Kickass Torrents is offline, but moves to block it continue

Music labels’ application to have the site blocked will be heard in October

An application for a Federal Court injunction that will compel Telstra, Optus, TPG and Foxtel’s broadband arm to block customer access to Kickass Torrents will proceed for now despite the file-sharing site’s domains being seized and its alleged operator arrested.

ARIA members Universal Music Australia, Warner Music Australia, Sony Music Entertainment Australia and J Albert & Son, along with APRA AMCOS, announced in April that they had launched the action in the Federal Court. The legal action has been coordinated with the aid of Music Rights Australia.

A case management hearing for the application was held today in Sydney.

The application is the third to be made under new provisions introduced last year into the Copyright Act.

Today’s hearing came as action by the US government forced Kickass Torrents offline. The US has seized a number of the key domains linked to the BitTorrent site, and the Department of Justice said that the site’s alleged operator, Ukrainian Artem Vaulin, had been arrested in Poland.

The US is seeking Vaulin’s extradition to face charges of conspiracy to commit criminal copyright infringement, to commit money laundering and criminal copyright infringement.

The US government claims that the file-sharing site had estimated annual advertising revenue in the range of US$12.5 million to US$22.3 million. The DOJ said that Kickass Torrents has been blocked by court order in the United Kingdom, Ireland, Italy, Denmark, Belgium and Malaysia.

In the initial directions hearing for the application, the music labels indicated they were seeking a less stringent form of website-blocking that that sought in the first two applications for injunction made using the new law.

Those first two applications, which have been heard jointly, were made by Foxtel and Village. The two companies have targeted The Pirate Bay, Torrentz, TorrentHound, IsoHunt and streaming site Solar Movie.

ISPs have not opposed the applications. However, in the Foxtel/Village applications there have been significant differences over how the court should handle a 'rolling injunction' which would allow mirror and proxy sites to be blocked without further court oversight, as well as the costs of the legal proceedings so far and the cost of implementing and maintaining the prospective website blocks.

The parties confirmed today that the issue of a ‘rolling injunction’ is unlikely to feature in this case. However, the costs issues are still to be resolved. Some of the other disagreements in the Foxtel/Village case, such as whether a ‘block’ web page should be mandatory and the conditions under which a block can be temporarily suspended, will also need to be resolved.

The lawyer representing the rights holders said that in discussions between the parties it looked increasingly likely that they would jointly propose a three-year duration for a blocking order. He also noted that in the wake of the US seizing Kickass Torrents’ domains, “if the site is completely shut down it might take the whole case away”.

Telstra told the court that it was proposing orders that are almost identical to orders it proposed in the Foxtel/Village case, with the exception of material related to the question of a rolling injunction.

“We do see considerable scope for uniformity of orders in site blocking cases,” Telstra argued. Uniformity offers “significant benefits”, including reducing the costs of proceedings and compliance, as well as increasing predictability about the outcome of site-blocking applications.

The other ISPs confirmed their positions were consistent with their approach in the other application.

Assuming that the matter continues (currently it is scheduled for a two-day hearing on October 25 and 26), the outcomes will be influenced significantly by the Foxtel/Village site-blocking application; a date has not been set for judgement in that case.