Dallas Buyers Club LLC v iiNet Limited (No 4) [2015] FCA 838

Dallas Buyers Club LLC v iiNet Limited (No 4) [2015] FCA 838

The stay would not be lifted because two of the proposed heads of demand were untenable and outside the proper ambit of r 7.22. A demand for a BitTorrent distribution licence fee was not plausibly recoverable because the counterfactual that infringers would have negotiated such a licence was so unrealistic that the claim would have no reasonable prospects of success. A demand for additional damages based on downloads of other copyright works was inconsistent with s 115(4). Sections 115(5)-(8) did not assist because the prospective applicants did not explain what demands would be made under those provisions. The permissible heads were limited to the cost of a copy of the film and the costs...

Jurisdiction
Australia
Judgment Date
14 August 2015
Procedural Posture
Application for Preliminary Discovery in Relation to Alleged Copyright Infringement / Application to Lift Stay of Preliminary Discovery Order
Outcome
The prospective applicants' application to lift the stay was dismissed with costs.
Legal Topics
['preliminary Discovery' 'copyright Infringement' 'bit Torrent File Sharing' 'damages for Copyright Infringement' 'additional Damages' 'speculative Invoicing' 'undertakings and Security']
['copyright' 'civil Procedure'] ['preliminary Discovery' 'copyright Infringement' 'bit Torrent File Sharing' 'damages for Copyright Infringement' 'additional Damages' 'speculative Invoicing' 'undertakings and Security']

Case Brief

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Procedural Posture

Application for Preliminary Discovery in Relation to Alleged Copyright Infringement / Application to Lift Stay of Preliminary Discovery Order

Legal Issues

  1. 1 ['Whether the stay of the preliminary discovery order should be lifted so the prospective applicants could obtain account holder details from the respondent ISPs.' 'Whether the monetary demands proposed to be made to account holders were within a purpose contemplated by r 7.22 of the Federal Court Rules 2011 (Cth).' 'Whether damages could plausibly be demanded on the basis of a foregone licence fee for uploading or sharing the film via BitTorrent.' 'Whether additional damages under s 115(4) of the Copyright Act 1968 (Cth) could be assessed by reference to infringements of other copyright works.' 'Whether ss 115(5)-(8) of the Copyright Act 1968 (Cth) justified the proposed demands.' 'Whether any undertaking by a party without a presence in Australia should be secured by a bond.']

Ratio Decidendi

The stay would not be lifted because two of the proposed heads of demand were untenable and outside the proper ambit of r 7.22. A demand for a BitTorrent distribution licence fee was not plausibly recoverable because the counterfactual that infringers would have negotiated such a licence was so unrealistic that the claim would have no reasonable prospects of success. A demand for additional damages based on downloads of other copyright works was inconsistent with s 115(4). Sections 115(5)-(8) did not assist because the prospective applicants did not explain what demands would be made under those provisions. The permissible heads were limited to the cost of a copy of the film and the costs...

Court Disposition

The prospective applicants' application to lift the stay was dismissed with costs.

Orders

  • ["The Prospective Applicants' application to lift the stay of Order 1 made on 6 May 2015 be dismissed." "The Prospective Applicants pay the Respondents' costs of that application."]