14 May 2015
Dallas Buyers' Club and iiNet: orders made
by Mary Still, Carmen Culina
We now know the shape of the orders compelling ISPs to turn over details of customers whose ISP addresses were used to download the film Dallas Buyers Club.
Following on from his decision that the Federal Court can order ISPs to turn over IP addresses, Justice Perram made a number of orders outstanding from the first instance hearing on 6 May (Dallas Buyers Club LLC v iiNet Limited (No 3)  FCA 422).
Most importantly, he ordered that the ISPs, which include iiNet and Dodo Services (Respondents) provide Dallas Buyers Club and Voltage Pictures (described as the Prospective Applicants), with a verified list of each of the IP addresses nominated for each of them, together with the name and residential address of the account holder associated with that IP address. The Prospective Applicants cannot disclose that information to third parties and can only use it in order to recover compensation for infringement, including:
- identifying end-users;
- suing end users for infringement; and
- negotiating with end-users regarding liability for infringement.
Other orders made included:
- The Prospective Applicants are to provide the Respondents with a copy of the undertaking they propose to give to the court about the letter intended to be sent to account holders, together with evidence as to how compliance with the undertaking is to be enforced.
- An order requiring the ISPs to pay 75% of the Prospective Applicant's costs of the proceedings. This order is contrary to indications given by Justice Perram in his previous judgment, when he signalled that he would order that the Prospective Applicants should pay all of the ISPs' costs. In explaining the change from his initial position, Justice Perram said that the adversarial attitude of the Respondents meant that they put nearly everything in issue, leading to the case extending over three days. Justice Perram also found that although the ISPs were entitled to call Mr Macek to be a witness, the endeavour was expensive, and ultimately fruitless. The ISPs were therefore ordered to pay Dallas Buyers Club's costs of flying Mr Macek to Australia, together with his accommodation and living expenses.
There are still issues which remain outstanding such as the question of security for costs and the court's approval of the form of the letter to be sent to account holders.
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.