Dallas Buyers Club LLC, Internet service provider iiNet and a number of other ISPs today returned to court in a battle over the attempt to obtain the contact details of people alleged to have engaged in online copyright violations.
DBC are seeking to obtain the details of people associated with a set of IP addresses that it alleges engaged in unauthorised downloads of the 2013 film Dallas Buyers Club.
DBC engaged the services of Germany-based company Maverick Eye to capture the IP addresses associated with the downloading of Dallas Buyers Club via BitTorrent.
"The primary use of those [peer to peer] networks are to share entire movies, DBC contends," said Ian Pike SC, acting on behalf the company.
DBC currently "does not know anything other than the IP addresses" associated with BitTorrent downloads.
An individual who downloaded the film may or may not be the holder of the account associated with the IP address, Pike said, with DBC acknowledging the possibility suggested by Justice Perram of houses with multiple residences or downloading via public hotspots.
However, obtaining the details of account holders associated with an IP address will help DBC pursue the people responsible for illicit downloads.
The ISPs — iiNet, iiNet subsidiaries Adam Internet and Internode, Amnet Broadband, Dodo and Wideband Networks — "have documents that would assist in identifying the prospective respondents" if DBC moves to potentially drag downloaders into court.
"The documents we seek .... will help ascertain the prospective respondents' description," Pike said.
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"The problem of illegal downloading of movies using peer-to-peer networks is not a new one," Pike said.
In the iiNet case in the High Court of Australia, where the ISP fought off an attempt by film studios to make it responsible for copyright infringement some its users had allegedly in, it was acknowledged that end users were breaching copyright, Pike said.
Although the likelihood of the introduction industry code providing some recourse for rights holders "has been increased" there is no guarantee that it will be acceptable to DBC.
The introduction of an industry code is part of the federal government's anti-piracy crackdown. The government has pushed for the telco industry and rights holders to jointly produce a code that will be registered by the Australian Communications and Media Authority (ACMA) under Part 6 of the Telecommunications Act 1997.
In a letter sent to rights holders and ISPs last year, the government said that the code should mandate that ISPs take "reasonable steps" including a warning notice scheme "to deter online copyright infringement on their network, when they are made aware of infringing subscribers, in a manner that is proportionate to the infringement".
The code must also "include a process for facilitated discovery to assist rights holders in taking direct copyright infringement action against a subscriber after an agreed number of notices".
Representing the ISPs, barrister Richard Lancaster SC said that the judge could take into account statements of government policy — such as the impending reforms of Australia's copyright regime — in formulating his decisions.
Lancaster warned of the potential if DBC is successful for the creation of an "obviously unbalanced situation" where legal proceedings could be brought against individuals alleged to have infringed copyright "for damages that on [DBC's] own evidence won't be more than US$5 dollars a movie or so.... [the] court wouldn't put itself in the position of a copyright tribunal."
"The ISPs accept that ... the unlawful, unauthorised downloading of copyright material without permission is a blight that needs to be remedied," hence the efforts to develop an industry code, Lancaster said.
The ISPs are challenging DBC's evidence on a number of grounds. These include the method used to create the hashes used by Maverick Eye to identify whether a file being shared over BitTorrent is a copy of Dallas Buyers Club.
"The question of the reliability of the process is a fundamental one," Lancaster said, and ISPs should have been invited to observe tests of the hash creation process.
DBC has also challenged some of the evidence the ISPs have attempted to introduce, such as letters sent to downloaders by US attorneys acting on behalf of DBC that Lancaster said are different to the communications the company has indicated it wishes to send ISP customers.
iiNet has previously indicated it fears its customers will be subject to "speculative invoicing" if DBC's application for preliminary discovery succeeds.
"Speculative invoicing, as practiced overseas, commonly involves sending intimidating letters of demand to subscribers seeking significant sums for an alleged infringement. These letters often threaten court action and point to high monetary penalties if sums are not paid," an iiNet blog entry published last year stated.