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Dallas Buyers Club abandons piracy court case

Dallas Buyers Club has bowed out of its court case seeking damages from the 5,000 people who downloaded the movie, declining to make an application or file for leave to appeal in the allotted time.
Written by Corinne Reichert, Contributor

Dallas Buyers Club (DBC) has declined to make an application or file for leave to appeal the Australian Federal Court's ruling in its bid to claim damages from the almost 5,000 people who allegedly infringed on the studio's copyright by downloading the film of the same name, Crikey first reported.

In mid-December, the Federal Court had ruled that DBC would not be permitted to seek damages from the customers associated with 4,726 IP addresses that had allegedly breached the copyright of Dallas Buyers Club by downloading infringing copies of the film, because DBC had overreached in its grab for compensation.

Unless DBC made an application or filed for leave to appeal the Federal Court's decision to the Full Court -- for which Perram noted he would be inclined to give leave -- the proceeding was to be dismissed in its entirety with costs on midday, February 11, 2016.

"There will be no appeal," Michael Bradley, counsel representing DBC, confirmed to ZDNet. "Our client decided it has better things to do for now."

In his judgment on the matter, Justice Nye Perram said he would have allowed DBC to send letters seeking damages from those who allegedly infringed its copyright as long as it only sought damages based on the retail price of the film and the costs associated with obtaining each infringer's details.

However, DBC continued fighting for additional damages based on a one-off rental fee and a licence fee for uploading activity -- two claims that Perram ruled to be "untenable" in August, therefore not allowing the company to send letters seeking damages from infringers.

DBC then returned to the Federal Court in December in another effort to extract these additional damages, citing recent precedent supporting its claim.

"It would get us both rental fee for use of the one-off copy, and it would also give us the licence fee that would be reasonably available for the uploading, which was Part B in Your Honour's reasoning," DBC told Perram J.

"We will set out in our submissions what is a very modest claim."

Counsel representing the internet service providers (ISPs) disagreed with DBC's argument, saying the claim would not be modest.

Had its arguments been successful, they would have seen DBC claim total damages from each infringer based on the cost of legally purchasing the film, a one-off rental fee, a licence fee for uploading activity, and damages covering the cost it took for DBC to obtain that infringer's details.

Perram, however, reaffirmed that there is no way to determine a reasonable licence fee for downloading the movie, and allowing DBC and iiNet to argue over this in court could prolong the case to the detriment of the public.

"It needs to be kept in mind that what is before the court is a preliminary discovery application, not Ben-Hur," Perram said.

"The interests of justice are not served in comparatively modest procedural litigation such as the instant case by permitting no stone to go unturned. The enterprises of the parties must be kept proportionate to what they are arguing about."

Perram said there would also be no way for DBC to discover each individual infringer's uploading activity, meaning DBC could not claim damages under this head.

Perram also declined to lift the AU$600,000 bond.

In April last year, Perram ruled that ISPs iiNet, Dodo, Internode, Adam, Amnet, and Wideband were 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, DBC'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.

While the draft letters did ask for information on each infringer's wage, they did not mention a financial amount for compensation, with DBC saying that the fines would not be doled out in a "one-size-fits-all" approach, and would rather be calculated using a formula for each infringer.

TPG, which now owns iiNet, did not respond to a request for comment.

Updated at 2.50pm AEDT, February 11: Added comment from counsel representing DBC.

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