Tag Archives: Malcolm Turnbull

The assassin’s methodology

In the intelligence world methodology matters, it is actually a game maker in that setting. We seem to think that some parts were fabrication, we seem to hide behind the slogan ‘If it looks like Hollywood, it is fake‘, yet that premise is not quite accurate. In the 90’s there was a time where the Wetwork business had a massive shortage of recruits and volunteers. That all changed when someone decided to park a 747 in a building in New York, but before that there was a shortage. Those people worked all over Europe, usually in construction, often well-educated with a focus to be placed all over the EMEA region. They were often called Technical Account Managers (or Technical Consultants). Often not linked to a company, self-employed short term hires that got in did what needed to be done and left. It is that era where the strategic sense of segregation, isolation, assassination comes from.

To make another leap, some might remember the Austrian raid on its own intelligence service in 2018, if it was only that simple. When Reuters gave somewhere in May 2018 “That led some allied countries to fear that intelligence they had given to Austria might have been compromised“, if it was only that simple, the raid was 24 years late. The independent had part of it in 1994. It took me a while to find it, yet (at https://www.independent.co.uk/news/world/europe/russian-mafia-summit-in-austria-1425805.html) we merely see: “Russia’s crime bosses held an unusual mob summit in Austria last month to discuss gambling, contract killings and other shady business back home, AP reports. The daily newspaper Izvestia reported that ‘Participants (also) enjoyed an extensive cultural programme. They even went skiing in the Alps.’“, there were two additional participants, two elements that would be speaking to a few only; they were one senior plus one additional representative from the FSB. It was not what they did and where they went, those bosses got a clear message where not to go and who not to bother. They already had a spread system in place, from Katendrecht (Rotterdam harbour district) to Antwerp and Monchengladbach Germany, they had channels in place and they were making a bundle (read: serious amounts of cash). So for these Wetwork TAM’s to stay under the radar was quite the challenge over there. The Russians were almost everywhere. Yet it changed, somehow in 1997/1998 the Germans got the upper hand in Germany and cleaned the place up by a lot. Some of the Russians went underground, some merely changed positions; there was an impact. One of these moments was seen in the Dutch newspapers (at https://www.nrc.nl/nieuws/1997/07/29/man-ontvluchtte-moskou-politie-voert-onderzoek-uit-7362317-a714933), the case is larger than shown. What was not widely known was that there was some kind of an agreement between the FSB (read: former KGB people) and the Russian mafia itself. Germany got a handle on it somehow and even as the ‘evidence’ was staring them in the face, it was ignored. The firm Lorit was quite literally Tirol (his Moscow office) backwards. The newspapers at that point mentioned “Rozenbaoum kocht het huis in 1993 voor acht ton. Op het dak staan twee satellietantennes. Daarmee hield hij contact met zijn vrachtwagenchauffeurs die door Europa reden” which translates to: “Rozenbaoum bought the house in 1993 for 800K. There are two satellite antennas on the roof. He kept in touch with his truck drivers who drove through Europe“, it was 60Km from the German border and 92Km from the German base monitoring a lot of traffic. A lot more was going on, even then and as some issues were buried into miscommunication and a considerable amount of cases linked to the response: ‘I am unable to recall the precise details of those events‘, there were several indirect links to Austria, yet those were seemingly never proven.

How does this relate to today?

This relates to an article in ‘The Hill’ (at https://thehill.com/policy/technology/433497-trump-admin-threatens-to-withhold-intelligence-from-germany-unless-it-drops) 4 hours ago when we were introduced to: ‘Trump admin threatens to withhold intelligence from Germany unless it drops Huawei‘, so not only is the Trump Administration dumb and ignorant. not only have they not ever found, or produced any evidence that Huawei equipment was an actual security danger (not since 2012 have they given anything). They are now ready to alienate the one nation in Europe that had success against Russian operatives as well as against Russian organised crime (often linked to FSB priorities) and we are introduced to “The Wall Street Journal obtained a letter dated Friday from U.S. Ambassador Richard Grenell to Germany’s economics minister saying that intelligence sharing would be limited if Huawei or other Chinese vendors are allowed to participate in building Germany’s 5G network“, so in that one place where the CIA has been useless for the longest of times (an exaggeration, read: a little too often), they are now biting the hand that has been feeding THEM intelligence. So when I presented: ‘segregation, isolation, assassination‘, I did so for a reason, I have never seen a target do this to their own survival chances, which is a novel experience to read. Even as the Germans offer: “Germany says it has seen no evidence that Huawei had or could use its equipment to spy on its users and that it should be allowed to bid for the country’s 5G network if it meets security criteria“, we see clear evidence of the Americans remaining utterly stupid. If only they had adopted the speech Alex Younger (MI-6) had. We can argue against that, but the premise was at least sound, the Americans did not even bother with that part, they have not bothered with that part of the equation since 2012. This is what I would call the result of taking intelligence out of ‘intelligence services‘, it merely becomes a speaking stage of services to whoever is a competitor of Huawei (they must be a non-Chinese or Russian player though).

We have seen several actual experts on 5G voice the issue that leaving out Huawei will delay true 5G for years that is what is in play and the Americans need to wise up fast. This seemingly implies that America has additional losses to register, not only in technology, not only in cloud issues, the German intelligence data that is a lot more important than anyone gives it credit to is likely to stop flowing to the US and to other players, which is not a good turn of events. In addition, the collected information on lone wolves, intelligence France needs might end up in a holding pattern if wrong pressure is applied. If quality intelligence equates to time, what else will France (or the Dutch) lose out on? There is no way to tell, I cannot even speculate on that. The issue will however become a lot more clear if both nations will have to deal with successful actions by extremist groups, as well as lost revenue by certain ‘entrepreneurial Russian entities’, something that was always going to happen, but perhaps not to the degree these places might see in 2019-2020.

So whilst we give consideration of ‘U.S. officials are increasingly sounding the alarm over the potential for Chinese spying‘, all whilst Facebook is giving away the data for free, we see a loaded cannon and the US is aiming it at their own needs. The US has had almost 7 years to collect evidence and present this, it was never done. In addition some of the true top ranking experts in that field have not been able to present any evidence, and finally, the US credibility is just too low. Perhaps some remember US Secretary of State Colin Powell and his silver briefcase giving evidence behind closed doors on the evidence of WMD’s in Iraq. How did that end? Does anyone remember? So when it is merely ‘adaptable’ telecom equipment, they better show the goods. The Americans has thus far not done that and the utter complacency of US tech corporations have become a joke to say the least. In this age of re-engineering, to end up 3 years behind China requires a truly new level of stupidity (read: short coming) and it is time for the people to realise that. Once the evidence comes out that there is no evidence, make sure that people making bold statements (like former Prime Minister Malcolm Turnbull) get their honours stripped, they facilitated directly against the needs of the Australian people and that should come at a price. Of course the US could clearly present the evidence and get that same former Prime Minister off the hook mind you.

I see merely cogs that are greased through nepotism, facilitation and the need for greed by some tech companies who could not get their ducks in a row in time. We really need to put the spotlights on those people too. In the end methodology is a simple approach, it goes from evidence, what we know, where someone will be, where something will appear and we act on that. The US fictive side in all this tends to go via the cloud solution called ‘delusion’ it has no grasp of evidence, it has no stage of reality and is merely the stage for people on what they desire whilst the do not have what the consumer needed in the first place, how was that ever an acceptable pasture to place your herd of needs?

 

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Showing your bad hand

There was an article that nagged me, on the surface it felt like a waste of space, one of those….the government did something that does not affect most people. Now that is not an attack on the press, because that is what they do, they report things. Now, there is nothing about this report that is wrong, there is however a clear indication that a few people did not think this through, even more so, the actions give rise to a tactical blunder that should keep the members of the Special Forces Club in Knightsbridge snigger for some time to come. You see, the article called ‘Man charged in NSW town of Young over alleged missile advice to Isis‘ (at https://www.theguardian.com/australia-news/2017/feb/28/man-arrested-nsw-town-young-alleged-missile-advice-isis) is more than just a tactical blunder. Solar technician Haisem Zahab at present in Junee Correctional Centre after being arrested in Young charged with terrorism offences. So how is this person a terrorist (he is in legal definition)? Haisem Zahab, 42 was according to the info on Facebook a Solar technician. When you see the quote “acted with intent to provide Isil with the capability, with the technical capability, and high-tech capability, to detect and develop missiles“, howls of deriving laughter wash over me. I was trained with NATO gear and I reckon I would be a better fit here (even though I know how uselessly limited my knowledge is). Now consider for a moment the next article (at http://www.iran-bn.com/2016/11/29/us-iranian-citizen-convicted-for-trying-to-buy-missiles-for-iran/), which was last year, when an Iran-United States dual citizen named Reza Olangian was trying to acquire these items, not develop them. So instead of someone alerting someone at ASIS to see if a sting can be devised that allowed for Haisem Zahab to start his ‘mission’, ASIS professionals could monitor him and start setting up the operation to drain the IS bank accounts by introducing IS and Haisem Zahab to a technology salesperson with actual blueprints (perhaps ever so slightly altered) and sell this to Islamic State, the quote “the man arrested has sought to advise Isil on how to develop high-tech weapons capability” is still making me snigger, because the credible part is that he was an ‘electrician’. Oh, the tears of laughter are rolling down my cheeks! I am not sure if AFP commissioner, Andrew Colvin got Nick Warner involved, but when you consider the following quotes it might sound serious: “He said the man was allegedly involved in “researching and designing laser warning devices to help warn against incoming guiding munitions used by coalition forces in Syria and Iraq” and helping Isis develop its own long-range guided missile capabilities“, we will need to take it apart into the components.

  1. Laser warning devices to help warn against incoming guiding munition. So how advanced is that? To give you a viewpoint. Israel has the Arrow 2 which took almost 13 years to complete (it had been completed earlier, but the tests were done over a longer period of time). The Arrow 2 is what people call an ABM (Anti-ballistic missile systems), now this was designed by group of around a dozen experts in rocket science, electronics and aerodynamics. It was a multi-billion dollar event. Even if this electrician got to a missile completed to a certain degree, which is actually not that far-fetched, because missiles have become more precise, but like mortars, the foundation goes back a long way and that part is not that complex, yet here a Dragster mechanic will get a lot further than an electrician. Now, to introduce a hidden electronic switch that turns the detector into an attractor is not that large a call, so we give IS 2-3 ‘wins’ and when we see that they implement the detection solution, ASIS throws the switch and the detector will instantly attract missiles, so with one volley their detection system is gone and likely a lot more hardware on the side as well.
  2. as for “helping Isis develop its own long-range guided missile capabilities“, I will now take 5 minutes to roll on the floor, my stomach is giving me waves of cramps from laughter. To help you understand that part, the missile technology is not that hard. You can make a missile in your garage, but consider that HAMAS has been firing (with Iranian help) thousands of actual missiles, which included the FAJR-5, based on the Chinese exported model WS-1 MLRS. A rocket that took close to 13 years to get right and that one has had not one tactical success on Israel, how long do you think it will take to get anything up to scrap? Especially when you consider the Arrow 2 part? It would be a lot easier to develop a high tech mortar. The foundations of the mortar have never changed, to some extent, the 1450 version of the mortar is still the foundation that was used in Vietnam, what changed is that electronics allow mortars to be a lot more accurate and efficient. Now we have computers that help the aim, but it is to some extent still an art to get it right in one shot. To get the missiles correctly aimed takes a lot more and in that regard, the tactical option to have IS waste loads of cash might have been a much better approach, so when I see the photo with Malcolm Turnbull, pictured with AFP commissioners Andrew Colvin and Ian McCartney, I see a mere political quick fix! Now, we need to acknowledge that this is in all legal settings, so in that regard he had been correctly arrested. This we see in the Criminal Code Act 1995, where in 101.2 we see:

101.2 Providing or receiving training connected with terrorist acts
(1) A person commits an offence if:
(a) the person provides or receives training; and
(b) the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

This gives him a maximum 25 year governmental hotel voucher and as I personally see it, the line between consultant and trainer is thin enough to make it stick.

So we know he is going down, yet the quote “charged with two foreign incursion offences which carry a maximum penalty of life imprisonment” is different. You see that gives us “prepare to enter, or for another person to enter, a foreign country with an intention to engage in a hostile activity. Recruit persons to join an organisation engaged in hostile activities, or to serve in or with an armed force in a foreign country“, which should be fun, because the expert knowledge he offered (basically consultancy), here the Mens Rea might be satisfied, but the Actus Rea is not. Missiles are set to not need ‘another person to enter, a foreign country‘, which might happen, but is not a given, so the intent to never enter a foreign country could be achieved by the defence of Haisem Zahab, the ‘with an intention to engage in a hostile activity‘ would be proven, yet the text is ‘for another person to enter, a foreign country with an intention to engage in a hostile activity‘, the moment that the foreign border was not surpassed, the issue becomes vague and a legal victory becomes a little blurred, basically Islamic State is already a transgressor in any nation they are in, but if those governments will not speak out against that, the issue might not legally be won.

So we get a lot of press, all cameras with cowboy stories and in the meantime Director General Nick Warner was denied the option to deal Islamic State a severe body blow. Yup, there will be laughter in Knightsbridge tonight. And should you consider that I am awfully wrong (always a valid consideration to have) than take a look at the case of Omar Succarieh, which was set to 4.5 years, the appeal to get him in there longer is being heard (at http://www.abc.net.au/news/2017-01-31/omar-succarieh-sentence-inadequate-court-hears/8227068), with the quote “Justice Philip Morrison said the case appeared to be in the middle range for the offence which carries a maximum penalty of 10 years’ imprisonment“, which now gives the option of another change. You see, in the case of Omar Succarieh it was mere funds made available. If any defence of Haisem Zahab comes with words like ‘delusional‘ (an electrician making missile systems), or gets any missile expert from Raytheon or Northrop Grumman to show how complex missile systems actually are, the quote “the research he was alleged to have been doing was “credible”” could be thrown out of the window. By the way, this 18 month investigation, what INTEL did ASIS (if any) supply? I still think this was an option to do something long term against Islamic State.

Now, here we get to the title of today ‘showing your bad hand‘. You see, from where I sit, the entire situation gives rise to another matter. If we see actions as given, we are seeing a setting where political players have to admit that there is no short solution. The papers on a global scale, actual newspapers like the Wall Street Journal, The Australian and others have published papers on this and they gave us this in 2015: “But no strategy intended to defeat Islamism can succeed if Islamism itself and its violent expression in jihadism are not first named, isolated and understood“, which is at present not achieved, so this entire IS, is a long term game and there is no end in sight at present. This is extremely important, because as I personally see it, these little arrests with loads of camera’s will not bring resolution, the ability to set up shop and make IS spend their funds in all the wrong places is the first step to prevent IS to set up a successful long term strategy to develop larger weapon systems. And if you think that it stops here in Young, New South Wales, you would be wrong, because at some point, an Islamic State person will meet with dodgy types in Eastern Europe and broker a deal there. There are too many players willing to not care what happens in the Middle East and there is plenty of Russian goods all over Eastern Europe. This now implies that as some people go shopping elsewhere, and in that place they might not get a basket full of junk, they might actually end up with something useful, an idea we need to actively dread.

Because the bad hand shown and the fact that others will also realise that some players have a bad hand, only opens the doors to some places outside of our sphere of influence. I see this as a tactic badly played, but that might be just me. I will leave it up to you to decide how wrong I am and when you get a moment, ask your electrician how good his missile designs are, it could make for an interesting day and that is always a win for any person.

 

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You keep what you kill

The business section of the Guardian had an interesting article yesterday. It comes from David Pegg and it is about targeting customers. In the article we see a prominent picture of Robert Redford (at http://www.theguardian.com/business/2015/jul/15/sky-broadband-customers-targeted-allegedly-pirating-robert-redford-film). So what is at play here?

Here we see ‘US firm TCYK, apparently named after film The Company You Keep, made Sky hand over details of customers accused of downloading movie‘, which comes with the opening quote “Dozens of UK broadband customers have received letters from a US firm accusing them of pirating a little-known Robert Redford film and inviting them to pay a financial settlement on pain of further legal action“. You see TCYK got a court order against Sky Broadband, which must now hand over customer details of those TCYK accuses of using torrent sites to download and distribute the films.

These people now get the offer of paying a hefty fine or end up in a legal battle.

So, how does that work in Australia? Well, here we depend on the Copyright Act 1968, where we see in section 36(1) “Subject to this Act, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright“, which means you made the movie, you are licensed to handle the movie, or you own the copyright, if you are none of these three, you become the infringer.

Now we get to the nitty gritty of the act (sections 43A and 43B) when we consider ‘temporary reproductions‘, which starts of nicely in section 43A(1) with “The copyright in a work, or an adaptation of a work, is not infringed by making a temporary reproduction of the work or adaptation as part of the technical process of making or receiving a communication“, with the crown part ‘temporary reproduction of the work or adaptation as part of the technical process’, which takes Sky Broadband out of the loop in all this, because Sky just sends packages from point A to Point B and as such, they do not keep any parts of that they communicate, they only keep the logs of what is communicated.

In subsection 2 of section 43A we see “Subsection (1) does not apply in relation to the making of a temporary reproduction of a work, or an adaptation of a work, as part of the technical process of making a communication if the making of the communication is an infringement of copyright“, which might put Sky in the hotspot, yet Sky is at this point an innocent disseminator of information (you know that anti-censoring part people all love), so Sky must prove that by handing over the records. This now counters the (what I would regard as fake indignation) from Michael Coyle, a solicitor advocate at Lawdit Solicitors, who stated regarding the act of Sky Broadband “They should be fighting tooth and nail not to have this information released”, to which I would state “Yes, because we should always protect the people engaging in illegal acts!” more important is the part that comes next “TCYK says that it hired a “forensic computer analyst” to identify IP addresses of computers that were making the film available online” so it seems that those watching the movie are not high on the list, it is about the distributors, those who made the movie available online. So there are two parts. The first part ‘temporary reproductions’, is a part we are still looking at, yet ‘distribution’, which we will also look at.

As Sky is protecting itself by showing themselves to be innocent disseminators, we need to see the logs, part of that is to give evidence that you (or they) are working on a temporary reproduction.

Temporary what?

OK, let’s take YouTube, when you watch a movie, a trailer, a TV Show, you are looking at a temporary reproduction. The movie is streamed into the memory of your computer and once the link is severed at ANY GIVEN MOMENT, the movie cannot be watched and it cannot be re-watched’ it must be pushed into the memory of your computer again. This is different from Torrent systems where a file, temporary or not is actually saved to your computer. This is the confusing part, whether it is a temporary file (what the people refer to as temporary) is actually ‘just a file’ that file remains on your computer, just like many other ‘temporary’ files.

I know, it is still confusing! Let me elaborate, when windows or a windows application needs to handle data, it created a file that changes all the time, we refer to them as temporary files. The UNIX reference is much better, they are called ‘scratch files’. So if you download a PDF, it will create a file, and that file will capture all the packages and add them together. That is done until the file is complete, when the download is completed the file gets written becoming the permanent file. This is the normal way for operating systems to work. The issue is that something is written (read: saved) onto your local destination, when this is done, it is by sheer definition no longer a temporary file. this is the part that is taken care of in Section 43A, now as long as there is no way to make the ‘temporary file’ work via an application of any kind, you can also rely on section 43B of the act where we see in subsection 1 “Subject to subsection (2), the copyright in a work is not infringed by the making of a temporary reproduction of the work if the reproduction is incidentally made as a necessary part of a technical process of using a copy of the work“. This now shows my explanation of temporary reproduction, where we refer to ‘incidentally made as a necessary part of a technical process‘, which could make that part a no go area, was it not for the first part where we saw ‘Subject to subsection (2)’, which is now the issue as this does not apply as per section 43B (2)(a) relying on both (i) which states “if the reproduction is made from an infringing copy of the work“, and the irritating use of the ‘or’ statement for (ii) “a copy of the work where the copy is made in another country and would be an infringing copy of the work if the person who made the copy had done so in Australia“, which takes care of any ‘border’ issues.

So, here we are with an infringed work, so what about the words of Michael Coyle?

Well, for this we need to look at Part V remedies and offenses, specifically ‘Division 2AA Limitation on remedies available against carriage service providers‘, which now puts poor poor old Sky Broadband in the limelight! It is a bit of a puzzle, but in short it amounts to “A carriage service provider must satisfy the relevant conditions set out in Subdivision D before the limitations on remedies apply” (a bit paraphrased), this is set in section 116AH, where we see that the carriage service must provide the following two elements for ALL category transgressions

  1. The carriage service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers
  2. If there is a relevant industry code in force—the carriage service provider must comply with the relevant provisions of that code relating to accommodating and not interfering with standard technical measures used to protect and identify copyright material

This is only the first of several elements that address the part that the Guardian stated “TCYK says that it hired a “forensic computer analyst” to identify IP addresses of computers that were making the film available online“, that part is also needed for Sky Broadband to prove that limitations ‘a’ and ‘b’ were adhered to. For this we need to take a look to a case (mentioned below) where we see at [697] “The question whether a person has supplied the means with which copyright has been infringed raises its own difficult issues. The primary judge concluded that the BitTorrent system was the means by which the appellants’ copyright was infringed. But I cannot see why the means with which the primary infringers committed acts of infringement must be so narrowly defined. The primary infringers used computers which were no less essential to their infringing activities than was the BitTorrent system. The same is true of the internet connections with which they made the appellants’ films available online

More important, at [505] we see “It follows that customers, by entry into the CRA, consented to iiNet disclosing and using information, including personal information as defined, for the purpose of iiNet administering and managing the services provided pursuant to the CRA. Part of that administration and management includes compliance with the CRA. In circumstances where iiNet has received evidence of breaches of its CRA (for example, cl 4.2(a) and (e)) the customer has necessarily consented to iiNet using information it possesses, including personal information, to determine whether to take action under cl 14.2 of the CRA“, which all comes from the case Roadshow Films Pty Limited v iiNet Limited [2011] FCAFC 23, which means that Sky Broadband is going through the motions iiNet in Australia went through 4 years ago. This is important, because the customer relationship agreement is a legal scope that the customer agrees to, which allows for disclosure and more important, now looking at the ‘limitation on remedy’ or bluntly put ‘the massive amount of money TCYK will demand of Sky Broadband if they cannot satisfy conditions’ is where we see actions from Sky Broadband to disclose information.

In addition we need to see the satisfied part “Any transmission of copyright material in carrying out this activity must be initiated by or at the direction of a person other than the carriage service provider“, that part is given by the logs as the viewer did the ‘click here to watch full movie‘, basically that means that the user initiated the act. In addition, there is “The carriage service provider must not make substantive modifications to copyright material transmitted. This does not apply to modifications made as part of a technical process“, showing that whatever solution was used, Sky broadband passed through the information as part of what it is supposed to do as an ISP.

In the end, this will be a messy battle and there is one part that holds less water. It is the statement “Nicolas Chartier, the president of Voltage Pictures, told the Hollywood Reporter this year that he had issued 20,000 lawsuits against individuals accused of pirating the Hurt Locker in order to “make a statement”. “The day after we announced 20,000 lawsuits, the internet downloads of Hurt Locker went down about 40%”“, I am not sure if that will be the end this time, Hollywood has been clasping down in several ways. We see the 10 movies that make a billion, but the hundreds of others that aren’t slicing the cake are not in there, as such Hollywood is now lashing out all over Terra ‘non US’ and we see that it will hit Australia too, even more direct when the TPP becomes fact, at that point having a computer with logs pointing to it with irrefutable evidence might literally cost you your house. There is one side in the TPP that remains undiscussed, especially, as I personally see it behind the closed doors of the TPP negotiations. In all this America relies on fair use, in all this they are eager to criminalise that what is not criminal within the US, it makes for another case.

If we accept the following “Some historians prefer ‘slave’ because the term is familiar and shorter and it accurately reflects the inhumanity of slavery, with ‘person’ implying a degree of autonomy that slavery did not allow for“.

Now we convert that sentence into “Some politicians prefer ‘user’ because the term is familiar and shorter and it accurately reflects the chargeability of usage, with ‘US consumer’ implying a degree of freedom that users are not allowed to have” This is as I see it exactly the core and the broken foundation of the TPP, there is no fair use and there is no accountability on the other side, by all means the TPP ignores the constitutions of more than one nation. This was raised by Alan Morrison in The Atlantic on June 23rd 2015 (at http://www.theatlantic.com/politics/archive/2015/06/tpp-isds-constitution/396389/). The quote in question is “It is January 2017. The mayor of San Francisco signs a bill that will raise the minimum wage of all workers from $8 to $16 an hour effective July 1st. His lawyers assure him that neither federal nor California minimum wage laws forbid that and that it is fine under the U.S. Constitution. Then, a month later, a Vietnamese company that owns 15 restaurants in San Francisco files a lawsuit saying that the pay increase violates the “investor protection” provisions of the Trans-Pacific Partnership (TPP) agreement recently approved by Congress“, this is a situation that could be a reality.

You see, this relates to the case at hand in more than one way. In my view, TCYK has every right to protect its side, the movie it made and the revenue coming from that, so I am not against prosecuting copyright infringement at all. Yet, in all this the shift that TPP will allow for is a situation where ‘investor protection’ will bring a case which will be heard by three private arbitrators; the United States government is the sole defendant in that given scenario. More important, it will be a case brought by “investor-based expectations”, I think we can clearly see the link when we consider “Village Roadshow’s revenue and profits are below expectations, which was down 1.9% to $469.5 million for the six months to December. Net profit was lower by 26.2% to $13.34 million“, so in this case Village Roadshow blamed the weather, yet Village roadshow has blamed piracy on many occasions, so the moment we see a court case based on ‘investor-based expectations’, we should all become weary of this becoming an option the regain revenue from a mismanaged product (which is far-fetched but not out of the question).

So why these jumps?

  1. It might be a movie piracy case in the UK, but the result will hit Australia sooner rather than later and vice versa.
  2. Infringement is a growing ‘market’ and as such, especially in dire times, the industry at large wants to recoup parts of their losses due to infringement, yet will it truly hunt down the real perpetrators?
  3. Too many people rely on their ignorance and ‘they did not know’. This defence is now slowly but surely coming to an end, it is more and more an accepted rule that if you did not buy the article, or pay for it, how come you watched it?
  4. The TPP will change EVERYTHING! This closed door agreement is all about ‘indulging’ big business whilst big business is not playing the game fairly to begin with. In its core it can be seen as a discriminatory violation of ‘fair use’ and ‘constitutional values’.

In all this I jumped at Village Roadshow more than once. Personally I think that Graham Burke has been playing a lose rant game too often, whilst trying not to step on the toes of Telstra and Optus, but that might just be me! In addition, I have additional issues with Federal Attorney-General George Brandis regarding past events. This all links to an article last April in the Sydney Morning Herald (at http://www.smh.com.au/business/village-roadshow-wants-to-work-with-isps-instead-of-suing-movie-pirates-20150416-1mj8cd.html), where we see the quotes “The document centres on a “three strikes” system. An illegal downloader will get three warning notices before a Telco will help copyright holders identify them for potential legal action“, which sounds fine, yet in that part, if at any time the IP address was hijacked, there will not be any evidence absolving the accused person, so the one in court could be the victim in all this. In my view, this is a warped solution to the court case Village Roadshow lost against iiNet, meaning that other avenues need to be taken, which now reflects back to the UK case of Sky Broadband, which could hit Australian legislation. The next quote is “Federal Attorney-General George Brandis and Communications Minister Malcolm Turnbull set a 120-day deadline last December for internet service providers and entertainment companies to create a binding code“, which is indeed central but not in the way reported on. You see, Telstra and Optus are all about bandwidth, the more you use, the better the invoice from their point of view. This is part of the move we see all over the internet in the last article I wrote regarding the short-sightedness of Graham Burke, in the article ‘The real issue is here!‘ (at https://lawlordtobe.com/2014/06/17/the-real-issue-here/), which also reflected on the article ‘FACT on Piracy?‘ (at https://lawlordtobe.com/2014/01/03/fact-on-piracy/) from January 3rd 2014. These articles connect through ISP’s like Telstra and Optus who have been rescaling their bandwidth plans. The consequence of losing out on 4 billion a year. Now Telstra offers 50GB for $75 a month, smaller plans no longer exist, they have been pushing for new broadband boundaries so that their revenue is less impacted, so the impact of $40 and $80 a month is now decreased to an optional loss of $20 and $40 a month. It was (as I personally saw it) always about time and retrenching. It has been forever about big business! By the way, it is not just Telstra, others like iiNet have done the same thing, offering a new margin, reset to the width that has never been offered before. It is about rescaling the broadband plans, which results in resetting expectations and preparing for new data usage adherence.

You keep what you kill fits perfectly, it comes from the Riddick movies, which is basically the credo of a survivor, in this day and I agree, in this economy it is about lasting the longest and as such, they keep what they kill, which are the copyright infringers and their technologies. I do not oppose it, as I feel that owners of copyright are entitled to protect their assets. Yet, when we read Graham Burke we see “He said Australian film producers were trying to educate the public rather than sue them“, which might seem true enough, but behind that, I suspect, is the fear that if the Australian Copyright Act 1968 adds the ‘Fair Use’ principle, his education boat will sink on the spot, moreover, whatever US pressure we get from the TPP, gets drowned by Fair Use, because if it is good enough for Americans, it should be good enough for non-Americans too.

Last in all this is Matthew Deaner, executive director of Screen Producers Australia, who made a fair statement in the SMH article “They’re trying to say, ‘this is the right way to go about this stuff, this has a consequence to us’,” Mr Deaner said“, which we can get behind, yet the colourful rants by both Graham Burke and Sony executives on the utter non-realistic loss of billions is a consequence as well. By not properly and realistically setting the view, whilst, as I personally saw it, Sony executives were hiding behind excuses regarding missed targets that were never realistic to begin, which soured the milk of reality and reasonability.

Will this affect Australia?

Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16 was settled in the High Court of Australia, yet the essential changes to copyright, the impact of the Trans Pacific Partnership (once signed) will also impact the future. The lack of a ‘fair use’ clause is as I see it an essential first step to protect those not engaged in active copyright infringement as well as allowing for innocuous acts not to be struck down in favour of big business in a draconian way. In all this, US corporations have relied on unfair advantages, whilst overcharging people all over the non-US in a massive way is just beyond belief.

Even now, example, ‘Ex Machina’ is in the US $17, in the UK $20 (both Amazon), which is already a 20% offset, a title which cannot be bought in Australia. The US has segmented commerce to maximise profits, whilst not giving fair options to consumers. The fact that they still enforce multiple region codes to limit fair consumer rights is also not addressed. This is in part what drives piracy. If Mr Burke is so about educating, how about Mr Burke educating the other side of the equation? With video games where price difference can go up to 100% in difference between the US and Australia, a consumer grievance that Federal Attorney-General George Brandis never bothered to properly address. When we consider the issue of price fixing we see “Price fixing occurs when competitors agree on pricing rather than competing against each other. In relation to price fixing, the Competition and Consumer Act refers to the ‘fixing, controlling or maintaining’ of prices“, in this we see a loaded gun of different proportions. You see, Agreements between related companies are also exempt from price fixing, yet, when this difference is set at 100%, whilst the firms place technological restrictions (region codes) on products, as well as denying fair competition, largely pushed by American corporations, where is the fairness in any trade agreement?

If a trade agreement is about removing trade barrier, in that regard, the region codes should be regarded as detrimental to trade, but the TPP is not about equality, it is about giving the power to big business and limiting the rights of consumers, which is why partially because of created limitations movies and videogames are not equally and honestly made available. So as we look at what some can buy more expensive and others cannot buy at all, Mr Burke should in part refrain from stating that ‘one leg is education’ the other is regarding ‘products being available at the same time as other countries’, it would make him instantly paraplegic. Unfairness is what drives infringement. This was shown in the 80’s in Europe in a very direct way as games, movies and music were so unbalanced that a $450 ferry ride to London (from Rotterdam) could pay itself back during one VHS shopping spree (not to mention the price difference in games).

That same principle applies here, so if this is truly about stopping infringement than the first step would have been consumer equality. Yet this is about the US maximising its profits, counteracting whatever ‘free’ trade is supposed to do, so copyright infringement is not going away any day soon, it will soon create new situations, all because those involved seem to be about abolishing what constitutes a fair user, which is why the TPP should never come into effect.

You keep what you kill

The question is, who gets killed in the end, because as more true illumination is given, the bigger the question mark we see on what propels infringement. If there is one real upside to all this, it will be evolution, it will not take long for someone to change the premise of the game and design a new peer to peer cloud solution that resets the legal playing field.

Strife has always been the number one innovator in both war and technology, that part has not and will not change.

 

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