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Screen shot from Dallas Buyers Club (image - YouTube trailer)

Dallas Buyers Club – copyright infringement, or copyright trolling?

Screen shot from Dallas Buyers Club (image - YouTube trailer)
Screen shot from Dallas Buyers Club (image - YouTube trailer)

By Gangasudhan

Reports have emerged in the mainstream media (here, here and here) that a number of people have been served with legal letters by Samuel Seow Law Corporation over the weekend with regard to their digital download of the Hollywood movie Dallas Buyers Club. While the details have been sketchy thus far, many people have become concerned and confused with regard to the implications of this news.

Basically, the situation is a civil one where an application was made in the High Court by local legal representation of Dallas Buyers Club LLC, which is based in the US, to acquire the particulars of subscribers from local Internet Service Providers (ISPs) whose Internet Protocol (IP) addresses were traced by an internet tracking company based in Germany called MaverickEye, and established as being linked to the download of a digital copy of the movie.

After the High Court had issued the order in favour of the ‘pre-action discovery’ application in January, M1 had furnished the address, NRIC number and name of the subscribers linked to those IP addresses and the letters were supposedly sent to them. Starhub apparently has indicated that it has received notification to furnish the particulars of its subscribers whose IP addresses were traced and is in the process of furnishing the information accordingly.

Case is hard to prove

In legal terms, downloading a pirated movie actually infringed the copyright of the owner of the movie, hence warrants civil action to claim damages. Uploading a movie, on the other hand, is a criminal offence because only authorized entities are allowed to distribute a movie.

However, when it comes to filesharing platforms, it is rather hard to prove that one complete digital copy of the file was successfully transferred from one specific person to another, which explains why Dallas Buyers Club LLC did not establish illegal content distribution for the Singapore authorities to follow-up with criminal investigation. Instead, it merely established that an IP address had received the digital copy of the movie (or at least part of it), hence the weak assertion that this was an illegal download of pirated content.

However, if the downloader had already purchased a DVD copy of the movie – be it new from the shop with store receipt as proof, or secondhand from someone where there would not be any transaction trail, and merely wanted to watch it on his or her laptop which does not have a CD-ROM, then it would be quite petty for Dallas Buyers Club LLC to continue to harass and pursue damages – in fact, it might even be a valid defence to suggest that there was no damage after all.

The onus here is clearly on the appellant in this civil case to prove that those it alleges to have downloaded the movie actually did so with intent, but with so many plausible situations that could have happened, it is hard to see how it is eventually going to achieve this.

For instance, those alleged to have downloaded could have simply not used a password for their Wi-Fi connections to their router, hence a neighbor or visitor to the home could have easily connected to the internet and downloaded the movie without the subscriber’s knowledge whatsoever. There are many such examples from other countries where places like dorm rooms (shared by many college students) and hospitality establishments (i.e. inns) were served such notices with no viable further action by the appellant was possible.

The parent company of Dallas Buyers Club LLC is Voltage Pictures (also based in the US) and has a notorious history of using tracking software to bait victims and then trace their identities to issue them with lawyer letters demanding compensation. The tracking software works by mimicking a user of a peer-to-peer network and offers a file for download to other file sharers. When another user connects and successfully downloads part of the file, the tracking software records the IP address and timestamp details before terminating the connection.

Under those circumstances, a case cannot even be made to say that the identified IP address actually downloaded one complete copy of a movie, since there is no way for the tracking software to differentiate between an illegal (complete) download from someone who might have just accidentally clicked on a link and started the peer-to-peer download only to subsequently cancel it soon after.

In fact, there is strong reason to believe that the whole exercise in this case is merely a scare tactic, with the vice-president of Voltage Pictures, Michael Wickstrom himself – also described as a ‘royalties expert’, reportedly saying that, in his experience, a letter from a rights holder is a "good deterrent" to further piracy. He has also been quoted as saying, "All I request is that our local attorneys send a warning, because I don't anticipate a settlement from them except a warning.”

This type of activity is called copyright trolling and is meant to use the caveat of infringing copyright by the mere act of downloading saleable intellectual property, to strongarm unsuspecting people into making a settlement or frightening internet users from downloading content via per-to-peer networks.

Surrendering information - a dangerous precedence?

But the more alarming loophole this incident exposes is that it makes Singapore vulnerable to terrorist influences. Imagine a shell corporation set up by the Islamic State of Iraq and Syria (ISIS) group – which has the demonstrated ability to be technologically sophisticated in spreading propaganda – to track the downloads of a certain type of documentary or movie through Singapore IP addresses.

This entity could then make an application in the High Court through a local proxy – just like how Dallas Buyers Club LLC has done – to request for our local ISPs to surrender personal particulars on the pretext of pre-action discovery in relation to some perceived copyright infringement. This means that any terrorist organization can so easily profile targets and secure their identities for recruitment or victimization – a very real threat to the safety and security of our nation.

It is thus very dangerous to allow entities to secure personal information from ISPs for frivolous purposes such as the assumption of illegal download of content when, in fact, it could be a host of other probabilities, and where the proof of actual infringement is quite hard to establish. There is therefore strong justification for the authorities to consider stepping in to squash such attempts at copyright trolling in Singapore as it has serious implications for misuse.