A Hong Kong-based broadcaster is seeking to have an Australian court hand down orders forcing major Internet service providers to stop their customers from accessing the proprietary app marketplaces used by a range of set-top boxes.
Currently the Federal Court of Australia is hearing two cases that target unauthorised streaming, largely via set-top boxes, of copyright material.
One has been brought by Television Broadcasts Limited (TVB) and subsidiary TVBO Production. The other has been brought by Australia’s Roadshow Films, with the backing of Columbia Pictures, Disney Enterprises, Paramount Pictures, Twentieth Century Fox, Universal and Warner Bros.
Both applications, which were heard on Friday in the Federal Court in Sydney, use provisions in Australian copyright law that allow injunctions to be granted compelling telcos to block their subscribers from accessing overseas-based “online locations” that infringe, or facilitate infringement of, copyright.
If the proposed injunctions are granted, customers of Telstra, Optus, TPG and Vocus, and the companies’ subsidiaries, will be affected.
Previous applications using the site-blocking provisions have focused on websites that offered download services, links to download services or streaming services.
The current Roadshow application targets an Android app called HDSubs+. Although it can run on any device that supports Android apps, it has been designed for set-top boxes that run the Google-maintained platform.
HDSubs+ is linked to a subscription service, the court heard. That service, which gives users a key to enter into the app, costs around $240 a year or $30 a month.
Some set-top boxes have been sold with an activation key as part of a bundle, the court heard.
The app offers both a video on demand feature and access to streaming TV, including Disney, Fox and BBC channels.
Roadshow is seeking to block around 10 domains linked to HDSubs+.
The application targets four categories of online locations linked to the app. The first three deal with user authentication, provision of electronic program guide data, and software updates for the app. The fourth provide what counsel for Roadshow Julian Cooke described as “content management services”; they are contacted by an Android device running HDSubs+ when it seeks to stream a piece of content and provide the device with the IP address of a server housing the relevant movie or TV stream.
The app has gone through a number of evolutions since Roadshow hired computer forensics expert Rod McKemmish to scrutinise its operation late last year. McKemmish gave evidence at the Friday hearing that installed HDSubs+ apps had at one point been forcibly upgraded to a similar app, named PressPlayExtra, and at a later stage replaced by an upgraded version of the HDSubs+ app.
Roadshow said that there was evidence that the operators of the service had made some changes in response to its legal action, including making unavailable some of the movie titles that the company had listed in its initial application.
The site-blocking regime requires that applications prove “the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright”.
In a February case-management hearing for the Roadshow application presiding judge Justice Nicholas said he will “need to be satisfied by evidence to the point where I’ve got a good understanding of how it all works - I know precisely what the relationship is between the box the programs that are accessible at these URLs and the sites at which they are downloaded.”
TVB was also represented at its Friday’s hearing by Cooke.
The TV company wants to have the same telcos listed in Roadshow’s application block online services linked to seven Android-based set-top boxes: A1, BlueTV, EVPAD, FunTV, MoonBox, Unblock, and hTVS. The set-top boxes are largely focused on streaming Chinese language content, the court heard.
The company’s application is rendered somewhat complex by the uncertain copyright status in Australia of some of its live broadcasts. At the hearing the company acknowledged that China is not a party to the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations; however, it argued the broadcasts should receive the protection accorded to cinematograph films because TVB also records them for later ‘replay’ TV services.
The application could potentially come unstuck if the broadcasts are not entitled to protection because of the “primary purpose” test under the site-blocking regime.
In addition to seeking to block the online services associated with a number of apps that run on the set-top boxes — including video-on-demand, live broadcasts, and replay TV — TVB said it wants ISPs to block access to the app marketplaces associated with what it dubs the “illicit streaming devices” (or ISDs).
The company acknowledged that many of those marketplaces, which are somewhat akin to the Play marketplace offered by Google for Android devices, contain apps that aren’t specifically focused on copyright infringement — for example, Netflix and YouTube apps.
However, the company argues that the primary purpose of the marketplaces is to facilitate copyright infringement and that the non-infringing apps can be downloaded elsewhere.
The two applications are both modelled on website-blocking injunctions previously granted to Roadshow, Foxtel and music industry organisations. TVB will present further evidence relating to the copyright status of its broadcasts at an additional hearing in May.