By Alan Arnott and Michael Langenheim
Alan Arnott is a Technology Lawyer with Arnotts Technology Lawyers and Michael Langenheim is a Barrister at 4th Floor Selborne Chambers.
Dallas Buyers Club LLC (DBC) is the copyright owner or an entity with the right to distribute in Australia the Oscar winning film Dallas Buyers Club, which was released in the US in late 2013. DBC has recently commenced court proceedings in Australia. The case is of importance to all Australian ISPs and its outcome should be of interest to all WAIA members.
Australian ISPs have refused to hand over subscriber details
DBC has filed lawsuits in the US alleging copyright infringement for downloads of the film over the internet using BitTorrent. DBC is now also seeking the names and addresses of customers of Australian ISPs associated with the IP addresses that DBC says have been used to illegally download the film.
It is understood that DBC has used a software tracking system (referred to as the Mavericks System) that tracks the download of the film over BitTorrent to a particular IP address at a specified date and time.
The Australian ISPs have so far refused to provide this information to DBC.
In response to the refusal by Australian ISPs to supply customer details, DBC has sought to obtain the information by way of a court order through a process known as preliminary discovery. Preliminary discovery can be used to identify a potential defendant.
DBC has made its preliminary discovery application in the Federal Court of Australia against iiNet, Adam Internet, Amnet Broadband, Dodo, Internode and Wideband Networks.
Telstra and Optus are both notably absent.
The Federal Court Rules 2011 (FCR) provide that the Federal Court may order (r7.22(2)(c) of the FCR):
• a 3rd party to give discovery to a prospective applicant (a person who reasonably believes they have a right to obtain relief against a prospective respondent);
• of all documents that are or have been in the 3rd party’s control;
• relating to the prospective respondent’s description (i.e name and address).
To obtain an order for preliminary discovery against an ISP, DBC must satisfy the Federal Court that (r7.22(1) of the FCR):
• there may be a right for DBC to obtain relief against a prospective respondent (i.e a person who unlawfully downloaded the film);
• DBC is unable to ascertain the description of the prospective respondent; and
• the ISP knows or is likely to know the prospective respondent’s description or has or is likely to have control of a document that would help ascertain the prospective respondent’s description.
The Court will generally only grant an order for preliminary discovery if it is in the interests of justice to do so. Earlier cases indicate that the court will consider the prospects of DBC’s success in any proceedings brought against alleged copyright infringers. DBC’s claim must be more than a claim worth investigating, it must have some prospects of succeeding: Allphones Retail Pty Ltd v ACCC (2009) 82 IPR 121.
It has been alleged that DBC is seeking preliminary discovery against ISPs simply to get the names and addresses of people in order to send them an invoice seeking significant sums for an alleged infringement (a practice known as “speculative invoicing”).
If this assertion is substantiated then it could weigh against the Federal Court’s exercise of its discretion to make an order for preliminary discovery.
The application for preliminary discovery has been set down for hearing on 17 – 18 February 2015.
If DBC is successful then it is likely to initiate preliminary discovery applications against other ISPs. In addition, the case could also open the floodgates for other copyright owners to initiate similar discovery applications in Australia.
Arnotts Technology Lawyers specialises in providing legal advice and representation to ISPs and tech companies throughout Australia. For assistance with your legal requirements contact Alan Arnott, Technology Lawyer on 02 8238 6989 or email@example.com