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Dallas Buyers Club vows to send letters to infringers

Despite the hurdles placed on it by the Australian Federal Court, Voltage Pictures has told people who may have illicitly downloaded Dallas Buyers Club to expect a letter in the mail.
Written by Josh Taylor, Contributor

The 4,726 Australians alleged to have downloaded an illicit copy of the Academy Award-winning film Dallas Buyers Club between April and May last year should expect a letter in the mail, according to Voltage Pictures, but that will not lead to an immediate demand for a payment.

On Tuesday, Justice Nye Perram ordered iiNet, Dodo, and four other internet service providers (ISPs) to hand over the details of account holders associated with 4,726 IP addresses alleged to have downloaded the film, but with a catch: Voltage will need to pay the costs for the ISPs, and the court must see a draft of the letters to be sent out to customers before any details will be handed over.

This was designed to avoid so-called "speculative invoicing", which Voltage has used in the US to demand up to $9,000 in compensation or face having to pay potentially hundreds of thousands of dollars in damages under court order.

The company had similar restrictions placed on it by a Canadian court in February 2014, and that case is still in the appeals process, with no notices sent out to customers yet.

Still, Voltage is vowing to proceed with sending out notices to convey a message to Australia that infringing on the copyright of its films will not go unnoticed. The company's vice president of royalties Michael Wickstrom told Triple J's Hack program on Wednesday that alleged infringers should expect letters in the mail.

"We're developing some kind of system that becomes a deterrent," he said.

"We're the first film maker to say enough is enough; if we don't change the business model, we will fail. We want to continue as a business, but when I see piracy rates in Australia above 50 percent, that's not a business model that can be sustained."

Wickstrom said the type of letters will vary depending on the severity of the alleged infringements.

"Some of the people we go after have a network of hundreds of films uploading. That's when you're going to see these letters going public, where we've asked for $8,000 or $10,000 or $20,000 or whatever, because we realise this person has every Voltage title, Disney title, Warner titles, whatever," he said.

"This has to be stopped, because this is illegal distribution at its worst."

He said the penalties should not be "so aggressive" for first-time infringers, instead indicating that he would support a notice scheme similar to that lodged by the industry to the Australian Communications and Media Authority (ACMA) on Wednesday.

He did, however, indicate that he supported ISPs cutting off internet access by repeat infringers, something ruled out by ISPs and rights holders in the code in Australia.

The letters would be the start of a conversation, Wickstrom said, with the account holder to identify who downloaded the infringing copy of the film.

The amount of compensation is likely to be much lower in Australia than in the US, according to Shelston IP partner Mark Vincent.

"I think the realistic expectation is that if you sue someone for infringement for a single download would be to make AU$20, as a studio," he told ZDNet.

The court may award additional damages, but Vincent said that courts have historically been reluctant to do so.

"There is some ability for an Australian court to find that additional damages are warranted under Section 115 of the Copyright Act. That section has been used sparingly by the courts, and has only been used for the most flagrant cases of infringement," he said.

"And even so, they've been pretty modest, in the low tens of thousands."

Voltage Pictures may seek to recoup some of its court costs, but Vincent said it would be difficult for the company to seek costs from all 4,726 alleged infringers.

He said individuals may face having to pay court costs should the cases go to court, but most individuals would be encouraged to make an offer to settle the case, and win back their own costs.

"So it is possible for an individual infringer to say 'well in terms of damages, I will pay you AU$25', and if you don't beat that award, I am going to seek costs from you. It is not a forgone conclusion that there would be a big costs bill for an individual infringer," he said.

He said that the court rules made Australia "not a great jurisdiction" for rights holders to chase individual downloaders.

"Certainly not compared to the US. No one would do it as a money-making exercise -- pursue an individual infringer. It could only be to make a stand for the purpose of educating the public about the appropriate forms of conduct online, and keeping the debate rolling on," he said.

"It's a debate that isn't finished, and won't be finished for the foreseeable future -- and may never be finished as technology keeps changing."

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