iiNet and a group of other Australian internet service providers have been ordered to pay 75 per cent of Dallas Buyers Club's owners' legal costs after failing to convince a judge to not hand over the identities of pirates alleged to have shared the studio's film online.
A lawyer not connected to the case, who didn't wish to be named, told Fairfax Media that Dallas Buyers Club LLC's costs could be up to $100,000.
The decision by Justice Nye Perram of the Federal Court is another blow for iiNet and the other ISPs – including Dodo, Internode, Amnet Broadband, Adam Internet and Wideband Networks — which challenged the studio's request for access to alleged pirates' details but ultimately failed to convince the judge that their identities should not be handed over.
However, the ISPs did succeed last month in convincing the judge to place restrictions on what Dallas Buyers Club LLC could do with the identities of the alleged pirates. Such restrictions included preventing "speculative invoicing" by Dallas Buyers Club, a practice it has done overseas that entails sending threatening letters to pirates stating they owe thousands of dollars for piracy.
Wednesday's order on costs is a reversal of what Justice Perram said in a judgment on April 7 that he would later order. Back then he said Dallas Buyers Club would have to pay all legal costs, including the legal costs for iiNet and the other ISPs.
"I accept, contrary to my initial disposition, that [the owners of Dallas Buyers Club] should have their costs," Justice Perram said in his order on Wednesday.
The reason Justice Perram said the ISPs should pay 75 per cent of the owners' legal costs was because iiNet and the other ISPs took on an "adversarial" role in the case, in which they did not win on all arguments.
"I think that the ISPs are on the adversarial side of the line," Justice Perram said.
But he added that they did not take any steps "which they were not entitled to take".
Costs for flying to Australia German-based piracy hunter Daniel Macek, of Maverick Eye, hired by Dallas Buyers Club owners to track down those who illicitly shared the Dallas Buyers Club film online, would also need to be paid by iiNet in full, Justice Perram said.
"It cost money to get Mr Macek here and it was ultimately fruitless," Justice Perram said, referring to the cross-examination of Mr Macek by iiNet, in which the ISP unsuccessfully tried to discredit him and the integrity of the software his company produces.
"I propose in those circumstances to order the ISPs to pay Dallas Buyers Club LLC's costs of flying Mr Macek to Australia, together with his accommodation and living expenses whilst here," Justice Perram said.
iiNet and the others ISPs' costs for retrieving the identities of alleged pirates at a later date will still need to be paid by Dallas Buyers Club LLC though, Justice Perram said.
The film's owners are now expected to formulate a draft letter they plan to send to alleged pirates, which will need to be signed off by the court before it is sent to the more than 4000 Australian internet users suspected of illicitly sharing Dallas Buyers Club online.
Justice Perram ordered that the letter should be sent to iiNet for consideration by May 13.
A further hearing in the case will be heard May 21, where it's expected iiNet will argue for Dallas Buyers Club LLC to pay it a security deposit before handing over the identities of alleged pirates.
It's unclear if the public will get to see the wording of the letter before it is sent to alleged infringers, although it may be seen on May 21.
Justice Perram did say on Wednesday, however, that he had concerns over how much control he ultimately had over the letter considering Dallas Buyers Club LLC is incorporated in another country.
"I have a concern as to my ability to secure obedience ... given the absence of Dallas Buyers Club from the jurisdiction," he said.
