DBC defeated, no further action

[Aractus]

iTnews

Mashable

Sydney Morning Herald

DBC's 16-month court case is finally over. A big win for Aussies.

Michael Bradley, the managing partner of DBC LLC law firm Marque Lawyers, told iTnews the company would not make any further applications in the case after its bid to access the details of 4726 alleged pirates was blocked in the federal court.
...
Bradley told iTnews there was nothing DBC LLC could do to get the outcome it originally sought.

Matthew Rimmer, a professor of intellectual property at the Queensland University of Technology, told Mashable Australia over email he thought Justice Perram had been "astute, thoughtful, and careful" in his management of the Dallas Buyers Club case.

"He has shown the wisdom of solomon in his efforts to balance the various interests of copyright holders, Internet service providers, and Internet users," he said.

According to Rimmer, the case was a valuable contribution to Australian copyright jurisprudence, particularly in the way it dealt with legal procedure, consumer rights and the treatment of Internet intermediaries such as iiNet, as well as privacy. "The Dallas Buyers Club case will seen as an important precedent and test case, which will be useful to make sense of all the new policy developments coming our way," he said.

I know what you're thinking, I'm thinking the same thing. I can't believe I just agreed with everything that Rimmer just said!

Graham Phillips of Thomson Geer lawyers, who led the defence by iiNet and other internet service providers whose customers' details were at the centre of the case, said the outcome effectively defeated the speculative invoicing business model in Australia.

Dallas Buyers Club LLC's application ultimately failed because the studio overreached, he said.

"The demands they wanted to make were excessive, unsupported by the evidence they collected," Mr Phillips said.

Mr Phillips praised the ISPs for defending their customers' privacy, singling out iiNet's outspoken former chief regulatory officer Steve Dalby for leading the charge.

"The case is a great legacy for Steve Dalby ... who was keen to protect his customers from DBC's unfair speculative invoicing practice," Mr Phillips said.

Rights holders could succeed where Dallas Buyers Club had failed in obtaining details of alleged pirates, if they were able to prove in court their claims for damages would be reasonable and within the law, he said.

The Hon. Justice Perram:

[vorlon13]

Indeed.

[Cato]

Let me guess, America sucks so bad that it becomes okay to openly steal from its citizens. Pathetic.

[Aractus]

Well if you mean ignore their copyrights, which is probably what you mean, that actually already happened as a result of an international dispute between the United States and Antigua, which resulted in the latter gaining the right to ignore IPs owned by Americans as compensation for the USA illegally shutting down their online gambling services. This was a decision handed down by the WTO in 2007 and determined that until the USA lifts their illegal blockade on Antigua's online gambling services, they can recoup damages by exploiting USA-held IP to the value of $21 million per year. In 2013 the WTO approved the proposal of a government-operated piracy site to be opened by the country. The USA currently owes over $200 million to Antigua as a result of this dispute (21 million a year since 2005), and no government-run piracy site has surfaced just yet. But they have every right to launch one whenever they want and there's nothing the USA can do about it since the WTO has already approved it.

Just think, a few months from now we'll potentially see a .gov.ag website legally offering unrestricted access to anything copyrighted in the United States to anyone anywhere in the world, and it'll be completely legal.

[Minimalist]

Sounds like Pirate Bay!

[Aractus]

Well let me point out to Cato that IP laws are in need of reform. Australia actually has an ongoing inquiries relating to IP and how the law could be reformed in this area - but unfortunately we also have international treaties signed decades ago that prevent us from passing sensible reforms at the same time. I do think that reforms are coming, and that we will see countries begin to go their own way here.

Let's give an example. Warner claimed to own the copyright to "Happy Birthday" and they raked in tens of millions of USD in royalties over the years (if not 100 million or more). Just like these companies (publishers) always do - they rort the system until dragged through court. In Australia one example in the early norties was Video Retailers & Assoc. V Warner & Assoc. a case I've referred to lots. But let's get back to their claim to Happy Birthday (see below). They've made untold tens of millions, possibly even hundreds of millions by collecting royalties they aren't entitled to. So what was their punishment - refund everyone, and add statutory damages to each claim for their fraudulent claim of copyright? No. They simply had to set up a USD 14m fund from which to repay people who made claims. What. 14 million? A tiny fraction of the profits they wrongly accrued? That's right.

http://www.scribd.com/doc/298839595/Happy-Settlements

Now here's the wonderful thing about copyright - and why reform is needed. No one knows how long it really lasts, and when corporations claim ownership over the authorship, they appear to last perpetually. But they were designed to be attributed to individual authors. I'll put like this - copyright laws as they were intended would say that the late Michael Jackson is the author of Thriller - but in practise Sony claims they're the author, and that makes the copyright last essentially forever. It would last for 75 years after the death of MJ anyway, but if Sony claims corporate authorship then it lasts for 75 years after the death of Sony - which will never happen, since even if the company one day was liquidated, another company could buy it for $1 and extend copyright until that company goes broke.

So does this mean that you are legally allowed to sing Happy Birthday in public places now that Warner's claim to ownership has been thwarted? NO! Absolutely not. If you do that it's still piracy. Even if you do it in private it's still probably a copyright infringement. What the decision means is that the court was unable to determine who the rightful owner is. And until that person or corporation comes forward to claim ownership over the copyright, you have to assume that it's still in copyright and therefore off-limits to be used publicly.

Herein lies the problem. How did it come to this where copyrights can be attributed to unknown people? Why should they last so long. If it was up to me, copyrights would last between 40 to 50 years and then would enter the public domain. We already have a similar provision for patents (which last 17-20 years), and evidence has shown that limiting the duration is essential for both protecting the ideals of competition, and innovation.

You might say "that's well and good, what does that have to do with DBC?" Well, let's go by the Warner decision on Happy Birthday where they were ordered to pay back what amounted to maybe 1 fifth of the profits they made wrongly on someone else's copyright. Let's use that as our benchmark for assessing the DBC damages. The cost to rent the film on Amazon video is USD 3.99. So let's divide that by 5, convert to AUD and we get $1.12. That's the amount that each Australian should be asked to pay if they illegally downloaded the film.

So let's have a look at one of their real-world letters they (DBC LLC) send out in the USA:



“Considering the large expense it incurs to enforce its rights, and further that some cases have awarded as much as $22,500 per infringed work, Dallas Buyers Club, LLC feels that asking for Five Thousand Dollars ($5000.00) to settle is very reasonable,” the letter reads. (TorrentFreak)

$5000 when they should be asking for 80c??

To recap the Australian case, DBC LLC went after iiNet and other ISPs in an attempt to gain access to personal information of 4,726 account holders so that they could exploit them by way of "copyright trolling" (speculative invoicing). Justice Perram saw right through their scam, and ordered them to pay the court $600,000 as a security to be held as a bond to ensure they did not behave this way.

Here's an actual quote from Perram: “the Court was not going to open the sluice gates until it saw the proposed correspondence and until DBC satisfied the Court that it was that approved correspondence, and not something else, such as a dead cat, that DBC was going to send to account holders.” which you can read at your leisure here.

DBC then appealed claiming they were entitled to seek further "damages", the court said no - pay up and then you can have access. Then they said they wanted only 10% of the account holder details and were prepared to pay a bond of $60,000, and that they should be entitled to go after additional damages because blah blah blah. Perram said no, and executed an order that would dismiss the case today (11/02/2016) unless appealed. DBC gave up.

It's clear that they didn't simply want to recoup "damages", they wanted to engage in copyright trolling. We're not going to allow that in this country, so fuck off back to your own.