The cost of complying with an injunction compelling ISPs to block access to a number of pirate websites, the costs of legal proceedings, and how to deal with mirror and proxy sites are the key areas of difference between Foxtel and Village Roadshow on one side and a group of ISPs on the other, according to Richard Lancaster SC.
Lancaster represented the two rights holders this morning in a Federal Court hearing in Sydney. Village and Foxtel are the first parties to employ anti-piracy legislation that allows rights holders to apply for site-blocking injunctions to enforce their copyright.
The rights holders are seeking to have Telstra, Optus, M2 and TPG block their subscribers’ access to a number of high-profile piracy-linked sites that are hosted outside of Australia.
Despite extensive out of court negotiations between the parties, the cost questions remain unresolved.
The other conflict is focused on the concept of a ‘rolling injunction’ that can be updated to ensure a particular pirate site remains blocked (blocking “new access pathways”, in the words of Lancaster).
At the heart of the issue is the definition of ‘online location’: An intentionally broad phrase used in the site-blocking legislation. The rights holders want to ensure that the final orders issued by the court capture proxy and mirror sites, as well as changes in IP address or URL.
Lancaster contended that an “online location” could refer to a server that changed its IP address or the same “digital content” being accessed on a different server. “So far as the user is concerned, the same website is being accessed,” he told the court.
The phrase can’t be reduced to an IP address or URL; instead it is about “digital content of a particular type and form that is accessible on the Internet and … might be accessible by different means” but it still a “single entity” albeit not necessarily “attached to a single website”
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There are “numerous pathways to substantially identical digital information that we call the online location”.
Justice Nicholas formally joined the Foxtel and Village applications this morning. Arguments are expected to wrap up tomorrow afternoon.
A third application for injunction has been made by a group of music labels and licensing organisation APRA AMCOS. They are seeking to have Telstra, Optus and TPG, as well as Foxtel, block access to Kickass Torrents. A case management hearing is scheduled for 11 July.