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HOW COULD THIS AFFECT ME?

Round two of the Dallas Buyers Club litigation has brought the parties to the litigation back to the Federal Court for the film companies, Dallas Buyers Club LLC and Voltage Pictures LLC, to present to the judge the letter that they want to send to the 4,726 people whose details they obtained back in April of this year from internet service providers (ISPs).

WHAT IS IN THE LETTER?

The Federal Court judge handling the case told the film companies that before they approached these alleged 4,726 pirates they had to have the contents of the letters that they intended to send, together with the proposed phone scripts that they intended to use, approved by the judge.

The draft letter and phone scripts were presented to the court in late June, and at the time of writing this article, Justice Nye Perram is yet to deliver a ruling on their content.

The lawyers for the film companies tried to have the contents of the proposed letters and phone scripts suppressed, however, their argument was rejected.

The contents of the letters include:

  • A request for the recipient to call the film company within 28 days of the date of the letter.
  • A threat that court action may be commenced if the phone call is not made within the specified time frame.

The telephone script provides that the alleged pirates, should they confirm the illegal activity, will be asked questions pertaining to their:

  • Employment status
  • Annual income
  • Regularity of their downloading or file sharing activity
  • Whether they have a terminal illness
  • Whether or not they serve in the military

WILL THE LETTER STAND UP?

Many commentators are speculating that the judge will not allow the letter and telephone scripts in their current form, as Justice Perram stressed in his previous judgment that he would not allow the film companies to engage in the practice of “speculative invoicing” that has occurred in the United States, the United Kingdom and Canada where companies have sought very large sums of money from the alleged pirates in order not to sue them.

The ISPs have argued that the true cost to the film companies is only about $5 per download or upload, so that a reasonable price to ask from the alleged pirates is in the region of $10 to $20.

However, the film companies stated that they will be seeking compensation for the harm that they believe they have suffered as well as a deterrent element, which would likely push the amount that the film companies are seeking much higher.

It has been reported that in the United States downloaders who have been caught downloading or sharing the Dallas Buyers Club have paid about the equivalent of AUD$4,500.

WHAT IF I OR SOMEONE I KNOW RECEIVES THE LETTER?

It is strongly recommended that if you or someone you know receives the letter demanding contact within 28 days from the film companies they contact a lawyer before making any contact with the film companies.

If someone admits to downloading or sharing the film they may provide the companies with information about other illegal activities that they have engaged in, which could cost far in excess of the one breach that the litigation covers, or that they could divulge information which the film companies aren’t entitled to, which could push the amount sought by the film companies higher than what would be reasonable in the circumstances.

We can provide you with advice specifically tailored to your situation about how you should respond to the film companies, or we can respond on your behalf.

WHAT HAS BEEN THE GOVERNMENT RESPONSE?

On 24 June 2014 the federal government, with bipartisan support, passed new anti-piracy legislation empowering copyright holders to apply to the Federal Court to block overseas file sharing websites.  This includes torrent sites such as The Pirate Bay and streaming services, such as Project Free TV.

However the big question is:  Will the government’s measures actually have much of an impact?

In 2011 the UK introduced similar legislation without much success, this is because typically within hours of a site being blocked by an ISP numerous “mirror sites” will emerge, allowing people to access the same information as on the blocked site.  Then, by the time these initial mirror sites are blocked by a court order and implementation by the ISPs, the same thing will happen again, with secondary mirror sites appearing.  So, whilst there is a small interruption to people’s access to the blocked sites ultimately the access is there.

CONCLUSION

It appears that the battle to stop illegal file sharing is an uphill one for both the government and the film companies and other artists trying to protect their copyrighted material.

It will be interesting to see how the Dallas Buyers Club litigation progresses from here, as this may well be copyright owners’ best chance at trying to stop people from sharing files illegally.  We will keep you posted in our upcoming newsletters with further developments.  However, in the meantime if you or someone you know does receive a letter from the film companies we strongly advise taking legal advice before any other action is taken. Call the team at Lynn & Brown Lawyers today on 9375 3411 or https://www.lynnandbrown.com.au/contact/.

 

About the author:

This article has been authored by Jacqueline Brown who is a Director at Lynn & Brown Lawyers.  Jacqui has over 19 years’ experience in legal practice and practices in family law, mediation and estate planning.  Jacqui is also a Nationally Accredited Mediator and a Notary Public.

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