In case you were not following events from the Dallas Buyers Club case in Australia (iiNet v. DBC), there were some interesting developments. The central point of this case is if a group of Australian Internet Service Providers (ISP) will have to disclose the personal information of 4726 subscribers who are alleged to have downloaded/shared the movie Dallas Buyers Club via BitTorrent (BT). The court is reviewing all the testimony/facts and should make a decision in a couple of weeks. Here are some of the stories.
Of particular interest was the testimony of German Citizen Daniel Macek, Maverick Eye UG, employee. Macek used the Maverick Eye software to record the public IP addresses that are alleged to downloaded/shared the movie. iiNet’s attorneys attacked Mr. Macek’s credibility and experience.
Under cross examination by defence barrister Richard Lancaster, SC, representing iiNet, Mr Macek said he did not prepare his own affidavit.
“It was provided,” Mr Macek said, referring to the film’s rights holder Dallas Buyers Club LLC preparing it.
The statement was “pretty much complete[d]” for him and he could not remember if he made any changes.
“You provide affidavits and statements in lots of litigations all around the world,” Mr Lancaster said. “Is it your practice just to sign what is put in front of you?”
“No,” Mr Macek replied.
Mr Macek could not say whether he was authorised via email or letter to use the MaverickEye software to identify those who allegedly shared Dallas Buyers Club. (Taken from The Sydney Morning Herald story)
The reason Macek was cross-examined so forcefully was because it was his declaration DBC used to justify the release of the AU ISP subscriber information. Now many of you already know that Daniel Macek is a central figure in a multitude of US BT Copyright Troll cases. In the US his declarations were also used to justify the release of ISP subscriber information to the Trolls.
One interesting thing to note about Daniel Macek is his lack of experience. The issue of his experience came up in the AU case. The “experience” was also an area of concern for the Anti-Piracy Management Company (APMC), who is actually running these BT Copyright Troll cases around the world. Here is what the APMC (via their Prezi presentation) thinks of Mr. Macek.
If you look at the full transcript (text) of the presentation (link is on the bottom of the presentation page), there is an entry concerning Mr. Macek and his “experience.”
This of course is not a shock to me and others who follow the BT Copyright Trolls. What is also interesting is another name that was used by the APMC prior to Mr. Macek – Darren Griffin, Crystal Bay Corporation (CBC). Mr. Griffin and Mr. Macek’s declaration are essentially identical, with changes only to cases titles/case numbers. As Mr. Griffin is almost certainly a made-up person, working for a SD “Shelf-Company” run out of a mail drop, the credibility and reliability of these people and Company are in question. Here are some additional stories on Mr. Griffin, CBC, and what WA attorney Christopher Lynch was able to dig up. His information was key to getting Elf-Man LLC, to dismiss his client (with prejudice), leading to a fees/costs award of approx. $100,000.00. Article 1 Article 2 Article 3
One of the more frustration aspects of these cases is how the Troll/Plaintiffs are able to obtain early discovery of the ISP subscriber information with template based declarations from Mr. Macek and Mr. Griffin. When these cases are initially filed, there is NO opposing view/argument to their claims. The Troll simply presents the court a declaration from a person they claim (or infer) is an expert or technician. Most courts follow a general rule that if an attorney presents some document/declaration, they take it at face value unless someone objects or presents evidence to the contrary. This makes it extremely easy for a Troll to obtain the ISP subscriber information most of the time. For a majority of the cases, the court simply rubber stamps the request and the Troll happily gets the ISP subscriber data in a month or so. In the unlikely chance that a Doe tries to fight the early discovery request, most US courts simply take the word of the Trolls and not ask for additional information.
I can only hope the AU court sees what the APMC/DBC is doing and puts a stop to it. I will not hold my breath, but I’m confident that even if the AU ISPs have to give up the ISP subscriber information, there is going to be a few Aussies who fight back. I think APMC is going to find out “down under” isn’t going to be an easy score.
For us in the US, the AU developments will be used to target the “questionable” people APMC uses to justify early discovery. Who knows, maybe Mr. Macek will just fade away. If that happens, APMC will simply replace him with another stooge willing to put his name down on legal documents. We will wait and see; adaption is the key.
DieTrollDie 🙂 “I will accept the rules that you feel necessary to your freedom. I am free, no matter what rules surround me. If I find them tolerable, I tolerate them; if I find them too obnoxious, I break them. I am free because I know that I alone am morally responsible for everything I do.” [The Moon Is A Harsh Mistress, Robert Heinlein]