On 16 December 2015, another chapter (and perhaps the final chapter) closed in the long running dispute between the rights holder of the film Dallas Buyers Club (DBC) and six Australian ISPs. Justice Perram of the Federal Court of Australia dismissed DBC’s application for preliminary discovery of the identities of over 4,000 Australian BitTorrent users who allegedly shared copies of the film.
As we reported in April 2015 (see here), Justice Perram initially ruled in favour of DBC ordering six ISPs to disclose the details of 4,726 customers. However, the Court was concerned this information would be used to write to account holders making demands for payments very much excess of what might actually be recovered in any actual suit (a practice known as “speculative invoicing”). To address this concern, the Court adopted the novel approach of making the release of account holder information conditional on DBC submitting for the Court’s approval a draft of the letter of demand proposed to be sent to the relevant account holders.
In August 2015, DBC proposed a form of letter of demand for the Court’s approval, but the draft was rejected. DBC sought to demand, among other things, (a) a notional licence fee for the non-exclusive right to distribute the film over the BitTorrent network because downloaders had also uploaded slivers of the film; and (b) additional (or punitive) damages available under section 115(4) of the Copyright Act 1968 (Cth). Justice Perram found that these heads of damages were unlikely to be recoverable against the alleged infringers. His Honour required that any letter to an account holder demanded no more than the retail purchase price of the film and a portion of the applicants’ unrecoverable costs associated with obtaining the account holder’s details.
In the present application, DBC sought to once again include additional damages and a notional distribution licence fee in its proposed letter of demand. However, these proposed additions were wholly rejected by the Court. Justice Perram has now ordered that if DBC takes no further step in the proceeding by 11 February 2016 the proceeding will be automatically terminated.
This decision should not be read as a final determination on whether a substantial damages award is available against individual peer-to-peer file sharers. Indeed, Justice Perram recognised that in certain circumstances an award of additional damages might be appropriate. However, DBC was unable to demonstrate, through evidence, exactly what damages it sought and how they were to be calculated. Another important factor in dismissing the application was the public interest in bringing finality to prolonged and costly interlocutory proceedings.
Whether this is the last we see of the Dallas Buyers Club dispute is yet to be seen, but given the history of this dispute and the substantial amount already invested in the action, an appeal is not out of the question. Justice Perram recognized the importance of the decision and has already indicated he would grant leave to appeal.