by Creative Content Australia, 14 January 2022
Setting a positive regional precedent, the Federal Court of Australia issued a judgement which provided a pirate brand order procedure in Australia for the first time and ordering ISP’s (Telstra, Optus, Vocus, TPG and Vodafone, among 48 other respondents) to block 63 illegal streaming sites.
The Court order gives rights holders the opportunity to submit an amended application under the same original order if the new online location is associated with target online locations (TOLs) on the basis only of “its name, branding or identity of its operators”, such as well known pirate sites like ThePirateBay and 123Movies.
Site blocking has been a very effective remedy for the Australian screen sector, but years of legal actions have exposed some limitations, one of which was that new pirate operators would pick names with significant similarity to that of popular existing pirate sites. To block these new sites rights holders needed to initiate new applications, which could be burdensome and time-consuming. This was frustrating, particularly as the new sites with their familiar names would build traffic very quickly once the original sites had been blocked.
The most recent site blocking application sought to remedy that and, for the first time, received a favourable judgement in December 2021 with the new orders allowing applicants to add TOLs based on their “name” or “branding” under the same matter for the purposes of site blocking.
The Federal Court Judge blocked the sites after none of the piracy website operators responded to requests to respond to the matter. He acknowledged ‘reasonable efforts’ had been made to provide notice of the court proceeding and subsequent orders ‘ to determine the identity and address of the persons who operate the relevant websites’.
Significantly, rights holders may make an amending originating application if new sites are found to be associated with sites blocked under the original orders by virtue of their ‘branding’. Should pirate sites not respond to further legal action, the court may issue the “amended” orders ‘on papers without any oral hearing’.
The new process strikes an appropriate balance, addressing due process concerns about adding to existing orders what could be viewed as a new or distinct TOL, while doing so expeditiously through a process not requiring a new application.
This new process consists of filing an amended originating application with evidence, notifying the ISPs and operators, waiting for seven days for any respondent/operator to oppose, and then – barring any opposition – approaching the Court to issue “New TOL Orders”.
Site blocking legislation passed in 2015 in Australia gave copyright holders the ability to take action against websites that infringe their Intellectual Property rights. For the first time, rights holders were able to apply to the Federal Court for an injunction directing ISPs to block access to websites that infringe copyrighted content when the site was located outside of Australia and its’ primary purpose facilitated copyright infringement.
On December 16, 2016, in the first site blocking case, Justice John Nicholas for the Australian Federal Court issued a ruling ordering ISPs to block a number of domains found to be primarily engaged in facilitating access to copyright-infringing content ensuring that major sites that primarily profit from content theft were no longer easily accessible. Australia joins several dozen other countries with active site blocking in progress, which is proven in several international studies[i] to change consumer behaviour – by directing consumers away from infringing content to sources of legitimate content sources – while not interfering with normal internet operations.[1]
[i] Carnegie Mellon University (CMU) and the Information Technology and Information Foundation (ITIF)
[1] Motion Picture Association, Measuring the Effect of Piracy Website Blocking in Australia on Consumer Behavior: December 2018, at https://www.mpa-apac.org/wp-content/uploads/2020/02/Australia-Site-Blocking-Summary-January-2020.pdf.
Related Article: Much ado about nothing: have concerns over site blocking materialised? by Peter Carstairs, 20 August 2021