Real crimes in an unreal realm
Dallas Buyers Club, iiNet and the moves to unmask Australian web pirates

Image by Horia Varlan (Flickr).

At the beginning of February this year, a United States federal court in Manhattan concluded proceedings against a 30-year-old man named Ross Ulbricht, who was accused of being the “Dread Pirate Roberts”, founder and operator of the illegal online drug marketplace Silk Road.

As “Roberts”, Ulbricht was charged with an array of offences, including conspiracy to distribute narcotics, and continuing criminal enterprise – the latter a law popularly known as the Kingpin statute. In a separate court in Maryland, he also faces the charge of murder-for-hire, for allegedly commissioning would-be hitmen while under the guise of Roberts.

Ulbricht’s defence to the Silk Road charges centred on one idea: that the reality of someone’s identity on the internet and in the digital sphere is so indeterminate as to be unable to be proven in court beyond a reasonable doubt. It was claimed that “Dread Pirate Roberts” was an inherited pseudonym – as it is in William Goldman’s book The Princess Bride. The argument followed that, as the name was passed between administrators of Silk Road, it could not conclusively be ascribed to Ulbricht.

In his closing statement, defence attorney Joshua Dratel hammered home this claim of ontological uncertainty. “There is a distinction between the internet and IRL” – an acronym for “in real life” – he said. “The internet is not what it seems.”

The general tenor of this defence can also be found in a case currently before the Federal Court of Australia. A legal entity claiming ownership of the 2013 film Dallas Buyers Club is pursuing action against the internet service provider (ISP) iiNet. The action has been taken to force the provider to disclose customer details associated with internet protocol (IP) addresses that the company claims have been used to illegally download the film.

Representatives from iiNet are concerned Dallas Buyers Club, LLC – purportedly the owners of the film – will engage in a scheme known as speculative invoicing, in which accused copyright infringers are sent legal notices exhorting them to pay a sum of money against the threat of being taken to court. The company successfully conducted a similar scheme in the United States. It has been reported that many alleged infringers settled with the company, paying around US$5000 (under law, the maximum penalty for this sort of copyright infringement is $US150,000).

Much of the trial has been concerned with the accuracy of the technology by which specific IP addresses have been identified as engaging in piracy. Dallas Buyers Club employed a German-based firm called Maverick Eye UG to track internet users distributing its film through BitTorrent.

In BitTorrent, files are downloaded as an aggregate of pieces assembled from a multitude of users, like a vast collective jigsaw puzzle. Maverick Eye’s technology targets BitTorrent “seeders” (users who allow others to download pieces of the complete file from them), rather than “leechers”(users who only download pieces, and do not share). Posing as a BitTorrent user, Maverick Eye invites a seeder to share a piece of the file with their server, and then matches that piece against the copyrighted film, thus confirming its illegal distribution.

While examining Maverick Eye employee Daniel Macek, in court, iiNet’s counsel Richard Lancaster focused his questioning on the issue of whether the firm records the IP addresses correctly. Lancaster suggested that between the time Maverick Eye assembles pirated data on its system and when that data is shared by another user, the IP address associated with that packet of data could have changed.

It was also revealed during questioning that Macek, one of the DBC’s “expert witnesses” was in fact not much of an expert at all. The 30-year-old technical analyst is one of Maverick Eye’s four staff members, but works there only 40 hours a month. Macek claimed that he understood the firm’s software only “in general”. He had not even prepared his own affidavit.

Adding to the confusion also was a certain legal ambiguity concerning Dallas Buyers Club’s actual rights over the film. The presiding judge, Justice Nye Perram, admitted to being “flummoxed about who the owner is”. In court as in the digital sphere, it seems, the reality of identity is a murky business.

This ambiguity did not ultimately help Ross Ulbricht. Ulbricht’s defence claimed that much of the prosecution’s evidence against him had been fabricated and smuggled onto his computer by the “real” Dread Pirate Roberts while Ulbricht himself was torrenting an episode of the TV show The Colbert Report.

But the jury did not find this seeding of doubt convincing, convicting Ulbricht on all seven of the prosecutor’s charges. The murder-for-hire matter is awaiting trial in Baltimore. In a reflection on the Manhattan decision published on Medium, titled ‘The Internet is Real’, tech writer Joanne McNeil pondered the implications of this decision, suggesting that it augured a new understanding that “not everything digital is to be disbelieved”.

McNeil also flagged the relationship between this kind of digital unreality and Ulbricht’s own behaviour, pointing out that he commissioned assassinations (evidence for which was aired in the federal trial) with “the manners of a pleasant customer service representative” (example: “I would like to put a bounty on his head if it’s not too much trouble for you”). As McNeil puts it, Ulbricht was “LARPing [live action role playing] kingpin while he was the kingpin” (the killings themselves did not actually take place, although one was staged by the Drug Enforcement Administration, with bloody photos as “proof”).

This sort of behaviour looks more and more as though it is a constitutive aspect of the psychology of many web users. There is something disinhibiting about the digital sphere, in which identities can be picked up and shrugged off like old coats. In a space where nothing is as it seems, harassment isn’t really bullying, sexism isn’t really hurtful, jokes aren’t really threats, and piracy isn’t really theft. The task of reining in this sort of conduct to legal and socially acceptable limits is complicated, messy and ongoing.

Nevertheless, as McNeil hints, a new understanding may be dawning. The ruling on Dallas Buyers Club, LLC vs iiNet Ltd, expected some time this month, will no doubt have an effect on the future conduct of Australians with regard to online piracy – an effect that could be far reaching, given that 29% of Australians are active pirates.

Whether or not Justice Perram rules in iiNet’s favour, the case comes at a time when the battle against online piracy is being fought on multiple fronts. A new industry code under consideration from the Australian Communications Alliance would see alleged copyright infringers being served three warnings by their internet service providers before their account details are given over to copyright holders for legal action.

A draft discussion paper from the federal government proposes new measures that would force ISPs to censor sites thought to exist for the purposes of copyright infringement. Under one version of the proposed Trans Pacific Partnership Agreement, ISPs like iiNet could be held responsible for their customer’s copyright infringement if they fail to monitor customers’ downloading activity.

In fact, iiNet has previously won a legal battle against distributor Roadshow Films, which sought to hold ISPs responsible for copyright infringement. The Trans Pacific Partnership Agreement would see an effective reversal of that decision. iiNet’s performance in that case may have been one factor in Dallas Buyers Club’s decision to pursue them, rather than larger ISPs such as Telstra or Optus.

Regulations like these suggest that the distinction between the internet and IRL is undergoing a sustained and ongoing collapse. The digital sphere – and the behaviour it permits and encourages – until now seen only through a glass darkly, is being dragged out into the cold hard light of day. Soon everything might be just as it seems. 

James Robert Douglas
James Robert Douglas is a Melbourne-based cultural critic and Interviews Editor at The Lifted Brow. @@jamesrobdouglas

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