Move to block Kickass Torrents continues despite site-takedown

Costs key area of dispute between rights holders and ISPs

Lawyers representing a group music labels and telcos Optus, Telstra and TPG and their subsidiaries, as well Foxtel in its capacity as an ISP, returned to the Federal Court today for a hearing on the third application for website blocking based on changes made last year to the Copyright Act.

The hearing went ahead despite the target - popular BitTorrent site ‘Kickass Torrents’ – being offline. Earlier this year the site's key domains were seized and its alleged operator, Artem Vaulin, arrested. The music labels’ application for injunction targets a number of Kickass Torrent mirror sites as well as the main site.

The changes to Australian copyright law allow rights holders to seek injunctions compelling ISPs to block their customers’ access to particular overseas websites linked to online piracy.

The ISPs are not opposed to the site-block request. However, as in the other applications before the Federal Court, the issue of who pays – for both the cost of the legal proceedings and the cost of implementing the website blocks – is disputed.

The telcos are seeking to have rights holders pay for the implementation and maintenance of the site blocks, which under the orders sought by the labels will last for three years. Optus said it would cost it $12,500 to carry out and maintain the blocks. TPG said that once it had established a system to comply with site-blocking orders it would cost it $50 per domain name blocked.

In addition to seeking costs, Telstra also objects to any move that would mandate it implementing a ‘blocked’ landing page for its customers.

The first two applications under the law — made by Village and a group of movies studios and Foxtel in its capacity as a pay TV provider — are yet to be ruled on. Those applications are being considered jointly by the court.

In its application, Foxtel targeted The Pirate Bay, Torrentz, TorrentHound and IsoHunt. Village Roadshow’s application targeted streaming site Solar Movie.

The application heard today was brought by ARIA members Universal Music Australia, Warner Music Australia, Sony Music Entertainment Australia and J Albert & Son, along with rights organisation APRA AMCOS.

A key difference between the Vilage/Foxtel application and the music industry application is that the latter does not include any proposed provisions for a so-called ‘rolling injunction’

In the Village and Foxtel cases, a key issue has been the rights holders’ desire for an injunction that could be extended to new mirror and proxy sites that replicate the original online services targeted by the application. The parties have wrangled over the degree of ongoing court oversight of a rolling injunction.

The music labels are seeking a less tringent form of website blocking. They seek only DNS-based blocking and today in court outlined a process for dealing with additional mirror and proxy sites.

Under the proposal outlined today, rights holders would file an affidavit and short minutes of order with the court to add an additional mirror or proxy to the block list – telcos would have 10 days to object and it would be a decision of the court as to whether any of the parties would have to enter an appearance before the list was extended.

A lawyer representing Vaulin earlier this month filed a motion to dismiss the criminal charges he faces in the US, arguing the site does not infringe copyright.

“This case arises out of an erroneous theory of criminal copyright law that attempts to hold defendant Artem Vaulin criminally liable for the alleged infringing acts of the users of KickAss Torrents and the other torrent websites alleged in the indictment to be under Vaulin’s control,” Vaulin lawyer argued in a memorandum in support of the motion to dismiss.

Kickass Torrents and other torrent websites alleged to be connected to Vaulin (collectively described as ‘KAT’) “are devoid of content”. KAT is “nothing more than a search engine, no different in any material way from Google and other popular website search engines, except that KAT indexes BitTorrent files”.