Foxtel looking to block piracy websites through court

Pay TV provider Foxtel will be looking to block piracy websites at the beginning of next year via a Federal Court order.
Written by Corinne Reichert, Contributor

Foxtel has confirmed reports that it will seek to block several websites that facilitate piracy through a Federal Court order in early 2016.

According to the pay TV provider, the unnamed piracy sites offer content that infringes on Foxtel's own copyright.

"We have a strong case that relates to Foxtel-owned content in the early stages that we will be submitting to the Federal Court," a Foxtel spokesperson told ZDNet.

Piracy site-blocking legislation was passed in mid June by both houses of parliament.

The new Copyright Amendment (Online Infringement) Act 2015 will allow rights holders to obtain a court order to block websites hosted overseas that are deemed to contain or facilitate user access to copyright-infringing material.

Whenever a website is blocked by the Federal Court, a landing page will need to be hosted informing any would-be copyright infringers about the block, and providing information on where legitimate content can be found.

Educating the consumer on piracy is the stated purpose of the law, according to Bruce Meagher, director of Corporate Affairs at Foxtel.

"We need to be able to educate people both on the dangers and problems that piracy causes, and the legitimate means by which it can be achieved," Meagher said during a Communications Alliance panel in August.

Meagher added that in order to achieve this, "The landing page is very, very important."

The legislation has yet to resolve the issue of cost sharing between internet service providers (ISPs), rights holders, and the government, however, with rights holders arguing that the former should contribute in the effort to police piracy because they are now content providers, too.

Gary Smith, Optus head of regulatory compliance and affairs, and chair of Working Committee 66, which developed the three-strikes code, however, flagged that the government has not specified whether it would be a single blocking page redirected from all blocked sites or many landing pages; nor who would host the landing pages, who would contribute to the cost of hosting those landing pages, or how long a block would need to be in place.

While the government did not order a cost-benefit analysis prior to passing the law, it has since been projected to cost ISPs more than AU$130,000 per year to implement.

Another federal piracy regulation, the three-strikes code, was written in collaboration by ISPs, rights holders, and the Comms Alliance, and submitted to the Australian Communications and Media Authority (ACMA) in April in accordance with the deadline given by Attorney-General George Brandis and Communications Minister cum Prime Minister Malcolm Turnbull.

Under the draft code [PDF], rights holders will send reports to ISPs identifying IP addresses that have allegedly infringed on copyright, with the ISPs to then match IP addresses with account holders and send the associated customers infringement notices. Customers can be warned three times over a 12-month period in escalating education notices, warning notices, and final notices, after which the ISP involved must make a user's details obtainable through a Federal Court order.

A copyright information panel (CIP), made up of two ISP representatives, two rights holder representatives, and two consumer organisation representatives, will adjudicate and maintain the system, but has yet to be appointed.

The regime was originally set to be implemented from September 1, but had to be pushed back due to stalling negotiations over the costs imposed by instituting this scheme, and whether the 70 ISPs involved will receive any compensation for being required to enforce copyright on behalf of rights holders.

In an effort to determine the costs likely to be shouldered by ISPs in sending out infringement notices to customers, the Comms Alliance revealed that ISPs and rights holders had commissioned an "independent expert".

During the panel in August, Meagher and Smith said that the purpose of the three-strikes scheme is again to promote "education" and "awareness" of copyright infringement -- although Foxtel's Meagher admitted that rights holders were unhappy with the code's present form, as they were after something more punitive.

He suggested that a high volume of notices would need to be sent in order for the code to be taken seriously by consumers.

"This is fundamentally an education code," Meagher acknowledged. "We did argue for a code that had more teeth than this code has; we were unsuccessful in that argument. So, what we need is for this code to be having a demonstration effect on the community, for enough people to be getting notices for those things to be known, to be raising awareness of all these issues, and hopefully having an educative effect."

Regardless, once final notices are sent out and a consumer's details are obtained through the Federal Court, punitive measures will be sought.

While Smith said a simple, uniform letter would be formulated, this will likely be affected by the judicial decision made recently in the Federal Court; in August, Justice Perram ruled that Dallas Buyers Club's draft letters to send to alleged infringers had overreached in its claims for damages, and would need to be rewritten.

The code also ties in with the recently passed Trans Pacific Partnership (TPP), which will force ISPs in member states to give up identification details of alleged copyright infringers so that rights holders can protect and enforce their copyright through criminal and civil means with few limitations.

The TPP, which will regulate trade between Australia, the United States, New Zealand, Canada, Singapore, Vietnam, Malaysia, Japan, Mexico, Peru, Brunei, and Chile, states that judicial authorities have the power to order copyright infringers to identify any other person involved in the alleged infringement, as well as the channels they used to obtain and distribute infringing goods or services.

Under TPP Article 18.82(1)(a), ISPs will be provided with "legal incentives" to cooperate with rights holders on deterring storage and transmission of copyrighted goods and services.

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