Piracy hunter's integrity questioned in Australian ISPs court case
Australian online piracy hunter Daniel Macek didn't have the best day in the witness box of Sydney's Federal Court on Tuesday.
The 30-year-old technical analyst, employed by German-based firm Maverick Eye UG - which claims it can identify the modem IP addresses of those who share unauthorised movies and TV shows using file-sharing technologies such as BitTorrent - had his integrity and evidence attacked like never before.
It was revealed under cross-examination that he didn't prepare his own expert witness affidavit, which was instead prepared by the firm involved in the case that is trying to protect its copyright.
And it was also demonstrated that he simply did not know how to interpret the log files generated by his own company's software that will be key to the judge overseeing the case, Justice Nye Perram, determining whether it should proceed.
The matter involves Dallas Buyers Club LLC, the rights holder to the movie with the same name, taking a number of Australian internet providers (ISPs) to courtto get them to divulge the contact information of thousands of account holders behind the IP addresses they allege shared their movie without authorisation on the internet.
The ISPs in the firing line include Adam Internet, iiNet and Dodo. But the nation's largest providers - Telstra and Optus - have not been targeted by the legal action.
Once Dallas Buyers Club LLC gets the details, it plans to contact infringers, as it has done overseas, and demand that they pay a fee to settle the matter or instead go to court.
In some jurisdictions the fees sought have been large, which has in turn seen some judges impose caps on the settlements
To understand how the alleged pirates were uncovered, you need to go back to 2013, when Dallas Buyers Club LLC, through its parent company Voltage Pictures, tasked Maverick Eye UG to go on a piracy-hunting expedition that sought to identify who was sharing its movie online.
Maverick Eye UG provided Dallas Buyers Club LLC with the IP addresses of alleged infringers. It then contacted iiNet and others, asking them to divulge customer details without a court order - but they refused.
Now Dallas Buyers Club LLC hopes it can gain access to these details through what's known as the court's "preliminary discovery" process. This requires companies to hand over any documents they might have that could identify a person who has, as in this case, allegedly breached copyright.
According to Maverick Eye UG's website, it is able to provide "world-class surveillance" of intellectual property "within the most prominent peer-to-peer" file-sharing networks on the internet, including BitTorrent and Emule. Using "highly sophisticated software", its "highly trained staff" are then able to identify llicit distribution of their clients' copyrighted material.
THE .PCAP QUESTION
But the integrity of the system - which has been relied upon in many other jurisdictions - all appeared to come undone at Tuesday's hearing, where iiNet's defence barrister Richard Lancaster, SC, asked Maverick Eye UG's Mr Macek, flown from Germany to be at the case, to explain in detail how it worked.
At issue, Lancaster said, were timestamps in so-called ".pcap" files the Maverick Eye UG system generated that were given as evidence to the court in addition to Excel spreadsheets that made the data easier to read and understand for the purpose of identifying alleged infringers.
"Are you familiar with the information in the .pcap files themselves?" Lancaster asked Macek during cross-examination.
"Not in detail," Macek replied, adding that this was because he relied on the Maverick Eye UG system doing most of the work for him.
Following this exchange it was then put to Mr Macek that the timestamps in the .pcap files were not the times the BitTorrent files were "transmitted" or "transferred" from the alleged infringers to the Maverick Eye UG system, but the times of "reassembly" of the BitTorrent traffic data on the system.
Macek could not answer whether this was the case because, he said, "I don't understand this .pcap [file] in this detail".
"I know how the Maverick software works in general but I'm not aware of the .pcap [files]," he added.
Prompted to explain again, he replied: "I can explain this without details ... I can't read .pcaps."
Lancaster then asked if Macek agreed it was "very important" that the time was "precisely accurate" because IP addresses issued to customers often changed.
"I agree," was the response from Macek, who added that he did not write the code behind the system.
The judge also seemed to agree on the importance of the timestamps.
"If the IP [address] switched midway through one of these transmissions it just occurs to me that that change would have some impact on your cross-examination," Justice Perram remarked to Lancaster.
STAFF OF FOUR
But as Tuesday's hearing drew to a close, the question of whether the timestamps were accurate remained unclear. If they are not, the entire case could potentially be thrown out if the evidence is ruled not to be reliable enough and therefore inadmissible.
There were "basic defects" with Macek's evidence - and that of another witness yet to appear in court - that warranted both "being rejected", Lancaster said.
Macek also revealed on Tuesday that heworked only 40 hours a month at Maverick Eye UG and that it was a four-person operation.
In addition to employing Macek as technical analyst at Maverick Eye UG, there is an accountant, a systems administrator, and chief executive officer Thomas Novak, who is the main shareholder.
Macek said he didn't hold a university degree but had completed an apprenticeship where he learned the computer programming language Java.
Vice-president of royalties for Voltage Pictures, Michael Wickstrom, was also cross-examined on Tuesday.
"I think the ease of [illicit] downloading [has meant] that people have become so desensitised [because it's so] easy to do ... [and] so convenient to do it," he said.
Online piracy was "eating into the profits" of film companies, he added.
The case continues on Wednesday, the last day of the two-day preliminary discovery hearing.