4 September, 2015
IN THIS UPDATE
- Federal Court limits damages copyright owners are entitled to demand from infringing BitTorrent users
- OAIC provides guidance on telecommunications service providers' new privacy obligations under the data
- retention scheme
- ACMA warns iTalkBB Australia to comply with the TCP Code
- Opposition regarding a patent for the display of information about television program recordings on digital interactive televisions
Federal Court limits damages copyright owners are entitled to demand from infringing BitTorrent users
Dallas Buyers Club LLC v iiNet Limited (No 4)  FCA 838
On 14 August 2015, the Federal Court in Dallas Buyers Club LLC v iiNet Limited (No 4)  FCA 838 limited
damages that copyright owners are entitled to demand from infringing BitTorrent users.
Earlier this year, the applicant, Dallas Buyers Club LLC, sought an order from the Federal Court to force six internet service providers (iiNet, Internode, Adam Internet, Dodo, Wideband and Amnet Broadband) to reveal the names and addresses of customers who were associated with the 4,726 IP addresses used to share Dallas Buyers Club via BitTorrent. On 6 May 2015, in Dallas Buyers Club LLC v iiNet Limited (No 3)  FCA 422, the Federal Court granted the Dallas Buyers Club LLC this order. However, due to the Federal Court's concerns about speculative invoicing, the Federal Court stayed the order until the Federal Court approved the letter Dallas Buyers Club LLC intended to send to the customers.
The letter Dallas Buyers Club LLC submitted to the Federal Court demanded four main types of payment from customers: the cost of the purchase of a single copy of the film; a licence fee for each person who uploaded the film; additional damages for copies of other films downloaded by each infringer and court costs for expenses in retrieving each downloader's name.
The Federal Court found that only two of the four types of payment sought were appropriate. The Court found that copyright owners could only demand the purchase price of a copy of the downloaded film and the cost of discovering the infringers’ identity. Copyright owners cannot demand damages equating to a licence fee for uploading the film via BitTorrent, nor additional damages based on the number of copies of other films downloaded by the infringer.
View decision here.
OAIC provides guidance on telecommunications service providers' new privacy obligations under the data retention scheme
In March 2015, the Australian Parliament passed legislation to introduce a data retention scheme into Part 5-1A of the Telecommunications (Interception and Access) Act 1979 (TIA Act). The scheme requires all service providers that collect and retain telecommunications data (defined as "retained data" under the TIA Act) under the data retention scheme to comply with the Privacy Act 1988 (Cth) in relation to that data. The commencement of the data retention scheme is 13 October 2015. The obligations of larger telecommunication carriers and service providers to comply with the Privacy Act will not change.
On 13 August 2015, the Office of the Australian Information Commissioner (OAIC) published Privacy business resource 11, to assist telecommunication service providers to understand their privacy obligations under the data retention scheme. The Privacy business resource 11 outlines what telecommunication service providers need to do to comply with the Privacy Act and provides useful links to key resources that telecommunication service providers should review before the data retention scheme commences.
View OAIC's Privacy business resource 11 here.
ACMA warns iTalkBB Australia to comply with the TCP Code
On 13 August 2015, the Australian Communications and Media Authority (ACMA) publically released a formal warning it sent to iTalkBB Australia Pty Ltd (iTalkBB), a telecommunications service provider, instructing iTalkBB to comply with the Telecommunications Consumer Protections Code (TCP Code). The TCP Code was registered on 1 September 2012, and outlined new obligations on telecommunications providers to give greater protections to customers from confusing mobile plans, bill shock and poor complaint handling practices. ACMA audited iTalkBB and found that iTalkBB breached the TCP Code by offering pricing that did not include a compulsory surcharge and by providing a Customer Information Summary (CIS) that failed to include the necessary information to allow consumers to compare telecommunications offerings on a like-for-like basis. ACMA warned iTalkBB that it could face further regulatory action if the breach is not promptly rectified.
View ACMA's warning to iTalkBB.
Opposition regarding a patent for the display of information about television
program recordings on digital interactive televisions FOXTEL Management Pty Ltd v Fetch TV Pty Limited  APO 35
Foxtel recently unsuccessfully opposed the grant of a patent application filed by Fetch TV for an invention involving equipment for and methods used to display information on screens of digital interactive live televisions in the form of programming timelines to provide information to users about television program recordings. A key feature of the claimed invention was found to involve the display of a timeline indicating the period of a television program that has been recorded and is available for viewing, relative to another timeline indicating past, present and future programs and the boundary in time between successive programs. In a brief decision, the Hearing Officer determined that the claims were novel, and involved an inventive step, over the two prior art patent documents relied on by the opponent, and that the claims were sufficiently described, clear, fairly based and for a manner of manufacture.
View the Hearing Officer's reasons for the decision here.
For further information, please contact:
Gordon Hughes, Ashurst