iiDallas: Has the ISP copyright code failed before it has begun?

Alleged loopholes in the proposed copyright enforcement code for ISPs t justify Dallas Buyers Club LLC proceeding with its attempt to unearth the personal details of Internet service providers' customers, lawyers representing the rights holder for the 2013 movie Dallas Buyers Club argued in court this morning.

Both Ian Pike SC, representing DBC, and Richard Lancaster SC, representing iiNet and a group of ISPs that are resisting DBC's efforts, today read excerpts from the draft industry code, which was made publicly available by the Communications Alliance on Friday.

The code sets out a series of warning letters that will be sent to ISP customers accused of violating copyright.

If an ISP customer receives three notices within the space of 12 months, "ISPs will, on the request of a Rights Holder, facilitate an expedited preliminary discovery process" — clearing the path for potential civil court action — the code states.

Pike said that the draft code only covered "residential fixed Internet usage" — "not business, not mobile" ("You could evade the code by incorporating," mused presiding judge Justice Perram at one point, acknowledging that taking such a step would seem to be a somewhat extreme measure for an individual to take).

Pike said that from DBC's perspective the code was irrelevant to the issue at hand, which is an application for preliminary discovery to seek the names and contact details of ISP customers associated with a collection of IP addresses, because it would not apply retrospectively.

DBC has tendered a list of 4900 or so IP addresses which were captured by a German company called Maverick Eye.

The limitations and reliability of the Maverick Eye software have been questioned by Lancaster.

Lancaster today described as “circumstantial” the evidence of copyright infringement captured by Maverick Eye. The system only captures a “sliver” of film. By way of contrast there are systems for determining if an entire film has been pirated, he said.

The lawyer also asked Justice Perram to consider what relief would realistically be available to DBC pursuing its current path – the alleged pirates have not profited from the film and nor was it realistic to get injunctions against the customers associated with the 4900-strong list of IPs.

Lancaster denied a suggestion by the judge that iiNet had changed its position since the High Court case.

In that case, a group of film studios sued the ISP over its alleged role in authorising copyright infringement by its customers. The lawyer pointed to the discovery process outlined in the draft code as a means for film studios such as DBC to enforce their rights.

Lancaster said that the DBC application would potentially capture many one-off downloaders as opposed to repeat copyright infringers.

Any move to set aside privacy provisions of the Telecommunications Act and the National Privacy Principles in an effort to unearth the details of ISP customers should not be done lightly, Lancaster said.

The draft industry code “is not just the ISPs opening gambit for a code” and the process has involved rights holders.

The “facilitated discovery process” in the code will be a superior solution" compared to one-off court orders, Lancaster said. Non-compliance with a registered code could be a factor in authorisation liability — “there are hood statuary reason why ISPs will take the code seriously”.

“There is a legitimate question [the impending introduction of the code] that the court can take into account as a matter of discretion," Lancaster argued. Justice Perram should consider waiting until the final form of the code is apparent before making court orders.

The content of the letters that will be sent to ISPs customers were also addressed by both sides today.

iiNet has previously hit out at what it has described as 'speculative invoicing' — attempts to wring money out of ISP customers who, regardless of whether they have infringed copyright, are scared of costly legal action.

The recipient of what has previously been described in court as "nasty letters" may "find themselves without ready access to legal advice," Lancaster said and they "may or may not be guilty of infringement or aware of others or just carelessly using an open Wi-Fi network."

Lancaster said that the parties should potentially be brought back to review any letters that will be sent to ISP customers.

Pike said that the court should not supervise the drafting of the letters — “if there is an overstepping of boundaries [in the letters], there are remedies available” — but in reply to a question by Perram as to whether he should consider ruling on what should not be in the letters said it could be “perfectly appropriate” for the judge to set out “illegitimate uses of the information” obtained through preliminary discovery.

Justice Perram reserved his decision. He said he expects to make a decision within three weeks.