Groundless threats of legal proceedings in relation to technological protection measures
202A Groundless threats of legal proceedings in relation to technological protection measures
If a person (the first person) threatens another person with an action under Subdivision A of Division 2A of Part V, a person aggrieved may bring an action against the first person.
Subdivision A of Division 2A of Part V establishes causes of action that relate to circumventing an access control technological protection measure (section 116AN), manufacturing etc. a circumvention device for a technological protection measure (section 116AO) and providing etc. a circumvention service for a technological protection measure (section 116AP).
An action may be brought under this section whether or not the first person is the owner or exclusive licensee of the copyright in the work or other subject‑matter to which the threatened action relates.
The mere notification that a work or other subject‑matter is protected by a technological protection measure does not constitute a threat of an action within the meaning of this section.
In an action under this section, the orders a court may make include the following:
an order declaring that the threat is unjustifiable;
an order granting an injunction restraining the first person from continuing to make the threat;
an order awarding such damages (if any) for loss that the person aggrieved has suffered as a result of the making of the threat.
The court must not make an order under subsection (4) if the first person satisfies the court that an action under Subdivision A of Division 2A of Part V has reasonable prospects of success.
Nothing in this section renders a barrister or solicitor of the High Court, or of the Supreme Court of a State or Territory, liable to an action under this section in respect of an act done in his or her professional capacity on behalf of a client.
If an action under this section is brought:
the first person may apply, by way of counterclaim, for relief to which he or she would be entitled in an action under Subdivision A of Division 2A of Part V; and
the provisions of Part V apply as if the counterclaim were an action brought by the first person under that Subdivision.
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