p2pnet - rss feed: Australia Swiftel mystery case
p2p news / p2pnet:- The long running Australian Swiftel case has now been settled. All the important issues and players were involved - ISPs, alleged BitTorrent and p2p users … film, music and other content holders. There were also allegations of large scale internet based copyright infringement and the case was supposed to represent another significant piece in the Australian judicial puzzle known as the “legal framework in the digital age”.
So, why was this case settled, and why were the terms of the settlement sealed?
When we watch people or companies over a period of time, it’s natural to observe patterns of behaviour. This is especially so when we watch the copyright enforcement industry.
Australia’s Music Industry Piracy Investigations (MIPI) has had a golden run of successes over the past decade. Many MIPI cases have gone to judgement. Through these judgements MIPI has effectively “made law”. So, how can a private organisation make law? Lawyers call it precedent. MIPI has brought a number of cases in the Federal Court over the past few years. These cases have been heard, and MIPI has been successful (to varying degrees) in each of these cases. As a result, MIPI have helped develop a body of legal judgements which can be used by judges in Australian courts to interpret legislation (such as the Copyright Act) well into the future. Here is a sample of some recent MIPI copyright cases (in alphabetical order):
The MIPI has also settled a number of cases over the past few years. In these settled cases, it’s gone in “hard” with cease and desist letters, Anton Piller (civil search and retention) orders, supported by an effective public relations campaign. Respondents faced with such a campaign have been faced with two choices - fight the “good” (and expensive) fight, or simply settle with the recording industry (read: surrender).
Typically, when the MIPI has settled cases, the respondents have had to make a payment of a substantial sum of money. Often the sum approximates the amount of the alleged loss, which in turn approximates the amount of damages that would have been payable had the case run its course, and had the respondents lost.
The settlement sum may include court costs and the applicant’s legal expenses to date. There may be “goodwill” discount which acknowledges the respondent’s admission of liability. The MIPI usually publicly discloses settlement terms. This isn’t only so the MIPI and its stakeholders can “claim” a victory in their press releases, but is also so it can use the settlement as a precedent for future cases.
On October 14, 2005, it was announced that the Swiftel case had been settled. This was supposed to be the first Australian case dealing with the use of BitTorrent technology for alleged copyright infringement as well as the first major test of new laws designed to limit ISPs’ liability for copyright breaches carried out by their customers.
The case focused on two internet servers including a web site known as “Archie’s Hub”. MIPI claimed Archie’s Hub could only be accessed by users who Swiftel clients and when the case commenced, an MIPI representative identified “Swiftel as an ISP which has adopted BitTorrent technology to link infringers to music clips and sound recordings.” According to the MIPI rep, “hundreds of thousands of downloads (were) conducted in the last year in breach of copyright laws.”
Anyway - the case was settled … nothing unusual about that … except, for perhaps the first time in MIPI history, the terms of a settlement in a copyright infringement case were sealed. This means that we can’t find out how much money the respondents will have to pay to the applicant record companies as part of the settlement. Nor can we find out the other terms (if any) of this deal.
This is very unusual, given that the MIPI has always been about setting precedents.
But in this case, there will be no precedent set. No citation. No bragging rights. Next time an ISP is sued in Australia, it will be as if the Swiftel case never happened …
So what were the settlement terms?
Early MIPI media statements talk of “hundreds of thousands of downloads”, so perhaps the settlement sum is close to a million dollars. Alternatively, it may be smaller … perhaps much smaller. In fact, the settlement sum may be so small that the recording industry doesn’t want other respondents (and would-be respondents) to know how little money it takes to “get out of a case” involving high volume internet based copyright infringement.
The shroud of silence is intriguing. All the important players were involved in the Swiftel case. ISPs were involved, and we saw how important that was in the Cooper case. There are allegations of high volume p2p file sharing. That was crucial in the Kazaa case. There were allegations of financial gain and substantial losses to copyright holders – just like the other MIPI cases.
However, from an Australian legal perspective, there were new factors involved in this case, such as the use of BitTorrent, the interaction between the Federal Magistrates Court and the Federal Court, and the impact of the Australia/US Free Trade Agreement.
So, why the secret settlement given that the recording industry was seemingly so confident in the merits of their case? Could it be the recording industry didn’t want to spend any more money on this case – even if it would potentially yield good legal precedents? Could it be the Oz recording industry has swapped a long term perspective for short term gain? Could it be the recording industry is still reeling as a result of a budget “blow out” in the Kazaa case?
Or could this be part of a wider exit strategy – a plan by the recording industry to take a step back from copyright enforcement proceedings?
Alex Malik
[Malik is a technology lawyer, music industry commentator and academic researcher at the University of Technology in Sydney, Australia.]
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October 15th, 2005 at 8:38 am
If they’re anything like a lot of other companies, MIPI was probly run by morons who refused to provide sufficient resources to the ppl actually trying to do the work, preferring instead to reward themselves for their “vision, leadership” and all that worthless crap.
If that was the case, the Oz music industry who pays MIPI’s bills, probly took a look at the legal bills for these cases and the amount they got back and started asking pointed questions.
In this era of cutting costs, it’s going to get to the point where companies will simply price themselves out of business.