Illegal Downloaders Could be Bullied into Paying Settlements

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People who illegally downloaded the movie “Dallas Buyers Club” could face legal action if a bid to obtain the identification details of 4,762 people who downloaded the movie is successful.

The owners of the movie have been embroiled in a legal battle with internet service provider iiNet for access to the names and addresses of people who it believes downloaded the movie using illegal file sharing.

The hearing has now commenced at the Federal Court, with questions raised over some of the evidence.

The background

The Dallas Buyers Club LLC initiated proceedings against iiNet last year in a process known as preliminary discovery. This is a bid to obtain identification details, including names and addresses of a number of IP addresses that the organisation believes downloaded their movie illegally. Other internet service providers are being targeted as well as iiNet, including Dodo, Adam Internet and Wideband Networks Pty Ltd.

So far, the ISP has refused to provide these details, maintaining that it has a duty to protect the privacy of its customers, and voicing concerns that providing their identification details could leave customers open to harassment and threatening techniques which have been undertaken in similar situations in the US.

There are also concerns about people being wrongly targeted and the lack of any legal testing by Australian courts in similar cases. On its blog, iiNet states that it doesn’t believe it is fair to provide details of alleged infringers unless they are going to be allowed the opportunity to defend themselves in court, and accused the movie studio of intending to use the information unfairly and using speculative invoicing practices.

iiNet has stated that unless it is ordered to by court, the company is not prepared to share the addresses and identification details of the IP addresses that are allegedly involved.

What are the latest developments in the iiNet piracy case?

In the latest instalment of the iiNet piracy case, the integrity and accuracy of information provided by the Dallas Buyers Club LLC has come under scrutiny after it was alleged that an affidavit from an expert witness verifying the accuracy of the IP addresses was not prepared by the witness himself, but was provided by the Dallas Buyers Club LLC and just signed by him.

This lack of validity is being used by iiNet to raise concerns that the processes of the software platform used to identify the IP addresses may not be accurate, and this could lead to people being wrongly targeted for payments.

Much of the case put forward by the Dallas Buyer’s Club LLC is dependent on the evidence obtained by the software platform, a German program known as MaverickEye that was used to detect the individual IP addresses used to download the movies, and the sworn affidavit that is being questioned is one of their most significant pieces of evidence.

Many of iiNet’s concerns focus on the techniques used by the Dallas Buyers Club LLC and similar organisations to obtain settlements in the US. The process of speculative invoicing involves sending a person a letter threatening legal action and demanding a payment. Letters sent to customers in the US requested thousands of dollars and led to one customer allegedly agreeing to pay $14,000 although iiNet lawyers argue that the loss incurred by the Dallas Buyers Club for a one-off downloading of the movie would be no more than $5 per movie.

The Dallas Buyers Club LLC has refuted allegations that it is planning to send “nasty letters” if it is given access to customer identification details, stating that the letters sent to customers in the US constituted a genuine offer to resolve the matter, and that any letters sent to Australian customers would be different and written with Australian legal and business practices in mind.

Illegal downloading is notoriously widespread in Australia and if the discovery order is granted in the Federal Court, there are concerns that it could open the door to other movie studios to contact and harass customers they allege downloaded movies illegally through file sharing platforms. This could lead to people paying thousands in fees and those in shared households or organisations with open Wi-Fi being wrongly targeted and harassed.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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