Dallas Buyers Club Decision: Is Hollywood About to Knock Down Your Door?
We might be about to start pirating less. But it's not because of yesterday's Federal Court decision.
April 08, 2015
A small grey moon passes silently through the dark, desolate vacuum of space. No wait, not a moon, a space station. Suddenly from within that manmade menace, a thunderous blast of brilliant green light tears forth, obliterating the planet of Alderaan. Elsewhere, a frail Obi Wan Kenobi shudders and fretfully remarks: “I felt a great disturbance in the Force, as if millions of voices suddenly cried out in terror, and were suddenly silenced. I fear something terrible has happened”.
Fast forward a long, long time to Tuesday April 7, 2015, and once again, one senses a great disturbance has come to pass, only this time, Harrison Ford and the gang are playing for the other team.
In a landmark decision by Australia’s Federal Court, iiNet and several other internet service providers (or ISPs) have been ordered to disclose the names and contact details of almost 5000 of their Australian customers accused of illegally sharing the 2013 film Dallas Buyers Club. If you’re currently sitting there with BitTorrent open in the background, chances are you’re one of the millions suddenly crying out in terror. But just how afraid should you be?
ISPs, WHERE SIZE DOES MATTER
The first question to ask is: which ISP do you use? Telstra, TPG and Optus were all ignored by the rights holders (at least for now), meaning yesterday's ruling only applies to customers of iiNet, Dodo, Internode, Amnet and Adam Internet. If you’re not with them, you’re not in the firing line.
TORRENTING: A SEEDY PRACTICE
Note the absence of the word ‘downloaded’ above. This case drew a critical distinction between those who downloaded the film and those who seeded the torrent (i.e., those who made it available for others to download). Since it’s impossible to identify downloaders, the names to be provided by iiNet and the other ISPs will only be of those who “made the film available online to other persons; electronically transmitted the film to other persons; and made copies of the whole or a substantial part of the film”. Put another way, if you downloaded Dallas Buyers Club but never shared it, you’re probably in the clear. But if you did seed it (and that does happen automatically through some torrenting software), what happens next?
ROUND 1 TO HOLLYWOOD
Nothing for the next 28 days at least, which is how long those ISPs have to appeal the decision. The chance of them doing that, however, seems unlikely given the comments by iiNet’s CEO David Buckingham that: "We're very happy with Justice Perram's judgment and his balanced approach to both the studio's and consumers' rights.” In all likelihood, then, four weeks or so from now there are going to be around 5000 letters sent out across Australia courtesy of the film’s rights holder — Dallas Buyers Club LLC.
ON A SCALE OF ZERO TO ALDERAAN, HOW SCREWED ARE YOU?
Three years ago, a Minnesota woman was famously ordered to pay $1.5 million in damages for illegally downloading just 24 songs from the internet. The plaintiff in that case, the Recording Industry Association of America, never had any real expectation of recovering the money from her because, of course, money wasn’t the point. Sending a message was why they’d pushed so hard, and the same may be said of Dallas Buyers Club here. With this ruling, both they and the court have sought to declare an end to the age of anonymous copyright infringement in Australia.
BUT IT WASN'T ME, IT WAS THE ONE-ARMED MAN!
Just because you receive a letter from Dallas Buyers Club doesn't mean you're actually guilty of copyright infringement. All it means is your name and contact details are attached to the IP address that was identified in the sharing of the file. Who was doing that sharing is an entirely different matter: your flatmate, a sibling, a child or even an unscrupulous neighbour who cracked your Wi-Fi password (seriously, was it 'password'?). Proving actual guilt will be an additional hurdle that Dallas Buyers Club will still have to jump for each and every case it pursues.
OKAY, I AM THE ONE-ARMED MAN
So let’s say, for argument’s sake, you’re one of the names about to be provided to Dallas Buyers Club. The ‘balance’ in the decision that David Buckingham was referring above to centres on two key points:
1. Your names won’t be made public; and
2. Every single letter that Dallas Buyers Club intends to send out must first be shown to, and approved by, Justice Nye Perram.
That second point is more significant than it may sound, because it seriously limits the ability of Dallas Buyers Club to use those letters as a means of intimidation, otherwise known as ‘speculative invoicing’.
Recently in America, Dallas Buyers Club sent similar letters to US-based infringers claiming they were liable for damages of up to US$150,000, but noted they’d be prepared to settle out of court for US$7000. It’s unlikely they’ll be permitted to do the same thing here, though they will almost certainly seek some level of remuneration for the infringement.
CLICK HERE TO DOWNLOAD THE FUTURE
Does this ruling mean Australians will immediately stop torrenting? Of course not. Australia is Olympic-level bad when it comes to copyright infringement, with BitTorrent accounting for more than 25% of all internet use in the region, and Australians responsible for a full 11.6% of the worldwide illegal downloads of Game of Thrones season four.
Crucially, nobody ever disputes that it’s wrong, but everyone finds their own little way of justifying it. For most, that justification sits squarely in what’s termed 'The Australia Tax' — a consistently unreasonable price disparity of up to 400% between here and the rest of the world on everything from automobiles and electronics to music, software, games and films (here’s lookin' at you, Adobe). Coupled with inexplicable delayed releases (something that proved a financial disaster for The LEGO Movie), Australians justifiably feel they shouldn’t have to pay extra for something they want, only to then unjustifiably download the whole thing without paying a single cent.
ARISE A KNIGHT
The game changer in all of this will be Netflix, which finally launched here last week. In the United States, it's almost singlehandedly credited with reducing torrenting from 31% of all internet traffic to just 5.65% in a mere six years, and there’s no reason to doubt a similar trend in Australia. Cinemas have also wised up, with Village Roadshow CEO Graham Burke declaring last year that in Australia, “movies will [now] be released day and date with the US. Movies will come out at the same time.”
Of course, yesterday’s decision may yet be overturned, but it’s a sure sign of the changing times and it would indeed seem the days of torrenting with anonymous impunity are numbered. That's not to say technology hasn't proven remarkably adept at circumventing any measures to control it, just as this author isn't blind to the fact that the Rebels ultimately prevailed over the Empire. Still, this a war neither side is prepared to back away from, so next time you’re thinking about downloading something, perhaps just ask yourself: what if I'm Alderaan?
Formerly an intellectual property lawyer with the global firm Allens Linklaters, Tom Glasson is a writer, film critic and TV presenter best known for his work as host of Australia's daily satirical news show The Roast on the ABC.