Dallas Buyers Club Case Study

The Federal Court has dismissed Dallas Buyers Club LLC's (“DBC") application to lift the stay of Order that would see a number of Australian Internet Service Providers (“ISPs”) hand over the details of 4,726 account holders alleged to have engaged in the copyright infringement of the film, ‘The Dallas Buyers Club’ (the ‘Film’). Further, the court made a self-executing order, which will terminate the proceedings on 11 February 2016 at noon, unless DBC takes steps towards finialising the proceedings.
• Background: o In May 2015, the FCA made a preliminary discovery order requiring the ISPs to hand over the name and mailing details of the account holders linked to the IP addresses alleged to have illegal downloaded the Film. The order was conditional on DBC
• DBC also applied to have the bond reduced to $60,000.
 The application was dismissed on the following grounds: 

• Licence fee o No evidence of what a "fair and reasonable licence fee" should be and why. 
 o DBC sought to base their argument on the recent decision of Winnebago Industries Inc v Knott Investments Pty Lt d(No 4) [2015] FCA 1327 where it was decided that in a damages claim for passing off, a plaintiff did not need to prove that the infringer would have (emphasis added) entered into a licensing arrangement. However, the court noted that there is a Full Court authority that this principle does not apply in copyright cases (see Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (in liq)(2007) 157 FCR 564 at 569).
• Revisitation 
 o The matters raised were the same as those previously decided and there had been no material change in the circumstances to warrant revisiting them. The Court noted,"… what is before the Court is a preliminary discovery application, not Ben-Hur. The interests of justice are not served in comparatively modest procedural litigation… by permitting no stone to go