[LINK] The problems with Dallas Buyers Club 'settle or face large fines' letters

[Bernard Robertson-Dunn]

The problems with Dallas Buyers Club 'settle or face large fines' letters
http://www.smh.com.au/digital-life/digital-life-news/the-problems-with-dallas-buyers-club-settle-or-face-large-fines-letters-20150621-ghu0dh.html

Lawyers for 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 illicitly. The proceedings 
concerned the letter that the lawyers acting for the film's producer 
Voltage Pictures want to send to the 4726 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.

DBC 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 were 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 per cent.

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 were 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 $US3500 ($4500).

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.

David Glance is Director of UWA Centre for Software Practice at 
University of Western Australia.

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Regards
brd

Bernard Robertson-Dunn
Sydney Australia
email: brd at iimetro.com.au
web:   www.drbrd.com
web:   www.problemsfirst.com
Blog:  www.problemsfirst.com/blog