Big Content picks on small Australian ISPs again

Big Content has once again headed to Australia in an attempt to make internet service providers (ISPs) at least partly responsible for their customers' illegal downloads, this time by coughing up their contact details.

Hollywood spent years trying to make ISPs liable for illegal downloads by their subscribers in the “iiTrial”, which it picked on mid-sized Australian ISP iiNet. During that case it emerged that iiNet was targeted because its was something of an internet Golidilocks: not so big that taking it on would be painful (in terms of legal resources required to run the case or damaging the prospect of future content sales deals), and not so small that the fight would be a mismatch.

iiNet triumphed in that case, with Australia's ultimate appellate tribunal, the High Court, ruling that the ISP had no technical method with which to stop theft and that Hollywood's allegations of illegal downloads weren't a reasonable basis on which to act.

That judgement landed in April 2012. By 2014 Hollywood was back, this time in form of an entity called Dallas Buyers Club LLC, owner of a film of the same name (minus the LLC).

Dallas Buyers Club engaged German outfit MaverickEye to sniff the IP addresses of those who allegedly accessed illegal copies of the film.

Australia's Federal Court this week heard arguments over whether iiNet, and a couple of other smaller ISPs, should identify the users of those IP addresses at the time of their capture.

Things didn't go Big Content's way once it was admitted that an expert witness from MaverickEye didn't prepare his own evidence. Instead, Dallas Buyers Club prepared his submission, a circumstance the expert said was not his usual practice.

Much argument has since considered what Dallas Buyers Club, and parent company Voltage Pictures, might do if they could identify downloaders. Voltage's practice of sending “speculative invoices” to US residents identified by their IP address has occupied a fair bit of court time, as those letters are very strongly-worded and all-but accuse recipients of having committed an offence.

Voltage hasn't said what it wants to do if it does get its hands on customer data, other than to say it will find a tool if thinks will work in Australia. Whatever it does, the outfit says, its aim is to stop piracy but more importantly to stop downloaders sharing its property as that's when the real losses kick in.

Justice Nye Perram, has occasionally appeared unimpressed by the matter, suggesting that perhaps the parties could wait until the expected April release of a new anti-piracy code, but Dallas Buyers Club wants to proceed.

All involved hung up their wigs early this week, with an expected Thursday sitting in the case shunted into next week.

The case is one to watch because Australia's courts are well-regarded in other Commonwealth nations, and beyond. A decision in Big Content's favour would be a handy beachhead precedent for similar actions in other nations.

Vulture South will keep an eye on the case. ®