Piracy site-blocking case hinges on pending precedent, arrest of alleged Kickass Torrents owner

The case between music studios and ISPs will largely be determined by the decision pending in Foxtel and Roadshow's current case, as well as whether Kickass Torrents is shut down after the arrest of its alleged owner.
Written by Corinne Reichert, Contributor

The Australian Federal Court piracy site-blocking case between music studios and internet service providers (ISPs) will turn on whether Kickass Torrents is shut down for good following the arrest of its alleged owner earlier this week, and on the precedent set in the Foxtel/Roadshow case against ISPs that is also being heard in the Federal Court.

At a case management hearing in Sydney on Friday morning, counsel representing the four music studios -- Universal Music Australia, Sony Music Entertainment Australia, Warner Music Australia, and J Albert & Son -- said there is no dispute between the parties on the elements of the case.

"We think we'll be able to agree amongst ourselves about what's called the landing page," he told Burley J.

However, he added that the most likely area of dispute will be whether the rights holders should pay for the ISPs' compliance costs with court orders to block the website -- something that will be determined in the Foxtel/Roadshow case.

Counsel for Universal also mentioned domain name server (DNS) blocking rather than site blocking, and proposed three-year rolling injunctions for blocking mirror sites that pop up.

Most significantly, counsel representing the music studios said the arrest of the man allegedly running Kickass Torrents on Wednesday by the US Department of Justice (DoJ) could impact the court case, especially if the entire site is shut down.

Ukrainian Artem Vaulin was arrested in Poland, from where he allegedly runs the file-sharing website, and charged in the US District Court of Chicago with conspiracy to commit criminal copyright infringement, conspiracy to commit money laundering, and two counts of criminal copyright infringement.

"Vaulin is charged with running today's most visited illegal file-sharing website, responsible for unlawfully distributing well over $1 billion of copyrighted materials," US Assistant Attorney General Caldwell said in a statement.

A US federal court has also ordered seven domain names associated with Kickass Torrents be seized. Kickass Torrents itself has been operational since 2008, with over 50 million unique monthly visitors, according to the DoJ.

Counsel representing Telstra, Lang, also pointed towards the Foxtel and Roadshow case as a precedent to be set, saying the ISPs are not seeking a rolling injunction and still want a decision on whether the landing page will be discretionary or mandatory. Lang added that Nicholas J's decisions on those matters will be binding on the music studios' case.

Counsel for Telstra also referred to two further aspects in the other proceeding's pending decision that will affect the music studios' case: How an online location outside of Australia is determined, and compliance costs.

"A uniform approach would be desirable," Lang said, with compliance costs determinations to be "same in substance, different in approach".

In the Foxtel/Roadshow case, ISPs Telstra, Optus, M2, and TPG argued in June that they should not have to bear the costs of compliance in implementing website blocks against torrenting sites The Pirate Bay, Torrentz, isoHunt, and TorrentHound and streaming site Solarmovie.

Costs were not determined prior to the passage of the Copyright Amendment (Online Infringement) Act 2015, 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 Foxtel and Roadshow case dealt with the definition of "online location", with arguments also heard about who should host the landing page.

Counsel representing TPG, Optus, and Foxtel on Friday simply agreed with Telstra's submissions, with Justice Burley saying, "Doesn't look like there's much for me to do."

The case has been adjourned until October 25, pending the outcome of the Foxtel/Roadshow case and the result of the arrest of Kickass Torrents' alleged owner.

The case began in April, when the music studios filed a joint Federal Court application against ISPs in a bid to get them to block Kickass Torrents and its related proxy sites. 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.

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