing body, not the court) is somehow the ONLY correspondence, and not responding to it will result in this series of events which ends in the person being automatically ruled as to be infringing, having to pay damages and having their credit rating negatively affected.
This first letter is completely separate to the courts process and you know it.
I repeat to you. Stop trying to make out that this letter is something it is not. Furthermore, stop with your continued inference that not responding to said letter will result in fictional consequences. It is simply false and you know it.
Of course what the Judge says matters, if they don't comply he will force them to comply, he recently ruled the first draft not to be suitable, back to the drawing board they went.
Yes but it doesn't change the fact that this first letter is meaningless. It's a letter from the copyright troll to the alleged infringer with the intention of getting a settlement. It DOES not result in what you are suggesting it does if someone should not respond.
Friday 14th: Wait and see watch.
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