Australia: Implications of the Dallas Buyers Club v iiNet decisions

Key Points:

The Dallas Buyers Club v iiNet decisions may have broadened the law on who can sue for copyright infringement, and could set more hurdles for future preliminary discovery applicants.

The sixteen-month Dallas Buyers Club saga came to an end in early 2016 after Dallas Buyers Club LLC and its parent company Voltage Pictures LLC (collectively "DBC") failed to obtain the details of customers whose IP addresses had allegedly been used to illegally share their film online. What went wrong for DBC, and what implications will these decisions have?

What are the Dallas Buyers Club decisions about?

The Dallas Buyers Club v iiNet judgments are five decisions about a process known as "preliminary discovery", which is available to help prospective applicants identify unknown potential respondents. In the Federal Court, this kind of preliminary discovery is available to applicants who:

  1. may have a right to obtain relief against a person;
  2. are unable to identify that person; and
  3. can prove that a third party can help identify that person.

Even if those requirements are met, the Court's power to order preliminary discovery is discretionary. The Court can choose whether or not and on what terms to order the third party to reveal the person's contact details to the applicant.

DBC believed that internet users had illegally shared the "Dallas Buyers Club" film online and wanted to sue them for copyright infringement. To identify who had illegally shared its film, DBC arranged for a German company to record IP addresses used between April and May 2014 to share the film on BitTorrent. Armed with 4,726 IP addresses, DBC applied to the Federal Court to order iiNet and five other internet service providers (ISPs) who issued the IP addresses to reveal the names and contact details of their customers who were using those IP addresses.

Where did DBC go wrong?

The Court agreed with DBC that it was entitled to preliminary discovery. The ISPs did not persuade the Court to use its discretion to withhold relief, but did convince the Court to impose restrictions on what DBC could do with the customers' details. The Court made an order for preliminary discovery against the ISPs, but prohibited DBC from disclosing the details to any third parties or using the details for any purpose other than for recovering compensation for infringement. Justice Perram said that these restrictions would protect the customers' private information but still give DBC the right to sue for copyright infringement.

However, Justice Perram put a stay on the order, which he would only lift if DBC took certain steps first. Initially, DBC had to submit to the Court for approval any communication that it intended to send to customers. This was necessary because DBC left questions "wholly unanswered" about what it planned to do with the customers' details, but all evidence suggested that DBC would act as aggressively as legally possible.

In a later judgment, Justice Perram also required DBC to lodge a $600,000 bond with the Court. He added this condition after DBC revealed that, together with other compensation, it planned to demand a one-off worldwide licence fee and additional damages. Justice Perram found those two demands impermissible. He indicated that he would lift the stay if DBC submitted a written undertaking to demand from infringers only the cost of an actual purchase of a copy of the film and damages relating to the costs of obtaining the infringer's information. However, even if DBC offered this undertaking, DBC had no presence in Australia, so the Court would have no way to punish DBC if it broke its undertaking. The $600,000 bond would render any revenue from demanding those impermissible sums unprofitable for DBC.

In December 2015, DBC applied to reduce the bond and to allow it to demand the two impermissible sums from infringers. Justice Perram rejected the application, and made an order for the proceedings to terminate in February 2016 if DBC failed to take "some step" beforehand. DBC decided not to pursue the action and allowed its application to lapse.

Implications of the Dallas Buyers Club decisions

The Dallas Buyers Club decisions are a reminder of how important the Federal Court's discretionary powers can be. In preliminary discovery applications, even applicants who fulfil all non-discretionary requirements will need to convince the Court to exercise its discretion to order preliminary discovery. If the number of potential respondents is large, Justice Perram warned that "it will be an essential step" for applicants to prove that what they plan to do with the potential respondents' contact details, and what they plan to demand from the potential respondents, are for a purpose countenanced by the Federal Court rule on preliminary discovery.

In the copyright space, one of the five judgments (Dallas Buyers Club v iiNet [2015] FCA 317) is new authority that agents for copyright owners can sue an infringer for copyright infringement on behalf of the owners. Justice Perram held that the Copyright Act did not expressly or by necessary implication override the "ordinary common law rule" that "what a person may do he may authorise another to do". His interpretation is unusual, since the Copyright Act only expressly gives copyright owners and exclusive licensees the right to sue for copyright infringement. It will be interesting to see if other courts follow his reasoning in the future.


You might also be interested in...

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.