Music studios file against ISPs for piracy website blocking

Telstra, Optus, iiNet, Virgin, Foxtel, and others are being sought by several music studios to block piracy websites through the Federal Court.
Written by Corinne Reichert, Contributor

Universal Music Australia, Sony Music Entertainment Australia, Warner Music Australia, and J Albert & Son have filed a joint Federal Court application against Australia's major internet service providers (ISPs), as well as pay TV provider Foxtel, in a bid to get them to block foreign piracy websites.

The full list of respondents subject to the action involves Telstra, Optus, iiNet -- now owned by TPG -- Foxtel, Virgin Mobile Australia, Vividwireless, Pacnet, Alphawest, and Uecomm.

According to the Australasian Performing Right Association (APRA), of which all four music rights holders are members, they are looking to block Kickass Torrents and its related proxy sites.

"Online infringement continues to be a major threat to the sustainability of the Australian music industry," said Jenny Morris, chair of the APRA board.

"Illegal offshore sites like Kickass Torrents show a complete disrespect for music creators and the value of music. Australian music fans already have access -- for free if they choose -- to the world's repertoire of music via more than 20 legitimate licensed online music services.

"Blocking access to sites like Kickass Torrents is all about supporting those services and allowing the writers whose songs are available on them to be paid for their work."

Thanks to piracy site-blocking legislation that both houses of parliament passed in mid-2015, rights holders may 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 of the Copyright Amendment (Online Infringement) Act 2015.

A case-management hearing has been scheduled for June 6 in the Australian Federal Court.

Telstra, Optus, Foxtel, and Virgin Mobile did not respond to a request for comment upon the time of publication.

Similarly, Foxtel and media company Roadshow Films in February applied to block five foreign piracy websites. While Roadshow is targeting only one piracy site -- the lesser-known, Philippines-based Solarmovie.ph -- Foxtel is targeting four sites, which involve 61 domain names. Its primary target is The Pirate Bay.

The court case between the rights holders and ISPs including Optus and TPG has reached a stage where all parties are seeking the most efficient and cost-effective method to implement the blocks, including suggesting domain name blocking rather than IP address blocking.

In order to prove this primary purpose for the websites presently under consideration, counsel representing both Foxtel and Roadshow Richard Lancaster said last month in court the rights holders would seek to provide the court with an overview of each website being targeted.

"The way we've approached it in each of the proceedings is to attempt to provide a snapshot or overview of the way each of the relevant sites operates by screenshots, for example, [or a] description of someone sitting down and actually going through the websites, so that Your Honour's able to conclude that that is indeed the primary purpose," Lancaster explained.

Chris Burgess, counsel representing TPG, said the ISP had agreed to the orders made by Lancaster, although he said that certain terms under s115A will still need to be ironed out during either negotiation or the hearing.

"That may give rise to a question of statutory construction about what an 'online location' is, and whether each additional IP address, for example, would be a new online location for purpose of s115A(1)," Burgess said.

Burgess advocated domain name server blocking rather than IP address blocking, because, as he pointed out, "IP addresses change very rapidly".

IP address blocking has been fraught with difficulties in the past; when the Australian Securities and Investments Commission (ASIC) used its power to compel ISPs to block websites under s313 of the Telecommunications Act in April 2013, it accidentally blocked 250,000 websites.

In reaching agreement on the site-blocking matter, Burgess said TPG is happy to confer directly with the rights holders, whereas Optus would prefer a third-party mediator to be appointed.

Webb, counsel representing Optus, said the ISP itself will not be able to admit some issues on the part of the infringing websites, due to a lack of knowledge and involvement.

"They're largely not within our knowledge, and we'd not be able to admit," Webb said.

Webb added that it would not be in the interest of any of the parties for the ISPs to put on defences, saying the case should be wrapped up as quickly as possible.

"These will be the first of several proceedings -- there will be others -- and from Optus' perspective, we really want to establish best practice from the outset, so it's important that the process that we adopt in these cases be as quick, inexpensive, and efficient as possible."

The Foxtel and Roadshow hearing against ISPs will take place on May 6.

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