Dallas Buyers Club slays iiNet in landmark piracy case

[OZCUBAN]

Dallas Buyers Club slays iiNet in landmark piracy case

Read the judgment

What to do if Dallas Buyers Club sends you a threatening letter

A Federal Court judge has ordered several Australian internet service providers, including iiNet, to hand over to a film studio the identities of thousands of account holders whose internet connections were allegedly used to share without authorisation the Dallas Buyers Club movie.

In a landmark judgment delivered on Tuesday afternoon, Justice Nye Perram ruled in favour of Dallas Buyers Club LLC's "preliminary discovery" application requesting that the ISPs disclose the identities of people it alleges shared the movie online.

The studio behind Dallas Buyers Club wants to identify those who pirated the film.

The studio behind Dallas Buyers Club wants to identify those who pirated the film.

In addition to iiNet, ISPs Dodo, Internode, Amnet Broadband, Adam Internet and Wideband Networks will also be required to hand over customer details.

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It was unclear on Tuesday whether iiNet and the other ISPs would appeal the decision before the Full Court of the Federal Court. They will have 28 days to do so.

"It's a good outcome, we got the result we were seeking," Michael Bradley, a lawyer representing Dallas Buyers Club in the case, said outside the court.

The ruling means about 4700 Australian internet account holders whose service was used to share Dallas Buyers Club on the internet from as early as May 2013 are soon likely to receive legal letters from Dallas Buyers Club LLC's Australian lawyers threatening legal action.

This occurred in the US, where legal action was threatened against account holders claiming they were liable for damages of up to $US150,000 ($196,656) in court unless settlement fees of up to $US7000 ($9171) were paid. This practice is commonly referred to as "speculative invoicing".

But in a win for iiNet and the other Australian ISPs, Justice Perram ordered that any letters sent to alleged illicit pirates must first be seen by him. He said this would "prevent speculative invoicing", which under Australian may not be lawful.

"Whether speculative invoicing is a lawful practice in Australia is not necessarily an easy matter to assess," Justice Perram said, before stating that it may constitute misleading and deceptive conduct as well as unconscionable conduct.

The judge also ordered that the privacy of individuals should be protected, meaning Dallas Buyers Club cannot disclose the identities of alleged pirates.

Justice Perram foreshadowed he would order that Dallas Buyers Club pay the ISPs' legal costs, as well as the costs of searching for documents identifying alleged pirates.

iiNet chief David Buckingham said he was pleased with the result and some of the protections the judge put in place for consumers, despite the fact they can still be identified and sued as a result of the judgment.

"By going through the process we've been able to ensure that our customers will be treated fairly and won't be subjected to the bullying that we have seen happen elsewhere," Mr Buckingham said.

The case, heard by Justice Perram over three days in February, centred on whether Dallas Buyers Club LLC should be given access to details of internet account holders whose connections it alleges were used to share its movie using peer-to-peer file sharing software such as BitTorrent.

The details to be handed over include names and residential addresses of those whose connections were allegedly used to share the film.

During the case, Michael Wickstrom, vice president of royalties and music administration at Voltage Pictures, the parent company of Dallas Buyers Club LLC, objected to iiNet providing examples of the speculative invoicing letters sent in similar US cases, stating that in Australia the format of the letters would be different.

The letters sent to Australians would be made so that they complied with local laws, he said.

But Mr Wickstrom and Dallas Buyers Club LLC's lawyer did not provide examples of what the letters would look like here.

"I would give [Australian lawyers] some examples to say 'Is this sufficient for Australia or does it need to be changed?' " he said.

Mr Wickstrom also said the company would not sue or attempt settlement with an autistic child, people who were handicapped, welfare cases, or people who have mental issues.

To uncover the alleged pirates, Dallas Buyers Club LLC, through Voltage Pictures, tasked German-based pirate-hunting firm Maverick Eye UG to identify those who were sharing the movie online.

Maverick Eye joined torrent "swarms" that were sharing Dallas Buyers Club and then tasked its software to log the Internet Protocol (IP) addresses of those who distributed the movie without authorisation and in breach of copyright laws. A total of 4726 IP addresses were identified.

Dallas Buyers Club LLC then contacted iiNet and other ISPs, asking them to divulge customer details associated with those IP addresses without a court order but the ISPs refused.

It then sought to have the ISPs disclose customer details in the Federal Court through the preliminary discovery application process, which is often used by parties to a case where the identity of the person or company they want to take legal action against is unknown but can be discoverable through a third-party.

But iiNet sought to challenge the request on grounds it would lead to speculative invoicing, whereby alleged infringers are sent letters of demand seeking significant sums for infringement. These letters often threaten court action and point to high monetary penalties if sums are not paid.

"We are concerned that our customers will be unfairly targeted to settle any claims out of court using [this] practice," iiNet said in a blog post about the legal action last year.

The ISP also argued that customers could be incorrectly identified as alleged infringers if details of the account holder were revealed. For example, the relevant IP address could have originated from a person in a shared household where someone other than the account holder infringed copyright, it said.

iiNet also argued it wanted to fight the matter because Australian courts had never tested a case like this one before.

Now that the judge has ordered iiNet and other ISPs to hand over the details, it opens the floodgates for other rights holders to do the same thing - track who is sharing their content on the internet and then get courts to order the handing over of the identities of suspected pirates.

But whether other rights holders do this remains to be seen.

The judgment comes as the Abbott government begins cracking down on internet piracy.

Just two weeks ago it introduced a website-blocking bill into parliament that has since been sent to a parliamentary committee for scrutiny. The bill allows rights holders to apply to a judge for an injunction that would require ISPs to block access to "online locations" overseas that facilitate copyright infringement.

The government has also asked ISPs and rights holders to come to an agreement by this Wednesday on a code to tackle online piracy which must involve sending alleged copyright infringement notices to consumers.

More relevantly, it includes a process for "facilitated discovery" to assist rights holders in taking direct copyright infringement action against a subscriber after an agreed number of alleged infringement notices are sent.

Tuesday's judgment is likely to guide how future discovery applications are made.

A similar case involving Dallas Buyers Club and Brisbane-based data centre and wholesale broadband provider iseek communications will have a directions hearing on April 14, where it's expected, according to tech publication ZDNet, there won't be a challenge by iseek to divulge details.

[OZCUBAN]

Gulp

[JohnS]

This is just the beginning, we haven't heard the last of this. In the meantime, I'd advocate not to stress, just sit pretty.

[garbandz]

"Mr Wickstrom also said the company would not sue or attempt settlement with an autistic child, people who were handicapped, welfare cases, or people who have mental issues."

" or people who have mental issues."

These people live in Australia....where the only animals that will not bite or sting you to death will eat you whole......

Case dismissed...........

[Ken Gargett]

am i correct in understanding that he has foreshadowed ordering the successful entity to pay court costs? unless he is happy having those costs, and the costs of tracking down the recalcitrant 'viewers', included in the invoicing.

[Fuzz]

Who the hell wants to waste their download limits for that? The movie wasn't that good.

[OZCUBAN]

This is just the beginning, we haven't heard the last of this. In the meantime, I'd advocate not to stress, just sit pretty.

Exactly if not I will plead mental disorder I can't stop collecting Cigars

[Jones]

You have download limits in Australia?

[OZCUBAN]

Oh yea and like everything else we pay through the nose

[RickHendeson]

Bummer

[Dimmers]

Fear not peeps, this will be appealed and overturned. A confusing/ poorly crafted judgement.

[JohnS]

Its soon time to get a seedbox account so they cant track you down.

Or even a Virtual Private Network. It's easy to set-up with a browser add-on.

[LordAnubis]

hahhahha... Will they come out to Mali to slap cuffs on me?

My defense will be "What's a wifi password? Who knows who used my connection to download?" if that doesnt work

"Would you pay to use a well? To go and get water at a time that they tell you to? Bet your ass you woudln't. You pay for a tap in your house to drink as much water as you want at whatever time. So unless you provide that level of open access for movies, you can f#$% off with your anti piracy laws."

Ken, any of my arguments have legal basis ??

[benigma]

Firstly it seems they're going after people who shared the file rather than merely downloaded it.

Secondly, good luck proving which person specifically downloaded the file. I am sure most households have more than one device or internet user.

Storm in a teacup I reckon. I still think they're simply doing this for the free publicity. If it wasn't for this case who would even be talking about Dallas Buyers Club?

*Edit

If it does occur though, I hope 4700 Australians court elect. I wonder how much that would cost the company?

[MIKA27]

You Might Not Get Fined For Downloading Dallas Buyers Club

Dallas Buyers Club pirates and torrenters, there may be a shining light at the end of the dark tunnel ahead of you. The studio behind the movie — and the recent court case against iiNet — has suggested that you might not necessarily be up for a four- or five-figure settlement fee for your illegitimate download.

In an interview with Triple J’s Hack current affairs program, Michael Wickstrom — the vice president of royalties at Dallas Buyers Club‘s parent company Voltage Pictures — said that the widely-shared “eight thousand, 10 thousand, 20 thousand” dollar figures were for infringements in the US, where the infringers had been alleged to be uploading and sharing multiple movies and pieces of content owned by Voltage, rather than just a single copy of a single film like Dallas Buyers Club.

Responding to a question from Triple J’s Tom Tilley — “A lot of people are quite worried. If someone listening right now has illegally downloaded or shared Dallas Buyers Club, should they be worried about getting a letter from you guys?” — Wickstrom was straightforward, but also moved to allay some fears about the financial penalty the company might move to impose: “…Yes. What I keep telling the public is we are working with our Australian attorneys to come up to an Australian solution to an Australian problem. What works in the US may not work… in Australia. But we are developing a system that becomes a deterrent.”

“I just see these different letters… sometimes the press takes the highest amount settlement letter — but there’s a reason for that, it wasn’t just one title. Some of the people we go after have a network of hundreds of films that they’re uploading, and that’s when you’re going to see these letters become public where we ask for eight thousand, 10 thousand, 20 thousand, whatever… because this person has every title… this is illegal distribution at its worst.”

But the average Australian is not likely to be held liable for anywhere near as substantial a figure, at least from the gist of the vice president’s comments to Hack. Wickstrom (emphasis ours): “I don’t feel the penalty should be so aggressive with the first-time offender who has downloaded one film. But something has to be done; and what has to be done is a public notice, a notice to stop any infringment, and if it continues there will be action — like their ISP connection will be shut down, or what have you.

“But it’s not always going to be a financial settlement.”

This comment from Wickstrom is the strongest statement yet that points towards Australian downloaders being let off comparatively lightly for downloading Dallas Buyers Club. To listen to it in Triple J’s Hack podcast segment, skip forward to around the 4:00 minute mark in the SoundCloud link below.

The Voltage Pictures VP also detailed the company’s standard process for sending these infringement letters out to alleged downloaders: “During what we call the discovery process, when we get the settlement letter… that’s the first letter that goes out to the account holder — to say there was an infringement, taking place at this IP address.

“And I think it’s up to the account holder to find out exactly who was doing that at that address. If I loan the keys to my car to a friend or relative, and that person committed a crime or hurt somebody, I am responsible… and the same applies to a computer, you don’t just let anyone have access to your computer, you have to be responsible.”

Wickstrom said he hoped to send a message that illegitimate downloading and copyright infringement “truly is impacting film and music. Independent musicians and filmmakers cannot continue to have all the profits eroded and continue as a business model.”

“We want to continue as a business, but when I see piracy rates in Australia reach above 50 per cent, that’s not a business model that can be sustained. Our stance would be to stop the uploading immediately.”

[MIKA27]

Thing is though, regardless of fines, ISPs are fully aware what you are surfing or downloading. A few years ago I received an email from my ISP, think it was iinet, saying they had noticed me sharing some movies that were copyrighted. So the data exists to be used if ISPs are forced to by courts. The same applies to Web sites visited. If you value your privacy a VPN is a must these days-although I doubt it's failproof. There is probably a way of tracking my ip from computer to VPN and then what ip the VPN provided. More work for the authorities but doable..

This is a good read and also THIS

[polarbear]

From what I read, they only know if you uploaded/shared/seeded the file, not if you downloaded it

[MIKA27]

From what I read, they only know if you uploaded/shared/seeded the file, not if you downloaded it

That's correct BUT, what if one were to queue the download say overnight and it downloaded in a couple hours THEN Seeded whilst you slept? To avoid seeding you'd have to be pretty much sitting down with your finger ready to hit stop once the DL was completed.

Just speculative.....

Oh.. and I didn't DL that movie anyway

[Ken Gargett]

hahhahha... Will they come out to Mali to slap cuffs on me?

My defense will be "What's a wifi password? Who knows who used my connection to download?" if that doesnt work

"Would you pay to use a well? To go and get water at a time that they tell you to? Bet your ass you woudln't. You pay for a tap in your house to drink as much water as you want at whatever time. So unless you provide that level of open access for movies, you can f#$% off with your anti piracy laws."

Ken, any of my arguments have legal basis ??

to be honest, i have not followed this very closely and it was never my area so i am far from an expert. fascinated that costs are going that way though. not sure what that says.

muss, i'd be thinking water from a well is not the most appropriate legal analogy (mind you, i have a colleague who once argued donohue v stevenson as a basis for abortion - famous legal case about a snail in a bottle of ginger beer - it will mean more to lawyers).

dimmers, i'm curious as to the basis of your assertion that it is a poorly crafted judgement and will be overturned. i have not heard anything re an appeal, not to say there won't be one. but we are already up in the federal court. not a lot of wiggle room. i don't know much about nye perram but anyone appointed to the federal court before 40, as i believe he was, is no fool.

two things -

1. who the hell genuinely thought that they were acting in a completely honest manner when they downloaded this or any other film? spare me. it is a form of theft. if you get caught and fined/sued, tough luck but don't *****.

2. i doubt that there will be any actions against individuals at this stage. i would be very surprised if this was anything more than positioning to get people to stop doing it. an expensive legal action to get there certainly, but what they would save/make in stopping this form of downloading would make it more than worthwhile.

they may have to fight other methods of downloading but i am suspecting that they merely want to deter the vast majority and then probably chase those few persistent and repeat offenders.

[wabashcr]

That's correct BUT, what if one were to queue the download say overnight and it downloaded in a couple hours THEN Seeded whilst you slept? To avoid seeding you'd have to be pretty much sitting down with your finger ready to hit stop once the DL was completed.

Just speculative.....

Oh.. and I didn't DL that movie anyway

With most BT clients you upload while you're downloading, so even if you shut it off the second you finish the download, you've still uploaded. It's been a few years since I've downloaded anything like this, so maybe things have changed. But back then you couldn't turn off the upload, just turn it down to a low max setting. And most trackers used up/down ratios to either throttle or cut off those who didn't upload their fair share. Of course if there are multiple seeders and no/few leeches, you could avoid uploading. Otherwise, if you happened to be on these torrents without VPN when Maverick Eye jumped on, they probably grabbed your IP.

If I were in a situation where this ended up in court, I'd go after this Maverick Eye and their IP logging scripts. If Voltage has to rely on a 3rd party to track me down, I'm putting that 3rd party and their methods under the microscope. They're going to have to prove it was my IP, and show how they figured it out. I'm sure they'd object vehemently to having their technology exposed in court, but no way would I let a judge/jury convict me based on 3rd party technology they don't understand.

[Ken Gargett]

They're going to have to prove it was my IP, and show how they figured it out. I'm sure they'd object vehemently to having their technology exposed in court, but no way would I let a judge/jury convict me based on 3rd party technology they don't understand.

i do not for an instant pretend to understand the technology and to be honest, probably the only reason i never downloaded (or uploaded??) any film was simply that i did not have a clue how to do it, but i'm not sure it is your (or any defendant's) choice as to whether they convict you or not. you are obviously entitled to defend it and that may be one way. but if you are caught with the jewels from a safe which has been robbed, but no one knows how, i'm not certain a successful defence would be that the prosecution can't show exactly how you cracked the safe. it may mean a different charge - possession or whatever - but i'm not sure it will render you not guilty.

[wabashcr]

i do not for an instant pretend to understand the technology and to be honest, probably the only reason i never downloaded (or uploaded??) any film was simply that i did not have a clue how to do it, but i'm not sure it is your (or any defendant's) choice as to whether they convict you or not. you are obviously entitled to defend it and that may be one way. but if you are caught with the jewels from a safe which has been robbed, but no one knows how, i'm not certain a successful defence would be that the prosecution can't show exactly how you cracked the safe. it may mean a different charge - possession or whatever - but i'm not sure it will render you not guilty.

The issue here is how do you determine someone is caught? The only evidence they have is this 3rd party anti-pirating company's say so. If they take my computer and find an illegal copy of the movie, that would be one thing. But this company wrote a software program to join these torrents and find the IP addresses of everyone who is sharing this movie. When I say I wouldn't let a judge/jury convict me on that, I mean that my line of defense would be to attack that 3rd party's software, and make them show how it works.

To me a more apt analogy would be charged with theft of a safe based on some private investigator's say so. If that happened, you'd make that private investigator show their work. My position is that would be the best place to poke holes in any criminal or civil suit. I'm sure it's not a novel concept, and there could be legal precedent that would allow that 3rd party evidence.

[Overproof]

That's correct BUT, what if one were to queue the download say overnight and it downloaded in a couple hours THEN Seeded whilst you slept? To avoid seeding you'd have to be pretty much sitting down with your finger ready to hit stop once the DL was completed.

Just speculative.....

Oh.. and I didn't DL that movie anyway

If it seeded overnight that would be a good thing! Stop leeching all my files Mika ahah. Jokes ; )

On the real though, which out of the 10 VPNs listed in that article are you looking at?

[MIKA27]

If it seeded overnight that would be a good thing! Stop leeching all my files Mika ahah. Jokes ; )

On the real though, which out of the 10 VPNs listed in that article are you looking at?

Neither because I don't pirate...

But I hear good things about Mullvad

[Dimmers]

That's correct BUT, what if one were to queue the download say overnight and it downloaded in a couple hours THEN Seeded whilst you slept? To avoid seeding you'd have to be pretty much sitting down with your finger ready to hit stop once the DL was completed.

I don't believe being caught "sharing" will equate to only having seeded a completed torrent alone.Ie whilst downloading, you are also seeding in parallel those incomplete bits that you have already downloaded. Time will tell.