Screenplays key as anti-piracy effort targets subtitle download services

Entertainment companies want telcos to block subtitle services that can be used in conjunction with illicitly download movies and TV shows

A group of entertainment companies is relying on the literary copyright of screenplays as it seeks to block four sites that offer downloads of subtitle files.

The group, which is led by Roadshow Films and includes major film studios, is part of a broader coalition of companies that appeared this morning in Federal Court seeking the widest-ranging anti-piracy injunction so far. If granted, Australia’s most popular Internet service providers will be required to take reasonable steps to block their customers from accessing dozens of online services linked to copyright infringement.

Although such applications have become largely routine, this one is notable for multiple reasons. One key difference between this and previous applications for site-blocking injunctions it that is the first that has taken aim at online services that provide access to subtitles.

Addic7ed, Yifysubtitles, Opensubtitles.org and Subscene all provide subtitle download services, the court heard during an October case management hearing. The four sites offer downloads of SubRip (.srt) files.

The other target sites either provide access to downloads or streaming of copyright material or provide links to copyright material.

As part of evidence today, a video was screened demonstrating a file of English subtitles for Kingsman: The Secret Service being downloaded from Subscene and employed to add captions to a previously downloaded digital copy of the movie

“How do you put the copyright case for a bunch of subtitles?” Justice Nicholas asked the rights holders.

Counsel for the rights holders argued that subtitle files are “communicating to the public a literary work” – the screenplay of a film. In addition the files could be an infringement of the “the authorised subtitles” of a work. “It could be one or the other,” rights holders argued.

However, when quizzed by the judge as to whether there were any authorities on the subsistence of copyright for subtitles, the rights holders were unable to provide any.

Generally a DVD comes with subtitles, and a subtitle file could represent a “substantial reproduction" of the subtitles, rights holders argued. Justice Nicholas countered that rights holders would in that case would need to prove that that a subtitle file has been “copied directly”. Someone creating a new set of subtitles wouldn’t infringe a rights holder’s subtitle but might infringe a screenplay, the judge said.

Counsel for the rights holders withdrew the argument that that copyright of subtitles was infringed, instead the companies are now solely relying on the infringement of screenplays to make the case for the sites to be blocked.

A second difference between this and previous applications for site-blocking injunctions is the scale: It is the largest single blocking injunction sought so far, targeting 77 locations and more than 150 domains.

Thirdly, the application has been brought by a sizeable coalition of entertainment companies: In addition to Roadshow and the movie studios that have backed previous applications for site-block injunctions, it is supported by Hong Kong company Television Broadcasts (TVB) Limited and distributor Madman Entertainment Pty Limited. Today, Tokyo Broadcasting System Television, Inc. was added as an applicant.

Roadshow has helped spearhead the use of the site-blocking laws, which are set out in Section 115a of the Copyright Act.

TVB has also previously been granted a blocking injunction, which was intended to stop a number of Android-based set-top boxes from illicitly streaming its broadcasts.

Another notable element of the current application is it is the first that will affect Vodafone customers (Vodafone is a relatively recent entrant in the Australian fixed line broadband market — s115a only applies to fixed line services, although both Telstra and Optus have blocked their mobile customers from accessing sites that were listed in injunctions).

Along with Vodafone, customers of TPG (including iiNet and Internode customers), Vocus (including Primus and Dodo customers), Telstra and Optus will be blocked from accessing the target sites if the injunction is granted.

The court heard that the applicants had received some correspondence from site operators but nothing that substantively engaged with the question of whether their site had as its primary purpose infringing or facilitating the infringement of copyright.

Justice Nicholas reserved his decision.

The federal government recently moved to strengthen the site-blocking scheme.

Legislation that received bipartisan support (as well as the backing of the Australian Greens) changed the threshold that must be met for the court to grant a site-blocking injunction in response to future applications.

Previously, a target site must have had the “primary purpose” of infringing or facilitating the infringement of copyright. Following the changes to the law, a site may be blocked if it has the “primary effect” of infringing or facilitating the infringement of copyright.

The change is intended to allow copyright owners to target a much broader range of sites such as “cyber-locker” online storage services. However, some groups have raised concerns that legitimate services could potentially be blocked.

As was the case previously, a target online location must be hosted overseas. However, another change made by parliament is that a site will be “presumed to be outside Australia, unless the contrary is established.” The measure is intended to make it cheaper for rights holders to obtain injunctions, by reducing the evidentiary burden on them.

There were a number of other significant changes to the site-blocking rules. Another major one was that search engines may also be the subject of an injunction. If an injunction is granted, then a search engine may be compelled to remove a target online location from its search index.

Another modification was that it is now easier for a rights holder to counter new online pathways that provide access to a blocked location — essentially, instead of tendering an affidavit in court that says a particular URL, domain, or IP address offers access to an already-blocked site, a rights holder can just notify a telco that is the subject of an injunction. Unless the telco decides to object, they must block the new domain, URL or IP address.

While technology companies and the telecommunications industry expressed concern over a number of the changes, the legislation received strong support from rights holders — including Roadshow.

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