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IP @ Ashurst 28 Jun 2018 More pirate ships sunk as  copyright owners go after streaming app locations

Roadshow Films Pty Limited v Telstra Corporation Limited [2018] FCA 582

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What you need to know

  • The Federal Court has handed down its fifth decision considering the application of section 115A of the Copyright Act 1968 (Cth) (Copyright Act).
  • ISPs have been ordered to block access to 16 online locations which have the primary purpose of facilitating the infringement of copyright.
  • This was the first site blocking case to consider online locations accessed by apps in smart TV boxes, or set top boxes, rather than websites accessed by individuals.
  • The orders made relate only to nominated domain names. For new domain names in relation to the infringing online locations, the Court established a mechanism to extend the orders. Completely new sites will need to be the subject of separate proceedings.
  • The copyright owners will have to pay compliance costs to the ISPs for the site-blocking.

Background

On 27 April 2018, Justice Nicholas of the Federal Court handed down the latest decision in the series of site-blocking cases. His Honour ordered various ISPs to take reasonable steps to disable access to 16 online locations, which his Honour determined had the primary purpose of facilitating the infringement of copyright in films and television broadcasts on a large scale.

The orders largely mirror those handed down in Roadshow Films Pty Ltd v Telstra Corporation Limited [2016] FCA 1503 (as discussed in our October 2017 IP @ Ashurst), Universal Music Australia Pty Limited v TPG Internet Pty Ltd & Ors [2017] FCA 435 (as discussed in our June 2017 edition of IP @ Ashurst), Roadshow Films Pty Ltd v Telstra Corporation Limited [2017] FCA 1041 and Foxtel Management Pty Limited v TPG Internet Pty Ltd [2017] FCA 1041 (both discussed in our October 2017 edition of IP @ Ashurst). These decisions relate to section 115A of the Copyright Act, which provides a "no-fault" remedy for content holders to pursue organisations (via their ISPs) which operate websites that have the primary purpose of providing access to copyright infringing material.

Unlike the previous section 115A decisions, the online locations in this case were not websites, but rather were specific online locations used by three apps operating through smart TV boxes to download infringing content.

The three apps in question were in fact three versions of the same app, which came pre-installed on the X-96 Smart TV box. These apps could also be installed on any Smart TV box running Android software. The apps required users to purchase a subscription, after which users could use the apps to stream a wide variety of movies and various TV channels without the consent of the copyright owners. The online locations to which these proceedings related were used by the apps to stream this infringing content to the Smart TV boxes.

The Orders

Justice Nicholas made the following orders:

  • The ISPs must, within 15 days, DNS block (or equivalent) the nominated online locations 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 online locations 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 must pay the ISPs’ compliance costs of $50 per domain name of the online locations.

Looking forward

This decision shows a willingness by the Court to apply section 115A beyond websites to online locations accessed by apps, rather than by individuals. Smart TV boxes are an increasingly popular way to access content, and many can be used with apps that allow access to infringing content. This is likely to be an increasing area of focus for copyright owners, and therefore the courts, in pursuing online piracy.

The decision also further supports the precedent set by the earlier site-blocking cases for broadly consistent orders where online locations (whether websites or otherwise) are found to have the primary purpose of infringing copyright.

Authors: Imogen Loxton, Lawyer; and Anita Cade, Partner

 

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The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Readers should take legal advice before applying it to specific issues or transactions.

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