On 15 December 2016, the Federal Court made orders blocking access to several foreign websites providing access to infringing copyright material, including The Pirate Bay, IsoHunt and SolarMovie. This is the first time such orders have been made under section 115A of the Copyright Act 1968 (Cth), which came into effect in June 2015.
Foxtel and Roadshow Films v piracy websites
Roadshow Films and a collective of film and television studios, as well as pay television provider, Foxtel (the copyright owners), brought proceedings against every major Internet Service Provider in Australia seeking orders that the ISPs take reasonable steps to disable access to a number of foreign websites which provided access to infringing copyright material including The Pirate Bay, Torrentz, Torrent Hound, IsoHunt and SolarMovie. Justice Nicholas found that the requirements under section 115A of the Copyright Act for website blocking orders were met for each of the targeted websites, including that:
(a) the websites were located outside Australia; (b) the websites infringed, or facilitated an infringement of, copyright; and (c) the primary purpose of the websites was to infringe, or to facilitate the infringement of, copyright.
Although many aspects of the case were not disputed by the parties, the decision resolved a number of issues involved in the practical application of section 115A.
When must the online location be infringing or facilitating the infringement of copyright?
The first issue was a temporal one. At some time between the commencement of the proceedings and while the judgment was reserved, the streaming website, SolarMovie, was taken offline. Justice Nicholas determined that the term “online location” could include a location, such as a website, that was online at the time the relevant proceeding commenced but was not online either at the time of the hearing or at the time of granting the injunction. His Honour held that section 115A would be deprived of much of its usefulness if it were construed so narrowly so as to allow the operator of a website to avoid an injunction simply by taking a website offline temporarily for a period of days, weeks or months during the course of the relevant proceeding. His Honour was also satisfied that there was no evidence before him to suggest that the website had been permanently removed.
How can copyright owners deal with attempts to circumvent the blocking orders?
The second issue concerned the procedure which should be available to copyright owners to block new online locations that are created to avoid the practical effect of a website blocking order. The new locations (mirror or proxy sites) would provide access to the same content which had been blocked by the existing orders. The copyright owners argued that they should be able to extend the scope of the website blocking orders by simply giving written notice of the new online locations to the ISPs. However, his Honour held that the terms of the orders could only be varied by an application to the Court supported by evidence.
Who pays the operational costs?
The final issue concerned who should pay the operational costs of complying with the website blocking orders. The copyright owners argued that the ISPs should pay their own costs because they benefitted commercially from online copyright infringement. However, his Honour held that the copyright owners should pay the reasonable costs of complying with the blocking orders. Based on evidence presented by some of the ISPs, his Honour calculated those compliance costs to be $50 per domain name to be blocked.
His Honour refused a request by one of the ISPs for payment of its costs of setting up the appropriate systems to enable website blocking. In doing so, his Honour noted that, quite apart from the proceeding, it was essential that the ISPs had the technical capability to comply with an order under section 115A to block foreign websites.
Recent developments in website blocking
Since the judgment was handed down, several film studios have commenced further proceedings seeking orders blocking access to 41 additional websites. Representatives of the music industry have also sought to take advantage of this relatively new provision in the Copyright Act to block access to overseas websites providing access to infringing music. The Court has heard the matter, but is yet to hand down its judgement.