Dallas Buyers Club Case Struck Down By Federal Court (businessinsider.com.au)

thegarbz writes: After a previous court ruling covered on Slashdot where Dallas Buyers Club was forced to post a $600,000AU bond and accused of speculative invoicing, it appears they have once again failed to make a case for damages in the Australian Federal Court. After asking for a reduced bond of $60,000AU in exchange for details of only 10% of the original alleged pirates, and after dropping the request for punitive damages, Justice Perram concluded that the damages sought were still unrealistic severely limiting the liability of the alleged pirates if the case manages to go ahead. Dallas Buyers Club now has 60 days to respond before the case is terminated.

Comments

ya Australia. ya.

[Anonymous Coward]

Dotcom should have moved there rather then NZ.

Good...

[KGIII]

I like to invest some cash and, I'm not sure if this is the group but I had an offer forwarded to me about investing in a company that bought things like movie rights, copyrights, and things like that. I declined to invest though I think the friend invested some in one of these companies. I hope he loses his shirt. Well, no, but I hope he learns a lesson. I'm not positive but I am damned near positive that this was the name of the company. I'm almost sure... :/ Ah well... I did not participate. I don't really agree with the duration of copyright nor how it is abused.

Re:Good...

[TWX]

Regardless of agreeing with copyright or not, as cases like when SCO sued everyone and claimed that their contract stated that they'd been transferred copyrights, when it was counter-argued that the contract merely stated that the copyright would be transferred, but had not actually been transferred, dealing with intellectual property law is hard for trained, experienced lawyers. A person doesn't have a lot of chance unless they themselves are the creator of a work, and even then, only if they've done a good job of establishing their rights and having a lawyer ready to defend those rights (ie, the current debacle of unlicensed reproduction of artwork by Taylor Swift for the promotion of her albums, and of the blatant ripoff of artists' designs by t-shirt companies for printed shirts without attribution or compensation).

I would not feel confident that I could purchase intellectual property without the assistance of a lawyer and not end up with a fat lot of nothing in return. That means that the very business in the trade of IP is essentially relegated to lawyers. That's not a game worth playing.

Re:Good...

[KGIII]

Yeah, it's too damned complicated for me. I don't think they wanted a huge buy-in, maybe 75k minimal - if it's the company that I'm thinking of. I probably should have saved the email. It was like MLM spam.

Re:Good...

[Anonymous Coward]

Dallas Buyers Club is not an investment group. It's a movie, based on and named after a group of HIV+ guys who traveled from Texas to Mexico to buy AIDS medication they couldn't get/afford in the US. Now, you may indeed have been offered membership in that group (more power to you), but they weren't investing in copyrights.

Re:Good...

[GrumpySteen]

Dallas Buyers Club LLC, however, is the company filing the lawsuit and it is entirely possible that they could have courted investors as described.

Did you think the movie had become sentient and started filing lawsuits on its own behalf?

Re:Good...

[KGIII]

They did. It was, indeed, this company. I'm nearly certain. You got a greater percentage if you got in early or if you bought it at over certain dollar levels. It was like MLM spam stuff that he'd forwarded to me. I'm almost certain it was this company or they had a nearly identical name.

Context

[wonkey_monkey]

A bit of context might help to understand the summary without having to play follow-the-link, especially if you only know "Dallas Buyers Club" as a film starring Matthew McConaughey - or don't know of it all.

Dallas Buyers Club LLC is the company that owns the rights to the film (I think) and has been attempting to get the names of ISP users that they believe have been illegally downloading the film, for the purpose of sending them letters demanding payment of a fine to avoid being taken to court (the "speculative invoicing" of the summary).

Re:Context

[msauve]

Thanks for that.

The summary was as clueless as any I've ever seen. It didn't make sense for a Dallas Buyer's Club to be speculative invoicing in $AU for smuggled AIDS drugs (presumably smuggled by the mentioned pirates). WTF?

Re:Context

[Anonymous Coward]

From my reading of various articles, the DBC LLC mob were trying to get permission to send out "pay up" orders on non-specific amounts of money (that is they can charge each individual alleged offender a large amount of money), but the court thinks that DBC LLC needs to specify the specific amount per user and it has to be humanly reasonable (such as the cost of a DVD lawfully purchased plus proportionate costs of the court cases per individual).

Re:Context

[thegarbz]

Good catch. I should have added LLC to the summary, or rather an editor should have :-)

Re:Context

[TWX]

More backstory or links to backstory would have been helpful too.

If it's any consolation, most people forget that their audience doesn't already know everything they knew on the matter, so they forget to summarize enough to keep everyone in the loop, and often when people do actually remember this they don't do a very good job of presenting the correct amount of backstory such that the audience isn't bored to the point of ignoring the presenter.

Re:Context

[thegarbz]

If it's any consolation, most people forget that their audience doesn't already know everything they knew on the matter

Yeah in my case I forgot because I submitted a previous stories about this on Slashdot and it was discussed several times. Though it is a silly assumption that everyone has seen every story.
But hey at least I provided links to the previous post ;-)

Re:Context

[Anonymous Coward]

If you'd just told us they were a copyright troll, that would've been enough to figure things out.

Re:Context

[Anonymous Coward]

This is an update to a fairly mainstream story (I have seen it regularly in the papers and the nightly news) and we have discussed it numerous times on slashdot.

It pays to think a little about how much knowledge your audience will bring but you have to assume that the reader isn't a hermetically-sealed vegetable at some point or we'd never get on with anything.

If people spent half as much time googling as they spend complaining about their own ignorance this site would be so much more informative.

Penalty to fit the crime

[AbRASiON]

It's all quite straightforward. The Judge demanded that they ensure the penalties fit the crime basically - and they were unwilling to do so, so he threw it out.

That could be totally wrong, I didn't read the article, I read some twitter summaries (yeah, I know) but that's the jist I got from it.
Reasonable enough, very surprising and fantastic someone applied some common sense.

Re:Penalty to fit the crime

[Zontar The Mindless]

And hats off to my old ISP iiNet for sticking up for their customers rather than tossing them under the bus with a cheery "Sounds like it's your problem, matey".

Re:Penalty to fit the crime

[thegarbz]

That's basically it. More than from the summary:

- DBC wanted to follow the USA model of suing customers after they were successful in forcing discovery.
- The judge said you will get the names for the IP addresses only after you post a bond and only after we read the letter.
- DBC submitted a letter
- The court decided that their request for punitive damages was predatory.
- DBC submitted a new letter only asking for an international distribution licence + legal fees, and only wanted 472 names instead of 4726 in exchange for only posting a $60k bond instead of a $600k bond.
- The court decided their request for international distribution license fees were predatory.

Effectively if this goes ahead all the alleged pirates are liable for is $4.99 + a share of the court's legal fees.

Re:Penalty to fit the crime

[TWX]

Just to clarify, that' the court's legal fees, not the plaintiff's legal fees? So, their subdivided slice of the cost of operating the court, including the judge's hours and any support persons (ie, stenographer, law clerk, secretary) hours?

Re:Penalty to fit the crime

[Anonymous Coward]

Just to clarify, that' the court's legal fees, not the plaintiff's legal fees?

Probably not, though I don't find much mention of that in the actual article.

There's 3 big differences between copyright cases here in AU and the US. First, copyright is a civil matter rather than a criminal one (this may be changing due to new and improved treaties, but I haven't heard how that's progressing). Second, it is much, much harder to get a civil court here to assign punitive damages, outside of "exceptional circumstances" you are restricted to direct costs and provable loss of income. Third, one of those direct costs most commonly awarded are legal fees. The majority of civil cases result in the loser paying all litigation costs.

Re:Penalty to fit the crime

[thegarbz]

Both. The Australian system generally runs on a loser pays system which is one of the reasons we have less frivolous lawsuits here.

Re:Penalty to fit the crime

[Anonymous Coward]

It's not as cut and dry as that.
There is still a lot of civil cases that are won, but costs not awarded. They can also award partial costs, or court costs only (not plaintiff's legal costs).
Some rulings take into consideration the costs and make sure the plaintiff still has money left over after the lawsuit.

Re:Penalty to fit the crime

[Anonymous Coward]

In addition, the costs will be at a court set rate, as opposed to what the actual lawyers charge. So, your barrister charging $10k/day will only be charged to the loser (if costs are awarded, which they aren't always) at a fixed rate.

That stops you going and getting a legal team that costs a disproportionate amount of money.

Re:Penalty to fit the crime

[mjwx]

It's all quite straightforward. The Judge demanded that they ensure the penalties fit the crime basically - and they were unwilling to do so, so he threw it out.

That is it in a nutshell.

Australian here, I've been following this for quite some time and this conclusion was pretty much what was expected. DBC LLC came over here to Australia with no idea how the Australian legal system worked or the Australian psyche and thought they could throw their weight around like they did in the US. It failed miserably, not because of the technical merit of their case (which they won) but because they didn't get that our judges worked for the good of Australia, not for greedy corporations.

The Judge, Justice Perram had to rule in favour of DBC LLC because they were correct to the "letter of the law" as Americans would say but he sure as hell would not let them profit from it (which violated the "spirit of the law"). This is why the court had to vet the letters and provide a $600,000 bond. I'm not sure if they're going to get that back either.

This sets a precedent that demonstrates the Australian courts cannot be used to extort the public even if you are technically right.

Some background

[MrKaos]

The first thing to be aware of is that this case was bought under the allowances in Australia's Metadata retention Act, passed under the guises of protecting Australian citizens from terrorist actions and investigating serious crimes.

The second thing to be aware of is that this Australian Legislation (passed earlier this year) and the CISA Act passed in the U.S Congress are the same thing, with the same intent, more than likely being sold to the U.S Congress on the same grounds. It follows the pattern of introducing the laws in Australia, then making them as constitutionally compatible with U.S laws to minimize obstruction before passing them in the US.

The basic operation of the Bill is it provides a legal framework to track down internet users for dubious reasons. The downside is that it looks like the US version of the Australian legislation does not make it mandatory for those systems to encrypt the metadata either, which must look like a juicy target to organized crime. Worse still, under the Australian version, any 'service provider' can be compelled to collect meta-data so I'm sure there is a similar provision in the US version.

Next up, the TPP will remove any remaining legal obstructions in place to protect Australian citizens, and more than likely any other signatories to this pending 'Trade Agreement', so I can assure any perceived 'sanity' on this issue is purely temporary.

Re:Some background

[Harlequin80]

The first thing to be aware of is that none of this comment is accurate. This case was brought forward before the Metadata act was passed and is completely independent of it. I am not saying that the mandatory storage of metadata is a good thing, it's not, but you make your arguments look stupid if the first line of your argument is completely false.

The Dallas Buyers Club LLC vs iiNet case was lodged in October 2014, the data retention laws were passed in March of 2015 and came in to force in October of 2015. None of the evidence put forward by DBC was provided by the ISPs involved or was in any way retained, accessed, or otherwise related to the metadata laws.

Please feel free to fight these laws and any kind of movement into other countries. But co-opting unrelated events is not the right way.

Re:Some background

[MrKaos]

Please feel free to fight these laws and any kind of movement into other countries. But co-opting unrelated events is not the right way.

That is not my intention, the density of how many of these laws are being passed means I have been writing so many of these letters lately, I have confused two legislations. Thanks for pointing out the mistake.

The Dallas Buyers Club LLC vs iiNet case was lodged in October 2014, the data retention laws were passed in March of 2015 and came in to force in October of 2015. None of the evidence put forward by DBC was provided by the ISPs involved or was in any way retained, accessed, or otherwise related to the metadata laws.

I have unintentionally linked the two by remembering what I saw in the Data retention law under Section 187K "The Communications Access Co-ordinator may grant exemptions or variations", 187G "Consultation with agencies and the ACMA" (Australian Media and Communications Authority) with when the National Security Legislation was passed around the same time as this case.

Specifically, I'm referring to the provisions under 187K enable the collection of this data from "service providers" by "enforcement agencies" and passing it on to entities like ACMA are the mechanism through which we expect these case to be brought and, *how* information is collected on Internet users.

It's interesting to ponder what a media authority may have to do with the provision of anti terrorism laws? Especially when you see provisions like this in the legislation:

187KA (5) The ACMA may take into account any other matter it considers relevant.

Apologies, for confusing the context.

The first thing to be aware of is that none of this comment is accurate.

Indeed, I have made a mistake posting about this stuff when I am tired. CISA is more comparable with the Australian National Security Legislation with regards to information sharing, which was worse than the data retention bill for US citizens but not the context of this case.

Re:Some background

[Anonymous Coward]

The first thing to be aware of is that none of this comment is accurate.

Norman, correlate.

Re:Some background

[Harlequin80]

No worries.

Enforcement agencies in the context of this legislation are police and security forces and do not extend to access by media company representatives such as MPAA. The ACMA is directly involved because ACMA is the entity that has responsibility for managing the internet in Australia, for example they manage they current blocklist that covers illegal content. The part of the acronym that is important in this context is the C. They are the primary agency dealing with communication. Their mandate starts as "The ACMA is a government agency responsible for the regulation of broadcasting, the internet, radiocommunications and telecommunications." It doesn't have anything to do really with "media" in the concept of media ownership or copyright or anything like that.

So to give an example if a site was deemed to be inciting radicalisation then the police, and in this case most likely the Australian Federal Police, would bring the information to the ACMA. The ACMA would then put the case around blocking that site. This however is where things become opaque as there process is not open to the public and the blocklist is not open to the public. The ACMA have also been know to use a sledge hammer and cause collateral damage in the past so the system is far far far from perfect. I have no idea if a court is involved in deciding the block list or not.

From the ACMA.

The ACMA's strategic intent
The ACMA is a government agency responsible for the regulation of broadcasting, the internet, radiocommunications and telecommunications.

The ACMA's responsibilities include:

promoting self-regulation and competition in the communications industry, while protecting consumers and other users
fostering an environment in which electronic media respect community standards and respond to audience and user needs
managing access to the radiofrequency spectrum
representing Australia 's communications interests internationally.
The ACMA has offices in Canberra, Melbourne and Sydney.

The ACMA has the vision to remain constantly relevant and the strategic intent to achieve this by delivering on its mandated outcomes, discharging its statutory obligations and transforming itself into a resilient, e-facing, learning organisation, responsive to the numerous pressures for change that confront it.

The architecture of the ACMA strategic intent is articulated in the following three-layer structure, which encapsulates the mandate from the Australian Government, the strategic purpose the ACMA has derived and with which it engages, and the standard the ACMA has set itself to achieve.

1. Mandate
The current ACMA charter from government is reflected in outcomes defined in its annually determined Portfolio Budget Statement (PBS), which indicates the proposed allocation of resources to government outcomes. From the 2012–13 Budget, the outcome mandated for the ACMA is to work ‘ with all stakeholders to maximise the public benefit, using the legislated regulatory framework to address the broad concerns of the community, meet the needs of industry, and maintain community and national interest safeguards.’

2. Purpose
The purpose of the ACMA is to discharge its statutory obligations and reflects how the role of the organisation is interpreted at a strategic level—‘why’ it does what it does. At this level, the ACMA strategic goal is distilled as being: ‘To make communications and media work in Australia’s public interest.’

3. Standard
Over and above the fulfilment of its mandate and achievement of its purpose, the ACMA has also adopted a standard of performance that reflects the level at which it wants to perform and requires a transformation of the organisation to deliver. This standard is defined as being: ‘To be, and to be recognised as, a world-leading, best practice converged communications regulator.’

   

so.....

[Anonymous Coward]

i read this as meaning they could only manually verify 10% of their list as likely infringers and the rest were just a shotgun volley made by inaccurate computer software looking at torrent activity.

download vs upload

[Anonymous Coward]

This always gets reported incorrectly (even here)

As far as I can tell, they are not going after downloaders, but uploaders. Consuming publicly available content on the internet is not illegal, and the consumer is not responsible to establish the copyright status of the content that they consume. (If they were, that would effectively outlaw the internet)

Bittorent is where this all this gets complex. By downloading via bittorrent, you are also making the content available for upload, so you had _better_ establish the copyright status of anything that you are planning to download via bittorrent before you download it.

Re:download vs upload

[jedidiah]

With an average leech-share ratio of about 1, the average member of a BT swarm is no more of an "uploader" than they are a downloader.

One more thing...

[Anonymous Coward]

I think everyone is forgetting that the movie in question was so pathetically bad that DBC LLC should be paying everyone who downloaded it for helping to stop the movie sliding into the abyss of obscurity.