As a crucial Australian copyright lawsuit goes to its High Court for consideration, a new WikiLeaks cable from the US State Department suggests that the force behind the action is anything but local. On the surface, it appears that the suit against iiNet—on the grounds that the country's third biggest ISP hasn't done enough to crack down on illegal file sharers—is an Australian content initiative. But according to the cable, the prime mover behind the suit is actually the Motion Picture Association of America, through the Motion Picture Association, its international arm.
The MPA, "does not want that fact to be broadcasted," the 2008 communiqué from then Ambassador Robert D. McCallum Jr. explained. "MPAA prefers that its leading role not be made public," the summary of the case added, to dodge the impression that it is "just Hollywood 'bullying some poor little Australian ISP'."
This revelation, along with earlier leaks, once again raises a disturbing question. How far are the US State Department and US-based content industries intruding into the IP affairs of other countries—particularly members of The Commonwealth?
A public face
The movie studio case against iiNet was launched by the Australian Federation Against Copyright Theft (AFACT) in 2008. The trade association hired a monitoring company to scan BitTorrent networks for infringement, then submitted a "telephone directory-sized list" of allegedly infringing IP addresses to iiNet and insisted that it take action against these subscribers.
When iiNet didn't move on the piracy data to AFACT's satisfaction, an octet of production companies sued. Plaintiffs in the suit included the Australian outfit Village Roadshow, Universal Pictures, Warner Brothers, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox, Disney Enterprises, and Australia's Seven Network television company.
In the trial that ensued, iiNet insisted that it needed some kind of judicial oversight to move forward with infringement accusations; it couldn't just cut off its own subscribers on the say-so of a film company. The Federal Court of Australia found this argument convincing and dismissed the case, which will now be considered by that country's top judicial body.
But the newly leaked State Department cable suggests that Village Roadshow was only enrolled in the action to give it an Australian face. And the dispatch all but characterizes AFACT as a front group for Hollywood. These revelations come from an embassy conversation with MPA official Mike Ellis.
"Despite the lead role of AFACT and the inclusion of Australian companies Village Roadshow and the Seven Network, this is an MPAA/American studios production," McCallum explained.
Ellis confirmed that MPAA was the mover behind AFACT's case (AFACT is essentially MPAA's Australian subcontractor; MPAA/MPA have no independent, formal presence here), acting on behalf of the six American studios involved. MPAA prefers that its leading role not be made public. AFACT and MPAA worked hard to get Village Roadshow and the Seven Network to agree to be the public Australian faces on the case to make it clear there are Australian equities at stake, and this isn't just Hollywood "bullying some poor little Australian ISP."
In the course of their discussion, it appears that McCallum asked Ellis a pointed question. Why go after Australia's number three ISP, rather than its number one broadband provider, BigPond, owned by Telstra?
"It was clear Ellis did not want to begin by tangling with Telstra," the message explained, "a company with the financial resources and demonstrated willingness to fight hard and dirty, in court and out." In addition, Ellis thought that iiNet users had "a particularly high copyright violation rate" and that its managers were "consistently unhelpful on copyright infringements."
How far does this go?
This latest revelation revives a question raised by earlier WikiLeaks cables. How many Commonwealth member nation anti-piracy initiatives are essentially a creation of US content rightsholders, or the US State Department, or a combination of both parties?
According to cables released by WikiLeaks four months ago, in 2005 the US embassy in New Zealand urged Uncle Sam to fork over about half a million New Zealand dollars to bankroll a private intellectual property enforcement unit run by major rightsholders in the region.
Operated on an informal basis by the Recording Industry Association of New Zealand (RIANZ) and the Australasian Mechanical Copyright Owners Society (AMCOS), the US identified the "unit" as the only potential bulwark against music piracy in the region.
"It is developing an intelligence framework to identify local producers of pirated works, distributors, criminal networks and recipients and to work with relevant government, law enforcement, customs and other authorities and stakeholders," the embassy's cable noted. "The unit aims to prevent piracy by sharing intelligence with other organizations and agencies, lobbying political parties and the judiciary on the harm to industry and supporting public awareness campaigns."
The dispatch drew up a recommended budget of NZ$533,000 (US $386,158) for the operation, with over $200,000 going to salaries and the rest funding start-up and operating costs.
And a May 2009 cable indicates that the US offered assistance to New Zealand as it was rethinking its "three strikes" illegal file sharing law. "Embassy in the meantime has repeated its offer of assistance to [Government of New Zealand] officials to offer consultations with [United States Government] copyright experts through a [Digital Video Conference]," the message explained.
New Zealand's government eventually yanked Section 92A of that bill, denounced by ISPs as vague and impossible to implement. But the US seemed confident at the time that New Zealand would eventually come through with a new edition of the law (which it has). Embassy officials also made clear their annoyance with foes of content industry-friendly copyright changes.
In the meantime, the IPR community has engaged the services of Price Waterhouse consultants to do a cost-benefit analysis on the potential losses to the NZ economy if the new S92A fails to be enacted. The IPR industry wants to be prepared to counter any false claims by opponents of the new provision who successfully managed to monopolize the local media's attention in the last round.
Essential advice
Meanwhile a 2008 cable outlines the extent to which the US has pressured Canada to pass tougher copyright laws—constantly communicating with that country's government about the matter and keeping Canada on America's Special 301 Priority Watch List. That is the US Trade Representative's "hall of shame" roster for countries that don't toe the US line on copyright.
How deeply involved is the US with Canadian copyright policy? Exhibit A is a WikiLeaks cable from August 2007, a message from the US embassy in Ottawa. In it, Ailish Johnson, economic development policy analyst for Canada's Privy Council Office, was quoted as updating a US embassy officer on Canadian IP developments.
The government "is still on track to introduce a new copyright bill to parliament this fall," the message says. "Johnson also revealed that the mandate letters from the Prime Minister to the incoming Ministers of Industry and Canadian Heritage charged both Ministers with introducing a copyright reform bill before the end of the year [our italics]."
Getting back to Australia, consider the tone that Ambassador McCallum took in assessing the AFACT suit—one obviously skeptical of content industry critics. "Media reaction to the case has been mixed," McCallum wrote.
It includes some predictable criticisms of AFACT's resort to legal challenges as doomed to be ineffective, and exhortations that the best way to combat piracy is for the movie and TV industries to adapt to the digital age and make their products more readily available for download at reasonable prices and conditions.
iiNet CEO Michael Malone has put a brave face on the High Court appeal, asking the movie industry find "workable" solutions to piracy issues. "I know the Internet industry is eager to work with the film industry and copyright holders to develop a workable solution,” Malone told reporters in mid-August. "We remain committed to developing an industry solution that sees more content readily and cheaply available online as well as a sensible model for dealing with repeated copyright infringement activity."
But as these Wikileaks cables keep coming out, the question is which industry Malone is actually negotiating with—his country's, or somebody else's. The same concern could be raised in Canada, New Zealand, and elsewhere.
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