What you need to know
- The Federal Court has handed down a further decision considering the application of section 115A of the Copyright Act 1968 (Cth) (Copyright Act).
- ISPs have been ordered to block access to 86 online locations which have the primary purpose of facilitating the infringement of copyright.
- New orders have been proposed, simplifying the process for the orders to be extended to new domain names, IP addresses and URLs for the same online locations.
Background
On 20 April 2020, Justice Burley of the Federal Court handed down the latest decision in a long line of site-blocking cases under section 115A of the Copyright Act. Justice Burley determined that each of 86 different target online locations infringed or facilitated the infringement of the applicants' copyright material in certain cinematograph films and literary works. The copyright material in this case consisted of a number of movies and television shows, including The Lego Movie, Toy Story and Stranger Things, and the subtitles for some movies and television shows.
The proceedings were largely uncontested by the owners/operators of the various online locations, except for one owner, who wrote to the applicants to allege that she was using the copyright material for educational purposes, to assist people to learn Japanese. Justice Burley rejected this argument, finding no basis for it, and stating that the relevant website was a vehicle for flagrant copyright infringement.
The Orders
While the proceedings were largely typical for site-blocking cases, the Applicants sought a change to the usual orders made in such cases.
In order to include any additional domain names, URLs or IP addresses which started providing access to the target online locations after the original orders were made, previous orders required applicants to file and serve a proposed form of order, with the support of affidavit evidence, seeking the leave of the Court to vary the existing orders (see e.g. Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503).
Justice Burley agreed with the parties that there should be a change to this process because:
- it was resource-intensive;
- the target online locations regularly changed their domain name, URL or IP addresses immediately after orders being made (or sometimes even as soon as they are served with the initiating process, meaning the orders were redundant before they were even made); and
- the intention of the amendments to section 115A was to enable a more liberal and efficient approach to amending orders.
Given the proposed orders were new, and slightly different from those proposed by the Applicants, Justice Burley ordered that the parties be given time to make submissions in relation to the orders.
After receiving further submissions from the parties, Justice Burley made orders which set out the following process for new domain names, URLs or IP addresses on 4 June 2020:
- the applicants would provide written notice to the Court and the respondents identifying the new domain name, IP address or URL, and certifying in good faith that it was a new location for a Target Online Location from the existing orders;
- the respondents would be allowed 7 days to object to blocking the new domain name, IP address or URL;
- if any respondent objected to disabling the domain name, IP address or URL, or the Court considered it appropriate to do so, the proceeding would be relisted for direction; and
- if no respondent objected within the 7 day window, and the Court did not otherwise require the matter to be relisted, the respondents would be required to take steps to disable access to the new domain name, IP address or URL.
The proposed orders otherwise align with those made in previous cases, requiring the Respondents to disable access to the Target Online Locations, with the orders to operate for three years (with the ability to be extended on application).
Looking Forward
This case indicates the Court is looking to simplify the process needed to add new domain names, IP addresses and URLs to orders, to deal with the fact online locations to which access is disabled regularly appear at new domain names, IP addresses and URLs to circumvent the orders.
This new approach is in line with the intention behind the amendments made to section 115A in 2019 to allow the Court to make orders which respond and adapt to changing locations, and prevent parties having to go through the time and expense of returning to court.
It seems likely that future cases will adopt similar forms of orders, somewhat streamlining the process for the constant game of whack-a-mole between copyright owners and online piracy locations.
Authors: Imogen Loxton, Lawyer; and Anita Cade, Partner.
