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Tony, Michael and David Partners at ABKJ
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The Hunt For Illegal Downloading In Australia: The Dallas Buyers Club

Dallas Buyers Club LLC & Voltage Pictures LLC v iiNet Limited & Ors [2015]

Recently the Federal Court of Australia made orders to the effect that Internet Service Providers (“ISPs”) must disclose to two American companies the names and residential addresses of the Australian account holders whose IP addresses had been identified as having shared the film, ‘Dallas Buyers Club’. An ‘IP address’ is a unique identifier assigned to a device (i.e. computer, iPad, etc) participating in the internet network.

The case was brought by Dallas Buyers Club LLC (“DBC”), a subsidiary of Voltage Pictures LCC (who were ultimately joined as an Applicant in the case) (“Voltage”), who asserted that various Australian IP addresses had shared the Dallas Buyers Club film online via Bit-Torrent; a peer-to-peer sharing network. Under the Copyright Act 1968, sharing of copyrighted works is illegal in Australia.

The case related only to the discovery of the names and residential address of the Australian account holders for the IP addresses. The purpose of DBC/Voltage seeking those details would be to identify the person/s responsible for the illegal sharing (i.e. the “Infringer”), or at least identify a person who might be able to assist DBC and Voltage with identifying who the Infringer might be.

The obvious end-game of DBC and Voltage’s enquiries would be that they could seek compensation from Infringers for breaching the copyright which they own in the Dallas Buyers Club film.

The ISPs who were the Respondents to the case included iiNet, Internode, Dodo, and others. The ISPs resisted DBC’s Application on a host of grounds, including privacy grounds (i.e. their customers’ details would necessarily be divulged if DBC/Voltage were successful in the case), the evidence relied upon by DBC/Voltage was insignificant, the potential for an Infringer to be actually identified after disclosure of account holders’ details (as an account holder to an IP address may not be the Infringer), the potential compensation which DBC/Voltage might be able to seek from an Infringer, amongst others.

Ultimately, the Court rejected the ISP’s responses for the following main reasons:

  1. DBC/Voltage satisfied the Court that the software used to identify the IP addresses sharing the film was accurate;
  2. That the identified IP addresses had, in fact, shared the film (or at least a very small part of it). The mechanics of a BitTorrent network were explored in some detail in the case as the software used to identify the IP addresses only identified that the Infringer had shared a very small part of the film, not its entirety. A BitTorrent network is software allowing a group of users to primarily “download” various file types to the user’s computer from other users in the network. By commencing a “download”, the user draws “slivers” (or very small parts) of the total file requested from various other users on the network who have the “sliver” available to share on their computer. Once a “sliver” has been downloaded to a user’s computer, that “sliver” is identified on the BitTorrent network as being able to be shared. That is, when a user is in the process of downloading a file, the user is (at the same time) sharing the already-downloaded “slivers” with other users. The act of downloading (and thereby sharing) even a sliver of the film could be considered an infringement of the Copyright Act; and
  3. That it was open to DBC/Voltage to seek damages from Infringers for infringement against the Copyright Act, and the only way DBC/Voltage could identify Infringers is by way of the details known to and held by the ISPs.

Notwithstanding the Court’s findings above, Judge Perram was satisfied that DBC/Voltage should be restrained somewhat with respect to the use of account holders’ private information, as well as the potential for what is known as ‘speculative invoicing’ – that is, that DBC/Voltage could attempt to demand compensation from account holders (who may not have been an Infringer) which is far in excess of what they would otherwise be entitled to due to infringement.

The Court therefore ordered the release of the names and residential address of account holders on the following conditions:

  • That the private information be used by DBC/Voltage only for the purpose of seeking to identify the Infringers, and thereafter negotiating and/or suing the Infringers for damages;
  • That the private information is not to be disclosed to any other third party; and
  • That DBC/Voltage provide the Court with the letter which they intend to send to account holders in relation to the potential infringement by the account holder for the Court’s approval.

It is yet to be seen what the content of the letter to account holders will include. Perhaps more importantly, it is yet to be seen what amount of compensation DBC/Voltage might seek from Infringers.

There has been some speculation in the media that compensation would be no more than, say, $10.00, which is a sum not many would care to sue over. However, the Court in the above case thought it worthwhile to mention that the Copyright Act does provide avenues for aggravated (additional) damages where the Infringer has flagrantly disregarded the law, where there is a need to deter similar infringements, the conduct of the Infringer after the infringement, amongst others.

Should you have any questions or queries in relation to copyright laws in Australia, please do not hesitate to contact a solicitor at ABKJ Lawyers.