New anti-piracy laws to target search engines

Government to strengthen website-blocking regime

The government wants to significantly expand the scope of laws that currently allow copyright owners and licensees to seek court orders forcing Australian Internet service providers (ISPs) to block their customers from accessing sites that facilitate online piracy.

Communications minister Senator Mitch Fifield today revealed the government would introduce into parliament the Copyright Amendment (Online Infringement) Bill 2018. The government said that the bill would allow more online services to be targeted by the site-blocking scheme as well as make it harder for the operators of services to circumvent the blocks.

[Update: Here are the full details of the bill]

Under the current scheme, copyright owners can apply for Federal Court injunctions to have ISPs take reasonable steps to block subscribers from accessing an overseas-hosted website that has its “primary purpose” infringing or facilitating the infringement of copyright.

A statement released by Fifield said that the Copyright Amendment Bill “will ensure a broader range of overseas websites and file-hosting services widely used for sharing music and movies are within the scope of the scheme, and provide a means for proxy and mirror pirate sites to be blocked quickly.”

In addition, the bill will allow copyright owners to apply for injunctions requiring a search engine to “demote or remove search results for infringing sites.”

At the moment Section 115a of the Copyright Act — which sets out the site-blocking rules — only applies to carriage service providers (i.e. telcos).

Earlier this year the government launched a consultation on the operation of the site-blocking scheme. Foxtel and Village Roadshow — the two most prolific users of the current site-blocking provisions — both used the consultation to urge an expansion of the companies that can be subject to blocking injunctions.

“With all major pirate sites blocked in Australia, the front door of the department store is shut,” Roadshow co-CEO Graham Burke wrote in a submission to the government. “However, pirates, facilitated by Google and other search engines, are circumventing Australian Laws and Courts and opening a huge back door.”

Burke urged that instead of “carriage service providers” the law apply to the “intermediary” service providers, making it technologically neutral.

Foxtel said the language of the bill should be changed to just “service providers”, so that “a broader class of conduits to infringing sites are captured”.

The current site-blocking rules were introduced in 2015 with bipartisan support. Roadshow, with the backing of movie studios, and Foxtel took the lead on using the new law, successfully seeking the first website blocks. Since then the duo have returned to court several times, expanding the list of blocked sites to encompass hundreds of domains.

Australian music industry organisations, Hong Kong broadcaster TVB and entertainment distributor Madman Entertainment have all used Section 115a to apply for injunctions.

So far Telstra, Optus , TPG and Vocus and their subsidiaries have been the main telcos subject to blocking injunctions (Vodafone is listed as a respondent to an application for a site-blocking injunction that is currently before the court).

The initial site-blocking injunctions targeted infringing streaming, download, indexing and BitTorrent sites. However, more recent actions have also taken aim at online services used by Android-based set-top boxes and subtitle download sites.

The pattern for the Federal Court orders sought by rights holders was hammered out in the first round of website blocks (and since then telcos have not bothered entering an appearance during applications). The orders have offered ISPs the choice of implementing IP, URL or DNS-based blocking, or any other means agreed to in consultation with a rights holder.

ISPs have so far opted for DNS-based blocking, which although easily implemented is also trivial to bypass. The prospect of potentially requiring IP-based blocking was briefly raised in court last year.

(Although the domains listed in injunctions have generally clearly been associated with online piracy services, the IP addresses have often been those of major CDN services such as Cloudflare — potentially meaning that if IP-blocking was required to be implemented, non-pirate sites could be accidentally blocked.)

Blocking mirror sites

Currently, if a copyright owner wants to block a new mirror or proxy site, under the current rules it is subject to judicial oversight. One of the early points of conflict between rights holders and telcos was over the issue of a “rolling injunction” to deal with new avenues of access to sites. The court rejected a push to allow rights holders to have ISPs block additional domains, URLs or IP addresses simply by issuing a notice to a telco already subject to an injunction.

Fifield’s statement hints that the government will allow copyright owners to avoid returning to court if they want to block new proxies and mirrors. Entertainment companies have indicated they are keen to find ways to minimise the court costs associated with anti-piracy injunctions.

Computerworld recently revealed that the government also wants ISPs to block access to overseas-based online gambling services. However, the mechanism being considered for that measure is an enforceable industry code registered through the Australian Communications and Media Authority rather than new legislation.

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