Federal court hands down decision in site blocking case

A federal judge has handed down its verdict in the country’s first site blocking case, opening the door for a major crackdown on websites hosting illegal streaming services and torrents. The Federal Court handed down the verdict — the first of its kind — which goes a long way to clarifying the fate of illegal torrent and streaming websites such as The Pirate Bay and SolarMovie in Australia.

The court ruled that internet service providers must “take reasonable steps to disable access” to such sites.
After nearly a year in the court system, the verdict was handed down shortly after 2.15pm today. A handful of tech journalists were on hand and live tweeted the decision, reporting that rights holder who seek to have websites blocked will have to pay a fee to ISPs for doing so.

The judge also appears to support the application of rolling injunctions to make it easier to chase offending sites, but said it must come with court oversight and not be automatic like telcos had argued for. The rights holders Village Roadshow and Foxtel were also ordered to pays to legal costs of the ISPs.

Foxtel chief executive Peter Tonagh said it was a good outcome.

“Piracy does great damage to Australia’s content creating industries and we were delighted that the Government and Parliament recognised this by passing these new legislative provisions last year,” he said. “This judgment is a major step in both directly combating piracy and educating the public that accessing content through these sites is not OK, in fact it is theft. “We are playing our part to reduce the attractiveness of piracy by making content available in a timely manner, at different price points, and on multiple devices and.

More broadly, the content creation industries will continue to educate the public on the harm piracy does and how to get access to content in a legitimate manner.“This judgment gives us another tool to fight the international criminals who seek to profit from the hard work of actors, writers, directors and other creators the world over.“We have already seen successful implementation of similar site blocking efforts overseas and are looking forward to a reduction in online piracy here.”

The unprecedented case was ushered in by the passing of the somewhat controversial Copyright Amendment (Online Infringement) Bill 2015 in June last year which, among other things, gave rights holders the power to request take-downs of sites that hosted material that infringe on copyright.

Australia’s major film distributor Village Roadshow along with Foxtel launched the legal action which effectively tested the waters of the new legislation.
In total they listed 61 domain names including the popular Torrentz, IsoHunt, TorrentHound and the Pirate Bay that they want to see blocked.

Much of the contention in the case has revolved around cost-sharing and who — the ISPs or the rights holders — should be bear the brunt of the financial burden to implement the website blocks. We now know it will fall primarily on rights holders seeking to pull down websites.
Internet service providers which included Telstra, TPG, iiNet and Optus were not opposed to the action but both parties had argued that the other should incur the cost.

Ultimately, the judge sided with the telcos.

The cost of preventing Aussie netizens from reaching the offending sites could vary, according to estimates previously put forth by the telcos.
Telstra estimated it would cost the provider about $1500 for the 61 domains and has also objected to being forced to include a “blocked site” landing page. Optus, on the other hand, has estimated a cost of $12,500 to carry out and maintain the blocks. And TPG said once a system was built and in place, it predicted it would cost about $50 per domain to block.

But will site blocking even work?

It remains to be seen how effectively ISPs, at the behest of rights holders, can prevent access to websites hosting offending material. Inevitably they will be playing a game of whack-a-mole as the content on dedicated sites will often pop up on a different address via mirrors and proxies.

And of course, there is always Virtual Private Networks (VPNs) which shield an internet users location. Similar legislation in the UK has seen a large number of sites blocked, but with varying degrees of success.

Earlier in the year Foxtel argued for a rolling injunction that would allow for blocks to be more easily extended to new domains.

THE MAN LEADING THE CHARGE

Graham Burke, the co-chief executive of Village Roadshow, has been a key player in fighting for rights holders against the issue of illegal file sharing. Back in February he told News Corp that if the legal action was a success, rights holders will go on a take-down blitz of piracy sites.

“Once the court gives us that approval, we will be moving on a wide front to take down massive numbers of these sites,” he said.
Mr Burke has consistently employed fiery rhetoric when describing online pirates, comparing them to drink drivers and criminals.

In a speech to the Australian International Movie Convention on the Gold Coast in October he again tried to persuade people that illegal pirates were not just everyday people, calling them “leeches and thieves”.“It’s been proven, they often have connections to organised, international crime syndicates. Pirates are only about the dollars,” he said. “These are the same type of people that sell heroin.”

Stay tuned for this afternoon’s verdict.