The Federal Court has handed down the first website blocking injunctions under Australian anti-piracy laws.
Justice Nicholas today handed down a ruling that will see Australia’s major ISPs compelled to block their customers from accessing a number of sites linked to online piracy.
The judgement relates to two applications for injunction lodged separately but heard jointly: One by Foxtel and one by a group representing movie studios and led by Village Roadshow.
The Village application sought to block streaming site Solar Movie, while Foxtel’s sought to block The Pirate Bay, Torrentz, TorrentHound and IsoHunt.
The ISPs named in the applications are Telstra, TPG (including iiNet) and Optus; additionally, M2 (now a part of Vocus and whose brands include Dodo) was a respondent in the Village application.
Within 15 days the ISPs will have to take steps to disable their customers' access to the target sites. The court's orders allow ISPs to use DNS-based blocking, IP blocking or re-routing, URL blocking or any other means that is agreed to by a rights holder.
The telcos will have to redirect attempts to access a blocked site to a landing page set up either by them or by a rights holder.
Parliament in June last year passed the legislation that allows rights holders to apply for site-blocking injunctions.
The legislation imposes a number of limits on what sites can be blocked (their primary purpose must be copyright infringement or facilitating copyright infringement, for example, and they must be based overseas).
However, the government intentionally did not take a prescriptive approach and left significant aspects of the site-blocking regime to be established by the Federal Court.
Who should pony up for the cost of implementing a site block is not outlined in legislation. With regards to costs, it merely states that ISPs are not liable for any costs in relation to court proceedings unless they enter an appearance and take part in the proceedings.
The ISPs did not oppose the rights holders' applications. Instead a portion of the proceedings were dedicated to the applicants providing evidence to satisfy the court that the target sites met the criteria necessary for the imposition of a block.
In addition to the ‘primary purpose’ test, for example, the target ‘online location’ must be ‘outside Australia’.
The main flashpoints between ISPs and rights holders during the hearings were costs and the nature of ongoing oversight for the blocking of mirrors and proxy sites that replicate the target websites.
Rights holders sought a form of ‘rolling injunction’ that would have seen them notify the ISPs of additional mirrors or proxies of the target sites and the ISPs compelled to add those replica sites to their blocklists. However, the ISPs argued for ongoing court oversight of the process.
On this issue the telcos won a decisive victory, with the court to assess additions to the blocked domains, URLs and IPs.
If a rights holder becomes aware that one of the blocked sites is employing a new domain, URL or IP address, they can lodge an affidavit and a proposed amendment to the blocking regime with the Federal Court.
The ISPs will then have seven days to object. If an ISP objects or if the court sees fit for some other reason, the matter will be relisted for further directions. Otherwise, the court can add proxies or mirror sites to the blocklist without an additional hearing.
The blocking orders will have an initial three-year period, with rights holders able file for extensions before their expiry.
The ISPs sought to have the rights holders reimburse them for the costs of implementing the site blocks. In addition, they have sought the costs of appearing in court. On both counts, the ISPs were somewhat successful.
Foxtel will pay $1500 to Optus for compliance costs and $50 per domain blocked to Telstra and TPG. Roadshow will pay M2, Telstra and TPG $50 per domain blocked.
The court also ruled that Foxtel and Village should pay a portion of the telcos’ legal costs.
Another site-blocking application launched by the music industry has been heard separately from the Foxtel and Village applications. That application is seeking to have Telstra, Optus, TPG and Foxtel’s broadband arm block access to Kickass Torrents.