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iiNet challenges Dallas Buyers Club's expert witness

The expert witness flown from Germany to explain how Australian IP addresses were caught sharing Dallas Buyers Club over peer-to-peer services has admitted that he did not write his own affidavit.
Written by Josh Taylor, Contributor

The Australian Federal Court has heard evidence on Tuesday of exactly how Dallas Buyers Club LLC detected that customers of iiNet and others were sharing infringing copies of the Oscar-winning film of the same name over peer-to-peer file-sharing services.

iiNet and several other ISPs including Dodo are fighting an attempt by Dallas Buyers Club LLC to obtain customer details for IP addresses that were tracked by the organisation on torrents for the film.

iiNet had been receiving letters from the firm involved in the case since mid-2013, before the release of the Dallas Buyers Club film, and it was revealed that the law firm had used a German company, Maverickeye UG. According to the company's website, the organisation uses "highly sophisticated software" and "robust hardware infrastructure" to obtain data that has "quality, consistency, and relevance" for the legal system.

In other jurisdictions where the firm has obtained customer details, so-called speculative invoices have been sent to customers demanding thousands of dollars in compensation, or risk facing court action from the firm.

The Federal Court heard expert testimony on Tuesday from Daniel Macek, one of three employees of the German-based company Maverickeye who were tasked by Voltage to track users on a number of torrents of the film.

Macek, who was flown to Australia at Dallas Buyers Club's expense, told the court that he generated a list of IP addresses through the Maverickeye software. There are believed to be around 6,000 IP addresses associated with Australian accounts detected by the company.

Macek revealed that his own affidavit explaining how the addresses were obtained was not written by him, but by Dallas Buyers Club. He said he signed it without making any changes.

Macek will continue to give evidence on Tuesday afternoon.

The court also heard that Dallas Buyers Club was pushing to get the phone numbers and email addresses of customers alleged to have infringed, but would settle for just email addresses when a residential postal address is not available.

The firm also admitted that account holders were not necessarily the infringers, but that in obtaining the account details, the firm would have a better idea as to who to target for the infringement.

Dallas Buyers Club counsel Ian Pike also objected to iiNet providing examples of the speculative invoicing letters sent in similar US cases, stating that in Australia, the format of the letters would be different.

iiNet barrister Richard Lancaster said that to send out thousands of speculative invoicing letters is a "disproportionate" response to the infringement.

The company also flagged that the court should not respond on whether to hand over the details until the government's proposed piracy code is in place. Lancaster said it would be "unbalanced" for infringers of one particular film to be targeted before the scheme is in place.

Justice Nye Perram floated the idea that a decision on the preliminary discovery could wait until the end of April for the scheme to be in place.

Both barristers and Perram noted that whatever the outcome of the case, it would likely impact the handling of future cases around peer-to-peer file sharing.

"This appears to be the first case of its kind in Australia," Dallas Buyers Club counsel Ian Pike noted.

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