While the telecommunications industry and rights holder groups work to reach agreement on an industry code to tackle online copyright infringement (as requested by the Attorney General and Communications Minister), rights holders associated with the film Dallas Buyers Club are focussed on a more aggressive approach to the issue.

Thomson Geer are acting for internet service providers iiNet (and its subsidiaries Internode and Adam Internet), Dodo, Amcom and Wideband (ISPs). The ISPs are opposing an application originally filed by Dallas Buyers Club, LLC (DBC) for a “preliminary discovery” order to force the ISPs to disclose a total of 4,726 names and contact details of account holders whose internet accounts DBC alleges have been used to infringe its copyright.

Richard Lancaster SC (acting for the ISPs) successfully argued that DBC had not provided sufficient proof to satisfy the Court that it was the owner of copyright in the film, triggering an eleventh hour amendment to DBC’s application to add producer Voltage Pictures, LLC (Voltage) as a prospective applicant. Cross-examination of DBC and Voltage’s technical expert also cast significant doubt over the robustness of the investigative process undertaken on their behalf.

The ISPs accept that online copyright infringement is a serious issue for rights holders. Telecommunications industry group, Communications Alliance has included a facilitated preliminary discovery process, to facilitate legal action against online copyright infringers, as part of the proposed code. However, the draft code requires that a series of education and warning notices be sent before rights holders will get access to customer details. The DBC and Voltage application does not distinguish between account holders based on the extent to which their accounts are alleged to have been used to infringe copyright. The investigative processes employed by rights holders are also likely to be subject to audit requirements under the code, which will reduce the risk of false positives in the linking of IP addresses and account holders to online file sharing.

Many are drawing a link between this application and the Government’s proposed data retention policies (see AFR article here). The data that the ISPs will use to identify their account holders if ordered to do so by the Court is data that they will be required to keep if the proposed data retention laws are introduced. The data to be used to provide the information that DBC and Voltage are seeking is likely to be required to be retained by ISPs for two years if the proposed new laws are enacted. This would significantly increase the data available to litigants who wish to take any type of legal action, including copyright infringement.

The hearing commenced at the Federal Court in Sydney before Justice Perram on Tuesday and Wednesday last week and will conclude on Wednesday, 25 February 2015.

DBC has also commenced proceedings against wholesale ISP, iSeek. The first directions hearing for that matter was scheduled for 23 February 2015 before Justice Yates, but has now been stood over until 17 March 2015 and moved to Justice Perram’s docket. DBC and Voltage clearly intend to set a precedent with this application and have acknowledged in Court that it is the first of its kind in Australia. Counsel for DBC said in oral submissions that a further 6,000 plus IP addresses would be revealed from a “run of the software as of today”. If the current application is successful, it is likely to be the first of many of its kind.

The proposed code to tackle online copyright infringement has now been released for public comment and is expected to be submitted to ACMA for registration on 8 April 2015.