On 7 April 2015, the Federal Court of Australia handed down a
landmark ruling involving piracy and privacy, and internet account
holders with the Internet Service Providers (ISPs) involved may be
Dallas Buyers Club LLC v iiNet Limited
Dallas Buyers Club LLC, the entity claiming ownership of the
copyright in the 2012 Jean-Marc Vallee film, Dallas Buyers
Club, and Voltage Pictures LLC (Voltage), sought preliminary
discovery in the Federal Court to enable them to identify potential
copyright infringers of the Dallas Buyers Club film. They
identified 4,726 unique IP addresses of users that had shared the
film online using peer-to-peer file sharing networks and alleged
that this was done without their permission. While the applicants
did not say that the account holders and the people infringing were
necessarily the same people, they argued that a Court order
requiring the ISPs to release the personal details of the account
holders connected with the IP addresses would assist them to
identify the infringing parties.
The ISPs, including iiNet Limited, Dodo Services Pty Ltd and
Internode Pty Ltd, defended the application on numerous technical
grounds, arguing amongst other reasons that there was insufficient
evidence to identify the infringing IP addresses. There were
submissions in respect of the extent to which the infringers could
actually be identified given the dynamic IP addressing employed by
ISPs. However, the Court was satisfied that this could be achieved
using time and date stamping.
The ISPs also claimed that even if the requirements for making
an order of preliminary discovery had been demonstrated and by the
applicant, the Court should exercise its discretion not to make
that order for a number of reasons including on grounds of
protecting individuals' privacy and to guard against
speculative invoicing by the applicants in respect of the alleged
infringements. With regard to privacy, the ISPs made the argument
that substantial Federal legislative privacy protections existed
which would preclude them from releasing the personal information
to the applicants. While the importance of these privacy
protections were acknowledged by the Court, the importance of
protecting the value of the rights of copyright holders was also
acknowledged and although the Court accepted that such statutory
obligations of privacy, as claimed, should not be cast aside by the
Court lightly, the Court concluded that these rights ought to be
balanced against those of copyright owners.
ISPs claimed that the release of account holder details could
result in 'speculative invoicing' – a process whereby
the copyright holder would write to a potential infringing party
threatening legal action for large monetary damages unless
settlement fees are paid. It was accepted by the Court that Voltage
has previously engaged in that practice in the United States.
Although evidence was submitted by the Applicants that it would not
be their intention to engage in that practice in Australia, Justice
Perram suggested he would impose measures to protect against that
practice in this case.
Justice Perram indicated that he would make orders allowing for
the preliminary discovery, requiring the ISPs to release the
personal information connected with the 4,726 IP addresses
identified. His Honour indicated that he would make additional
orders so as to balance the concerns of the ISPs in respect of
privacy and speculative invoicing by imposing privacy obligations
on the material to be produced by the ISPs and by requiring the
applicants to submit to the Court any draft letter they intend to
issue to account holders in respect of the alleged infringements.
The matter will return before his Honour on 21 April 2015 for
further directions to determine the form of the orders.
This Federal Court decision paves the way for intellectual
property rights holders to identify online infringers and will
assist those wishing to enforce their rights. The Swaab Commercial
and Intellectual Property team can assist you with questions about
protecting and enforcing your intellectual property rights.
IP is the legal property in the innovation in your business and it is that which drives your revenue and profit growth.
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