Movie studios unswayed by ‘search engine’ argument in anti-piracy case
- 17 May, 2019 16:33
Legal counsel for a group of movie studios has dismissed an argument that an overseas-hosted site that links to videos but doesn’t host them does not fall afoul of Australia’s anti-piracy laws.
Australia’s Village Roadshow and a group of studios associated with the Motion Picture Association of America — Disney, Columbia, Universal, Paramount, Twentieth Century Fox, Universal and Warner Bros. — as well as distributor Madman Anime Group and Japan’s Tokyo Broadcasting System have brought a Federal Court action seeking to block around 100 domain names.
The domains are associated with around 79 online locations the companies claim facilitate online piracy.
The group is seeking to block a variety of “linking, streaming and torrenting” sites, lawyer Frances St John today told a Federal Court hearing in Sydney.
As with past site-blocking actions, the applicants’ are obliged to attempt to contact the operators of the target online services, giving them an opportunity to make submissions to the court. So far no site operator has formally entered an appearance during a site-blocking application.
However, the creator of Greek-Movies.com, Socrates Dimitriadis, earlier this year sent a letter to the presiding judge, Justice Nicholas, opposing the efforts to block his site.
The letter argued that his site “does not host, or publish in any other form, any kind of copyright material whatsoever”.
“My site is just a search engine that refers users to third-party websites,” he writes.
According to Dimitriadis’ letter, he has operated the site for 13 years.
The site links to Greek-language movies and TV series, some of which are dubbed or have Greek subtitles. Some of the sites it links to include services allegedly associated with piracy, while other links are to the official streaming services of Greek free-to-air TV stations or YouTube videos.
Dimitriadis has also made his case directly to the applicants, the court heard today.
St John described Greek-Movies.com as falling into the category of “linking” site. An affidavit tendered to the court by a witness acting on behalf of the applicants said that the site linked to a range of unauthorised reproductions of copyright material, including the Lego Movie, Despicable Me 3, and Smurfs: The Lost Village.
A page on the site says that it doesn’t host copyright material and doesn’t endorse the third-party sites that it links to, the court heard.
“That doesn’t go to whether the site has the requisite primary purpose under Section 115a,” St John told the court. Section 115a of the Copyright Act outlines the site-blocking mechanism. It allows injunctions to be granted targeting overseas-hosted sites, but requires that they have either the ‘primary purpose’ or — since changes made in 2018 to the act — the ‘primary effect’ of infringing or facilitating infringement of copyright.
St John said that a letter from Dimitriadis received early today indicated that Australian visitors account for 3 per cent of the site’s traffic.
The letter stated that he has no relation to sites that Greek-Movies.com links to and he doesn’t have a CDN that can serve content to viewers. “I assert those points are irrelevant,” St John said.
The original letter sent to Justice Nicholas said that Dimitriadis has successfully fended off four cases brought against his site in Greece by the Company for Protection of Audiovisual Works. He has previously told Computerworld that the organisation represented seven of the applicants in the current case (all except Disney, Madman and Tokyo Broadcast System).
The letter to Justice Nicholas said that “all courts have made the same judgment, that the allegations against Greek-Movies are completely false, and confirmed that the site complies with the law.”
St John said that two of those cases were attempts at prosecution for criminal copyright infringement but were abandoned after the prosecutor decided there was insufficient evidence to proceed. “Essentially the case was never heard,” St John said.
St John said that the other decisions related to a joint criminal-civil case brought under EU copyright law. The barrister said that the case was “quite difficult to follow” but seemed to establish that the website did not reproduce copyright material but only indexes links.
It follows from that the website is “basically an information search engine,” St John said, quoting a translation of a judicial ruling in that case.
St John told the court: “I submit that running a linking website should be enough even for infringement under Australian law” but that the applicants don’t need to make that out under Section 115a, only establish that the website “has the primary purpose or primary effect, now, of infringing copyright.”
Justice Nicholas reserved his decision and indicated he expects to make a ruling next week.
If the coalition of entertainment companies is successful in its efforts, then Telstra, Optus, Vocus, TPG and Vodafone will be forced to block their broadband subscribers from accessing the online locations.
Roadshow, along with pay TV provider Foxtel, was one of the first companies to use Australia’s site-blocking rules, which were introduced in mid-2015. The company has successfully obtained a string of injunctions blocking pirate sites.
Most of the previous sites targeted by Roadshow and its allies have been similar to the sites in the current matter (although last year the company was granted an injunction that sought to hobble a set-top box app).
Last year the Australian parliament expanded the scope of the country’s anti-piracy regime including adding the ‘primary effect’ language. That change means that a much broader range of sites can be targeted. In addition, copyright holders are now able to apply for injunctions compelling search engines to delist pirate sites.
A case involving search engines is yet to make it to court. However, earlier this week Fairfax revealed that Roadshow had worked with Google to remove pirate sites from its search engine index – 832 sites have been blocked by Google, according to the report.
Roadshow also recently filed another site-blocking action in Federal Court, which Computerworld understands seeks to have ISPs block a further 146 domains.