The producers of the award-winning Hollywood blockbuster film, Dallas Buyers Club have won the Australian court battle to force ISPs to divulge details of users who have illegally downloaded their film.
The US-based company Dallas Buyers Club LLC, which owns the rights of the 2013 film, lodged a landmark piracy and privacy case in 2014. The case ordered internet service providers (ISPs) to hand over the contact details of Australian consumers who have illegally pirated their film through torrent software.
In the significant court case of ‘preliminary discovery’, Federal Court judge Justice Nye Perram ruled that ISPs including iiNet, Dodo, Internode, Amet, Broadband, Adam Internet and Wideband networks will need to hand over the details of thousands of Australians who match the IP addresses of users who pirated the Oscar-winning film.
The landmark case is the first time in Australia that a judge has had to deal with ‘speculative invoicing’, a practice that can be used by rights holders to pursue people who are believed to infringe their copyright. In simple terms, ‘speculative invoicing’ refers to when rights holders obtain the details of customers who are alleged to infringe their copyright and send them letters stating that they must pay a certain amount of money or else be taken to court.
Dallas Buyers Club LLC appealed to the federal court claiming 4762 IP addresses allegedly participated in copyright infringement before the movie was released in Australia. The ISPs argued that this action was a breach of their customers’ privacy. In response, iiNet said it “would never disclose customer details to a third party, such as a movie studio unless ordered to do so by court” and further stressed that it “takes seriously both our customers’ and our legal obligations”.
In court yesterday, Justice Perram ruled that Dallas Buyers Club LLC would not be allowed to distribute the details of any customers in order to protect their privacy, and further said, “They are to submit to me a draft of any letter they propose to send to account holders associated with the IP addresses which have been identified.” In favour of the ruling, Justice Perram also emphasised the “need to provide deterrence” against file sharing.
Dallas Buyers Club LLC’s lawyer Michael Bradley added that, “Australia is one of the jurisdictions with the highest rate of unauthorised downloading and this is the first step from a copyright owner to try to change that balance.”
The final orders to hand over customer details will be finalised in the Federal Court on 21 April and ISPs have 27 days to file an appeal against the decision made in court yesterday.
In the event that the case goes ahead, it is suggested that anyone who receives a letter from the Dallas Buyers Club LLC claiming they have illegally pirated their film, should seek legal advice before responding in any way.
iiNet’s former chief regulatory officer, Steve Dalby, believes that it would be tough for Hollywood studios to prove the offence, stating, “Remember that the letter is not proof and is only an allegation.” He added, “If they’re not guilty and had an open access point that was unsecured or were very free in giving their password out to people, then maybe they do have the defence that it wasn’t them.”
Anny Slater, an intellectual property expert from Slaters Intellectual Property Lawyers, believes that if the ISPs do not appeal the decision, Dallas Buyers Club LLC will be able to write to the people whose contact details have been given by ISPs. Any letters sent would be monitored by the court to ensure they are “appropriate” and don’t “overstate the case”, says Slater. “The issue is that they don’t have any proof of the download.”
Dr Michael Fraser, director of the Communications Law Centre at the University of Technology in Sydney, also believes it is unlikely that alleged infringers in Australia will receive a hefty fine. “As the judge has asked for those letters to be sent to him in draft form, it’s not possible that there will be excessive demands made in that letter like we’ve seen overseas,” says Fraser.