What you need to know
- The Federal Court has handed down the latest round of judgments which considered the application of s 115A of the Copyright Act 1968 (Cth) (Copyright Act).
- The proceeding initiated by Village Roadshow saw Justice Nicholas block access to 42 piracy sites; while the proceeding initiated by Foxtel saw Justice Burley block access to a further 17 piracy sites.
- These judgments were broadly consistent with the previous judgments which have considered this section, in that:
- ISPs have been ordered to block overseas websites which have the primary purpose of infringing copyright.
- Rights holders must pay compliance costs to the ISPs for the site-blocking.
- The orders relate only to the nominated domain names. For new domain names in relation to the infringing sites, the Court established a mechanism to extend the orders. Completely new sites will need to be the subject of separate proceedings.
The Decisions
In August 2017, Justices Burley and Nicholas handed down substantially similar decisions ordering various ISPs to take reasonable steps to disable access to websites which were determined to have had the primary purpose of allowing the unauthorised download of movies and TV shows on a large scale.
The orders largely mirror those previously handed down under s 115A of the Copyright Act. This section provides a “no-fault” remedy for content holders to compel ISPs to disable access to websites that have the primary purpose of providing access to copyright infringing material.
The orders have now seen the likes of Pirate Bay, SolarMovie, Torrentz, TorrentHound, IsoHunt, KickassTorrents, Kiss Carton, WatchFree, Movie4K, yesMovies, Watch Series 1 and Watch Series 2 all being blocked from selected Australian servers by the nominated ISPs.
The Orders
Broadly, the orders were:
- The ISPs must, within 15 days, DNS block (or equivalent) the nominated domain names and redirect users to a website which will display a prominent message that the original website has been disabled because the Court has determined that it infringes copyright or facilitates copyright infringement.
- The orders will be in place for 3 years (and can be extended upon application).
- For any new domain names for these sites not already covered by the orders, the copyright owners can file proposed orders to extend the injunction to the new online location/s, which the Court may grant without further hearing if the ISPs do not object to the orders.
- To block entirely new websites, the copyright owners will need to initiate new proceedings.
- The copyright owners were ordered to pay the ISPs’ compliance costs of $50 per domain name.
The ISPs did not participate or seek to be heard in these proceedings. The owners and operators of the relevant websites have not appeared in any of the proceedings so far.
Looking Forward
These decisions provide further support for the precedent set by the Court that site blocking orders will be made in broadly consistent terms where websites are found to have the primary purpose of infringing copyright.
Interestingly, the chairman for Creative Content Australia and co-CEO of Village Roadshow, Graham Burke, has issued a warning for anyone who continues to access pirated materials, and indicated that Village Roadshow will start pursuing infringing individuals. Village Roadshow will need to seek preliminary discovery from ISPs to obtain the names and addresses of suspected infringers. Unlike the Dallas Buyers Club saga where this was attempted, Mr Burke has reportedly indicated that Village Roadshow will not engage in speculative invoicing.
Authors: Anita Cade, Partner; Marlia Saunders, Senior Associate. This article was written with the assistance of Jessica Norgard.
