By Judith Miller and Matthew Evans
On Tuesday 7 April 2015, a single Federal Court Judge ordered six internet service providers (ISPs) to hand over the names and identities corresponding to approximately 4,700 unique IP addresses, which have allegedly downloaded and shared the Dallas Buyers Club movie without permission over the peer-to-peer sharing network BitTorrent.
The ISPs (iiNet, Dodo, Internode, Amnet Broadband, Adam Internet and Wideband Networks) resisted the application arguing that any claim against a “would be” infringer by the Dallas Buyers Club was too speculative and more evidence was required before discovery should be ordered. They further argued that the Court should use its discretion to not allow discovery because:
- no prospective claim by the Dallas Buyers Club could make commercial sense i.e. the cost of litigation would heavily outweigh the amount recovered in each case
- stringent privacy laws protected the disclosure of customers’ personal information and, given the arguably weak case of the Dallas Buyers Club, customers privacy should be protected.
The ISPs requested that if the court found in Dallas Buyers Clubs’ favour, that they be constrained in two ways. Firstly, that they should not be permitted to send what is referred to as a “speculative invoice” to account holders. Secondly, the Court should ensure that the privacy of the account holders is protected.
Speculative invoicing is the practice of sending an aggressive letter to a person asserting that they are liable for a large amount of money, and stating they will be taken to court unless they pay a smaller, but still substantial, sum of money. It has been a common practice of the parent company of Dallas Buyers Club LLC and the owner of the intellectual property rights in the movie, Voltage Pictures.
His Honour, Justice Nye Perram, rejected each of the ISPs’ substantive arguments and ordered discovery of the identities of the ISPs’ customers but agreed with the two constraints. He ordered that the Dallas Buyers Club LLC could only use the account holders’ information for the purposes of recovering compensation for the infringements and secondly that it must submit a draft of any letter it proposed to send to account holders to the Court, in order to prevent speculative invoicing.
The ISPs have 28 days to decide whether they will appeal the decision to the full Federal Court of Australia.