Foxtel and Roadshow home in on piracy website blocking

Australian pay TV provider Foxtel and media company Roadshow Films have continued their bid to block five foreign piracy websites through the Australian Federal Court, with the affected internet service providers (ISPs) seeking for the most efficient and cost-effective method to implement it.

Foxtel and Roadshow last month applied to block the various websites through the Federal Court under the piracy site-blocking legislation that both houses of parliament passed in mid-2015.

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.

"There's been notice provided to very many of the sites in the Foxtel proceedings," counsel representing both Foxtel and Roadshow, Richard Lancaster, told Justice Nicholas.

"Of course, the Roadshow proceedings deal with one online location only, namely the Solarmovie sites, so that's somewhat more confined, but in relation to Foxtel, we've got the four targeted locations.

"Some of them, there's no obvious or indeed unobvious mechanism for getting in touch with the operators of the sites, but we have sent notification letters out to 43 of the 61 domain names that have been identified in the pleadings."

Under Section 115A of the Copyright Amendment (Online Infringement) Act 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.

In order to prove this primary purpose for the websites presently under consideration, Lancaster said 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.

"Our internal review identified that the ASIC teams requesting s313 blocks were not aware that a single IP address can host multiple websites," ASIC later stated.

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," he said.

Lancaster agreed, saying "it is vital that copyright owners have an efficient mechanism to disrupt the steady supply of infringing content to Australian internet users from overseas websites".

"We envisage, in due course, a one- to two-day hearing to take Your Honour through the evidence, and to satisfy Your Honour of each of the components in the statutory provision."

While ZDNet understands that Foxtel had originally expected the blocks to be waved through within a few days of making the application, Tuesday's arguments took place almost a month later.

The hearing itself will occur on May 6, with the Foxtel and Roadshow cases to continue being heard alongside one another.

Under the new legislation, 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.

Costs were not determined prior to the passage of the law, with the government not ordering a cost-benefit analysis nor detailing who would bear the costs of implementing the scheme.

It has been projected to cost ISPs more than AU$130,000 per year to implement, however.

Questions surrounding costs are particularly pertinent after research [PDF] released last year by the Department of Communications revealed that only 21 percent of respondents said an education notice would prevent them from consuming copyrighted content for free.

Respondents to the survey said the primary factors that would stop them from infringing in the future are a decrease in the cost of legal content, the availability of legal content, and the simultaneous release of content in Australia alongside the rest of the world.

The research by the Australian Department of Communications also revealed that users who consume paid content in addition to downloading copyright-infringing content actually spend more than users who consume only non-infringing content -- meaning the piracy code could be counter-intuitive.

"Rights holders' most powerful tool to combat online copyright infringement is making content accessible, timely, and affordable to consumers," Australian Prime Minister Turnbull conceded last year.

In related piracy news, last month Dallas Buyers Club (DBC) abandoned its Federal Court case to claim damages from the almost 5,000 people who allegedly infringed on the studio's copyright by downloading the film of the same name.

Justice Nye Perram, who initially ruled in favour of DBC recovering damages from the 4,726 people who allegedly infringed on the studio's copyright by downloading the film of the same name, put in place a sufficient number of limitations to ensure that rights holders could not claim "untenable" damages in such cases.

The decision could potentially cement the Federal Court's methodology in calculating damages for online copyright infringers.