Dallas Buyers Club succeeds in Federal Court against ISPs
Last week the makers of Dallas Buyers Club, the Oscar winning 2013 film have succeeded in a preliminary discovery application against Australian ISP providers including iiNet and Dodo.
This is a significant development in the world of Australian copyright law, as in the past film companies have largely failed in their direct attempts against ISPs for copyright infringement. For example, in the case of Roadshow Films Pty Limited v iiNet Limited  FCAFC 23, the Appellants were unsuccessful in their action against iiNet for authorising copyright infringement by failing to stop its users from downloading pirated films.
In the case of Dallas Buyers Club LLC v iiNet Limited  FCA 317, Dallas Buyers Club identified 4,726 IP addresses from which the film was shared, infringing the Copyright Act 1969 (Cth). The Court ordered that the names and addresses of these identified customers be divulged by the ISPs to Dallas Buyers Club in order for Dallas Buyers Club to take the next step forward in taking action against these alleged pirates.
The Court also ordered that the information disclosed could not be used for any reason other than recovering compensation for the infringements only. As such, Dallas Buyers Club will not be able to ‘name and shame’ alleged pirates.
The Court also ordered that Dallas Buyers Club must submit any proposed letter being sent to the alleged pirates to the Court for approval. This Order can be seen to balance the privacy of the ISPs customers, as well as attempt to prevent speculative invoicing, as occurred in a similar action in the USA.
As such, illegal downloaders should not expect to receive infringement notices from Dallas Buyers Club quickly, with some similar foreign actions taking years before letters are sent
When considering the infringement provision in the Copyright Act 1969 (Cth) Parram J noted that the Court was to consider the need to provide deterrence. The Court held that “It is not beyond the realm of possibilities that damages of a sufficient size might be awarded under this provision in an appropriately serious case in a bid to deter people from the file sharing of films.” [at 78]. As such, this appears to provide support for the general move towards preventing the illegal sharing of films.
The Court also rejected the arguments that each infringement was so minor that any monetary claims Dallas Buyers Club may be able to recover would be so small that they would not make commercial sense and that the Dallas Buyers Club had no realistic chance of relief.
iiNet will have 28 days in which to appeal the decision.
The implications of this Landmark decision are yet to be seen, with many professionals suggesting a wide range of potential monetary sums which Dallas Buyers Club may be able to claim against those who infringed the Copyright. Some have suggested that it is unlikely that Dallas Buyers Club will take action quickly or as severely as suggested, nor are the letters issued likely to request payments as large as those that have been requested in the USA, some of which were reported as being up to $7,000.00.
The Australian Government, however, is certainly increasing its efforts to crack down on internet piracy, with the Communications Alliance having released a draft code to attempt to deal with this issue. The draft code was released in February 2015 and public comment on the Code closed on the 23rd of March 2015.
Given the increasing movement by filmmakers and Governments to crack down on pirating in worldwide, the judgment of Dallas Buyers Club LLC v iiNet Limited  FCA 317 may be an interesting turning point in issues of Australian copyright law and piracy. While the case currently appears to represents a largely symbolic step forward, it may mark the beginning of a shift in the Australian attitude towards pirating film and television.
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Charlotte Streten – Paralegal