A legal battle that has been raging between the makers of Dallas Buyers Club and iiNet consumers has finally come to an end. The result signals a victory for digital privacy in Australia – where thanks to this case – speculative invoicing is now close to impossible.
Dallas Buyers Club LLC (DBC LLC) had been seeking to extract large sums of money from 4,726 individual Australian Internet users accused of pirating the movie. Those consumers had been singled out via their IP addresses, which had been successfully linked to websites where the film was available to watch illegally.
At that stage, the Hollywood studio (which had already mounted successful speculative invoicing campaigns against pirates of the Oscar-nominated film – both in the US and Denmark) approached Australian ISPs with its speculative letters. Uncomfortable with the specific demands contained in the letter (that he felt were excessively aggressive and amounted to bullying), former iiNet chief regulatory officer Steve Dalby refused to cooperate with the demands, leading to the legal action.
In April of last year, DBC LLC won a landmark Federal Court ruling against iiNet and other Australian ISPs, in which it was decided that DBC LLC should be able to pursue the 4,726 individual IP addresses (accused of pirating the movie) for damages. The ruling, which was made by Justice Nye Perram, also, however, expressly mandated that any letter (to be sent to alleged pirates) must first be approved and signed off by himself.
After rejecting several proposals of DBC LLC’s letter, because of unfair demands, Justice Perram decided in August that the Hollywood studio may pursue the allegedly infringing IP addresses, but with a few conditions. Firstly, it could only approach them for the cost of legally obtaining the film (on a one off basis) and a small amount of ‘out of pocket’ recompense for the bureaucratic process of having to chase them up.
The Federal Court of Australia also decided that DBC LLC would have to post a $442,000 bond in order to continue with its planned action, which it would forfeit if it did not follow the court’s orders to the letter. Justice Perram at that stage also commented that the Hollywood studio’s plan to extract thousands of dollars from Australian pirates for watching its film once was ‘so surreal as not to be taken seriously’. Further commenting that,
‘The idea that DBC’s damages should equal the value of what was taken from it without its permission is not, self-evidently, a ridiculous claim and, indeed, has a certain biblical charm.’
It was that August 2015 decision, that the makers of Dallas Buyers Club had until Thursday to appeal against. An appeal that never came, signalling a victory for the 4,726 alleged copyright infringers down under. Michael Bradley of Marque Lawyers, who represented DBC LLC, said that the decision to drop the case had been an economic one – based on the fact that the August decision by Justice Perram made it economically inefficient to seek damages,
‘Our client considered the costs and benefits of taking this particular application further and decided against it.’
‘It’s certainly a disappointing outcome for them. It doesn’t do anything to mitigate the infringement that’s going on – it’s not a particularly satisfactory outcome from that point of view,’ continued Mr Bradley. Bradley’s point that ‘the case hasn’t finally determined any of the underlying legal issues,’ could indeed mean that future cases of mass copyright infringement might find themselves back in an Australian courtroom. Especially when you consider that Australia is known to be a jurisdiction with repeated large-scale piracy issues. ‘That might happen. But if the circumstances and the context of that [case] are close to this one, then you’d expect the same outcome,’ commented Bradley.
As such, on the whole the feeling is that this case represents a precedent for Australia that makes it close to impossible to chase copyright infringers up for anything more than the cost of watching a pirated movie. This, rather than the large sums that speculative invoicing lawyers send out – usually within intimidating letters – that use the threat of legal action to scare pirates into paying over the odds – and as much as $250
Speaking outwardly about iiNet’s former chief regulatory officer Steve Dalby, who initially opposed DBC LLC’s requests for the names and addresses of alleged pirates, Graham Phillips of Thomson Geer lawyers (who led the defence) made the following comment,
‘The case is a great legacy for Steve Dalby … who was keen to protect his customers from DBC’s unfair speculative invoicing practice.’
Indeed, it would appear that yesterday truly was a win for digital privacy in Australia, where (unlike in many other places around the world) ISPs managed to put their foot down to the greedy, overreaching will of a rich and powerful Hollywood studio.
The case also serves as a strong reinforcement of the benefits of having a VPN to protect your identity online. A product that is becoming ever more an essential part of life (and all the more so for pirates) if you wish to remain out of reach of any possible similar future legal proceedings. In fact, this case has already helped to open the eyes of many Australians who have for some time now been flocking to get a VPN in droves.