Music industry tackles illicit challenge to streaming services

A group of major music labels is seeking court orders that will force major telcos to block online services that they say represent an illicit challenge to streaming services such as Apple Music and Spotify.

The application to block the four services is being coordinated by Music Rights Australia. The action has been brought in the Federal Court by the Australasian Performing Right Association (APRA), Sony Music Entertainment Australia, Universal Music Australia and Warner Music.

If the application is granted — and the Federal Court is yet to knock back a site-blocking injunction brought under Section 115a of the Copyright Act — then customers of Foxtel, Optus, TPG and Vodafone, as well as customers of the telcos’ subsidiaries, will be affected by the site blocks.

The current legal action is the first time so-called ‘stream ripping’ sites, which allow audio from streaming services such as Spotify to be downloaded, have been targeted by a Section 115a action.

Barrister Rob Clark appearing for the applicants this morning at a case management hearing acknowledged the action is “somewhat different” to past site-blocking cases “in so far as the online locations don’t themselves provide content or the means to get content [such as] BitTorrent or streaming sites.”

Four sites that allow people to download the audio tracks of YouTube videos as MP3 files are targeted by the court action:  Convert2mp3, 2conv, Flv2Mp3, and Flvto.

Convert2mp3 is based in Germany, while 2conv, Flv2Mp3, and Flvto are believed to be run by the same operator, who is based in Russia.

US legal action against 2conv and Flvto.biz recently faltered, with a judge finding the Recording Industry Association of America lacked the jurisdiction necessary, according to a DigitalMusicNews.com report.

The labels argue that the four services allow users to download copies of songs by pop stars including Ed Sheeran, Taylor Swift, Justin Bieber, Sia, Illy, Dami Im and Jessica Mauboy.

YouTube has a licence to stream the musical works listed in the application but “doesn’t have a licence to allow [users] to download them except as part of the [streaming] process,” Clark said today.

The services “directly compete” with licensed music streaming platforms.

The applicants argue the target online locations have as either their “primary purpose” or “primary effect” the infringement of copyright or the facilitation of the infringement of copyright.

All previous site-blocking applications have only relied on the “primary purpose” language. Legislation passed last year by the parliament expanded the range of sites that can be blocked, with those that have as their “primary effect” — which potentially could include so-called ‘cyber lockers’, for example — now being valid targets for injunctions.

The recent legislation also allowed for the first time search engines to be targeted, forcing them to remove links to a particular site. Those provisions have yet to be employed, however.

Clark noted that this is the “first proceeding in respect of the amended Section 115a.”

“Previously it just had to be that the online location had the primary purpose of infringing or facilitating infringement,” he said. Now if it’s “having that effect, that will be sufficient”.

Another change made by parliament is that now an “online location is  presumed to be outside Australian unless proven otherwise,” he said.

The application for an injunction was filed late last year.

This application is the second brought by the Australian music industry under the site-blocking regime.

In 2016 Music Rights Australia helped coordinate an effort to block  BitTorrent site Kickass Torrents. That injunction, granted by the court in 2017, was one of the first to take advantage of Australia’s site-blocking laws.

Currently before the courts is another effort to block piracy-linked sites brought by Village Roadshow, major film studios and local entertainment distributor Madman. The group wants the court to order Optus, TPG, Telstra, Vodafone and Vocus to block 79 online locations (including 99 associated domains).