DBC's piracy case against iiNet hanging by final thread

The copyright infringement case initiated by the owners of the film Dallas Buyers Club against iiNet is hanging by a thread after the rights holder failed to prosecute its case to access the account holder details of alleged pirates.

Justice Perram in the federal court today dismissed the rights holder's application to be granted access to the details of 472 account holders, or 10 percent of the 4726 alleged pirates it is chasing.

He said DBC LLC had failed to fall in line with the judge's suggestions for an appropriate method of communications and claim for damages, specified in his August judgment.

Perram had said he would allow access to the account holder details if DBC only went after the retail price of a purchased copy of the film as as well as coverage of its costs associated with obtaining the individual's details.

But DBC instead pushed for the ability to demand a figure equal to a licence fee had the film been properly distributed, as well as punitive damages.

Perram today dismissed the application, with costs.

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"Some finality must now be brought to these proceedings," he wrote in his judgment.

"I do not propose to permit DBC to revisit what was determined in the August judgment unless I am satisfied that there has either been a material change in circumstances or new material has been discovered which could not reasonably have been put before the court on the previous occasion.

"It needs to be kept in mind that what is before the court is a preliminary discovery application, not Ben-Hur. The interests of justice are not served in comparatively modest procedural litigation such as the instant case by permitting no stone to go unturned. The enterprises of the parties must be kept proportionate to what they are arguing about."

The judge has made an order to terminate the entire proceedings by February 11 next year, unless DBC LLC makes further applications prior to that date.

Should DBC LLC fail to act, the entire case will come to an end.

Dallas Buyers Club LLC was granted access to the details of 4726 account holders accused of sharing its film online in April this year.

But it was restricted from viewing the customer details until it could satisfy Perram it would not engage in speculative invoicing and go after account holders for huge damages.

It later outlined to the judge how it planned to calculate damages and communicate to account holders, but Perram refused to grant access to the details after ruling that two of the four methods DBC LLC proposed to use to calculate an individual's damages were "untenable".

DBC had proposed to include a claim for:

• 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.

In October, the company asked the judge to release 10 percent of the alleged pirates' names and addresses to convince Perram his concerns were misplaced.

In its argument to the court last week, it abandoned its push for damages based on how many other, non-Dallas Buyers Club movies an individual had shared online.

It said it would now only claim for the cost of the film ($20), a single license fee for upload, and damages for its court costs.

However, the company was unable to provide evidence of what a "reasonable" licence fee would be.

Perram today said he would not allow arguments made in the August judgment - and which had been shot down - to be revisited without any new material, arguing DBC LLC had failed to address his concerns about going after account holders for high damages.