April 16, 2015 | Moira McKenzie

Dallas Buyers Club LLC, copyright owner of “Dallas Buyers Club” film, and its parent company, Voltage Pictures LLC, had applied for a preliminary discovery against six Australian internet service providers – IINET Ltd, Internode Pty Ltd, Amnet Broadband Pty Ltd, Dodo Services Pty Ltd, Adam Internet Pty Ltd and Wideband Networks Pty Ltd. Preliminary discovery is a procedure by virtue of which a party seeks the assistance of the Court to identify the person who it wishes to sue.

Dallas Buyers Club LLC and Voltage Picture LLC had identified 4,726 unique IP addresses from which their film was shared on-line using a peer-to-peer file sharing network called BitTorrent. This sharing had occurred without their permission which led them to conclude that their copyright had been infringed. Further, they identified that each of the IP addresses from which the sharing occurred was assigned by the aforementioned Australian internet service providers. They also believed that those internet service providers “can identify the relevant account holder associated with each IP address”.

Naturally, the Australian internet service providers had resisted the application of preliminary discovery on many reasons. But the Court rejected their reasons by far and large. The Court took the side of Dallas Buyers Club LLC and Voltage Picture LLC. And on 7 April 2015, the Federal Court in its judgement decided that the Australian internet service providers should disclose the names and physical addresses linked with each of the 4,726 IP addresses. Nonetheless, the Court held that the email addresses linked with each of the 4,726 IP addresses should not be disclosed.

A very obvious question that arises over here is how Dallas Buyers Club LLC and Voltage Picture LLC identified these IP addresses. The answer is they used software called Maverick Monitor. According to the expert witness, Dr Richter, Maverick Monitor was capable of accurately identifying IP addresses that were involved in online sharing and that there was no room for error. The Court took into account Dr Richter’s expert evidence and agreed that Maverick Monitor does what it claims to do.

Having read up till now if you have reasonable grounds to believe that your name and physical address might be made available to Dallas Buyers Club LLC and Voltage Pictures LLC, you may be wondering what kind of letter I shall expect to receive. Will it be aggressive and threatening? To be honest we do not know, but what we can tell you is that the Court will review the draft of any letter Dallas Buyers Club LLC and Voltage Pictures LLC propose to send to account holders. So we expect the Court will not let them to send you an aggressive and threatening letter.

Another question that arises is what if my IP address appears on that list of 4,726 IP addresses but then I did not download the movie. Indeed, Dallas Buyers Club LLC and Voltage Pictures LLC conceded that the account holders and the persons infringing their copyright using BitTorrent are not necessarily one and the same. Further, they still insisted on getting the account holder’s name and physical address because they believe that the account holder will be able to assist them in identifying the copyright infringer.  You are completely justified and on track if you now ask what should be my next course of action if I receive a letter of demand?  How shall I respond? How can I help them in identifying the actual infringers? The answer is simple from your router, the technical people acting for Dallas Buyers Club LLC and Voltage Picture LLC will be able to identify the MAC address of the computer that downloaded the movie. From there on the technical people will conduct further investigation.

Having said this, we address the main motive behind any commercial legal proceeding. The motive of claiming monies from the wrongdoers. In Australia, damages are purely compensatory. So you would be expected to pay for what a movie actually costs. You can be assured that you would not be asked to pay substantial amount of monies as damages.

We now come to an important question is there enough economic incentive for Dallas Buyers Club LLC and Voltage Pictures LLC to sue each of those account holders behind the 4,726 unique IP addresses. Well, we think probably not but we cannot guarantee anything. Another important and burning question is will the Australian internet service providers appeal against this decision. They have 28 days from the day of judgement to do so. There has been no word on it so far.

Finally we do like to discuss this point, what importance does this judgement hold? Internet pirates will find ways to avoid detection.  Downloaders of movies, who are moderately tech savvy, will switch to anonymizers and virtual private networks to hide their identities.  Instead of finding small time downloaders and uploaders to sue, would it have made more sense if the torrent website owners were sued?  In fact in the UK, in March 2015 the City of London’s Police Intellectual Property Crime Unit and copyright and royalty group PRS for Music had teamed up  to shutdown an Internet based karaoke-focussed BitTorrent trackers.

On the whole, we feel that this judgement may not completely deter repetitive offenders who download and/or upload movies and music online. Those offenders might be sued by copyright owners of a film and/or music who have the resources to do so. However, copyright owners of a film and/or music who do not have enough resources to sue these offenders might have to live with the fact that their movie is still being downloaded and distributed illegally on the Internet.

Thanks for Rahul Shah for writing this article.