DBC opts against appeal in iiNet piracy ruling

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DBC opts against appeal in iiNet piracy ruling

Lets deadline pass.

The owner of the Dallas Buyers Club film has decided not to appeal a recent ruling in its ongoing piracy fight with a number of Australian ISPs, and will instead rework how it plans to calculate damages from alleged infringers. 

Dallas Buyers Club LLC's first attempt at a methodology for calculating damages was last month rejected by a federal court judge.

The decision meant iiNet and a number of internet service providers would be spared for the moment from handing over details of around 4700 alleged pirates.

DBC LLC was refused access to the account holders' details after Justice Perram took issue with two of its four proposed methods of calculating the amount of damages to be pursued from an individual.

The company had proposed to calculate its claims based on:

  • the cost of a single copy of the film had it been authentically downloaded;
  • a claim for an amount based on each person who had accessed the uploaded film;
  • a claim for punitive damages depending on how many copies of non-DBC copyrighted works had been downloaded by each infringer;
  • and a claim for damages relating to the costs of obtaining to user's details.

Justice Perram said while he had no issue with claiming for a single legitimate copy of the film and for damages relating to costs in obtaining the account holder's details, the other two claims were "untenable".

DBC LLC had also previously revealed it had planned to ask alleged copyright violators for details of their annual salaries and online file sharing activities to determine the size of the penalty to be charged for claimed infringement.

The company had 14 days from the August ruling to submit an appeal, but decided to let last Friday's deadline pass.

Michael Bradley, managing director of the law firm representing DBC LLC, Marque Lawyers, told iTnews the company had decided not to appeal the decision based on the cost and risk involved.

"Appeals are always hard, it's an expensive course, and it's unpredictable - if one judge has taken a particular view, you're taking a gamble on whether three other judges are going to take a different view," he said.

"We think there may be another way of achieving the outcome [we want] without having to go through an appeal."

DBC LLC plans to rework its proposed methodology for damages and resubmit it to the court to be able to access the account holder details it is seeking.

The company has been granted preliminary discovery - meaning ISPs were required to hand over the 4726 user details - in April, but a stay was put on that order until Justice Perram was satisfied the company would not engage in speculative invoicing.

In his ruling last month, Justice Perram said he would lift the stay if DBC made an undertaking to only use the details to claim for the cost of an actual purchase of a copy of the film and damages related to the costs of obtaining the user information.

Bradley said Justice Perram had not completely ruled out the question of additional or punitive damages, so the firm was considering how to address his concerns.

Justice Perram declined to rule on whether an infringer should be liable for further downstream infringement because he said the company had failed to detail exactly what it was going to demand of alleged pirates based on how many times the film was copied online.

"It may be that these provisions would justify the conclusion that the film was copied many thousands of times using BitTorrent and that infringers are to be held liable for further downstream infringements," Justice Perram said in his ruling.

"I have no particular problem with such an analysis but DBC still has to explain what it is going to demand of the people it writes to. Nothing has been submitted to me on that topic."

"Whether an individual should be liable for damages based on other activity is not a closed subject," Bradley said.

"So there may be a different way of approaching it and coming up with something he's more comfortable with."

Bradley declined to provide detail on DBC LLC's new plans for calculating damages, saying the company was still working through the proposal.

He said he expected it wouldn't be long until the company would again approach the court to have the stay lifted, but did not provide a date.

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