The Federal Court of Australia has delivered Dallas Buyers Club LLC (DBC) a blow, ruling it cannot send proposed draft letters to alleged copyright infringers.iiNet, along with a number of other Australian ISPs, had been ordered to hand over the names and physical addresses of customers alleged to have shared the film Dallas Buyers Club online to the owners of the film, with Justice Perram placing the condition that a draft of any letter proposed to be sent to account holders first be submitted to the court for approval.
The discovery order was stayed, pending DBC providing the court a copy of the correspondence it was proposing to engage in with account holders, with the purpose of the stay to ensure that DBC did not engage in speculative invoicing.
In the ruling handed down today, Justice Perram concluded that, with DBC having proffered to the court several versions of what it proposes to say to the account holders, that “what DBC proposes ought not be permitted”.
Justice Perram noted that it is “fair to say that DBC has not rushed to make its position clear”.
DBC has proposed to claim damages under four heads, with Justice Perram not publishing actual figures due to confidentiality reasons.
The four heads of damages claimed by DBC were: a claim for the cost of an actual purchase of a single copy of the film, a claim for an amount relating to each infringers’ uploading activities, a claim for additional damages, depending on how many copies of other copyrighted works had been downloaded by each infringer, and a claim for damages arising from the amount of money it has cost DBC to obtain each infringer’s name.
Justice Perram stated the second and third claims, relating to the infringer’s uploading activities and for additional damages, depending on how many copies of other copyrighted works had been downloaded by each infringer, “are untenable claims and are outside the proper ambit of the power”.
“In those circumstances, I decline to lift the stay at this stage,” Justice Perram stated, adding that the stay will be lifted if the court receives DBC’s written undertaking to only use information obtained via preliminary discovery for purposes outlined in the other two heads of damages.
Justice Perram additionally stated DBC will need to secure its undertaking by the lodging of a $600,000 bond.
“Because DBC has no presence in Australia, the court is unable to punish it for contempt if it fails to honour that undertaking,” Justice Perram stated.
