Readers may recall that initially the downloading controversy focused on music with recording artists up in arms about their work being freely available on the internet. Most famously heavy metal supergroup Metallica sued the music sharing website Napster.

In recent times the controversy has shifted to television series and movies. Hollywood has claimed for some time now that the illegal downloading of movies has caused a substantial loss. One tactic has been the launch of paid streaming services such as Netflix, Presto, and Stan. The other has been to aggressively claim for breach of their copyright.

Just in case there was any doubt of it, is a breach of the copyright act 1968 (Cth) for a non-copyright holder to make a film available online.  The recent case of Dallas Buyers Club LLC - versus- iiNet [2015] FCA 317, brings potential legal action against copyright infringers closer to reality.

It is important first of all to clarify what the proceedings were. They were not proceedings for breach of copyright, but rather proceedings brought by the film's producers seeking preliminary discovery from six internet service providers, or ISPs. Preliminary discovery is a process by which a party can find out whether it has a case against another person, or ascertain the identity of a potential defendant, where the identity of the defendant is not known. The Dallas Buyers Club case falls into the second category.

 If an order for preliminary discovery is made the court can require examination of the potential defendant, or production of documents, either to the court or to the applicant, relevant to the potential defendant's description.

The producers of the film brought the proceedings because they said that they had been able to ascertain the 4726 IP addresses from which the film had been downloaded. They had requested that the ISPs provide the names and addresses of the account holders associated with those IP addresses so that they could contact them to enforce their copyright.

The six ISPs resisted the application on numerous grounds including privacy concerns, the likely trivial nature of any proceeding against infringers (saying they were likely to be less than $10), and the potential for the producers of the film to engage in what has been termed speculative invoicing.

Speculative invoicing is where a letter is sent alleging a large debt, but stating that payment of a smaller, but still large, amount will be accepted.

In deciding to make the order for preliminary discovery the judge rejected all of the ISPs arguments. It was ordered that the disclosure of the account holders’ details was to be only for the purpose of seeking to identify downloaders, suing those downloaders and/or negotiating with them their liability for infringement. The judge also ordered that any correspondence to alleged infringers was to be shown to him prior to being sent. Most worryingly for alleged copyright infringers, in answer to the contention that the amount of any damages is likely to be minimal the judge raised the possibility of aggravated damages being awarded in a bid to deter people from the file sharing of films.

In one sense this judgment is a relatively regulation matter, however it has gained widespread publicity due to the prevalence of downloading films. It does not mean that those who have downloaded the film will receive a knock on the door tomorrow, but it is an important first step for the film's producers in enforcing their rights. 

Whether this case begins an avalanche of proceedings for copyright infringement will be limited we suspect by two factors. Firstly, the film's producers were ordered to pay the ISPs costs of producing the information. Those costs may be substantial and may limit future similar applications. 

Secondly, the issue of the size of the potential damages to be recovered. In the case of an individual downloading a movie once, the damages are likely to be very small indeed and it is unlikely that aggravated damages will be awarded.

In short summary then, this battle must be chalked up as a victory to the film industry in general, but it remains to be seen whether or not they will win the war.