iiNet claims ‘positve outcome’ in Dallas Buyers Club case despite order to hand over data

Dallas Buyers Club

Dallas Buyers Club

The company which owns the rights to the movie Dallas Buyers Club has succeeded in its bid to force internet service providers (ISPs) to reveal the identity of customers who illegally downloaded and shared the film.

The watershed ruling on the “preliminary discovery” application, handed down yesterday in Sydney’s Federal Court, is expected to pave the way for other firms to take similar action and sue thousands of people for copyright breaches.

But despite the ruling, commentators have argued the result may not be as clear cut as it seems.

In his written judgement, Justice Nye Perram said ISPs must hand over the names and physical addresses of 4,726 IP addresses identified by Dallas Buyers Club as being allegedly involved in piracy.

But he stressed that any correspondence issued by the company must first be signed off by the court, a condition welcomed by iiNet, one of the six ISPs which contested the application.

The parties will return to court on April 22 for final orders.

Seeking to put a positive spin on proceedings, iiNetm described the verdict as a “positive outcome” that will see “significant safeguards put in place” to protect consumers.

Chief executive David Buckingham said the case highlighted the use of “speculative invoicing”, a practice whereby film studios seek reimbursement and financial damages for illegal downloads.

Such an approach by studios amounts to bullying and threatening behaviour, he said.

“The result is pleasingly what we expected. By going through this process we’ve been able to ensure that our customers will be treated fairy and won’t be subjected to the bullying that we have seen happen elsewhere,” he said, a reference to the approach adopted in the US.

“We’re very happy with Justice Perram’s judgement and his balanced approach to both the studio’s and consumer’s rights’.”

Buckingham added: “Letters issued by the rights holders will be reviewed by the Judge to ensure they are not threatening – providing a significant safeguard for our customers. As a result, the ruling will put a major dent in the process and business case behind speculative invoicing, since the financial returns could be outweighed by the costs of legal action.”

In the judgement, Justice Perram said speculative invoicing, while not illegal in Australia, may amount to “unconscionable conduct” under Australian Consumer Law and described some letters written by the film studios as “very aggressive”.

The order requiring the court to sign off any correspondence from Dallas Buyers Club would prevent such practices, he said.

While forcing iiNet and five other ISPs – Internode, Amnet Broadband, Dodo Services, Adam Internet and Wideband Networks – to hand over the names and addresses of the IP account holders, the ruling did not extend to email addresses.

Justice Perram said in the ruling: “I will order the ISPs to divulge the names and physical addresses of the customers associated in their records with each of the 4,726 IP addresses.

“I will impose upon the applicants a condition that this information only be used for the purposes of recovering compensation for the infringements and is not otherwise to be disclosed without the leave of this Court.

“I will also impose a condition on the applicants that 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.”

The ISPs had argued that the evidence put forward by Dallas Buyers Club was insufficient to identify the IP addresses and that the claim against any putative respondent was speculative.

They also claimed there was insufficient evidence to suggest the IP addresses identified belonged to those directly involved in illegal downloading.

Justice Perram disagreed, saying: “I am comfortably satisfied that the downloading of a sliver of the film from a single IP address provides strong circumstantial evidence that the end-user was infringing the copyright in the film.

“It certainly provides enough evidence on a preliminary discovery application. The applicants do not need to establish even a prima facie case of infringement for that purpose.”

He added: “I do not regard as fanciful the proposition that end-users sharing movies on-line using BitTorrent are infringing the copyright in those movies. Indeed, if there is anything fanciful about this, it is the proposition that they are not.”

In its statement, iiNet predicted the ruling is likely to be superseded by an industry code notice scheme being developed by the Communications Alliance in collaboration with rights holders.

“We have worked closely with the Communications Alliance at the request of the federal government, to develop a code to educate people to the alternatives to piracy while protecting the privacy of our customers,” Buckingham said.

He added that iiNet has a “long history of standing up for the rights of their customers” and while not supporting copyright infringement, the company has encouraged the “fair and timely distribution of quality content”.

“We are big advocates of legitimate content being made available to the Australian market at the same time as it’s released in other parts of the world, and for a reasonable price,” Buckingham said. “Our partnerships with Fetch TV and Netflix demonstrate our strong commitment to make this happen.”

Steve Jones


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