Website blocking and the known unknowns of the copyright crackdown

Rights holders are making noises about gearing up to employ legislation that will allow them to obtain court orders forcing ISPs to block access to piracy-linked websites. But exactly how the law will function in practice is still somewhat unclear.

The legislation, which was passed in June with the support of the Labor Party, weighed in at a slim nine pages.

The government's data retention retention legislation, by way of contrast, weighed in at 90 pages (though to be fair, despite some hefty supporting material produced by the Attorney-General's Department, a significant degree of uncertainty also surrounds the telco industry's implementation of that particular piece of legislation).

In summary, the Copyright Amendment (Online Infringement) Act 2015, which introduced the website blocking regime, sets out that:

* Copyright owners can apply to the Federal Court for an injunction that will compel a carriage service provider "to take reasonable steps to disable access" to an online location.

* The "online location" must be hosted overseas and its primary purpose must be "to infringe, or to facilitate the infringement of copyright".

* The copyright owner applying for the injunction needs to tell the relevant ISP and must make "reasonable efforts" to contact the operator of the online location.

* When deciding whether to grant an injunction the court "may" take into account a range of factors listed in the legislation (such as the "flagrancy of the infringement" and "whether the owner or operator of the online location demonstrates a disregard for copyright generally").

* The court can limit the duration of, or rescind, a website blocking order granted under the legislation.

* An ISP is not liable for any court costs - that is, unless they decide to take part in the proceedings (for example, opposing the application).

The legislation was written to as to be as technology-agnostic as possible. For example, online location is intentionally broad in order to capture multiple kinds of file-sharing services.

In addition what the "reasonable steps" are that an ISP might be compelled to take in order to stop its customers from accessing a website are not set out at all.

Subsection 115A(2) of the legislation merely sets out that if an injunction is granted the relevant ISP or telco must "take reasonable steps to disable access to the particular online location", the explanatory memorandum notes.

"This may include blocking its subscribers from accessing a website operated overseas that facilitates copyright infringement in any such a manner as the Court sees fit," it adds.

This produces an interesting bind for ISPs. On the one hand, they have a very strong reason not to take part in court proceedings because they avoid potential legal costs: "The carriage service provider is not liable for any costs in relation to the proceedings unless the provider enters an appearance and takes part in the proceedings," the legislation states.

But on the other hand, because the language of the bill is quite broad, they could end up potentially dealing with significant costs associated with blocking a particular "online location".

Leaving aside that any carriage service provider will have to employ legal resources to scrutinise an application for an injunction and any subsequent orders made by the Federal Court, the costs of the technical implementation of blocking could vary wildly.

Rajiv Shah, regional general manager at BAE Systems Applied Intelligence, told a Communications Alliance event earlier this week that DNS-based blocking, IP blocks, blocking of individual network packets through Deep Packet Inspection (DPI) or some combination were all possible approaches.

If a particular technological approach is mandated by a court injunction, then it could not only significantly alter the cost to ISPs but also the potential collateral damage.

Despite this uncertainty about what form a court injunction will take, the Attorney-General's Department has developed an estimated range for the costs.

"The cost involved in blocking an online location will depend on a number of factors, including the size and existing infrastructure of ISPs, and the terms of the court order," states the department's answer to a question on notice from a Senate Estimates hearing earlier this year.

"The estimate for the processing costs of implementing an injunction (including work related labour costs) that was used in preparing the Short-Form Regulation Impact Statement varied from $263-$350."

The total aggregate cost to telcos and ISPs is estimated by the government to be $130,825 per year.

"It is open to the Court to give appropriate directions on the costs of implementing an order, consistent with the usual practice of a Court in granting an injunction," the explanatory memorandum states.

"The Court may choose to take into account the fact that CSPs are not responsible for copyright infringement and that the benefit of the order will flow to copyright owners."

"From an ISP perspective, there's clearly a range of technical approaches are available for blocking or restricting access but those different technical processes have different degrees of certainty or accuracy and in all of those approaches there is a risk of overblocking or underblocking, which creates some issues around liability," Gary Smith, the head of regulatory compliance at Optus, told the Communications Alliance forum on copyright enforcement.

(Smith appeared at the forum as the chair of one of Communications Alliance's working committees, not as an Optus representative.)

"We've had experience with blocking the Interpol 'worst of' list of child abuse sites," Smith said.

"That's taken an approach of blocking at the domain-name level. A critical part of that is that people who have sought to access sites on that list have been directed off to a landing page -- and it's an Interpol-branded landing page which has got information about the scheme."

One of the questions yet to be answered is what should happen when an ISP customer attempts to access a blocked pirate site, Smith said.

For example will they get an error message or be redirected to a landing page? And would a landing page be determined by the ISP or court, or a common landing page, and who would pay the cost of hosting it?

It also remains unclear how many sites and how many court orders ISPs will have to deal with, Smith said, and whether the court will end up making orders that result in maintaining a particular block even after a pirate site has vanished.

Because of the wide range of variables involved in the scheme, it will be critical that ISPs and rights holders have early engagement in the process, Smith said -- "sooner rather than later" and before they get enmeshed in the legal process.