In a landmark judgment, the Australian Federal Court has ordered six Australian Internet Services Providers (‘ISPs’) to release the names and physical addresses of their customers whose internet connections have allegedly been used to illegally share the Oscar-winning movie ‘Dallas Buyers Club’. In a break from the ‘three strikes’ policies adopted in other jurisdictions, such as Ireland, the Australian court has ordered the ISPs to hand over the customers’ information so that the movie production company can write to the individuals, seeking monetary compensation. The order granted by the Court closely reflects the common law Norwich Pharmacal order, which has been used in both England and Ireland to obtain details of infringing subscribers.

Facts

Dallas Buyers Club LLC (‘DBC’) is based in the United States and claims to be the owner of the copyright in the 2013 biopic ‘Dallas Buyers Club’. Together with its parent company, Voltage Pictures LLC, it brought an application in the Australian Federal Court. The respondents are six Australian ISPs that provide internet access to those that are alleged to have engaged in illegal filesharing. 

DBC claims that it has identified 4,726 IP addresses from which their Dallas Buyers Club movie was illegally shared online using BitTorrent, a peer-to-peer file sharing network.  The company is arguing that these individuals infringed its copyright, breaching the Copyright Act 1968 (Cth). While DBC does not know the identity of the people involved, it does claim to have evidence that each of the IP addresses in question were supplied by the relevant ISPs. It also believes that the ISPs can identify the account holder associated with each IP address. Importantly, Justice Nye Perram considered that, despite the possibility of some account holders not being the infringers, they may still be able to assist the movie studio in identifying the actual infringers.

Privacy vs. Copyright

In his decision, the judge highlighted his duty to balance the intellectual property rights of DBC against the privacy rights of the Australian residents. Australian federal law protects the privacy of individuals’ telecommunications activity and, in general, ISPs must not disclose or use any information or document that relates to the affairs or personal particulars of another person.

The ISPs argued that this means they are prevented from disclosing their customers’ information to the production company. Justice Perram remarked that these privacy laws demonstrate that the privacy of account holders of ISPs is regarded by Parliament as having significant value. Nevertheless, he noted that Parliament has also given significant value to the owners of copyright by enacting the Copyright Act and by giving them the right to sue for infringement.

A similar issue arose in the English case of Rugby Football Union v Viagogo, in which Viagogo submitted privacy-based arguments against the granting of a Norwich Pharmacal order. Despite this, both the Court of Appeal and Supreme Court confirmed the order requiring Viagogo to disclose the details of third parties who were allegedly re-selling rugby tickets in breach of RFU rules.

Decision and Restrictions

In his decision granting the discovery order, Justice Perram ordered the ISPs to disclose to DBC the names and physical addresses of all 4,726 customers whose internet connections were allegedly used to share the Dallas Buyers Club movie. The judge did, however, put a number of restrictions on what the production company could do with the information. This included prohibiting the public release of the information and requiring that drafts of the compensation letters must be reviewed by him before being sent.

What Next In Australia?

It is not clear whether the decision will set a precedent, as a forthcoming Australian industry code addressing ISPs and illegal downloading may supersede it. On 8 April 2015, the Communications Alliance lodged the ‘Copyright Notice Scheme Code 2015’ for registration with the Australian Communication and Media Authority (ACMA). The Scheme requires ISPs to send an escalating series of infringement notices to consumers who are alleged to have infringed copyright online. The aim of the Scheme is to “change [consumer] behaviour and help steer them toward lawful sources of content”. While the Scheme does not contain explicit sanctions against internet users, it does provide for a similar court process, through which ISPs would assist rights holders by providing details of infringers.

Irish Position – Graduated Response

In Ireland, the High Court has attempted to curb illegal downloading by granting orders requiring ISPs to block file-sharing websites. Rights holders argue, however, that such measures can be relatively easily circumvented. Like the Australian decision, the High Court also previously granted an order against the country’s largest ISP, Eircom, to provide details of its users alleged to have illegally downloaded copyright music content.

Eircom has since been required to implement a ‘graduated response’ mechanism, which can lead to disconnection of the service of a persistent infringer. This is commonly known as the ‘three strikes’ policy. In short, if Eircom becomes aware that a customer is illegally sharing files, it will send a written warning to the alleged offender, providing them with information on alternative ways to obtain their content lawfully. If the user fails to act on the first two warning letters, the final ‘strike’ means the disconnection of the customer’s service.

Three major record companies have recently obtained an order from the Irish Commercial Court requiring UPC, Ireland’s second largest ISP, to implement a similar, two-strike, process. It is reported that following the second notification, the record company can apply for a court order directing the disconnection of the customer’s service. The Court has also ordered UPC to set up a detection system within the next 12 to 15 months. With the Australian situation in mind, it is interesting to highlight that Mr Justice Cregan noted that the evidence before him suggests that when a subscriber receives a warning letter under the Eircom ‘three strikes’ system, it brings about an overall “significant reduction” in the numbers of individuals breaching copyright on the internet.

The decision of the Australian Federal Court reveals the same issues arising in copyright litigation across the common law world. In various jurisdictions we are seeing rights holders pursue online intermediaries for information on their users that may have violated the rights holders’ IP rights.