Foxtel could potentially block piracy websites without needing to attend court

In the meantime, Foxtel can only request for piracy websites through a legal battle or by getting an agreement from carriage service providers.

In another win for copyright owners, the Australian Federal Court has hinted at Foxtel potentially being able to request for carriage service providers (CSP) to block piracy websites without having to attend court.

During the court hearing on Tuesday, Justice Nicholas accepted Foxtel's request for an injunction for certain CSPs to block various torrenting, streaming, and proxy websites that infringed upon its copyright. 

The CSPs include Optus, Telstra, TPG, Vocus, and Vodafone, in addition to their subsidiaries such as iiNet, Dodo, and iPrimus.

In addition to its application for certain piracy websites to be blocked by CSPs, Foxtel also requested for additional domain names to be added to the original injunction, as Telstra had agreed that the additional domain names infringed upon copyright. 

"One of the respondents agreed that the domain name did in fact allow access to the target online locations identified … [and] would therefore bind all the respondents," Foxtel's legal representative said.

Justice Nicholas, however, did not allow this request to pass as TPG had not responded to Foxtel's request to expand its list of websites to be blocked. 

The injunction could only be extended if there was agreement between Foxtel and the CSPs for the additional sites to be blocked as the site-blocking laws are formed on "the rule of cooperation", Justice Nicholas said.

See also: Judge allows Roadshow to raise piracy cases quicker, blocks more piracy websites

In response, Foxtel's legal representatives asked whether a variation on its legal application, so that it includes a provision stating that a CSP must positively deny that a domain name offers access to a blocked website, was a suitable workaround to extend the injunction. Justice Nicholas hinted that this could be a potential workaround for Foxtel to be able to expedite its process of requesting CSPs to block sites that infringe upon its copyright. 

Beyond the request for a flexible injunction, the orders sought by Foxtel were modelled on those granted in previous applications related to piracy, with Foxtel's legal representatives saying that the company's application was in a "very similar form to previous applications with similar types of technology". 

Justice Nicholas ordered an injunction under section 115A of the Copyright Act for the telcos to take reasonable steps to block their customers from accessing the sites that infringed copyright. Under section 115A, the court can order for CSPs to disable access to an online location outside Australia if it has the primary effect of facilitating infringement of copyright.

The studios will pay a AU$50 fee per domain they want to block, with the websites to be blocked within 15 business days. ISPs that fail to take reasonable steps will be required to notify Village Roadshow of the steps it has implemented.

In this particular matter, the proxy websites explicitly advertised that their purpose for existence was to circumvent blocks of piracy services, such as by providing explanations of how to use a VPN, in order to allow people to access Foxtel's various streaming TV services without permission on the website. 

Legal actions brought by Foxtel and other copyright owners, since the site-blocking laws were updated last year, had included mirror sites or proxy servers of piracy sites, but they did not provide a general service like the proxy websites in the current matter.

The sites that Foxtel applied to be blocked are primarily linked to streaming services or BitTorrent downloads, with five of them being proxy websites. The proxy websites are: Unblocked.lol, Unblocked.win, Unblockall, Unblocker, and Myunblock.

Foxtel's victory upholds the pattern of content creators and television companies upping the ante against streaming and torrenting websites after amendments to the site-block laws were passed in late November.

Village Roadshow, another content creator that's been aggressive in its legal fight against piracy, received court approval earlier this month to renew any blocks that have already been enforced against websites that continue to illegally share copyrighted content. The legal win was backed by Netflix, which was the first time the streaming giant had entered into a legal action to block piracy sites through Australia's anti-piracy laws. 

Prior to these judgments, Village Roadshow had also won piracy cases against smart TV box websites and sites providing subtitle files in 2018.   

The amendments to the piracy laws made in November last year allow for faster blocks of mirror sites, reduces the burden of proving that a site is hosted outside of Australia, and expands the legislation to sites that not only have the "primary purpose", but also to those that have the "primary effect" of infringing copyright, the government said at the time.

"The Copyright Amendment Bill will ensure a broader range of overseas websites and file-hosting services widely used for sharing music and movies are within the scope of the scheme, and provide a means for proxy and mirror pirate sites to be blocked quickly," the government said at the time. 

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