[LINK] The problems with Dallas Buyers Club 'settle or face large fines' letters
Bernard Robertson-Dunn
brd at iimetro.com.au
Mon Jun 22 11:55:58 AEST 2015
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.
--
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
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