Most Read Contributor in Australia, September 2016
The Federal Court will order various ISPs, including members of
the iiNet Group and Dodo, to provide to Dallas Buyers Club LLC (or
parent company Voltage Pictures LLC) the names and addresses of
customers who are alleged to have used BitTorrent to share the film
Dallas Buyers Club.
In a judgment delivered on 7 April 2015, Justice Perram of the
Federal Court pointed out that applications for preliminary
discovery such as this ought not to involve such complexity. The
purpose was not to determine whether persons who used BitTorrent to
share the movie in fact infringed copyright. However, Justice
Perram did make many interesting observations in his judgment and
imposed some important conditions on the rights owners.
Was there an infringement of copyright?
Whilst there was no decision as to whether copyright had been
infringed (as this is not the purpose of preliminary hearings), the
court did 'not regard as fanciful the proposition that
end-users sharing movies on-line using BitTorrent are infringing
the copyright in those movies'.
What would be the likely penalty?
The ISPs claimed in opposing the discovery that naming
individual users would be economically pointless, as the
compensation for the infringement would be in the order of $15.00.
Representatives of Voltage have reportedly said that bringing
proceedings against alleged infringers has value beyond the
compensation recovered. Further, in the case of multiple
down-loaders, the court said it must be considered at least
plausible that a copyright owner may be able to obtain aggravated
damages under s115(4) of the Copyright Act. The ability to obtain
aggravated damages exists partly because of the need to provide
deterrence. Additionally, rights holders could potentially claim
their reasonable costs to pursue the claim and those would exceed
The court said there was 'no doubt' that Voltage had
sent speculative invoices in the past. Voltage gave evidence that
this would not be happening in Australia but Justice Perram still
imposed a condition that the letters Voltage sent to the
subscribers be first approved by the court. Justice Perram was
concerned that Voltage would otherwise send the most aggressive
letter they could under Australian law, and felt it was not an easy
assessment to determine if this practice was lawful in Australia.
There could be, for instance, potential liability under the
Australian Consumer Law for misleading and deceptive conduct or
unconscionable conduct for representing the liability of the
end-user as much higher than it could ever realistically be.
In another important component of the decision, the court will
impose a condition on the discovery of the names and addresses to
protect the privacy of the individuals. The purposes to which the
information could be used is likely to be limited in the relevant
seeking to identify the relevant end-users;
suing those identified for infringement; and/or
negotiation with end-users regarding their liability for
Of most comfort to the ISPs may be the fact that the court
intends to make orders on 21 April 2015 which require Dallas and/or
Voltage to pay the ISP's costs of these proceedings (even
though the ISP's opposition was unsuccessful) and the costs of
the ISPs providing preliminary discovery. The costs of providing
discovery, and any liability the ISPs may incur in doing so, have
long been an issue between the two groups.
A better way?
We reported on 10 March 2015 (
here) that the rights holders, ISPs and consumer groups had
together devised a Copyright Infringement Code which has now been
submitted to the ACMA for registration. The ISPs argued that this
should be taken into consideration in determining whether
preliminary discovery was appropriate in this instance. However the
court did not pay that argument any weight, concluding the code is
an incomplete draft and was not likely to come into play for at
least several months. Further, the judge labelled the code
'non-binding soft law' in reference to the fact that
industry codes have no effect until registered with the ACMA and
the ACMA determines a code has been breached and directs
compliance. However, various stakeholders are still hopeful that
the code, together with other mechanisms flagged for introduction
and the increased availability of non-infringing sources of
content, will help ease the current levels of online copyright
infringement in Australia.
This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a substitute
for legal or other advice that may be relevant to the reader's
specific circumstances. If you have found this publication of
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