The company behind Dallas Buyers Club (DBC) has made a business not only from making movies, but also chasing down those alleged to have shared content online without permission.
In several jurisdictions the company has been bringing in cash settlements from alleged pirates but an attempt to do so in Australia is now close to total collapse.
Earlier this year the company was given permission to obtain the personal details of 4,726 alleged pirates. However, concerns over DBC’s tendency to engage in so-called ‘speculative invoicing’ alarmed the court and resulted in Justice Nye Perram restraining the company’s actions.
Instead of a lucrative business plan, DBC was faced with only being able to claim for the price of the film and a proportion of the amount spent on tracking down an alleged infringer. And, to ensure the company didn’t pull a fast one, the Judge ordered the payment of a huge AUS$600,000 bond.
DBC responded by watering down its claim to just 10% of the original subscribers in return for a AUS$60,000 bond. Then last month the company tried to re-convince Perram that it should be able to claim a licensing fee from alleged pirates too.
In a judgment handed down this morning, Justice Nye Perram made it clear that DBC would not be able to do so. Despite having had plenty of opportunity to do so, DBC has not provided any evidence of what a reasonable license fee might be, the Judge explained.
Furthermore, should such evidence be forthcoming it is unlikely to be straightforward. DBC claim that pirates need to pay a fee to obtain a worldwide distribution license but the Judge said that fathoming the cost of a hypothetical BitTorrent license would be laborious.
However, even if that process was undertaken (Perram likens it opening Pandora’s Box), it might then lead to iiNet, whose customers are being targeted, seeking to put a value on a license itself. That would risk further prolonging the case and could possibly trigger a trial within a trial
“It needs to be kept in mind that what is before the Court is a preliminary discovery application, not Ben-Hur,” Perram’s ruling reads.
“The interests of justice are not served in comparatively modest procedural litigation such as the instant case by permitting no stone to go unturned. The enterprises of the parties must be kept proportionate to what they are arguing about.”
After considering legal argument put forward by DBC and its recent maneuvering to change how compensation would be sought, Justice Perram said he saw no reason to deviate from the ruling he handed down during the summer.
“I do not accept that DBC should be permitted to do anything beyond what I indicated in the August Judgment. Since that is not what it is proposing to do, I am not going to lift the stay,” he wrote.
“As a matter of logic this means that the question of whether I should permit a lower bond to be posted because DBC now only proposes to pursue the smaller class of iiNet customers does not arise.”
In addition to throwing out DBC’s most recent application and ordering the company to pay costs, this morning the Judge set the clock ticking on the entire case.
“The present application must be dismissed with costs. Some finality must now be brought to these proceedings,” the Judge said.
“What I will do is make a self-executing order which will terminate the proceedings on Thursday 11 February 2016 at noon, unless DBC takes some step before then.”
Since DBC has shown an impressive amount of determination since the beginning of proceedings, it wouldn’t be a surprise if the company tried to pull something out of the hat, even at this late stage.
However, at this point DBC’s position is one of a gambler, heavily down on his luck, losing more money by the second, but still with an eye on the jackpot. Even now it still might be worth doubling down but with the Judge’s patience and now timing running out too, the odds are not looking great.