Foxtel obtains ‘rolling’ injunction to block pirate sites
- 27 August, 2019 11:49
Foxtel will be able to better target new proxy and mirror sites that provide access to certain online locations associated with copyright infringement under Federal Court orders handed down today.
The pay TV company was granted a site-blocking injunction under provisions of Australia’s Copyright Act that target overseas-hosted sites engaging in or facilitating piracy.
The provisions under Section 115a of the act have been employed multiple times by Foxtel and other entertainment companies to obtain injunctions compelling major Internet service providers to take steps to block their broadband subscribers from accessing hundreds of websites.
The most recent application by Foxtel targeted more than a dozen sites, including for the first time dedicated web proxy sites offering access to other online services, many of which are already blocked by court order.
A key difference in the current case was that Foxtel sought orders allowing it to add new domains or URLs to the list of blocked sites without returning to court.
Changes made last year to the site-blocking laws facilitate a ‘rolling injunction’ against sites as long as the ISPs subject to the injunction don’t object.
The Copyright Acts states that a blocking injunction may require a telco to take steps to “block domain names, URLs and IP addresses that the carriage service provider and the owner of the copyright agree, in writing, have started to provide access to the online location after [an initial site-blocking] injunction is made”.
The Foxtel push to take advantage of the provision, however, briefly came unstuck in court today. The company is seeking to have the respondent telcos -- Optus, Telstra, Vocus, Vodafone and TPG -- block access to around three dozen domains (associated with 14 individual online locations).
The original orders proposed by Foxtel included a provision that would have allowed the block to be extended to “any other domain names, URLs and IP addresses that the Respondents (or any one of them) and the Applicant agree in writing, have started to provide access, after the date of these orders, to any of the online locations [listed in the application]”.
Counsel for Foxtel Justine Beaumont told today’s hearing that the provision wouldn’t allow additional online locations to be added to the injunction, but would allow it to be extended to cover new proxy and mirror sites.
Foxtel was proposing that if “one of the respondents agreed that that domain name did in fact allow access to the target online locations identified then that would be sufficient to allow that to be brought into the application [and] would therefore bind all the respondents,” she said.
Justice Nicholas said that it appeared “counterintuitive” that reaching agreement with just one of the respondent telcos “could bind all”.
Beaumont said that in Foxtel’s view there was “pretty much zero chance” there would be agreement with all of the respondents. She cited TPG’s habit of not submitting any response to site-blocking proceedings, including in the current matter (although the company has abided by blocking injunctions).
Justice Nicholas acknowledged that it “might be very inconvenient”. “If there are five ISPs and one agrees and the other don’t, why should the others be bound?” the judge said. “It’s sort of tough luck for you.”
In response Foxtel amended the proposed orders to remove the phrase “or any one of them,” with the company foreshadowing that it would return to court to seek a variation that would include a provision for a telco to positively deny that a domain or URL offers access to a blocked site. Justice Nicholas indicated that he believed such a modification could work.
Foxtel indicated it would raise the proposed variation with the respondent telcos and return to court at a later date.
The modified proposed orders with the controversial provision excised were made by Justice Nicholas. As a result, the five telcos and their subsidiaries have 15 days to take reasonable steps to prevent their customers accessing the target online locations.
The target sites are divided into three categories. Six – ShareMovies, SeriesOnline8, Movie4U, SeeHD, StreamDreams, MoviesOnline – either provide illicit streaming of copyright material or provide a service that links or redirects to streaming services.
Foxtel says the second category – WatchSoMuch, TorrentKen and SkyTorrents – support BitTorrent downloads of its content.
The other sites -- Unblocked.dk, Unblocked.lol, Unblocked.win, Unblockall, Unblocker, Myunblock – provide proxy services or links to proxies for other sites. It is the first time dedicated proxy services have been targeted for blocking.
Earlier this month a group of entertainment companies led by Village Roadshow obtained a Federal Court injunction blocking almost 100 piracy-linked services. A noteworthy aspect of that case was the participation of Netflix.
The government announced over the weekend that it would establish a new “clear and unambiguous content blocking framework” for crisis events. The move is in response to the Christchurch terror attack earlier this year, which was livestreamed on Facebook.