The world's largest producers of Chinese media content, TVBO Productions and Television Broadcasts (TVB), have hit a roadblock in their attempt to get the Federal Court to order Australia's internet service providers to block access to a series of domain names they say facilitate infringement of their copyright.
During a hearing on Friday, Justice Nicholas remained unconvinced that watching a live stream in Australia of TVB's Chinese broadcast content amounts to copyright infringement, because no copy of the content is being made.
"If most of what is occurring here is a reproduction of broadcasts that are not protected by copyright, then the primary purpose is not to facilitate copyright infringement," Nicholas J pointed out.
TVB's application takes issue with seven separate set-top boxes, priced between AU$155 and AU$240, that run on the Google Android operating system and use proprietary software applications that work only with each box.
These applications allow users to watch video-on-demand content, live TV broadcasts, and replayed TV broadcasts from five separate channels owned by TVB by accessing them through "target application markets".
The Chinese broadcaster is therefore seeking an order to sever the domain names involved in the process, which it said would then halt these devices from accessing the content.
"Cut the cord, the communication -- the domain name, that is -- between the application and the target application market, and that will prevent the infringement," counsel for TVB said in court. "We're blocking the servers which provide particular functionality which communicates with the application market ... that'll mean the application market no longer works.
"The URLs are the communication pathway to the server."
Unable to answer questions as to whether watching the live broadcast amounts to copyright infringement, Nicholas J acquiesced to counsel seeking additional time to submit an affidavit addressing this. Counsel is claiming that much of the content is curated and made up of original TVB-produced films and TV shows, rather than merely pure live broadcasts.
The hearing on this issue is set to take place on May 2, after counsel for TVB said it would need "at least two weeks" to put together a submission in order to convince the judge that the primary purpose is facilitating the infringement of copyright.
A TVB IT engineer and TVB Australia's manager of Sales and Customer Service both testified during the trial, demonstrating how the set-top boxes and apps are being used to stream TVB content.
According to TVB, the impact of piracy on its business caused a revenue loss of around AU$35 million between 2011 and 2017, and reduced its employee headcount in Australia by 35 positions.
Blocking piracy websites is in the 'public interest': Roadshow
Meanwhile, the Roadshow Films case -- heard directly prior to the TVB case on Friday, because they dealt with sufficiently similar subject matter -- argued that Roadshow would be willing to pay for the cost of the website blocks because it is in the "public interest".
Like TVB, Roadshow is taking aim at people making use of an app to use an "illicit streaming device" such as an Android OS set-top box, laptop, or smartphone.
According to counsel for Roadshow, the app then communicates with facilitating servers through the cloud using the domain names Roadshow is seeking to block.
It facilitates functionality in four ways, he said: Providing authentication for its users to permit them to access content through the app; provisioning an electronic programming guide with information on which movies and TV channels can be viewed through the app; providing vision of software updates to the HD Subs Plus app; and providing vision of content management services, which allows the app to retrieve the IP addresses of the relevant content servers.
Severing the communication path by blocking the domain names will again stop the copyright works from being accessed through the app, counsel said, with some of the channels available including the English Premier League, Bein Sports, Disney channels, BBC Worldwide, and National Geographic.
A subscription for the service costs AU$240 per year or AU$30 per month, according to Roadshow, which is representing a group of film studios including Disney, Universal, Warner Bros, Twentieth Century Fox, and Paramount.
One stumbling block in the Roadshow case is that while HD Subs Plus was fully operational between December 2016 and December 2017, it was then updated to the "upgraded HD Subs Plus app" and, in late January, automatically upgraded to an app called Press Play Extra -- into which Roadshow can no longer "see under the hood".
As Nicholas J pointed out, this means there is "no evidence" of the latest version of the app being used to facilitate the infringement of copyright; however, counsel said Press Play Extra "meets the temporal aspects of Section 115A" because it is a transitional app while the owners are developing new or improving existing functionality.
"We submit the difference to be drawn is reactive to my clients serving on the operators a notice," counsel argued, despite Nicholas J in February warning Roadshow against providing "scant" evidence.
During expert testimony, an X89 Android set-top box was used to demonstrate how it can be used to access copyright-infringing content through the HD Subs Plus app.
According to the expert, the underlying concept of Press Play Extra is the same, but it is not talking to as many servers or domain names as the HD Subs Plus app was.
"Press Play Extra is almost like a placeholder," the expert testified, claiming that it is being used while the owners improve and update the app behind the scenes.
"Press Play Extra doesn't have scalability built into it, and why would you go backwards?"
Counsel added that removing functionality is "all part of a play by the HD Subs Plus people to avoid relief".
"We've proven infringement in every single target domain name in our original application, and we think there's significant threat of them being used in the future," he said.
Another setback during the hearing was an argument over the meaning of "online locations", with Roadshow saying the files and software are the online locations.
"A file is not an online location ... I want a clear answer by the end of the day," Nicholas J said.
No ISPs showed up for either hearing on Friday, after last year establishing the procedure of not being present during piracy site-blocking trials.
Both TVBO/TVB and Roadshow began proceedings in December 2017, after previous site-blocking hearings saw content owners successfully seek blocks against Kickass Torrents, the Pirate Bay, and more than 200 additional alleged piracy sites.
Under the initial ruling, rights holders are to pay a AU$50 fee per domain they want to block, with the websites to be blocked within 15 business days.
Website blocking was legislated under the Copyright Amendment (Online Infringement) Act, which passed both houses of Parliament in mid-2015 and allows rights holders to obtain a court order to block websites hosted overseas that are deemed to exist for the primary purpose of infringing or facilitating infringement of copyright under Section 115A.
The Australian government then opened consultation on the piracy site-blocking laws in mid February, with the Department of Communications seeking feedback on the effectiveness and efficiency of the mechanism; whether the application process and injunctions are operating well; and whether any amendments are required.
According to the Department of Communications, there has been a "correlating" reduction in copyright infringement since the legislation was passed -- although this also coincides with the launch of streaming services in Australia, as noted by a previous report by the department.
The hearings for Roadshow and two Hong Kong media broadcasters to have ISPs block apps used by smart TV boxes to allegedly facilitate copyright infringement have been pushed to April.
TVBO Productions and TVB are seeking to have the Australian Federal Court order ISPs to block alleged copyright-infringing websites that are accessed via specific smart TV boxes and associated apps.
Online copyright infringement has reduced since passing legislation to block piracy websites, the government has said while seeking feedback on the process.
Fair use and safe harbour regimes have been recommended under the Intellectual Property chapter of TPP 11, with the Pacific trade agreement also outlining civil and criminal penalties for piracy.
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