The Federal Court of Australia in Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317 ordered iiNet and five other Internet Service Providers (ISPs) to hand over the names and addresses of customers who allegedly infringed copyright in the 2012 film Dallas Buyers Club (Movie), as part of an application for pre-litigation discovery brought by the applicants (Application).

The ISPs were unsuccessful in their attempts to resist the Application on a range of grounds including that:

  1. The applicants’ evidence failed to sufficiently identify the allegedly infringing IP address;
  2. The claims against the customers were speculative;
  3. The applicants had failed to satisfy the preconditions required under the Court Rules for the Court to make orders regarding pre-litigation discovery; and
  4. The applicants had not proved that they are the owner of the copy into the Movie.

The Court, having rejected each of the above arguments, ordered the ISPs to hand over the names and addresses of the customers subject to certain conditions.  The conditions were imposed so as to ensure the privacy of those customers remained intact while at the same time endeavouring to regulate the conduct of the applicants to ensure it was neither oppressive nor in breach of the Australian Consumer Law or the Australian Securities and Investment Commission Act.

Repercussions for ISPs

This case is likely to provide a template for similar applications to be made against ISPs by other copyright holders whose rights have been infringed.  Given the protection afforded to customers under the Australian privacy laws, ISPs will only comply with such requests if required to do so by virtue of court orders.  This may represent an increased cost of business for ISPs in dealing with such pre-litigation discovery applications. Whether such costs would be recoverable under the ISP’s insurance would depend upon the terms of such policy and whether it provides legal cost coverage in circumstances where such costs are incurred to protect customers’ confidential information rather than to defend a claim against the ISP.

For our case summary, click here.

For a link to the judgment, click here.