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Dallas Buyers Club piracy judgment expected in three weeks

When ISPs sought to prove to the court that a new code will be in place to deter and warn alleged online copyright infringers, Dallas Buyers Club LLC pointed out that businesses and mobile customers would be exempt from the code.
Written by Josh Taylor, Contributor

Dallas Buyers Club LLC will likely know in less than a month whether it will be allowed to access the names and postal addresses associated with the 4,900 Australian IP addresses that illicitly downloaded Dallas Buyers Club over peer-to-peer services during seven weeks in 2014.

Dallas Buyers Club is seeking customer details in order to send letters to those customers. iiNet has warned that the letters would be "threatening", and would demand thousands of dollars in compensation, as has occurred in the United States.

At the close of the third and final day of the hearing, Justice Nye Perram reserved his judgment, and said he would likely come to a decision in three weeks.

This would mean that Perram's decision will likely come down around the time when the Communications Alliance will be seeking to lodge its new code to crack down on online copyright infringement with the Australian Communications and Media Authority (ACMA).

The code, of which a draft was released on Friday, would see Australians sent up to three notices for alleged infringement. ISPs would then offer rights holders the ability to get the details of those customers who received three notices, through a court order, and pursue damages.

The barrister for iiNet and the other ISPs, Richard Lancaster, on Wednesday tabled a copy of the draft code, and argued that "the landscape had changed" and it would be a superior solution to rights holders seeking one-off court orders.

"This is not just the ISPs opening gambit for a code, but there is a process set up by which industry participants on both sides of the scale have been participating in what has occurred," he said.

"The landscape has changed, and will have changed from the [Roadshow v. iiNet] perspective. The argument is there are good reasons for ISPs to take a registered code very seriously. There are good statutory reasons why iiNet will take the code very seriously."

Lancaster admitted, however, that the code would not apply retrospectively to the Dallas Buyers Club infringements, which took place in 2014.

"Although it won't apply to Maverickeye notifications from 2014, it will be very relevant to what can be regarded as a reasonable and proportionate response," he said.

Dallas Buyers Club LLC barrister Ian Pike disagreed, stating that the code only covers fixed-line services, and not mobile or businesses.

"It doesn't appear to be retrospective at all [and] it does not cover the field of telecommunication services," he said.

"So you can evade the code by incorporating?" Perram asked. "You'd have to be pretty serious to do that."

Pike said the code is "not a strong factor" that Perram should consider in whether to hand over the details of alleged infringers.

Lancaster argued that sending out 4,900 letters, all demanding settlement payments, would be a disproportionate response to the copyright infringement, because not all of the 4,900 account holders would have been the direct infringers. It could be an open Wi-Fi network, or someone else in the household who was responsible.

Perram said that it would have to be a "coincidence of galactic proportions" for all the IP addresses to be inaccurate.

Pike said the account holder could very likely be the infringer.

"There is a very real chance that the infringer is the account holder. The fact that it can't be said that the account holder is definitely not the infringer."

Lancaster argued that the film studio should be more focused on people who download multiple films, not just one film in particular.

"An industrial downloader?" Perram asked.

"If not industrial, then a very enthusiastic downloader," Lancaster responded.

Pike said that Dallas Buyers Club LLC should not be excluded because it was related to just one film.

iiNet had sought to cast doubt on the accuracy of the Maverickeye software used to track alleged infringers, claiming that the dynamic IP addresses may not match the correct customers at the time that the alleged infringement was recorded by the system. The expert witness cross-examined during the case, technical analyst Daniel Macek, was unable to explain how the system worked.

"Macek didn't write the code. It's something of a black box," Lancaster said.

On Wednesday, Perram said that Lancaster's cross-examination was "unfair", and the company's other technical expert would have been able to explain the software if she were brought in for cross-examination.

Lancaster said iiNet did not realise Macek would not be able to answer those questions.

"He was put forward as the technical analyst who produced these schedules," Lancaster said.

"We were not to know he was a relatively young, relatively inexperienced user of the Maverickeye system."

During the hearing, it was never fully established as to which company, whether Voltage Pictures, Dallas Buyers Club LLC, or one of its distributors, owned the copyright to the film in Australia.

Perram said he was "flummoxed" about who the owner was, and Pike said that while the ownership might have been "a little unclear", he made it "tolerably clear" for the case to proceed.

Perram reserved his judgment.

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