On 7 April 2015 Justice Perram of the Federal Court of Australia, ordered 6 Australian Internet Service Providers (ISP’s) (the Respondents) to release the personal details of selected account holders to ‘Dallas Buyers Club LLC’ and ‘Voltage’ (the Applicants). The IP addresses of those account holders had allegedly been identified as infringing the copyright of the movie ‘Dallas Buyers Club’.
THE APPLICANTS CASE
The Applicants alleged that:-
- They were the copyright owners of the material, “Dallas Buyer’s Club”;
- They had identified 4,726 IP addresses that had illegally shared their material;
- They had also identified the ISP’s who supplied those IP addresses; and
- Provision of the personal details of the account holders to those 4,726 IP addresses could lead to the identification of those copyright infringers. The Applicants conceded that the account holder may not actually be the infringer but that they could assist in identifying the infringing party.
In support of their allegations they submitted:-
- The affidavit of Mr Michael Wickstrom, Vice President of Royalties and Music Administration at Voltage Pictures LLC;
- The expert report of Dr Simone Richter; and
- The affidavit of Mr Daniel Macek.
Dr Richter provided details of the inner workings and reliability of Maverick Monitor 1.47 (“the software”), the software used to identify the IP addresses.
Mr Macek had used the software to identify those IP addresses. He had also watched sections of the material to confirm that the material being shared was in fact the Applicants copyrighted material.
Rule 7.22 provides that an Applicant can apply to the Court for an order compelling another party to assist in identifying a potential Respondent. The Applicants sought an Order pursuant to rule 7.22 of the Federal Court Rules 2011 (Cth) granting them access to the Respondent’s account holder information.
THE RESPONDENTS CASE
The Respondents argued that the ‘evidence’ obtained by the Applicants was insufficient for a cause of action for infringement of copyright. In this respect they noted that the Applicant’s had only obtained proof of the sharing of miniscule slivers of their material which they argued could not be considered proof of infringement of copyright at all. Alternatively, they argued that the infringement was so minor as to make any claim commercially unviable. His Honour did not accept this argument stating that whilst the Applicant’s may only have proof of the sharing of a sliver of the material he believed it would be rare for anyone to only download a sliver of the material. He considered that a sliver was evidence enough. Whether it was commercially viable or not was irrelevant. The Applicants still had a right to take action.
The Respondents challenged the Applicant’s ‘ownership’ of the copyrighted material, stating that no evidence had been provided to support this allegation and that Distribution Licence Agreements appeared to redistribute their rights. Despite the existence of the agreements His Honour was satisfied that Voltage if not also Dallas Buyers Club LLC retained the right to commence an action to protect their copyright.
The Respondents submitted that due to the above issues the Applicant could not satisfy the requirements under Rule 7.22 of the Federal Court Rules 2011 (Cth). His Honour considered that the Applicant had done enough to evidence that they may have a right to relief, that they had no further way of identifying the potential respondents and that the Respondents possessed information which could assist in identifying those potential respondents.
Should the Respondents other submissions fail they argued that an Order to disclose their customers personal information would contravene their obligations under Privacy legislation. His Honour rejected this argument stating that the legislation did not prevent him from ordering and the Respondents from complying with an order to disclose this personal information.
Finally, in the event that all else failed, the Respondents sought for the Court to ensure the protection of their customer’s personal information and the prohibition of sending any ‘speculative invoices’ to their customers. His Honour took this into account in his proposed Order.
The Applicant’s application was successful. His Honour advised that he would make an order providing for ‘preliminary discovery’ of the customer’s names and addresses. In allowing the application however, he imposed two conditions. Firstly, the information could only be used for the prescribed purposes relating to identifying and commencing action with respect to these specific copyright infringements. Secondly, the Applicant was required to submit a draft of the letter that they proposed to send to the identified account holders to His Honour for approval.
WHAT DOES THIS FINDING MEAN FOR ME?
If you download a film, music or any other copyrighted material through less than legal means (i.e. you didn’t pay for it) you will not necessarily be an invisible ‘one of many’ anymore.
The owners of that material can survey your illegal download of their material. They can then seek the courts assistance to obtain access to your internet account holder details through internet service providers. Thereafter, they can chase you down for copyright infringement.
WHAT CAN WE DO FOR YOU?
The decision of Dallas Buyers Club LLC v iiNet Limited  FCA 317 raised issues with respect to both copyright and privacy rights and obligations. If you require advice on either of these topics we would be more than happy to help.
A copy of the decision can be found here.