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Torrenting is a way of file-sharing, which in the Commonwealth of Australia is just as legal as sending and receiving smartphone photos over a Bluetooth network.
Keep in mind that what we mean by torrenting is using the BitTorrent protocol to exchange digital files over the internet.
However, torrenting in Australia gets complicated once we get into certain legal aspects, such as intellectual property, licensed media, and works protected by copyright. And these legal aspects happen to be well-established, both in terms of legal precedent and legislative intent.
Legal Status of Torrenting in Australia – Court Cases
There were quite some court cases that can paint a clear picture of the copyright laws in Australia. Let’s have a look at some specific examples:
The Historic Universal Music vs. Kazaa Australian Federal Court Decision
In 2005, the BitTorrent protocol was still young, but it had already achieved widespread popularity in the file-sharing world. That year, a federal court issued a ruling and opinion on a case that would set an important precedent on copyright infringement through peer-to-peer (P2P) file-sharing.
Leading a long list of applicants in the case was the Australian office of Universal Music. The respondents were Sharman License Holdings and AltNet, two companies that distributed the Kazaa Media Desktop file-sharing software, which ran on the FastTrack protocol.
Universal Music was encouraged by the Australian Record Industry Association to go after Sharman for outright copyright infringement of MP3 files. The court did not see it this way. However, the decision came down to declaring the respondent responsible for authorizing Kazaa users to exchange copyrighted music recordings.
Eventually, the case was resolved outside of the courtroom, but it became a landmark ruling that would influence a future decision with regard to torrenting in a more important case.
Australian Federation Against Copyright Theft vs. iiNet
In this 2012 case filed before the High Court of Australia, the applicants represented major film studios such as Paramount and Sony. The defendant was a popular internet service provider (ISP). The BitTorrent protocol was at the heart of this case, specifically concerning seeding and downloading films and television series.
AFACT referred to the Universal vs. Sharman case to claim that iiNet had authorized copyright infringement, but not through the endorsement of P2P file-sharing applications.
Based on the argument presented by AFACT, iiNet should have disconnected customers whom the applicants discovered to have engaged in the downloading of seeded torrent files.
It is important to note that AFACT conducted its own private investigations of the BitTorrent network. The results revealed the public internet protocol (IP) addresses of iiNet torrenting enthusiasts.
iiNet made a good argument
Even though the AFACT vs. iiNet case progressed to the High Court through various appeals, the original court findings were largely in favor of the ISP because of its reasonable argument:
The direct monitoring conducted by AFACT indeed revealed identifiable information about torrenting subscribers. But disciplinary action such as service disconnection would require a law enforcement investigation plus due process in court.
At the time, residential service provided by iiNet was mostly DSL technology that would have required the disconnection of a telephone line.
The High Court ultimately found iiNet not to be liable for copyright infringement carried out by subscribers. But the technical details of the AFACT investigation by means of direct monitoring of torrenting activity set an alarming precedent that we will review next.
Dallas Buyers Club LLC v iiNet
The applicant in this 2015 case argued in the Australian federal court was the production company of an acclaimed film starring Hollywood actors Matthew McConaughey and Jared Leto.
The crux of the case relates to whether direct monitoring of BitTorrent networks (and the resulting logs) can justify discovery in court cases.
In other words, the production company wanted a court order that would compel Australian ISPs to turn over their records. That would identify subscribers caught torrenting McConaughey’s award-winning film.
The court sided with the production company based on the underlying technology provided by Maverik, a BitTorrent monitoring application developed by a German firm. Maverik is a BitTorrent software client engineered to search for high-profile swarms that form around prominent files.
In addition to the film mentioned above, other productions such as “The Wolf of Wall Street” and “Vampire Academy” have used Maverik to identify both seeders and leechers.
From a technical point of view, Maverik is not very sophisticated. After all, popular clients such as qBittorrent display the IP addresses of connected peers by default. Maverik only needs to connect to the swarm, and it will get the IP addresses of the peers.
With this information, clerks will be able to determine which Australian ISPs should be contacted for records and logs for the following purposes:
* Establishing the identity of the subscribers.
* Filing civil complaints and lawsuits for copyright infringement.
* Holding those individuals caught torrenting liable for seeding or downloading files they are not unauthorized to distribute.
* Discouraging others from torrenting.
Regarding the last point, the Australian Government Department of Communications published a 2019 report that showed a decline in torrenting of copyright files. On a year-over-year basis, there was a 10% reduction in this kind of online activity. This can be explained by the outcomes of an even more significant court case, which we will explain below.
Roadshow Films vs. Telstra
Before this federal court decision from 2016, Australia topped the list of countries with the highest file-sharing rates. Things changed soon after a ruling was made against respondent Telstra, an ISP headquartered in Queensland.
The applicant film production company was awarded an injunction ordering Telstra to block access to public torrent trackers such as ISO Hunt and The PirateBay. Other applicants quickly followed suit to gain their requests against Australian ISPs.
By 2018, the scope of the landmark Roadshow vs. Telstra case was expanded to include Android apps such as HDSubs+. These relied on IPTV technology instead of BitTorrent. But the focus was still on unauthorized access to digital media protected by copyright. This was a result of section 115A of the Copyright Act, which was broadened through legislative action in 2018.
It is safe to summarize this case as having been the most impactful on Australian torrenting.
What Can we learn From These Cases?
These are just a few of the total cases concerning torrenting copyrighted material in Australia. But it’s easy to make some conclusions:
It’s Easy to Find Torrent Users in Australia
One of the biggest problems regarding online privacy is that Australian ISPs are expected to comply with court orders to turn over logs from the last 24 months.
This could land you in considerable legal trouble if the ISP data shows you were torrenting films, music, video games, and other digital works protected by copyright.
On top of that, an intellectual property law firm uses direct monitoring tools, such as Maverik. Those tools can easily track you down by means of IP address harvesting.
There are Harsh Consequences for Torrenting Copyright Materials in Australia
When compared to other jurisdictions, the penalties faced by torrenting enthusiasts in Australia are pretty harsh.
Getting caught seeding or downloading copyright files in Australia could result in prosecution for online piracy. That’s a criminal offense with a maximum sentence of five years in prison. However, monetary fines are more commonly issued than jail time.
How to Practise Safe Torrenting in Australia
Even if you only download legal torrent files, you should still protect yourself and become invisible when torrenting. The key to staying safe is not giving away your IP address or records of online activity.
You can achieve this by utilizing a virtual private network (VPN) when using BitTorrent clients. A proper VPN connection will hide your IP address and encrypt data traffic so that prying eyes cannot see what you are doing online.
The Best VPNs to Download Torrents in Australia
Now that you understand why you should use this type of software, let’s see which VPNs are the most effective when downloading torrents in Australia.
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Regarding the Asia Pacific region, NordVPN has servers optimized for torrenting in several countries, making it an excellent choice for users in this area. It's essential to keep in mind that servers in neighboring countries are critical. Those will provide fast speeds, thanks to the proximity.
Finally, they have a favorable attitude regarding file-sharing and a no-logging policy.
PureVPN has been improving considerably over the last few years. It has plenty of servers dedicated to torrent downloads in this area of the globe.
On top of that, it has a neutral company location (British Virgin Islands), a no-logging policy, and all the features a good VPN should have. It's also a great option for those on a budget.
Hide.me has many servers in Australia and other countries in the same region. We experienced great speeds on most servers, which is a great plus. Also, the software has many features to increase online protection and anonymity.
This is also a no-logging VPN, located in Malaysia, which is a very privacy-friendly location with no data retention laws.
Torrenting in Australia can be risky because of the possibility of getting caught torrenting copyrighted material and facing harsh legal consequences. The several cases brought against Australian torrent users in recent years serve as a reminder of the need to take precautions when using the BitTorrent protocol.
Even if you are torrenting legal content, it is essential to protect yourself and stay safe by using a VPN.