I received this question from a Vice-President of a NSW RFS Brigade. They say:
My volunteer RFS brigade has an internet connection like many do – for brigade use (and members’ use while at station).
My question is what the possible implications of the Federal Court “Dallas Buyers Club” ruling would be, in regards to the brigade executive (President, Captain and so on) – an the liability if a member uses their own laptop etc at station that might have such software? Our station computers don’t have any (known) bitTorent software on them, but this would be of concern if a member installed the software without our knowledge also (perhaps bypassing some protective measures).
Issues of copyright law are well beyond my normal experience and I won’t comment on what the final implications may be. I will restrict my answer to the decision in Dallas Buyers Club LLC v iiNet Limited  FCA 317. This is a decision of Perram J in the Australian Federal Court. Perram J had to decide whether or not to grant an application for ‘preliminary discovery’ sought by the owners of the copyright in the film ‘The Dallas Buyers Club’. Preliminary discovery is a process that a plaintiff can use when they can’t identify who they should sue, but someone does have access to the relevant records that can be used to identify the appropriate defendant. In this case Dallas Buyers Club Limited Liability Company (LLC) did not know who had downloaded their movie, but they had relevant IP addresses and the internet service providers would be able to identify the account holders. Dallas Buyers Club LLC did not say that:
… the account holders and the persons infringing their copyright using BitTorrent are necessarily the same people but they do say that some of them may be and, even if they are not, the account holders may well be able to help them in identifying the actual infringers.
That is they accepted that the person who downloaded the film and the account holder may not be the same person, but if they could identify the account holder then the account holder could help identify who it was that downloaded the movie; and that would be the person they may want to sue.
An action for preliminary discovery is not a trial of the case so the judge did not have to decide whether any action would be successful or whether suing each individual copyright owner would be economically sensible. They were not issues the court had to consider.
In the end the Court made the orders sought but subject to some conditions. The ISP’s have to give the account details of some 4,726 account holders. The applicant, Dallas Buyers Club LLC, may only use that information for the purposes of:
(a) seeking to identify end-users using BitTorrent to download the film;
(b) suing end-users for infringement; and
(c) negotiating with end-users regarding their liability for infringement. ().
The applicant is not allowed to simply write to the identified account holders and demand money or suggest that they are liable for the infringement. To ensure that the applicant did not engage in ‘speculative invoicing’ the initial letter that they will write to the identified account holders must be approved by the judge.
Implications for the brigade
I infer from the question that my correspondent is concerned that a brigade member may have logged onto the brigades internet connection and downloaded the film. It’s not clear to me whether the internet connection has been provided by the RFS or is a separate account, with one of the named ISP’s (Iinet Limited, Internode Pty Ltd, Amnet Broadband Pty Ltd, Dodo Services Pty Ltd, Adam Internet Pty Ltd and Wideband Networks Pty Ltd). It perhaps doesn’t matter.
If none of those ISPs are involved in the delivery of the internet service to this brigade then this case has no immediate implications, but it will have longer term implications (to which I shall return shortly).
If the service is provided by one of these service providers, whether paid for by RFS state headquarters or directly by the brigade, and if someone did use the account to download the Dallas Buyers Club then the person who is the identified account holder can expect to get a letter from the ISP but the letter will be approved by the judge and will not simply be a demand for money. It will then be up to that person to respond to the letter and we don’t know yet what it will say or what it will ask for, but the intention is that it will be seeking to identify the individual who downloaded the film so that the applicant can decide whether or not it wants to sue them for copyright infringement (something the ISPs said was unlikely as the remedy they would expect to get from each individual would be in the vicinity of $10 ().
The longer term implications are more significant and I’m sure is the point the applicant was trying to make. The fact that this case has received the publicity it has and is raising these sort of questions is meant to drive home to computer users that downloading films is illegal, that the producers might be prepared to come after you, and what you do on the net is not private. Causing a heading from brigade President’s and Vice-Presidents, and for organisations that provide their staff or volunteers with internet access is, no doubt, intended to encourage everyone to get tougher on those that access the internet to ensure that they don’t use it for illegal or improper purposes. No doubt and in due course, organisations will review their internet access policy and take steps to remind their staff and volunteers as to what is and what not acceptable use is. Organisations like individual brigades my well stop providing an internet service for members.
So what to do?
First, do nothing – wait to see if you get a letter. If you want to be forewarned ask members to tell you if they did use the service to download this film. If not, then there will be no direct implications from this matter.
If the account holder does receive a letter, seek advice before answering it. Just as the ISPs had privacy concerns about releasing account details, so too a brigade would be concerned before handing over details of a member’s identity or perhaps you can’t answer the questions asked because you can’t identify who downloaded the film. Further if this affects your brigade it may affect others and the RFS may well want a consistent approach, so refer the letter to the RFS so that they can get legal advice and a whole of service response.
There are no implications for the ‘the brigade executive (President, Captain and so on)’. The applicants are trying to locate individuals who downloaded the film, and they acknowledge that the person who infringed their copyright may not be the account owner. The obligation upon the brigade executive will be to answer the letter, if one is received, but as noted above, they should not do so without first getting advice.
In the longer term the RFS and brigades (if they pay for their own internet connection) as well as all employers and others who provide internet services, will have to consider their approach to providing internet services. They will have to consider the risks v the benefits and what can be done – can BitTorrent sites be barred? Would another set of rules, or at least a reminder of the current ones, drive home what is or is not acceptable use assist members to avoid future trouble?* Is the risk too great so that the internet service should be withdrawn, or so low that the brigade (or anyone) says ‘we’ll keep providing the service but if a copyright owner wants your identity, we’ll tell them’.
We can’t begin to answer what the longer term implications are, we’ll have to wait to see how this matter plays out before sensible judgments on what to do in the future can be made. I note that the blog to which my correspondent provided a link, says ‘iiNet have 28 days to appeal yesterday Federal Court’s decision – and there is no doubt they will’. If that’s correct this matter has a very long way to go before we can see what the final and long term implications are.
*Internal rules are not, however, the issue. As noted the applicant is not after the account holder but the person who downloaded the film. That the entity that provided the service can point to a set of rules and say ‘but we told them not to do it’ is irrelevant; if they broke the rules, or if there are no rules, the issue is a breach of the Copyright Act 1968 (Cth) and the presence or absence of rules has nothing to do with that. This is not an issue of whether, in this case the Brigade, did all it ‘reasonably could’ to prevent the infringement as the brigade, or the executive, or any account holder are not the target. Equally a person who did download the film won’t get out of by saying ‘but no-one told me that was not ok’; the issue is not whether he or she adhered to any internal rules but whether he or she broke the law and ‘no knowledge of the law is no defence’. Rules, as a risk management tool, would only be relevant to draw to people’s attention that they are exposing themselves to legal risk, and the brigade to administrative trouble, if they improperly use the account.