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Foxtel pushes to prevent workarounds in piracy site-blocking case

The definition of an 'online location' must be sufficiently broad to prevent workarounds once a website block is put in place, Foxtel and Roadshow have argued in court.
Written by Corinne Reichert, Contributor

Australian pay TV provider Foxtel and media company Roadshow Films have continued their bid to get several internet service providers (ISPs) including Telstra, Optus, M2, and TPG to block access to five foreign piracy websites through an Australian Federal Court order, with matters getting bogged down while the court struggled with the definition of "online location".

Justice Nicholas formally joined the two court proceedings on Thursday, saying they had enough in common to be heard as one, despite Roadshow seeking to block a video-streaming site, Solarmovie, while Foxtel is taking issue with four torrenting websites involving 61 domain names: The Pirate Bay, Torrentz, isoHunt, and TorrentHound.

"Although the matters have been fixed for hearing together, I don't know that there's been any formal order made that they be heard together and the evidence in one be evidence in the other, which I think would be appropriate in this case," Nicholas J said.

Justice Nicholas also made several orders for confidentiality, with nearly every party claiming that some of the documents revealed to each other during the process are "commercially sensitive", including information from Foxtel on sales, revenue, production agreements with third parties, piracy numbers, and audience data.

Each ISP provided documents and evidence to back up their arguments for the two-day hearing, with counsel representing both Foxtel and Roadshow Richard Lancaster tendering a physical hard drive and showcasing a video demonstrating how someone could download or stream various TV shows to which Foxtel owns the distribution rights, such as Wentworth and The Real Housewives of Melbourne.

Talking Justice Nicholas through 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 -- as well as the explanatory memorandum, Lancaster fixated on the meaning of "online location".

Lancaster argued that a location extends beyond a single website, mainly because the owners of a piracy website can easily move the content elsewhere if a simple URL or IP address block is put in place.

"What is the proper construction of the words 'online location'? In our submission, it's clear that it is not just specific URLs or IP addresses, and the reason that that proposition is supported by the expression of the text in [s]115A(1)(b) is that the legislature is obviously attributing to the 'online location' something in the notion of it being an actor; it seems to be a broad reference to the digital content established by the operators of the online location, which is in essence identified as something that is capable of infringing copyright," Lancaster said.

"Of course, corporations and persons infringe copyright. To say the online location infringes copyright is a broader shorthand reference, we contend, for the idea that those responsible for the location of the digital content of websites that are accessible by various URLs and IP addresses are within that broader notion of online location. The explanatory memorandum supports that broader construction."

Lancaster spent much of the morning describing his definition of the term, with Justice Nicholas needing to be walked through it several times.

"The explanatory memorandum says the term online location is intentionally broad, and includes that which is not limited to a website, and would also accommodate future technologies," Lancaster said.

"So proponents of the Bill clearly thought this isn't just four numbers of an IP address, this isn't just a single identified URL for a website, it's a broader notion ... by referring to it being digital content of a particular type and form that is accessible on the internet, and as the evidence in this case shows, it might be access various different means, in terms of website addresses and IP address and so on.

"But the online location is a single entity, not necessarily attached to any specific website, and indeed the reference to accommodating future technologies makes one immediately think of the cloud."

Lancaster's main basis for the argument in favour of a broad definition of "online location" was to prevent workarounds from occurring.

"There is an ongoing problem with what you can call workarounds by site operators, where new URLs or addresses and so on are registered to provide the same access to the material via different pathways, and that's occurred to one of the sites subject to the Foxtel proceedings," Lancaster said.

"The content as it appears on the screen to a user looks to be either identical or substantially the same; so far as the user is concerned, the same website is being accessed ... it may mean the same material hosted on a different server. It's the same site in the sense that it's the same digital content wherever it happens to reside overseas."

Lancaster concluded that there needs to be a mechanism in place for dealing with the inevitable workarounds that occur when URLs are blocked.

"The court's processes shouldn't be so cumbersome or inefficient as to require a whole new application when that circumstance arises," he pointed out.

The case has been adjourned until Friday, with the ISPs slated to present their evidence and arguments at that time.

Foxtel and Roadshow had in February applied to block various websites under the piracy site-blocking legislation, with several outstanding issues yet to be addressed; prior to the passage of the law, the government did not specify whether it would be a single blocking page redirected from all blocked sites or many landing pages, who would host such landing pages, who would contribute to the cost of hosting those landing pages, or how long a block would need to be in place.

Costs were also not determined, with the government not ordering a cost-benefit analysis nor detailing who would bear the costs of implementing the scheme. It has since been projected to cost ISPs more than AU$130,000 per year to implement.

Telstra last month argued against the high costs of compliance inherent in implementing such website blocks. It is expected to present evidence on Friday on how much compliance would cost, with Justice Nicholas in May asking for broad estimates of monetary figures from all ISPs in regards to costs, rather than "mountains of evidence".

TPG, on the other hand, already gave a concrete monetary figure: AU$50 per domain name to implement a domain name server (DNS) block. According to TPG's figures, just in blocking Foxtel's targets, this would amount to $3,050 per ISP, not including Roadshow's target.

M2 put forward the amount required for compliance as being between AU$400 and AU$800, plus some overhead costs, for all of the blocks.

In court in March, counsel for TPG Chris Burgess had advocated DNS blocking rather than IP address blocking, because, as he pointed out, workarounds mean that "IP addresses change very rapidly".

Last month, Universal Music Australia, Sony Music Entertainment Australia, Warner Music Australia, and J Albert & Son similarly filed a joint Federal Court application against Australia's major internet service providers (ISPs), as well as Foxtel, 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.

A hearing for the music studios' case against the ISPs has been scheduled for July 11 in the Australian Federal Court.

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