In what has been an eventful few weeks on the copyright high seas, after some set backs, rights holders commenced actions in the Federal Court to block a number of websites that they allege have the 'primary purpose' of infringing copyright. We've set out below a round up of these recent events.
Dallas Buyers call off pursuit as Federal Court deadline passes
The deadline has passed for Dallas Buyers Club LLC (DBC), the company that owns the rights to the movie, to lodge any further appeals following a legal ruling last year by Justice Nye Perram in the Federal Court. As set out in our previous blog post, Perram J gave DBC until midday on 11 February to lodge an updated letter and post the required $600,000 bond or face the dismissal of its case. DBC did not meet that deadline.
Dallas Buyers Club LLC had sought to obtain the contact details of some 4736 alleged copyright infringers and had succeeded in convincing Perram J in first instance that its case warranted discovery of the contact details from iiNet. However, Perram J was not convinced that DBC would refrain from engaging in the practice of 'speculative invoicing' (where rights holders send letters demanding large payments for allegedly downloading content without permission).
As a result, Perram J required that the form of the letter sent to alleged infringers be reviewed by him and a $600,000 bond deposited with the court to discourage this type of conduct. Despite reviewing multiple versions of the letter and DBC requesting access to details of only 10% of alleged infringers (for a reduced $60,000 bond), Perram J was not comfortable with the claims made by DBC in the letters and rejected the request for a reduced bond.
It is unlikely that this is the end of the tale in relation to movie piracy litigation in Australia, however it shows that if a rights holder wishes to obtain details of alleged pirates in the future, it will need to show its claims are not speculative, but rather, reasonable and within the bounds damages theories under of existing copyright law.
'Three strike' scheme scuttled on budgetary rocks
The 'three strikes' scheme submitted to Australian Communications and Media Alliance (ACMA) (and analysed in our previous blog post) by ISPs and rights holders appears to have been abandoned. Whilst ACMA has not been formally notified of the removal of the scheme, Village Roadshow's Graham Burke has stated that all parties have abandoned the scheme. The Copyright Notice Scheme 2015 (the Code) was originally introduced in response to the Abbott government's threat to legislate to introduce obligations on ISPs to tackle piracy if the ISPs and rights holders could not agree on a voluntary code for ISPs to follow.
Whilst the mechanisms of the Code were contained in the draft document lodged with ACMA, it left open who would bear the cost of operating the scheme, with the ISPs and rights holders each contending that the other should be the party to foot the majority of the cost. After extensive discussions between both parties, the Code appears to have now been abandoned due to this cost issue.
An independent financial audit of the scheme estimated that the cost per notice would be between $16 and $20. To put this into perspective, a recently released DVD (such as 'The Martian', starring Matt Damon) at Target, at the time of writing this blog post, is $20. New Zealand implemented a similar scheme in 2012 that goes largely unused by rights holders given its cost of $27 per notice.
Rights holders have suggested that a possible solution would be to develop an automated system which would significantly reduce the cost of issuing these notices. Alternatively, the Federal Government could step in and assist with the funding of the scheme but in the current economic environment this would seem unlikely.
Fire the cannons! Federal Court asked to sink pirate website
In June 2015, the Copyright Amendment (Online Infringement) Act 2015 became law and Australia's piracy website blocking regime came into effect.
Last week, it became apparent that the regime is about to be put to the test for the first time as a consortium of movie studios and separately Foxtel, have applied to the Federal Court to have a number of websites blocked by Australia's internet services providers (ISP) (including SolarMovie, The Pirate Bay, TorrentHound, IsoHunt and Torrentz). Unlike the somewhat questionable letter of demand issued by Simonds Homes purporting to apply this legislation to an Indian construction website (and discussed in our previous blog post), the use of the legislation by the consortium (led by Village Roadshow) and Foxtel is a more 'traditional' internet piracy context where we would expect to see it used.
It is unclear at this stage precisely what technical mechanisms ISPs will be required to employ once a website is required to be blocked by the Federal Court. However, the court documents show that Domain Name System (DNS) blocking may be an option. The Communications Alliance has suggested that '[b]locking a web site at the level of the DNS is typically the simplest and least costly method to achieve the objectives of the Bill'.
The application by Village Roadshow follows a similar application that was accepted by the Singaporean High Court in relation to the SolarMovie website only last week. In what was the first website blocked under the amended Copyright Act 1987 (Singapore), the High Court stated that the website was 'flagrantly infringing' intellectual property rights.
Only time (and, in some cases, the Federal Court) will tell:
- whether the Court accepts that SolarMovie's, Pirate Bay's, TorrentHound's, IsoHunt's and Torrentz's 'primary purpose' is to infringe copyright and are therefore to be blocked; and
- what effects the mechanisms used to block websites will have on infringing and legitimate sites.