The deadline expired on Thursday 11 February 2016 for Dallas Buyers Club LLC (DBCL) (makers of the film Dallas Buyers Club) and Voltage Pictures LLC to appeal the latest decision of his Honour Justice Perrami in this long running dispute against iiNet and various other internet service providers (ISPs) for copyright infringement. In his decision in December 2015, Perram J made a self-executing order to terminate the proceedings, stating that “some finality must now be brought to these proceedings”.ii
The detailed facts and historical progress of the case can be found in our previous focus papers (Australian Solution to Piracy – Industry Code for Internet Service Providers, Landmark Piracy Case – ISPs to Hand Over Customer Details, Speculative Invoicing – not the Australian Way and That’s the ball game Y’all – Federal Court dismisses Dallas Buyers Club piracy case).
For those who illegally downloaded the Dallas Buyers Club film in Australia, the result is no doubt a relief. Had DBCL been successful, those parties were facing disclosure of their information and possible legal claims arising from such conduct. Similarly, from the perspective of iiNet and other ISPs, the result is also being heralded as a successful one.
The former iiNet director Steve Dalby tweeted that it was a "Bloody awesome conclusion! Not good as the High Court 5-nil decision, but we'll take it. Sucks to be you, Hollywood". For DBCL it is not all bad news, as their efforts to prosecute illegal downloaders overseas have been reported as being far more fruitful. Nevertheless, their efforts in proceeding with this case to date in Australia would not have come cheaply and without much effort and in the end this will be a disappointing outcome.
It is important to note that the Court’s dismissal of these proceedings is not a confirmation that consumers can pirate copyright content without being pursued. The August 2015 order made by Perram J granting DBCL access to information concerning those who downloaded the film, confirms that action may be commenced against such individuals and information disclosed.
The real issue is what can then be done with that information. As we noted in our earlier focus papers, this case does highlight that speculative invoicing and so called "bullying" tactics, which in the Courts' view over-reach what is seen as a reasonable response and remedy for copyright owners, will not be supported or permitted to occur.
This is not likely to be the last case of this kind we see. It was only the specific demands DBCL sought to make of individual infringers it seems (coupled with the fact that the relevant companies bringing the claims were overseas, necessitating the large bonds also imposed by the Court) which prevented this case from further proceeding.
While the game is over for the makers of Dallas Buyers Club (unless they consider fresh proceedings which looks unlikely), it is always possible other rights holders may seek to bring a similar action to uncover user details. If so, these claims could be successful if they are then pursued on terms more agreeable and reasonable in the Courts' view.
We will watch with interest to see how this issue unfolds in the future. With suppliers of on-line streaming content into Australia regularly increasing, with providers such as Stan and Netflix, those who download illegal content would be naïve to consider that there will not be future legal actions or that they are in somehow immune or protected from being identified and pursued in the future.