iiNet challenges expert in Dallas Buyers Club case

Dallas Buyers Club LLC and iiNet have kicked off legal proceedings in earnest as the rights holders behind one of the biggest movies of 2013 take the Australian ISP to court in a bid to pursue pirates infringing copyright.

The first day of the hearing in the Federal Court has heard from lawyers representing Dallas Buyers Club LLC, who are attempting to gain access to customer records matching a list of 4,726 IP addresses found downloading "Dallas Buyers Club" in torrents.

Counsel for Dallas Buyers Club argued that illegal downloading is "a blight" on the industry and that the defending ISPs "have documents that would assist in identifying the prospective respondents" for a copyright infringement suit.

Further, they contested that Dallas Buyers Club LLC is "entitled" to email addresses corresponding to IP addresses, saying these would identify either the "person who carries out the infringement or a person who authorises the infringement".

The expert witness

A large part of Dallas Buyers Club's case rests on a German software program called MaverickEye which was used to detect the IP addresses in torrent swarms. One of the most significant pieces of evidence in trial is the sworn affidavit, signed by MaverickEye's German technical analyst, Daniel Macek, which outlines how the software works and goes to the accuracy of IP addresses obtained.

During cross-examination in court today, it emerged that Mr Macek works on a part time basis at MaverickEye for roughly 40 hours a month, and that the company employs 3 people, including himself, a systems administrator and an accountant.

Mr Macek told the court that the affidavit was drafted by a third party and presented for him to sign, and that he "can't remember" making any amendments to the content of the evidence before signing. To this, iiNet counsel responded, "Is it your practice to sign affidavits that are put in front of you by rights holders?"

The expert witness was questioned further, specifically on whether the torrent "hit" date and time identified by the Maverick software identified the time a computer downloaded parts of the film, or when the Maverick software compiled details on packets of captured data. Mr Macek admitted that he knows how the Maverick software works "in general" but that he did not write its code and was not familiar with the specifics of packet capture files.

From the beginning of the hearings on this case, Lawyers representing iiNet have contested the accuracy of MaverickEye's processes and the means by which Dallas Buyers Club has identified alleged offending IP addresses.

Barrister for iiNet Richard Lancaster SC raised concerns that the ISP was not able to verify that MaverickEye's processes were "being done in a scientific and accurate way" and that "the prejudice of undertaking experiments without inviting another party along is palpable" in DBC's expert evidence.

"Nasty letters"

Should Dallas Buyers Club gain access to details of Australians suspected of downloading the film, iiNet has raised concerns that these customers will be individually targeted by DBC. This process, known as speculative invoicing, sees rights holders contacting individual pirates and in some cases seeking financial damages.

While the figure can vary, one pirate recently targeted by Dallas Buyers Club in the United States agreed to pay a sum of $14,000 in settlement according to TorrentFreak. However, counsel for iiNet today argued in court that DBC's losses for "one-off" downloading of its film "would be no more than $5 per movie".

iiNet has submitted as evidence letters sent by Dallas Buyers Club LLC to alleged pirates in the US, in order to highlight the methods rights holders use to recover damages for piracy.

While counsel for iiNet said "there is no dispute about the authenticity" of the US letters, lawyers for Dallas Buyers Club objected to their inclusion as evidence in the Australian hearing, saying that the "alleged nasty letters" submitted by iiNet constituted no more than a "genuine offer to resolve the matter".

The hearing continues.