Dallas Buyers Club gets preliminary discovery

The Federal Court of Australia in Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317 recently granted an application for preliminary discovery made by companies associated with the film “Dallas Buyers Club”. The applicants were seeking the identity of a number of Australian Internet users who allegedly infringed copyright in the film by downloading and making it available for download on the Internet via the BitTorrent peer-to-peer file sharing protocol.

What is preliminary discovery?

In summary, under Rule 7.22 of the Federal Court Rules, where a person:

  • may have a right to obtain relief against a prospective respondent;
  • is unable to identify who the prospective respondent is; and
  • some third party is likely to know who the prospective respondent is, or have documents which would help ascertain their identity

The Court may order the third party to attend the Court to be examined or produce the relevant documents.  In this case, the copyright holders identified a number of Australian Internet users who were allegedly infringing the copyright on the film using a particular IP address at a particular time.  The copyright holders were unable to establish the identity of the persons using those IP addresses, however the Internet Service Provider (ISP) which provided the relevant Internet connections may have records which could identify the account holders which were using those IP addresses at the time of the alleged infringement.

The copyright holders were successful in obtaining orders for preliminary discovery from a number of ISPs, including iiNet, Internode, Amcom, Dodo and Adam Internet.

Why was this controversial?

In numerous overseas cases, primarily in the United States, copyright holders (including some of the copyright holders in this case) have obtained the identity of alleged copyright infringers via court processes (such as subpoenas), and then used this information to send very aggressive letters to the account holders, asserting the account holder was liable for significant damages (often over US$100,000) and threatening to sue the account holder unless they paid a lower amount (generally several thousand dollars) to settle the dispute.  Many thousands of account holders have been sued in the United States, with some of these cases involving arguable misuse of the Court’s processes (such as suing dozens of unrelated respondents in a single action, including respondents outside the jurisdiction of the relevant Court).

What did the Court decide?

The Federal Court held that the copyright holders had met the requirements of Rule 7.22, and rejected a number of arguments made by the ISPs as to why the Court should exercise its discretion to refuse preliminary discovery.  The Court indicated it would allow preliminary discovery, but on a number of conditions, including that the copyright holders submit to the Court for its approval a draft of the letter they propose to send to account holders.  The full decision can be read here – Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317.

Further information

If you need assistance or advice on any copyright matters, or are concerned that you may receive a demand letter, contact us on the numbers below for an obligation free and confidential discussion.

Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013
Mobile: 0419 726 535
e:mburrows@dundaslawyers.com.au

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

Dundas Lawyers
Street Address Suite 12, Level 9, 320 Adelaide Street Brisbane QLD 4001

Tel: 07 3221 0013

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