A suggestion by Foxtel that its latest application for an anti-piracy injunction be heard ‘on the papers’ has been rejected by a Federal Court judge. Instead a hearing of the application, which if granted will block access to a number of web proxy services, has been scheduled for late August.
Although that hearing “may be confined to 10 minutes” it would “give anyone the opportunity to turn up,” allowing for example a site operator to potentially attend court to object to a block, presiding judge Justice Nicholas said at a case management hearing today.
The judge noted that in a recent case – an application for a site block by Village Roadshow – a site operator sought (unsuccessfully) to convince the court to refrain from granting an injunction
Counsel for Foxtel Justine Beaumont said today that the company’s application was in a “very similar form to previous applications with similar types of technology”. Foxtel was one of the first companies to utilise the site-blocking provisions in the Copyright Act and since its first application has returned to court several times to block additional sites or mirrors of previously blocked services.
The pay TV company in the current application seeks to block 14 online services: ShareMovies, SeriesOnline8, Movie4U, SeeHD, StreamDreams, MoviesOnline, WatchSoMuch, TorrentKen, SkyTorrents, Unblocked.lol, Unblocked.win, Unblockall, Unblocker and Myunblock.
It wants to Optus, Telstra, TPG, Vocus and Vodafone, as well as subsidiaries of the telcos such as iiNet, Dodo and iPrumus, to take steps blocking their customers from accessing a total of 35 domains.
Although most of the sites either offer or link to streaming services or BitTorrent downloads, five of them are web proxies — Unblocked.lol, Unblocked.win, Unblockall, Unblocker and Myunblock.
Foxtel says the five services are intended to help people circumvent blocks of pirate sites. Those blocks could be imposed by an ISP following a court order or potentially by some other form of web filtering (high-profile sites associated with copyright infringement are often blocked by software employed by schools and businesses, for example).
Foxtel’s application for injunction is the first time a copyright owner or licensee has sort to use Australia’s copyright laws to block access to proxy services. In addition to ‘conventional’ pirate sites, in the past the laws have been used to block stream-ripping services, set-top box apps, and subtitle download sites.
For the court to grant a website blocking injunction under Australia’s Copyright Act, Foxtel must jump through a number of evidential hurdles. The key one in this case is whether the “primary purpose” of the proxy sites is engaging in or facilitating copyright infringement or, failing that, that the sites have the “primary effect” of engaging in or facilitating copyright infringement. (The “primary effect” language in the act was added by parliament last year in an effort to broaden the types of sites that can be blocked by court order.)
Foxtel in a case heard last year also sought to avoid a hearing in order to cut the legal costs associated with its anti-piracy crusade. The company was knocked back in that instance too.
“Things are actually getting easier for the applicants in these cases thanks” thanks to the 2018 amendments to the law, Justice Nicholas said today.
Beaumont concurred, noting particularly that since the 2018 amendments passed applicants no longer need to prove that a site is hosted outside Australia, which has previously required “quite substantive technical evidence”. Although the law still only applies to overseas-hosted sites, the 2018 amendments introduced a presumption that a site is located outside Australia.
Justice Nicholas today raised the prospect of having people making affidavits in site-block cases include sworn evidence about their view as to what the purpose of a particular site is, which the judge suggested may also help cases run smoothly.
Doing so could give a presiding judge “some more comfort” and may potentially render unnecessary an inspection by the judge of each site targeted for blocking. (In this case as in many previous applications for site blocks Foxtel is intending to provide the judge with access to a laptop and Internet connection in order to view the target online locations.)