Australians who illegally download movies are now at greater risk of being hunted down and penalised for copyright infringement.
Producers of the film Dallas Buyers Club are the first of potentially many more powerful copyright holders who will target mum and dad downloaders directly.
The film’s producers have filed a discovery order in the Federal Court in a bid to get the names and contact details from five Aussie telcos: iiNet, Internode, Dodo, Amnet and Adam Internet. Discovery orders are used in cases where the identity of the person or company targeted for legal action is unknown.
Copyright holders have in the past sued the telcos directly, but a landmark case in the Federal Court put a stop to this, leaving the licence holders no other legal option.
Two years ago, iiNet was sued by a group of Hollywood movie studios, which argued the telco was responsible for the illegal downloads of users. The Federal Court unanimously rejected this argument, and the High Court denied an appeal, setting a precedent that lets other telcos off the hook.
Communications Law Centre director Professor Michael Fraser told The New Daily copyright holders have been left with “no alternative”, opening up the possibility of even more legal action against Australian consumers who illegally download.
But the Professor noted that “chasing around after individual downloaders” is not sustainable, and that the telcos “should take responsibility”.
iiNet is fighting the application for the details of its users, citing “serious concerns” that the makers of Dallas Buyers Club will intimidate subscribers into paying up to avoid court action.
“We are concerned that our customers will be unfairly targeted to settle claims out of court using a practice called `speculative invoicing’,” said Steve Dalby, iiNet’s chief regulatory officer.
That strategy involves sending intimidating letters to alleged offenders threatening legal action and seeking large sums of money.
It’s a tactic copyright holders have used in other countries to clamp down on file-sharing via websites such as BitTorrent.
Wrays copyright lawyer Stephanie Faulkner told The New Daily she is unaware of any other recent legal action brought directly against illegal downloaders, and said such action is usually unpopular.
“Generally, that kind of litigation is pretty unpopular when you target individuals, perhaps even minors,” Ms Faulkner said.
If the filmmakers are successful in obtaining the contact details of the downloaders, and as a result are able to prove who downloaded the movie and when, then these people could be sued for damages.
The amount of damages awarded by the court would depend on many factors, including how “wilful” and “flagrant” their illegal activity was, and also the actual cost of downloading the film on a legal site such as iTunes, Ms Faulkner said.
“It’s not certain that the amount of damages in question for each individual download would be very large. It may not be. It might be a small award of damages, but that may be what they want – to make an example of someone,” she said.
“It may be that the proceedings would settle long before the court had to make any kind of judgment.”
The heftiest penalty an illegal downloaders could be slapped with is “very significant” legal costs, which would probably far outweigh damages, Ms Faulkner said.
The federal government is considering a range of proposals to curb illegal downloading by Australians, including passing a law to overturn the landmark iiNet case, making telcos liable once again for the illegal activity of their subscribers.
One key proposal would compel the telcos to block websites that allow illegal downloads. Another would compel them to curb illegal downloads by making it easier for rights holders to take the companies to court.
iiNet expects a court hearing on the discovery order in early 2015.
– with AAP