by Alan Arnott

The iiNet, Dallas Buyers Club decision: Should you be concerned?

Apr 08, 20154 mins
Technology Industry

In what has been described as a landmark court case, the Federal Court of Australia on Tuesday handed down a decision that has alarmed many people in the community.

The court decided that Dallas Buyers Club LLC and Voltage Pictures LLC will be able to obtain the name and physical addresses of the customers associated with each of the 4,726 IP addresses identified as sharing the film Dallas Buyers Club using BitTorrent over the Internet.

However, copyright infringement and being pursued for it is nothing new. For example, in 1975, the High Court of Australia held that the University of New South Wales had authorised the infringing reproduction of literary works by providing photocopiers.

In 2000, the United States Supreme Court held that Napster, a supplier of peer-to-peer software used for sharing music and other files online, was liable for certain types of infringement carried out using its network.

In Australia, in the case of Cooper v Universal Music Australia Pty Ltd, Cooper, the owner of a website which included hyperlinks to music stored on other websites, was found to have authorised copyright infringement.

Finally, the Business Software Alliance (BSA), representing a number of the world’s largest software developers has, for many years, been cracking down on illegal copying of software. In November 2014, the BSA reportedly settled a case concerning the illegal use of Adobe Photoshop and other software by an architectural drafting business operating in Victoria for $118,000.

So why then is everyone so surprised that the Federal Court on Tuesday handed down a decision in favour of the rights owners?

The reason could be that for many years now copyright infringement via the Internet has become so widespread and mainstream both in Australia and overseas that many people have wrongly assumed that they are somehow insulated from potential claims by rights holders.

However, that assumption is likely to be misplaced. People who are savvy enough to operate a BitTorrent client to download unauthorised copyright material may find it difficult to argue that they were unaware that what they were doing was wrong.

The decision handed down by the Federal Court is by no means a fait accompli for rights owners. It does not confirm the liability of any person for illegally sharing copyright material online. Rather, the decision only grants the rights owners of Dallas Buyers Club access to the names and physical addresses of ISP customers associated with the relevant IP addresses in question.

This is because the rights owners currently have been unable to identify the individuals who are alleged to have carried out the illegal sharing of Dallas Buyers Club online. To address this difficulty, they sought orders from the court that would allow them to identify those customers by way of what is known as a preliminary discovery application.

Unless the decision is reversed on appeal, iiNet and the other ISPs involved in the case will have to hand over the names and physical addresses of their customers.

This is not the end of the road. Rights owners still face a number of difficulties before any individual person can be held liable. For example, merely because an individual customer may have been connected to the Internet via a specific IP address does not necessarily mean that the person actually shared the copyright material. It could have been another person who used the IP address, such as another member of the household or even a hacker who accessed the Internet through an unsecured Wi-Fi network.

In one case, a New York court even reportedly went as far as recommending that a case be dismissed because discovering the identity of an individual associated with a device connected to an IP address was unlikely to reveal the identity of the true defendant.

Online piracy and the potential claims that may be made for illegally sharing copyright material online should not be underestimated. In one case in the United States, Illinios federal court Judge John Lee reportedly ordered a defendant to pay $1.5 million in damages for sharing 10 movies online via BitTorrent. In some overseas cases, prison sentences have also been awarded.

Alan Arnott is a technology lawyer with Arnotts Technology Lawyers in Sydney.