Dallas Buyers Club stoush returns to court

Dallas Buyers Club LLC's 'new' effort to unearth details of alleged pirates will be heard in December

Lawyers representing the rights holders of the 2013 movie Dallas Buyers Club today returned to court for the first time since an August judgement that stymied efforts by Dallas Buyers Club LLC and Voltage Pictures to obtain the personal details of alleged movie pirates.

DBC LLC in 2014 initially launched Federal Court action that sought the details of ISP customers linked to IP addresses that allegedly participated in the unauthorised downloading of Dallas Buyers Club via BitTorrent.

A group of Internet service providers led by iiNet opposed the studio's application for preliminary discovery on the basis that it could lead to speculative invoicing: A practice DBC and Voltage Pictures are claimed to engaged in in overseas jurisdictions whereby a letter is sent to illicit downloaders demanding a substantial financial settlement in exchange for indemnity from a potential copyright-related lawsuit.

The DBC application was granted. However, the judge presiding over the case, Justice Perram, imposed a stay on his orders granting discovery, in order for the court to assure itself that DBC LLC would not engage in speculative invoicing.

DBC LLC was compelled to submit to the court the draft letter it intended to send to alleged pirates and a telephone script that would be used as a guide to contact with ISP customers.

It also made a confidential submission about the formula it would use to devise a proposed financial settlement for individuals. Individuals could be offered different settlements depending on their personal circumstances, lawyers representing the company said.

In his August judgement, Perram revealed that DBC's formula incorporated four elements: A claim for the cost of purchasing a copy of the movie, damages arising from the amount of money it had cost DBC to obtain each infringer's name, a "substantial" licensing fee for infringers’ uploading activities, and punitive damages depending on how many copies of other copyrighted works, even those to which DBC did not own the rights, had been downloaded by each individual.

Although the first two grounds were permissible as the basis for proposing an out-of-court-settlement, the other two were not, Perram ruled.

Perram ruled that if the court received a written undertaking from DBC to only contact the relevant ISP customers to seek the cost of a copy of the film and a portion of its legal costs then he would lift the stay.

To ensure DBC abide by the conditions the judge imposed, a $600,000 bond would need to be lodged with the court.

On 23 September DBC applied to the court for a series of interlocutory orders to lift the stay.

The new application seeks details on only a subset of the customers linked the more than 4700 IP addresses the company originally submitted, and seeking a consequentially reduced bank guarantee of 10 per cent of the original $600,000 bond set by Perram.

Today's directions hearing focussed on the date for an interlocutory hearing for the new DBC application. The parties will now return to court on 9 December.

Perram said that he would hear the DBC application although it "does look like I've decided this case and that's probably the end of it".

NSD1051 of 2014 - Interlocutory Application


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