Defences against Dallas Buyers Club “settle or face large fines” letters

Lawyers for the Dallas Buyers Club LLC, were back in court last week as part of the continuation of their pursuit of Australians who they allege have downloaded the Dallas Buyers Club movie illegally. The proceedings concerned the letter that the lawyers acting for the film’s producer Voltage Pictures want to send to the 4,726 customers who have been identified by their respective Internet Service Providers.

In a previous judgment, Justice Nye Perram stated that any letter sent to these customers would have to be approved by the court. In particular, he wanted to guard against the practice of “speculative invoicing” whereby alleged downloaders were offered the opportunity to admit guilt and pay a sum of money to settle or face litigation that may result in very large fines.

The Dallas Buyers Club lawyers requested that details of the letter (contents here) should be kept private in order to not give recipients an advantage through being able to plan their responses together with legal counsel.

The letter presented to court was accompanied by a script that telephone operators would use when talking to people accused of downloading. Talking to a representative on the phone is given as an option, along with emailing or writing, in order to potentially reach a settlement. The telephone script however asks callers potentially self-incriminating questions such as whether they had downloaded other movies. It also asks for details of financial income, which could be used in assessing how much the accused could pay.

Letter still ‘speculative invoicing"

It is hard to see how the letter and follow-up approach is anything other than speculative invoicing. The unwillingness to set a clear figure up-front is a clear indicator that the lawyers representing Voltage Pictures are operating on the basis that people will be intimidated into choosing to pay a relatively large amount up-front to avoid the threatened larger costs of litigation and court-imposed fines. The lawyers claim that settlement would depend on the “seriousness of the alleged offences”. They have not been asked how exactly, other than the confession of the downloader, they would ascertain this in practice. In US cases, Dallas Buyers Club has produced evidence of other movies and TV shows, a particular person torrented as evidence of flagrant piracy.

A fair price for downloaders and “uploaders”

In practice, it is really not possible for the Dallas Buyers Club to show the extent of piracy by the individual downloaders. If it was decided in court, any claim for compensatory damages would end up being decided by a judge determining what might be reasonable.

Relying on the technical evidence won’t help in this case. The movie owners used a service called Maverickeye which identified computer addresses of people who participating in BitTorrenting the movie during a two month period. What they didn’t do was identify how much of the movie was downloaded or even shared back. So, other than having the accused downloaders confess to how much they downloaded or re-uploaded, there is no proof that they systematically shared the movie to others. The normal practice of downloaders is to end torrenting when the movie is downloaded. Since upload speeds are significantly slower than download, the proportion of the movie that is shared during that time is usually less than 15%.

There are other BitTorrent users (called seeders) who actively decide to share even after they have downloaded the movie. Some will set a specific limit on this by sharing the same amount or some ratio; 2 uploads to 1 download for example.

Dallas Buyers Club will not be able to tell which users where seeders and which were leechers. The ISPs have been arguing that the downloaders should be asked to pay $5 as the true cost of having downloaded the movie. They could add a similar amount to cover the re-upload and still have a fair penalty for the act. But Voltage Pictures have clearly stated that they believe that they have been caused harm through piracy and would be seeking compensation for that harm as well as a deterrent element in any claim. In the US, settlements paid by downloaders to the Dallas Buyers Club have been around US $3,500.

More legal process to come

Justice Nye Perram still has to decide whether the letters can be sent in their current form. Given that he has expressed concern about speculative invoicing, it would seem reasonable for him to insist on Dallas Buyers Club being explicit about how much the fines will be.

In the case of being sent a letter from Dallas Buyers Club, most advice (iiNet EFF) recommends not volunteering any information that you don’t have to provide and talking to a lawyer (if you can afford it) before responding to the letter if it comes.