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Dallas Buyers Club wants to know torrenters' wage and download history

'Are you now, or have you ever been, a torrenter?' is just one question that Voltage Pictures is seeking to ask people alleged to have illicitly downloaded Dallas Buyers Club.
Written by Josh Taylor, Contributor

The law firm chasing 4,726 Australians alleged to have illicitly downloaded Dallas Buyers Club has indicated that it will ask for the annual income and what other films the person has downloaded in letters to be sent out in the next few months.

In April, iiNet, Dodo, and four other internet service providers (ISPs) were ordered 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 from downloaders up to $9,000 in compensation or the threat of having to pay potentially hundreds of thousands of dollars in damages under court order.

Drafts of the letter and a telephone script have been submitted to the court, but have not yet been made public.

In an interlocutory hearing on Thursday, Counsel representing the ISPs, Richard Lancaster, said that the telephone script used to call alleged infringers and the letters to be sent are still very strongly worded, framing the allegations as proof that a household and the person sent the letter or contacted on the phone had personally downloaded the film.

"There's a problem with that, because among other things, there is the possibility there isn't an infringement," he said.

He said that Voltage also comes on too strong in terms of the questions it asks customers in determining the damages to be paid by each individual infringer.

The questions include what a person's annual income is, and how many titles the person has illicitly downloaded over peer-to-peer file-sharing services "now and in the past".

Lancaster said that there is no justification for asking those questions, and that it could result in a "Royal Commission" into the use of file-sharing services for copyright infringement.

"There is no respondent out there to copyright infringement who is required before the identification for a potential course of action ... to be required to state or provide information about their other activity," he said.

Counsel for Voltage, Ian Pike, said that the questions would be used to determine the financial hardship of particular alleged infringers, and whether it was just a one-off.

"We are entitled in the letter to assert in reasonably firm terms why we contend there has been copyright infringement. Nothing in the letter oversteps the mark. They are perfectly proper questions. We would be criticised if we didn't ask them," he said.

Voltage is also seeking to exclude a dollar figure in the letter and telephone script for how much it will seek in damages for sharing the film online. Pike said there is "no one-size-fits-all" number, because it would depend on the financial hardship of the alleged infringer, the number of times the film was shared online, and whether it was a one-off or the infringer had a history of illicitly downloading films.

It is not clear how Voltage intends to determine what other films an alleged infringer has downloaded, outside of asking them in the letter.

Justice Nye Perram said he needs to be convinced that he isn't just giving Voltage "a blank cheque" to then ask the alleged infringers for much more compensation, and has asked the firm to provide a confidential methodology on how it will be determining the compensation sought from each of the 4,726 users.

The methodology includes a licence fee, a contribution to the court costs, and damages based on how many times the film was shared online by a particular user.

Pike also sought to make the letters and telephone script confidential, to "avoid confusion" should media publish the letters that the public should expect to receive. ZDNet has sought access to the letter and script in question.

Perram on Thursday ordered the original securities paid by Voltage in November 2014 be released back to Voltage, and has not yet made a decision on costs to be paid to Voltage, or securities for ISPs to hand over customer details.

The ISPs have argued that the bond paid should be high to ensure that Voltage, which resides outside of the Australian jurisdiction, does not just take customer details and ignore the court order around the form of the letter and script, and begin speculative invoicing.

Voltage has argued that the bond should be in the range of AU$20,000.

Perram indicated that he would make a final decision on the case by July 15, 2015.

It comes as this week, the House of Representatives passed legislation -- supported by the Coalition and Labor -- that would force ISPs to block sites under court order that infringe on copyright.

The site-blocking legislation is expected to be debated in the Senate next week. Greens Communications spokesperson Scott Ludlam said the Greens would seek to challenge the Bill's passage in the Senate.

"The government has proceeded with a punitive site-blocking regime and completely ignored more practical options for copyright reform that have been on the table for years. At a bare minimum, we need to see the government's response to the Australian Law Reform Commission's review into copyright law before legislating for an internet filter directed by foreign rights holders," he said in a statement on Thursday.

"This is a dangerous and unnecessary piece of legislation that potentially criminalises legitimate use of VPNs or other tools."

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