Foxtel and Village Roadshow are using a public consultation on the operation of Australia’s website-blocking laws to urge that the anti-piracy scheme be expanded. Currently, the scheme only covers telcos.
Roadshow and Foxtel have been the most high-profile users of the site-blocking scheme. The pair have obtained Federal Court injunctions forcing major ISPs, including Telstra, Optus, TPG (including iiNet and Internode) and Vocus to block broadband subscribers’ access to a number of sites linked to copyright infringement.
The government last month launched a public consultation on the site-blocking mechanism that was introduced by the Copyright Amendment (Online Infringement) Act 2015.
Foxtel has urged the government to consider changing the scope of Section 115A of the Copyright Act from “carriage service providers” (i.e. telcos) to “service providers”. Such a change would mean that companies such as Google that provide online services but don’t (in Australia at least) provide Internet access could be subject to site-blocking injunctions.
(Foxtel and Roadshow have previously raised the idea of forcing search engines to hide piracy-linked websites.)
“Search is still the most used source via which people access piracy sites, both in overseas jurisdictions and in Australia,” Foxtel argued in its submission to the recent consultation.
“With all major pirate sites blocked in Australia, the front door of the department store is shut,” Village Roadshow’s co-CEO Graham Burke wrote in a submission on behalf of the entertainment company. “However, pirates, facilitated by Google and other search engines, are circumventing Australian Laws and Courts and opening a huge back door.”
The government should change the word “carriage” so that “the provision extends to all ‘intermediary’ service providers, to make it technologically neutral, covering search engines, social media and other types of internet intermediaries.”
“Apart from ISP’s, many intermediaries are able to meaningfully impact traffic to infringing sites, and in fact, can and are currently used by pirates to find new locations and proxies to circumvent the ISP blocks,” Burke argued. “Importantly [this] addresses auto complete as requires service provider to take reasonable steps to disable access to online locations.”
The current legislation also requires that the “online location” that is the subject of a site-blocking injunction is located outside Australia; within Australia rights holders are able to directly sue the operator of a piracy-linked service.
Roadshow advocates that that requirement be removed from the legislation “as it is just a matter of ‘when’ pirates open up and industry is faced with suing – three years – Men of Straw.”
Burke argued that there is “great urgency” for changes to the site-blocking regime because of the threat to the viability of local film production and because: “Easy access facilitated by Google means kids are crossing to the dark side and getting lured into bad habits and taken to criminal neighbourhoods that proliferate with prostitution, pornography, drug selling and illegal gambling.”
Foxtel said that while it believes the current process for modifying a list of blocked sites to deal with new proxies and mirrors is reasonably efficient for dealing with TV and movie sites, the company “expects that the current processes will require adaptation if they are to operate effectively and efficiently for live sport services”.
Foxtel said it anticipates that site-blocking injunctions will “inevitably” need to be sought “on an urgent interlocutory basis, to enable an application to be determined in an effective timeframe for live sport”
“Foxtel does not see any impediment under the current legislation that would prevent a Court from making such orders on an urgent interlocutory basis,” the company’s submission states.
“However, due to the high value of live sports rights and the fact that there is no proper policy basis for distinguishing between live and non-live content, Foxtel would be very concerned if a Court were to find that the making of urgent interlocutory orders under s115A was not possible.”
Music industry organisation Music Rights Australia, which has backed one site-block application, said that it was concerned about compliance costs. So far site-blocking orders have included provisions that the applicants pay the affected ISPs $50 per domain blocked.
MRA said it is concerned “that this figure will be difficult to challenge in future cases, even though it could be expected that the actual costs to ISPs will decrease over time as technology advances.”
“Further, the risk of an adverse costs order may deter copyright owners from agitating this issue again,” the organisation’s submission stated.
“Further, while a tariff amount of $50 may appear to be minimal, it is imposed on a 'per ISP, per domain name' basis. There are hundreds of different ISPs in Australia and a pirate website may be available from tens, or hundreds, of proxy websites. In order to have maximum effect, the orders should cover all Australian ISPs and all relevant domain names, but the cost of doing so would be prohibitive.”
There are currently two applications for blocks before the Federal Court. Roadshow and Hong Kong broadcaster TVB are seeking to block online services used by a number of Android-based set-top boxes.
Submissions to the inquiry are available online.