Dallas Buyers Club continues chasing additional damages

The film studio hasn't finished arguing the point in the Federal Court, seeking additional damages from the almost 5,000 people who infringed its copyright.
Written by Corinne Reichert, Contributor

Dallas Buyers Club (DBC) has announced its intention to keep fighting in the Australian Federal Court for additional damages from the almost 5,000 people who allegedly infringed on the studio's copyright by downloading the film of the same name.

While Justice Perram voiced displeasure at the idea of revisiting the claims for additional damages, enquiring as to whether the case would continue until his retirement, DBC remained steadfast in its argument of calculating additional damages.

In April, the Federal Court ordered internet service providers (ISPs) iiNet, Dodo, Internode, Adam, Amnet, and Wideband to disclose the customer details associated with 4,726 IP addresses that had allegedly breached the copyright of Dallas Buyers Club by downloading infringing copies of the film.

However, the court also ordered the film studio to pay the ISPs' court costs and provide draft copies of the phone scripts and letters it intended to send to copyright infringers for court approval before the customer information would be provided.

This decision was aimed at preventing Voltage, Dallas Buyers Club's parent studio, from using "speculative invoicing" through which alleged copyright infringers in the US have been asked to either compensate Voltage by up to $9,000, or potentially have to pay hundreds of thousands of dollars in damages under court order.

"The court was not going to open the sluice gates until it saw the proposed correspondence, and until DBC satisfied the court that it was that approved correspondence, and not something else, such as a dead cat, that DBC was going to send to account holders," said Perram in August.

In June, ZDNet obtained a copy of the draft telephone script and letter submitted by Dallas Buyers Club to the court that the company said it would use to contact the users who had allegedly illegally downloaded the movie.

While the draft letters did ask for information on each infringer's wage, they did not mention a financial amount for compensation, with Dallas Buyers Club counsel Ian Pike saying that the fines would not be doled out in a "one-size-fits-all" approach.

Counsel representing the ISPs, Richard Lancaster, on the other hand, argued that there was no justification for needing this information.

The Federal Court had in August ruled that DBC could not send out its proposed draft letters to alleged infringers, as two of the four heads of damages claimed by the company cannot be recovered.

"The applicant was claiming four heads of damages and was proposing to negotiate with account holders in relation to those four amounts. I've concluded that two of those amounts could never be recovered, and in those circumstances, I've decided that what is presently proposed by Dallas Buyers Club in terms of its correspondence ought not to be permitted," Perram said on Friday morning.

"I therefore make these orders: I dismiss the prospective applicant's application to lift the stay of order one made by me on the 6th of May; and I order the prospective applicants to pay the respondent's costs of that application."

The four heads of damages claimed by Dallas Buyers Club in its draft letter were: The actual cost of legally purchasing the film; the infringer's uploading activity of the film; additional damages for an infringer's other downloading history; and damages covering the cost it took for Dallas Buyers Club to obtain that infringer's details.

While Perram permitted the first and last of these damages, he ruled that the film studio could not collect damages relating to uploading activity and alleged illegal downloads a person had made of other copyrighted works, as they are "untenable claims".

The Federal Court therefore would not allow the company to send the letters to infringers unless it provided a written undertaking, backed up by lodging a AU$600,000 bond with the court, to not recover damages under those two heads.

With DBC arguing on Monday morning that these damages are calculable, however, the case will reconvene on December 9.

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