Australian Court Rejects Dallas Buyers Club Copyright Trolling Demands

from the good-for-them dept

As we've been discussing over the past few months, Voltage Pictures took its global copyright trolling efforts down under not too long ago, seeking to shakedown lots of Australians for allegedly downloading infringing copies of Dallas Buyers Club. Australian ISP iiNet (who has regularly fought back against over aggressive copyright claims) pushed back. Earlier this year, the court allowed the copyright trolling to move ahead, but with some caveats, including demanding that DBC share the letter and telephone script it would be using to try to shake down people. At the time, we hoped this would prevent the standard level of shakedown -- and that appears to have happened.

The court has rejected the proposed letter and script, noting that it was demanding way too much, and thus not allowing DBC to move forward:
"The applicant was claiming four heads of damages and was proposing to negotiate with account holders in relation to those four amounts. I've concluded that two of those amounts could never be recovered, and in those circumstances, I've decided that what is presently proposed by Dallas Buyers Club in terms of its correspondence ought not to be permitted," Perram said on Friday morning.

"I therefore make these orders: I dismiss the prospective applicant's application to lift the stay of order one made by me on the 6th of May; and I order the prospective applicants to pay the respondent's costs of that application."
Part of the problem was that DBC was asking for money for the accused users uploading activity and "additional damages for an infringer's other downloading history." The court noted that was way out of bounds, calling them "untenable claims." Further, the court noted what was really going on here, calling out that it was never the intention to allow for "speculative invoicing" (the nice way of saying "copyright trolling.")

The court will let DBC send letters if it puts up a $600,000 bond promising that it won't try to recover those bogus damages. Instead, if it puts up the bond, it will only be allowed to recover damages in the form of (1) the cost of legally purchasing the movie and (2) the cost it took for DBC to obtain the user's details. In other words, DBC would need to put up the bond and then would only be allowed to collect a rather small amount from each accused user -- which likely makes the whole scheme not particularly worth it.

Apparently the judge set the bond so high because he feared that DBC would demand more money anyway and then not care, since it has no Australian presence:
"Because DBC has no presence in Australia the court is unable to punish it for contempt if it fails to honour that undertaking," he said.

"I will therefore require its undertaking to be secured by the lodging of a bond. Having had access to what it is that DBC proposes to demand ... and the potential revenue it might make if it breached its undertaking to the court not to demand such sums, it seems to me that I should set the bond at a level which will ensure that it will not be profitable for it to do so.

"I will set the bond at $600,000 which, if the undertaking is given, is to be lodged by bank guarantee with the registrar. "
In the issued order the Judge notes that he demanded from DBC to tell the court (secretly) what it was going to request from users, since that was not detailed in the proposed letter or phone script -- and notes that it does appear that the plan was very much about trolling (again "speculative invoicing."). Based on all of this, it appears that Australia will not be a particularly friendly place for copyright trolls.

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  • icon
    Ninja (profile), 14 Aug 2015 @ 9:16am

    Given Australian Govt recent actions we may see a law passed soon to "fix" that.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Aug 2015 @ 7:53pm

      Re:

      Need only look at how the High Court said ISPs aren't responsible for user behaviour. So the content companies went crying to the government about it.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 14 Aug 2015 @ 9:17am

    [Crickets.] You too thoroughly distracted the 13-year-olds with prior item of sex with school-teacher!

    Anyway, as ever, Techdirt here cheers when piracy cases are difficult to get through the courts, demanding full criminal level of process for low loss and low return if pursued.

    But being able to get away with a taking, and difficulty of beyond-reasonable-doubt prosecution isn't a standard you'd want followed if were YOUR STUFF being taken and enjoyed without return. You're large numbers of rats eating away at civilization, not trading values as humans should. Just admit that, then you'll inevitably convert to my views. -- Or stay piratey, even better for hootage!

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 14 Aug 2015 @ 9:19am

      Re: [Crickets.] You too thoroughly distracted the 13-year-olds with prior item of sex with school-teacher!

      CRICKETS for hour and half, then of course one of the rats manages to slip in ahead of me to STEAL me being first! You pi-RATs just love to annoy!

      reply to this | link to this | view in chronology ]

    • icon
      jupiterkansas (profile), 14 Aug 2015 @ 9:36am

      Re: [Crickets.] You too thoroughly distracted the 13-year-olds with prior item of sex with school-teacher!

      If you dont like Techdirt, then why are here?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Aug 2015 @ 10:16am

      Re: [Crickets.] You too thoroughly distracted the 13-year-olds with prior item of sex with school-teacher!

      So, evidence that those pirate actually pirated the movie that resulted in the movie not making profit and not getting awards?

      Other wise, you're claiming that innocent until proven guilty is irrelevant.

      reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 14 Aug 2015 @ 11:12am

      Re: [Crickets.] You too thoroughly distracted the 13-year-olds with prior item of sex with school-teacher!

      But being able to get away with a taking, and difficulty of beyond-reasonable-doubt prosecution isn't a standard you'd want followed if were YOUR STUFF being taken and enjoyed without return.

      You must be new to Techdirt. Mike has repeatedly said TD articles are public domain or as public as they can be. Which is precisely contrary to your assertion since nobody has to pay to build upon material from TD. So your point?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Aug 2015 @ 11:36am

      Re: [Crickets.] You too thoroughly distracted the 13-year-olds with prior item of sex with school-teacher!

      boB just hates it when due process is enforced.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Aug 2015 @ 12:36pm

    Look forward to Australia showing up on a certain special report we all know and love.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Aug 2015 @ 8:40pm

    There once was an out_of_the_blue
    Who hated the process of due
    Each judge that he'd paid
    Was DMCAed
    And shoved up his ass with a screw

    reply to this | link to this | view in chronology ]

  • icon
    G Thompson (profile), 14 Aug 2015 @ 10:24pm

    Though what has been posted above by Mike was a major blow to DBC (Voltage) the most interesting thing IMO (and a lot of solicitors here) is this gift to any respondents (Does) at [37]
    Finally, as in Voltage v John Doe, I think it appropriate if this matter goes further that DBC should also undertake that any proceedings it commences should be commenced in this Court rather than in the Federal Circuit Court. And, at least in the first instance, if the undertaking is forthcoming I will direct the Registrar that any such case which is filed should be listed before me for directions. In particular, any multi-respondent or reverse class action suit should come before me for directions before it is served on any respondent.

    Basically this is stating that his Honour has instructed the Registrar (who assigns cases in the federal Court) to put ANY future mass copyright or reverse class action cases by Voltage/DBC (or any plaintiff actually) against ISPs before himself..

    This allows this Judge who is absolutely and thoroughly competent due to his brilliant understanding of the technologies and issues involved the ability to assess those cases on their merits and doesn't tie up any OTHER courts. ie: there will be No forum shopping or circuit shopping anymore!

    Specultive invoicing is basically dead in Australia before it even started, this is what we all wanted here and no matter what our Governments push through this will always be the case now. Our Judges are very au fait with this type of bullshit.

    ---------
    On a lighter note.. These statements here are Classic Perram who is quite the character ;)

    at [10] and The next round in the proceedings saw this Court make orders on 6 May 2015 which indicated that whilst satisfied, in principle, that DBC was entitled to preliminary discovery, the Court was not going to open the sluice gates until it saw the proposed correspondence and until DBC satisfied the Court that it was that approved correspondence, and not something else, such as a dead cat, that DBC was going to send to account holders.[emphasis added]

    and at [17] ... Maybe the evidence will ultimately show that some of the infringers were true pirates and, sailing under the Jolly Roger, would only ever have acquired a copy of the Film if they did not have to pay for it. [emphasis added]

    Oh and this is Aussie Judge speak for "WTF are you lot smoking? There is no way in hell that would EVER occur in Australia" ..at [23]
    In this case, the idea that any court would assess DBC’s damages on the basis that BitTorrent users who were going to share the Film over the BitTorrent network would have avoided infringement by approaching DBC to negotiate a distribution arrangement in return for a licence fee is so surreal as not to be taken seriously. If such a claim were made in a proceeding for copyright infringement in this Court I am satisfied that it would be dismissed summarily without trial under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) as a case having no reasonable prospects of success.[emphasis added]

    Oh and s31A(2) allows our 'loser pays" system to have costs awarded against DBC/Voltage if they even contemplated trying it! :)

    reply to this | link to this | view in chronology ]

    • identicon
      Baron von Robber, 17 Aug 2015 @ 7:51am

      Re:

      THIS is how it should be done.......everywhere! Not just down under.

      reply to this | link to this | view in chronology ]

    • icon
      The Wanderer (profile), 18 Oct 2015 @ 9:08am

      Re:

      I don't think this assessment is quite right.

      I think the first paragraph you quoted is saying not that "all future copyright-trolling cases in Australia must go before this judge" (or similar), but that "if DBC does make its promises and post its bond and go forward with sending these threats, any follow-up suits which it then files against the recipients of those threats must go before this judge".

      Other than that, an insightful and informative post; thank you for posting it.

      reply to this | link to this | view in chronology ]

  • identicon
    Matt, 15 Aug 2015 @ 1:03am

    "it appears that Australia will not be a particularly friendly place for copyright trolls."

    Until we sign the TPP, that is!

    reply to this | link to this | view in chronology ]


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