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Dallas Buyers Club wins case against iiNet

Discussion in 'The Pub' at netrider.net.au started by hongyi77, Apr 7, 2015.

  1. Wonder if the courts will allow speculative invoicing in Australia. It is extortion!

    Also iiNet is saying IP addresses are dynamically allocated, so how can they pin down who was downloading?


    Dallas Buyers Club slays iiNet in landmark piracy case
    April 7, 2015 - 7:32PM


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

    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 downloaders 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 also said he would soon order that Dallas Buyers Club pay the ISPs' costs for participating in the proceedings.

    He said he would also soon order that Dallas Buyers Club pay the ISPs' costs of searching for documents that identify 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 email 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.
  2. Why is wanting to be paid for your intellectual and creative property extortion??? I hope every pirate is outed and fined.
    • Agree Agree x 1
  3. So the producers of a movie about someone who was a hero for illegaly distributing a product wants to stop people from illegally distributing their product...
    • Funny Funny x 3
    • Agree Agree x 1
  4. Not for $7,000. And only certain people are targeted. If it is unlawful then prosecute everyone.
  5. Capitalism, baby.
  6. Even if it involves firing a shotgun into a crowd?

    Metaphorically, of course.
    • Winner Winner x 1
  7. That's not what the judgment says. It says that more than four thousand individual thieves have been identified and will be pursued. As with many other matters in life, if you haven't participated in this crime, then you have nothing to fear.
  8. ISPs keep logs of what public IP address was allocated to each connection at any given time.

    What's interesting is that they can trace the connection but not the downloader. It's a bit like the licence plate leading to the owner of a car, but not who was driving it when an offence was committed.

    If multiple people have access to an internet connection then it would be very hard to just pin it on the bill payer I'd imagine. Maybe you were operating an unsecured wifi access point in a built up area. Maybe you had visitors. Maybe your kids have their friends around and their friends bring laptops with them. Maybe you had someone in minding your pets while you were on holidays and you let them use your computer. Maybe you have malware on your PC. Maybe you bought a second hand PC or got a loan of one and it had a torrent client running on it unbeknownst to you. Maybe you host LAN parties and have groups of people around and let them use your internet connection.

    In the absence of an admission of guilt, the chances of a court ever finding a particular person guilty of downloading a file when there are so many variables seems remote.
  9. Hornet is right in as much as its no different to breaking any other law. You do it knowing its illegal and take the risk. You get caught you pay the price.
    The fact that millIons of people have been doing it with relative impunity makes it no less a crime, like it or not. Im not casting stones, but it is what it is.

    I would add that I think they have little chance of making it stick.
    • Agree Agree x 2
  10. To me it looks like they are going after the people distributing the film, rather than those downloading the film.
    So the people creating the Torrents seem to be the ones they will target, or have I got this wrong?
  11. nope, anyone downloading torrents who also allowed uploading of the torrent, ie anyone who wasn't leeching..
    as they were facilitating others downloading

    who wouldn't pay $7000 to buy the DVD of this film? :D
    • Like Like x 1
  12. If it was my choice, I'd make the maximum penalty $30.

    dear numpty, you've been caught downloading "Debby does dallas", pay $30 into our account or we send the sheriff around to confiscate your possessions. They get more than the movie is worth, and its an affordable amount for most people to pay.

    Not a big believer in you downloaded a torrent!!!1111!!! pay me my gazillions, for a movie in all honesty you'd pay $2-$5 to digitally rent if we had a decent system set up in australia. Make the content affordable, and people won't pirate. Mind I don't download movies anymore, i go pay the dude at the markets $5/move to take that risk for me.

    Mind now i got a terrabyte of data to use a month how the heck am i going to use it :eek:
    • Agree Agree x 1
  13. This.

    Take season 4 of Game of Thrones for example. Thanks to Murdoch monopolising the market, if you wanted to watch it legally in Australia, the only way was to sign up for some bullsh!t Foxtel package that costs somewhere in the neighbourhood of $40/month. I haven't seen it available as a boxed set yet either, and the next season is nearly beginning.

    Contrast that to season 3, where you were able to buy a season pass on iTunes for $30 (comparable to a boxed set) but were able to legally watch the episode the day after the US. It's also permanently in my iTunes library for me to watch when I please.
  14. The principle of speculative invoicing is broader than this case....by the way send me $1000 or risk going to court for speeding some time which contributed to a culture that killed my dog.
  15. Absolutely, I couldn't agree more. It makes it no less a crime however and the victim of the crime is entitled under law to seek compensation.
  16. Actually you've skipped a step there. The crime hasn't been proven and nobody has been charged.

    This will be a civil action only.

    The "crimes" surrounding downloading torrents are pretty dubious and therefor absolute statements like "do the crime, do the time" also dubious.
  17. There will still be a small percentage who will do it just because they can or they feel like they are sticking it to "the man". The number will be significantly smaller than we have now which, as much as anything, is due to the 20th century view of regional marketing. For the modern age of digital products, that really is an expensive, redundant and highly inefficient method.

    Look harder. The box set of series 4 has been out for a month or so. Sadly, Murdoch owns HBO so he can do what he wants with their products. I was happy getting the earlier series 3 on iTunes the day after the US airing and later the box set. I saved money getting series 4 by other means and still bought the box set.

    Foxtel is the most profitable arm of Murdoch's Australian business interests and co-owner Telstra likes the money as well. Neither are in a hurry to kill the cash cow while they can keep milking it.

    I'm glad we don't really have speculative invoicing in Australia. In the US where a lot more law enforcement is privatised, many people have been hit with speeding and red light "fines" for offences they didn't commit but where the identity of the offending vehicle is not clear. The cost of challenging those fines can often be more than the fine so many end up being paid.
  18. Eh, I haven't really been arsed enough to look to be honest, since I managed to watch GoT S4 via alternate means last year. I was expecting the release of the box set to be trumpeted from the rooftops though. And if it's been out for a month or so, that makes it nearly 10 months since the season started to air... wow.
  19. Yeah, the 10 month delay is crazy but that is how they do things.

    I'm the sort of person advertisers hate. I don't watch commercial tv, get junk mail or read physical newspapers but I still knew GoT4 on Blu-Ray and DVD was hitting the shops.
  20. Because, you know it's not like the owners of the distribution networks have ever stolen from us....

    • Like Like x 1