Piracy2

An Update on the Dallas Buyers Club Dispute

If you read our article on the DBC dispute, you would have the full background to this case by now. If you downloaded Dallas Buyers Club illegally, you have probably read a variety of different news articles which all say different things. Here is an update of the legal dispute and how it will affect you.

Recap of the dispute

For those that are not across the issues, a short summary of the DBC dispute is as follows:

  • DBC asked iiNet to provide a list of names and addresses of all of the users (identified by their IP addresses) who downloaded Dallas Buyers Club (what is known as preliminary discovery).
  • iiNet initially refused to do so for reasons of customer privacy and the risk of speculative invoicing and bullying of customers by DBC.
  • The matter went to court and the Federal Court ruled in favour of DBC, i.e. that iiNet was required to hand over the list of names and addresses requested.
  • The Federal Court also ruled that prior to sending out infringement letters to customers, DBC needed to submit a draft letter to the judge for approval.

 iiNet’s appeal (or, lack thereof)

It was originally thought that iiNet would appeal the Federal Court decision to grant preliminary discover to DBC. They had 28 days from the date of the Federal Court ruling to lodge an appeal and they have decided not to do so. iiNet has explained its reasons for not appealing, being that there was a clear legal argument in favour of DBC. The reason iiNet opposed DBC was for the protection of Australian customers – protection which the Federal Court has now addressed.

What will I have to pay if I receive a letter?

It is still unclear what consumers will have to pay if they are found guilty of copyright infringement. Rest assured, it is not a criminal offence so the penalty will likely be a fine. In the US, penalties of up to $675,000 were issued for downloading 30 songs. It is highly unlikely that the Australian courts would allow such an exorbitant fine, so disproportionate to the offence. In Singapore, DBC took the approach of sending letters to alleged pirates asking them to ‘name their price’ for illegally downloading the movie. It differs from speculative invoicing as it does not demand high sums of money, but still may be considered a pressure tactic in asking people to agree to higher sums than they would be legally required to pay. This approach could also be seen as misleading and deceptive conduct under Australian law.

Generally under Australian law, the fine for copyright infringement is the amount of damage you have caused – so in this case, that could be the amount which you would have paid had you downloaded the movie legally. This would only amount to a fine of approximately AUD $10-20. The only issue with such a small fine is that it may not have the effect of deterring Australians from continuing to download illegally. Often courts will impose fines with the aim of deterrence, so it is possible the eventual fine will reflect this.

How do I respond to a letter?

The most important thing to remember about the letter that it is not proof that you did anything wrong. It is simply an allegation. If you do receive a letter, come to us immediately for legal advice. You may also like to consider the following:

  • Did you have an open access point or internet connection that was unsecured?
  • Were you free in giving your password out to people (friends, family, visitors, customers, etc)? If so, maybe you have a defence that it wasn’t you.

We will have additional updates to the DBC dispute as the case develops. However, in the mean time if you have any queries, questions or concerns do not hesitate to contact one of our lawyers.