First steps down the plank: new Australian copyright provisions successfully used to block pirate sites

On 15 December 2016, Foxtel and a number of movie studios secured the first site blocking orders in Australia. The orders of Nicholas J of the Federal Court require the major Australian ISPs to block access to a number of infamous sources of illegal content, namely, The Pirate Bay, TorrentHound, IsoHunt, Torrentz and SolarMovie (Pirate Sites).

In separate applications brought in February this year by Foxtel and various movie studios, the parties tested the new section 115A of the Copyright Act 1968 (Cth). Their success is an important step towards combatting online piracy. It also has the potential to better educate Internet users on the illegality of these sites and encourage them to access copyrighted content through legitimate means.

Below we consider some key aspects of the judgment.

What does section 115A provide?

Section 115A provides that where an overseas online location's 'primary purpose' is to infringe or facilitate the infringement of copyright, a rights holder can apply to the Federal Court to obtain an injunction requiring ISPs, on a no fault basis, to take reasonable steps to block access to that online location. The section was introduced by the Copyright Amendment (Online Infringement) Act 2015 (Cth) and commenced on 26 June 2015.

Importantly, Nicholas J observed that section 115A permits the grant of an injunction where it is impossible to identify who is responsible for operating the online location or determining its content.

What are some key findings?

The Judge found that:

  1. Foxtel established that The Pirate Bay, TorrentHound, IsoHunt and Torrentz infringed its copyright in its original productions of Wentworth (season 3), Open Slather, A Place to Call Home (season 3) and Real Housewives of Melbourne (season 4). The studios established infringement via SolarMovie of a number of feature films, including The Lego Movie and Spiderman and various television programs such as The Big Bang Theory;
  2. each of the applicants established that the Pirate Sites facilitated the infringement of copyright on a widespread scale, in flagrant disregard of the rights of copyright owners generally;
  3. the term 'facilitate' is construed broadly. Potentially, section 115A captures sites that make it easier or less difficult to infringe copyright eg by making it easier for users to ascertain the existence or whereabouts of other online locations that themselves infringe copyright;
  4. the primary purpose of a site can be ascertained from its principal activity; and
  5. the fact that sites may be inactive for a period of time does not mean they cannot be blocked under section 115A.

What will happen when users attempt to access the Pirate Sites?

The ISPs are required to implement the block within 15 business days of the orders. After this time, if a user attempts to access the Pirate Sites they will be redirected to a webpage hosted by either (at the election of the ISP):

  1. the relevant applicant (Foxtel or Roadshow) or their nominee; or
  2. the ISP.

The webpages will inform the user that access to the website has been disabled because the Federal Court has determined that it infringes or facilitates infringement of copyright

The orders operate for a period of three yearsWhat happens if the Pirate Sites move to new locations?

Foxtel and the Studios were successful in obtaining an order that, if the Pirate Sites are provided from a different domain name, they can apply to the Court to vary the orders to include the different domain name. An affidavit is required in support of the order. Although the Court retains oversight over this process, Nicholas J's judgment states that in such situations the Court may be willing to act on very little in the way of further evidence. This will mean that applicants have a clear mechanism available to them when the operators of the Pirate Sites seek to offer their content via new domain names because the original ones have been blocked.

What next?

A third application under section 115A was heard before Burley J in October and was commenced by the music industry (seeking to block Kickass Torrents). Judgment in that case is pending.

It is expected that further site blocking applications will be made in Australia, as happened in the UK, and that Nicholas J's judgment will provide a framework for those applications.