Stormy seas for online pirates in the entertainment industry

  • United Kingdom
  • 08/17/2017
  • © Ashurst. All rights reserved

What you need to know

  • The second judgment under the recently introduced section 115A of the Copyright Act 1968 (Cth) (Copyright Act) has been handed down by Justice Burley of the Federal Court. The judgment was broadly consistent with the only other judgment to consider this section (handed down in December 2016): Roadshow v Telstra [2016] FCA 1503; Foxtel v TPG & Anor.
  • ISPs have been ordered to block overseas websites which have the primary purpose of infringing copyright, with rights holders to pay compliance costs to the ISPs.
  • The orders relate only to the nominated domain names. For new domain names in relation to the infringing site, the Court established a mechanism to extend the orders. Completely new sites will need to be the subject of separate court proceedings.

Background

On 28 April 2017, Justice Burley of the Federal Court handed down his much anticipated decision in the site-blocking case brought by the music industry. His Honour ordered various ISPs to take reasonable steps to disable access to the KickassTorrents website, which he determined had the primary purpose of allowing the unauthorised download of musical works, sound recordings, movies and books on an industrial scale.

The orders largely mirror those in the Roadshow v Telstra [2016] FCA 1503; Foxtel v TPG & Anor decision handed down in December 2016, which is the only other decision made under the relatively new section 115A of the Copyright Act. This section provides a “no-fault” remedy for content holders to pursue organisations (via their ISPs) which operate websites that have the primary purpose of providing access to copyright infringing material. The orders under the two decisions mean that Pirate Bay, SolarMovie, Torrentz, TorrentHound, IsoHunt and KickassTorrents are all now blocked from selected Australian servers by the nominated ISPs.

Justice Burley made the following orders:

  • The ISPs must, within 15 days, DNS block (or equivalent) the nominated domain names and redirect users to a website which will display a prominent message that the original website has been disabled because the Court has determined that it infringes copyright or facilitates copyright infringement.
  • The orders will be in place for 3 years (and can be extended upon application).
  • For any new KickassTorrents domain names not already covered by the orders, the copyright owners can file proposed orders to extend the injunction to the new online location/s, which the Court may grant without further hearing if the ISPs do not object to the orders.
  • To block entirely new websites, the copyright owners will need to initiate new proceedings.
  • The copyright owners must pay the ISPs’ compliance costs of $50 per domain name.

Looking forward

These decisions show a willingness by the Court to allow injunctions under the new site-blocking legislation for websites that have the primary purpose of infringing, and to make orders in reasonably consistent terms.

The orders also bring some clarity to the vexed question that has previously plagued the attempts by ISPs and rights holders to agree an industry code of who should pay the compliance costs. In both cases, the copyright owners were ordered to pay $50 per domain name to each ISP towards their compliance costs – the only exception was a privately negotiated bulk payment of $1,500 which Optus agreed to pay Foxtel in the previous proceedings.

The copyright owners were not required to reimburse the ISPs for the set-up costs incurred in configuring their systems to give effect to the site-blocking orders. The outcome results in the copyright owners paying significantly less in compliance costs than what was requested by the ISPs.

Is this the beginning of the end for the Pirate Bays of the world? Foxtel has recently commenced additional proceedings in the Federal Court, this time against TPG Internet Pty Ltd, which is set down for a one day hearing on 8 August 2017.

The use of section 115A of the Copyright Act is an interesting development in the fight to combat online piracy. However, only time will tell whether it will make a long term and meaningful impact on online piracy in Australia.

Authors: Jessica Norgard, Senior Associate; and Anita Cade, Partner.

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