Rights holders are using increasingly novel methods to protect their copyright from the scourge of global internet piracy. The latest of these attempts was the recent highly controversial and largely unsuccessful application by the copyright owners of the movie Dallas Buyers Club before the Australian Federal Court against 6 large Internet Service Providers. This decision follows in the wake of similar high profile disputes in the UK and Canada.
The Dallas Buyers Club ("DBC") decision highlights the Courts' reluctance to allow rights holders to obtain an Norwich Pharmacal Order, a court order against an innocent third party, such as Internet Service Providers ("ISPs"), to furnish information in relation to an alleged wrong-doer to be used for the purpose of speculative invoicing, or "pay up or else" campaigns. Speculative invoicing involves copyright owners, such as movie studios or recording companies, sending letters to internet subscribers demanding a settlement sum for alleged copyright infringements, such as illegal downloading, in order to avoid expensive legal proceedings. These letters often contain misleading and intimidating claims.
The business impact of this decision is that those seeking Norwich Pharmacal relief may now have to fulfill a legitimate purpose requirement to avail of the relief.
On 7 April 2015, the Federal Court ordered the ISPs to give DBC access to the personal details of 4,726 Australians, who allegedly downloaded or shared the movie using the peer-to-peer file sharing software BitTorrent. This decision generated extensive publicity and debate at the time. While Norwich Pharmacal relief itself is not unprecedented, this was the first time preliminary discovery was awarded on such a scale in Australia to a copyright holder. However, the Court first required that the applicants submit, for its approval, a draft of the letter they proposed to send to the infringing subscribers once the subscriber details were known.
On 14 August 2015, the Federal Court ruled that the movie makers' draft letter was inappropriate and refused to allow the release of the subscribers' details for this use. In summary, the proposed letter sought four main forms of damage from the infringing subscriber:
the cost of the purchase of a single copy of the film, for each copy of the film downloaded; a "licence fee" for the uploading the film; extra damages depending on how many copies of other copyrighted works...