Something of an Exaggeration
If media reports were to be taken at face value, then one could be forgiven for thinking that the decision of Justice Perram (7 April 2015 Federal Court of Australia in Dallas Buyers Club LLC and Voltage Pictures Club LLC vIINet limited, Internode Pty Ltd, Amnet Broadband Pty Ltd, Dodo Services Pty Ltd, Adam Internet Pty Ltd and Wideband Networks Pty Ltd []) was about to trigger a Spanish Inquisition style invasion of homes to check the screen viewing and downloading habits of most of the country irespect of movie downloads.
The decision does not do that. It was a decision about preliminary discovery only. It does not seek to address the merits of the basic allegation of breach of copyright flowing from downloading of copyright material but simply to make certain information [web addresses held by Internet Service Providers to which addresses copyright material was downloaded] available which, when considered, may or may not lead to further litigation.
Justice Perram’s carefully prepared judgement involves a detailed examination of the wording of relevant Court rules relating to Preliminary Discovery, the purpose of Preliminary Discovery and the application of relevant principles to the facts before him.
His decision is, no doubt, one which causes concern to Internet Service Providers but is obviously one which turns on its precise facts.
Interestingly, in his decision, Justice Perram seeks to provide some protection to the population at large against “speculative invoicing” which occurred in not dissimilar circumstances in United States of America. He did so by flagging the imposition a condition requiring drafts of any correspondence to Internet account holders identified being returned to the court for approval.
His Honour also, in response to a submission by the Internet Service Providers to the effect that Privacy laws should be borne in mind by the Court as preventing the disclosure of the relevant Internet addresses, held that it is for the Court to seek to balance the rights of copyright owners not to have their copyright infringed with the right of individuals to have their private information, such as internet addresses, kept private.
Justice Perram ordered that the matter be returned to the Court on 21 April 2015 but given the nature of the issues considered, I see it is highly likely that one or other of the relevant Internet service providers will appeal the decision.