Dallas Buyers Club to pay up for expert witness flight

The expert that Dallas Buyers Club LLC used to determine which Australian customers allegedly shared the film online will be flown from Germany to Australia for cross-examination.

The key witness that Dallas Buyers Club LLC is relying on in order to force iiNet and other internet service providers (ISPs) to hand over the details of customers alleged to have downloaded infringing copies of Dallas Buyers Club will be flown from Germany to Australia for cross-examination.

iiNet and several other ISPs including Dodo are fighting an attempt by Dallas Buyers Club LLC to obtain customer details for IP addresses that were tracked by the organisation on torrents for the film.

iiNet had been receiving letters from the firm involved in the case since mid-2013 , before the release of the Dallas Buyers Club film, and it was revealed that the law firm had used a German company, Maverickeye UG. According to the company's website, the organisation uses "highly sophisticated software" and "robust hardware infrastructure" to obtain data that has "quality, consistency, and relevance" for the legal system.

In other jurisdictions where the firm has obtained customer details, so-called speculative invoices have been sent to customers demanding thousands of dollars in compensation, or risk facing court action from the firm.

iiNet is seeking to test the reliability and accuracy of the software, and requested that an expert witness who compiled the still-private expert report come to Australia for cross-examination. iiNet seeks to firstly determine whether the software used to match IP addresses with those of its customers, and the other ISPs' customers, is reliable, and then to ask the expert how it can differentiate between whether an account holder matched to that IP address has infringed, or whether someone else accessing that account, such as a person in a house using the Wi-Fi network, could have instead infringed.

Barrister for Dallas Buyers Club LLC Ian Pike, in a directions hearing in the Federal Court on Tuesday, resisted bringing the witness to Australia from Germany, given the cost involved in flights to Australia.

Pike read out from the expert report that the witness "scans the internet to identify the IP addresses of users that are making digital movies available", and has identified a number of IP addresses associated with the ISPs in Australia.

"[Your point is] who cares how he has done it; he has got the numbers," Justice Nye Perram said.

iiNet barrister Richard Lancaster SC said that he seeks to test the accuracy of the software, and for that, the witness needs to be cross-examined.

"It would not be appropriate for a respective applicant ... threatening account holders in circumstances where the account holder may not be aware of the use of an IP address at a particular time," he said.

He said that Dallas Buyers Club LLC "bringing a witness they rely on" is part and parcel of the discovery process in seeking to obtain the customer details of alleged infringers.

"It's pretty clear what he has done, it is pretty clear what the results are," Pike responded.

"You've got problems if the numbers are not the correct numbers," Perram said. "You're going to have to fly him."

Perram ordered Dallas Buyers Club to fly the witness to Australia for cross-examination. The hearing of the case has been set down for late February.

ZDNet has again sought access to the expert report, after Perram initially denied access to the report ahead of its being introduced into the court. Dallas Buyers Club opposed access to the report, while ISPs were not opposed, except for parts where IP addresses identifying customers were included.

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