In common with other countries around the world, Australia envisions a multi-point process to tackle the issue of online piracy.
The first was a so-called “three strikes” warning scheme that would see regular Internet users monitored by anti-piracy companies and then sent escalating warning notices by their respective ISPs. After years in the planning the system was found to be too expensive and has now been shelved.
In parallel, copyright holders have sought to have pirate sites blocked at the ISP level and after new legislation was passed last year, the process was expected to become more streamlined. Today the first cases landed in Federal Court to test out the system for the first time.
Two industry players are leading the charge, with Roadshow Films (the movie division of Village Roadshow) and TV giant Foxtel both seeking to have several pirate sites blocked at the ISP level. The latter wants to render The Pirate Bay, Torrentz, isoHunt and TorrentHound inaccessible in Australia while the former is targeting streaming portal Solarmovie.
Perhaps needless to say, things haven’t been as straightforward as the entertainment companies might have liked.
Part of the blocking process requires that the copyright holders contact the sites in question to inform them that an application has been made. However, due to the existence of dozens of mirrors, clones and proxies (which only exist due to blocking action in other regions) that process has been both labored and fruitless.
Representing both Foxtel and Roadshow is veteran piracy case lawyer Richard Lancaster who also represented iiNet in the long-running and recently ended case against Dallas Buyers Club.
Lancaster told the Court that more than sixty sites need to be addressed to block the handful of key domains in the action yet only two-thirds of them have been reachable by letter. None of the sites responded.
“[For some of the sites] there’s no obvious or indeed unobvious mechanism for getting in touch with the operators of the sites, but we have sent notification letters out to 43 of the 61 domain names that have been identified in the pleadings,” he said.
Also at issue is proving to the Court that the sites being targeted have a primary purpose to infringe copyright. According to counsel for the applicants, that will be achieved by providing screenshots of each of the domains being targeted.
However, since there is zero chance of the owners of the sites turning up to defend themselves, there will be no adversarial process over what the Court is shown.
Furthermore, none of the 50 ISPs cited as parties in the case will mount a defense against the applications so barring any unforeseen circumstances the blocks will eventually become reality. Nevertheless, there are technical issues to be ironed out and some of those were aired in Court today.
For their part the ISPs would like to block the sites in question by interfering with their DNS systems but it appears that Foxtel and Roadshow Films would prefer the blocking of URLs and IP addresses. Additionally, Foxtel would like to add more IP addresses if sites seek to evade a block, which could be a problem with at least one ISP.
“We wish to seek to negotiate an arrangement for DNS blocking. If [Foxtel] were pushing for a broader blocking mechanism that might be an issue,” said counsel for Internet provider TPG.
While agreement will eventually be reached, both sides acknowledged the need for these first two cases to be dealt with in a manner that will build an efficient and cost-effective framework for future applications.
“This will be the first of several proceedings, and we really want to establish best practice from the outset,” counsel for ISP Optus said.
“We are concerned and ISPs are concerned that the orders in this case provide a template for the future,” Foxtel’s counsel added.
“We expect that will be done by careful consideration in the proceedings and by an eye for efficiency in future proceedings.”
The next date of note is May 6, when the copyright holders and ISPs return to Court having attempted to iron out their differences on the technicalities of blocking. That is surely only a matter of time and perseverance.
When the blocks are eventually put in place, future visitors to blocked sites will be greeted by a special landing page that will inform them of the existence of a court order. Those landing pages will be hosted by the studios so they will be able to track the number of visitors to the site and even their IP addresses.
