In the wake of yesterday’s Federal Court ruling, some Australian ISPs must provide the makers of Dallas Buyers Club with the contact details of 4,726 IP addresses which they allege were used to steal the movie. Fairfax Media reports that according to former iiNet Chief Regulatory Officer Steve Dalby, anyone found to be guilty would have no defence, but that the letters themselves would not necessarily prove guilt. But who is likely to receive one? And what happens when they do?
Of course, if you do receive a letter from Dallas Buyers Club LLC, the first thing you should do is seek professional legal advice. The IP addresses that Dallas Buyers Club LLC wanted the contact details for accessed the movie via BitTorrent between April 2 and May 27, 2014. In December, CNET reported that Dallas Buyers Club LLC used a German program known as MaverickEye, and monitored Torrent downloads of the film between those dates.
If you downloaded or shared the film using a different technology or outside these dates using ISPs like iiNet, Internode and Dodo (though not Australia’s two largest providers, Telstra and Optus) then it’s unlikely you will be contacted. However, the list of IP addresses only pertains to people who seeded the film. So if a user downloaded it but never shared, then they are also unlikely to be pursued.
According to Dalby, “Most of the agreements state the account holder is responsible for the use of the account but there’s no formal, legal obligation for customers to secure their WiFi.”
However, he adds, “If they’re not guilty and had an open access point that was unsecured or were very free to giving their password out to people then maybe they do have the defence that it wasn’t them.”
Dalby also says that while ISPs can identify which accounts were used, they do not yet have the technology to identify which users within an account were downloading – yet another reason to keep your WiFi secured at all times.
Even though an IP address is listed in the court order, it is not guaranteed that the user will be prosecuted, as the studio has stated that it is unlikely to pursue every person whose details they have.
In February, the Federal Court heard evidence from Michael Wickstrom, the Vice-President of Royalties at Voltage Pictures, which owns Dallas Buyers Club. He told the court, “If we start proceedings in Australia I will make it clear to local counsel ‘you will not pursue the handicapped, welfare cases or people that have mental issues or the military’ and that’s the majority of what’s going on with the download.”
“We’re very concerned about the press saying ‘how dare Voltage pursue a military veteran or an autistic child’ as that sort of press would ruin us.”
In recent US cases, letters to alleged pirates have stated that there is a case against them, and nominated a settlement amount of about US$7000, intellectual property lawyer Anny Slater told Fairfax. “The letters say ‘These are normally the sorts of damages that we’ve been entitled to, but we will consider not taking that step if you pay this amount to us.’ And so they just nominated the amount.”
However, the Australian decision stipulates that any letters to alleged copyright infringers will first be viewed by the court, to ensure that excessive demands are not made. It is up to the court to determine what constitutes ‘excessive’. Intellectual property lawyer Mark Vincent told Fairfax Media that any damages would be “very modest”, with an Australian court likely to award damages similar to what it would have cost to legally obtain the film – around $20.
However, Mr Vincent added, there would be considerable costs if a defendant chose to challenge the allegations in court and lost, as they may then be required to pay the studio’s legal costs as well as damages.
iiNet have 28 days from the decision to appeal to a higher court, and they have a history of fighting charges like these. However, in the 2008 case between a group of copyright holders and iiNet, it was the copyright holders who took the case to the High Court. Whether iiNet is willing to do the same is yet to be seen.
