The degree of ongoing court oversight involved in the blocking of pirate websites was a central disagreement as Village Roadshow, Foxtel and a group of ISPs returned to Federal Court in Sydney on Friday. It was the second day of a hearing into two applications by the rights holders to compel the ISPs — Telstra, Optus, TPG and M2 — to block access to a number of web services linked to online piracy.
The ISPs are not opposing the applications, which are being made under anti-piracy laws introduced last year. However, the parties have found themselves in disagreement on three main issues and a number of minor ones, despite extensive out of court negotiations.
Whether the rights holders should foot the bill for implementing website blocks is one of the key areas of divergence. Foxtel and Village Roadshow argued in court that implementing a site block, as envisaged by the anti-piracy legislation, should merely be considered a cost of doing business for an ISP.
The ISPs argued on Friday, however, that they are innocent parties in this process and that the costs of implementing a block should be treated somewhat akin to those incurred in processes such as identity discovery when a business is subpoenaed for details about a customer.
Similarly, the cost of paying for the costs of the current legal proceedings are disputed; the rights holders argue that it is ISPs fault that the two applications for site blocks have turned into contested proceedings.
Perhaps of most significance, however, are the opposing views between the rights holders and the ISPs on how to deal with the problem of mirror and proxy sites that replicate the websites targeted in the applications for injunction.
The rights holders have fought to have the term “online location”, which is used in the site-block legislation but not defined, be based on “digital content”, rather than a single domain name, URL or IP address.
Foxtel and Village are seeking what has been dubbed a “rolling inunction”, whereby the ISPs subject to an injunction will, on the basis of this definition, be forced to add additional replica pirate sites to their block lists.
The process outlined in court on Friday by Foxtel and Village would involve the rights holders, after they witness an alternative domain for a pirate site popping up, checking its IP address and identifying its geographic location (the legislation applies only to sites hosted overseas), and then giving ISPs an out of court notification that the domain or URL represents “an alternative means of access” to a blocked site.
ISPs within 15 business days would be obliged to add the site to the list of secondary pirate sites they are blocking.
The issue of new mirrors and proxies popping up is “not a speculative issue – it’s a real issue,” Richard Lancaster SC told the court on behalf of the rights holders.
“We’re concerned that a procedure be adopted that will not in effect create a real administrative burden for the future in having to do something unnecessary and elaborate such as the CSPs [carriage service providers] suggest,” he said.
The telcos have sought to have some kind of court process employed when adding to the list of blocked sites.
Telstra, for example, argued that there should be some kind of oversight of the process of adding mirror or proxy sites to the block list and said that its proposal wouldn’t require parties to return to court.
“All we’re saying because this affects us and indirectly our customers there should be some satisfaction of jurisdictional requirements” the telco’s counsel argued. In order for a mirror site to be blocked the court needs to be satisfied that its primary purpose is copyright infringement or facilitating copyright infringement and that it is hosted outside Australia.
The difference between the amount of work involved in sending a document to court and the amount of work internally for rights holders to ensure that a mirror or proxy site meets those criteria is “negligible”, Telstra argued.
Optus similarly argued that orders adding a mirror site to a block list could be made in chambers without bogging down the court.
There are also other differences between the parties. For example, whether there should be a ‘block’ page notifying an ISP customer that a page they are attempting to access has been blocked by order of the Federal Court. The rights holders argue there should be and that such a block page can serve an educative purpose. The telcos expressed differences on the issue (and Telstra, for example, wants the right to determine whether or not it has a block page and, if so, the wording on it).
Another issue is any provision in the court’s hypothetical injunction for a block to be suspended in exceptional circumstances. The rights holders want the limit of such a suspension to be limited to three days; the telcos have argued that this lacks flexibility.
Justice Nicholas reserved his judgment. His decision will help shape future applications to block piracy-linked websites — most immediately an application for injunction backed by a range of music labels.
A case management hearing for that application is scheduled for 22 July. A number of music labels and licensing organisation APRA AMCOS are seeking to have Telstra, Optus and TPG, as well as Foxtel, block access to Kickass Torrents.