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Test case likely to precede flood of piracy site-blocking cases

Rights holders are likely to test the waters of new site-blocking laws in Australia with a single test case in the coming months.
Written by Josh Taylor, Contributor

Rights holders will likely put up a single case over the next few months to test out new laws to force internet service providers to block piracy websites by court order.

The legislation, which passed the Australian parliament on Monday backed by the government and Labor, will allow rights holders to obtain court orders forcing ISPs to block websites facilitating access to illicit downloads of TV shows, films, and music.

The legislation still needs royal assent before it becomes law, which is likely to take up to two weeks. Once that is passed, rights holders are free to then apply to the Federal Court to seek to have overseas-hosted websites blocked.

The film association lobby group Australian Screen Association, which ZDNet understands is likely to take the lead on any cases, said it will "review the implementation of the legislation and consider its options" before launching any cases.

The association, formerly known as the Australian Federation Against Copyright Theft, led the charge in court in its failed bid to hold iiNet responsible for its customers' alleged copyright infringement several years ago.

Simon Bush, the CEO of the Australian Home Entertainment Distributors Association, told ZDNet that rights holders don't have a set of cases lined up at this point.

"It's not like we have one or 10 ready to go... You'll see a very simple test case put [to the court]."

When the case reaches a court, a judge will assess whether the site "infringes, or facilitates an infringement, of copyright", and whether that infringement is "flagrant", among other things, before issuing an injunction to force ISPs to block the site.

This will mean that rights holders will likely target the most prominent sites, such as The Pirate Bay or Kick Ass Torrents first, rather than going for more complex services like Popcorn Time in the first instance.

At the moment, the only parties that can immediately be part of the case will be the rights holders, the ISPs, and the overseas owners of the websites that rights holders want blocked.

What this will mean in practice is that it is very likely that rights holders will go unchallenged in court, and it will be up to the judge to decide whether there are public interest matters to consider before blocking websites.

Liberal Senator Concetta Fierravanti-Wells, acting on behalf of Attorney-General George Brandis in the Senate on Monday, insisted that although iiNet and the other ISPs had intervened in the Dallas Buyers Club case, the court in that instance had shown it was capable of balancing public interests on its own without a public interest advocate being included in the case.

"As we have said earlier, as the court has shown in [the Dallas Buyers Club case], it is perfectly capable of balancing those competing public interests, including those of consumers," she said.

A judge can set a limit on the length of time a site is blocked, and can also repeal the block at a later stage.

The parliament will also review the effectiveness of the scheme after two years, and the government has previously indicated that it only expects around 10 injunctions to be granted per year based on the UK model.

On Monday, Australian subscription TV company Foxtel -- home to the oft-downloaded TV series Game of Thrones -- welcomed the passage of the legislation, highlighting the apparent success of the UK, European, and Singaporean versions of the law.

"This Bill is modelled on legislation that works effectively in other jurisdictions, such as the UK, Europe, and Singapore. There have been wild claims that it will create an 'internet filter', 'break' the internet, or prevent legitimate uses of the internet. International experience shows that this is simply nonsense and fear mongering -- last time I looked, the UK had a perfectly well-functioning internet," Foxtel CEO Richard Freudenstein said in a statement.

"We look forward to seeing the legislation put into effect both to demonstrate that these fears are unfounded and to begin reducing the levels of illegal downloading in Australia."

In the UK, however, research has found that single blocks of sites such as The Pirate Bay proved ineffective in deterring infringement, with users switching to mirror versions of the website rather than seeking out legitimate content.

ZDNet has also been unable to find a single High Court ruling in Singapore forcing ISPs there to block any piracy websites since the legislation passed last year. ZDNet has confirmed The Pirate Bay is still accessible in Singapore.

A spokesperson for Foxtel said the first cases "are making their way through the legal system". The spokesperson said it expected rights holders to use the legislation to block sites in Australia "in the near future" but could not outline when the cases might make it to court.

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