The latest statistics on illegal downloads show that Australia is coming in fourth worldwide as the country where most pirated shows are downloaded. Is Australia on the brink of a new crime wave?

A recent decision of the Federal Court has ruled that a number of Australian internet service providers (ISPs) including iiNet must hand over the identities of 4,700 account holders who used their internet connections to illegally share the film, Dallas Buyers Club. The decision comes as a landmark ruling in an age when the fight for copyright protection has so far been an uphill battle.

History aside, Australians are in a difficult position. The fight for copyright protection is also the battle between a thirst for the best that the golden age of television has to offer and the failure of the Australian market to meet that demand. While streaming services such as Stan, Presto, Quickflix and Netflix have momentarily quenched that thirst, looking at the five most pirated shows – Game of Thrones, The Walking Dead, Vampire Diaries, Arrow and The Big Bang Theory – no one service is yet to provide access to all five series.

As such, Australians are left with a choice between signing up to a number of services or violating intellectual property regulations. Marque Lawyers Managing Partner, Michael Bradley, representing Dallas Buyers Club, points out that many have opted for the latter. “Up until now in Australia the scale of infringement has been almost unimaginably high, with no consequence” he said.

However, Australia wasn’t the first win for the US-based producers of Dallas Buyers Club. In a decision of the US Federal Court of the Southern District of Ohio, the Court allowed Dallas Buyers Club to claim damages of up to $150,000 USD in the event that settlement fees of $7,000 USD were not paid. The fear is that the Australian decision is ushering in the same manner of ‘speculative invoicing’.

“Speculative invoicing is a bullying tactic” says Pirate Party Secretary, Daniel Judge. “Movie studios know that most people will not be able to afford to challenge these allegations in court, so they offer a settlement that in moderate numbers can be quite lucrative. In the United States, settlement figures have been reported as aroung $5,000 – which many people choose to pay even if they’re innocent”.     

These fears may be unfounded given that Justice Nye Perram, who presided over the case in Australia, ordered that any draft letters Dallas Buyers Club intended to send were to be reviewed by him to prevent speculative invoicing. Further, even if Dallas Buyers Club shoots for compensation closer to that requested in Ohio, here the exact price of the fine is to be set by the Presiding Judge.

Intellectual property law expert and partner at Shelston IP Lawyers, Mark Vincent, says that the Court is likely to only order damages for the cost of legally obtaining the film – roughly $20.00 per download. A similar estimate was made by iiNet, one ISP provider involved in the case, who argued the cost of each illegal share was likely to come to a mere $10.00.

Although Dallas Buyers Club left Court a winner in this instance, it is important to note that the victory is not without conditions – a ban on speculative invoicing being just one of them. The parent company of Dallas Buyers Club has already undertaken not to pursue those among the 4,700 downloaders that are autistic children, people with disabilities, those on welfare and people with mental health issues. Putting a further dent in their winnings still is the Court’s ruling that the company pay the ISPs’ legal costs and also the costs of providing customer information for the 4,700 account holders.

The ISPs involved have 28 days from the date of the decision to make an appeal before the Full Court of the Federal Court of Australia, but it’s unclear at this stage whether they intend to appeal the decision. As it stands, however, it is likely the consequences of this case will be limited to the cost of heading to a subscription service such as Netflix (starting at $8.99 per month) or the cost of heading to your local cinema.

For more information on your intellectual property law rights or any other legal matters, contact Brazel Moore Lawyers on (02) 4324 7699 to speak to an experienced Solicitor today.