Dallas Buyers Club court case ruling could deter ISPs from fighting similar cases in future, lawyers say

Updated

Copyright lawyers are warning that the latest ruling in the Dallas Buyers Club judgement could have a "chilling effect" on future cases.

On Wednesday, the Federal Court reversed its previous decision on awarding costs, ordering a group of ISPs, headed up by iiNet, to pay 75 per cent of the costs of the Dallas Buyers Club copyright case.

The court ordered in April that the ISPs iiNet, Dodo, Internode, Amnet Broadband, Adam Internet and Wideband Networks should hand over the contact details of 4,726 alleged copyright infringing customers.

"In this case, I think that the ISPs are on the adversarial side of the line," Justice Nye Perram ruled.

"As I recorded 'the ISPs have put nearly everything in issue'. Consequently, the case extended over three days.

What may well happen is that the ISP simply says, 'look go ahead and get a court order, we don't want to give up these details without a court order but we're not going to fight the order'. Nicholas Smith, copyright lawyer

"In principle, therefore, I accept, contrary to my initial disposition, that the applicants should have their costs."

Some lawyers are concerned that the ruling will mean that ISPs may be reluctant to fight similar copyright cases in the future.

Copyright and intellectual property barrister Nicholas Smith from Blackstone Chambers said the ruling would be a concern for ISPs.

"ISPs have got limited legal budgets, and what may well happen is that the ISP simply says, 'look go ahead and get a court order, we don't want to give up these details without a court order but we're not going to fight the order'," he said.

"[In future cases], an ISP is probably less willing to do what iiNet and the other ISPs did."

Mr Smith said because internet providers may choose not to fight as hard in any future cases, the level of protection provided to customers in the Dallas Buyers Club case may not be extended.

"The degree of supervision that exists in this current case with the judge reviewing the invoices and ensuring privacy protections, simply may not exist the next time around," he said.

Ruling could flow on to website-blocking legislation

There are also concerns that the so-called "chilling effects" could extend to the website-blocking laws.

The Copyright Amendment (Online Infringement) Bill 2015 is currently before a Senate inquiry into the legislation.

"The proposed bill does provide that the ISPs are not liable for the costs of any proceedings in a Federal Court unless they take part in them," Mr Smith said.

"What that means is that if a copyright owner wants to get a website blocked, there's a strong incentive for the ISPs not to take part in the matter, because if they don't, they won't have to pay their own costs or the other side's costs."

Topics: courts-and-trials, information-and-communication, internet-culture, arts-and-entertainment, law-crime-and-justice, australia, united-states

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