The Federal Court of Australia has ordered ISPs to disclose the name and address (but not email address) of the account holders whose IP address was used to illegally “share” (i.e. make available for download by others) the film ‘Dallas Buyers Club’.

Unlike the earlier case brought, unsuccessfully, against iiNet alleging copyright infringement by authorisation, in Dallas Buyers Club v iiNet no claim of liability was made against the ISPs themselves. Instead, the court was asked to order the ISPs to disclose account holder information that would allow the copyright owners to identify who was responsible for providing the copies of the film for infringing download.

In arguing that the court should not exercise its discretion to make the order sought, the ISPs asserted that:

• the evidence did not prove any actual act of infringement – since only “slivers” of the film could be shown to have been provided for download
• the trivial nature of any infringement meant there was no real prospect of legal action by the rights holders – since the value of each copy of the film was only $10
• there was no realistic chance rights holders would obtain injunctive relief in any court action – because all that was shown was the sharing of a sliver and there was no demonstrated risk of repetition
• the rights holders had failed to do adequate monitoring which could have revealed serious infringers – i.e. persons involved in multiple downloads of multiple films
• there was evidence that the rights holders would engage in “speculative invoicing” if given the information sought – i.e. demand from account holders a large sum of money and offer to settle for a smaller sum that was still in excess of what might actually be recovered in a court case
• the ISPs were subject to privacy obligations to their customers, which should be respected
• an industry code of conduct dealing with internet piracy was being formulated, and the Court should wait until that code was in place rather than granting the relief sought
• the court process was being used as a tool of investigation rather than identification

The court dismissed these arguments, and exercised its discretion to make the order, on the grounds that:

• it was satisfied that the evidence showed actual infringement by “making available” copies of the film had occurred
• it concluded that action for relief by the rights holders might well be brought, and succeed, due to their desire to provide deterrence against future infringements
• it could avoid “speculative invoicing” by requiring rights holders to seek its approval to the form of any letters sent to account holders
• it could accommodate the customers’ privacy interests by imposing conditions restricting rights holders’ use of the account information provided by ISPs