Australia's Site-Blocking Laws Are Being Tested For The First Time In Court Today

Back in February last year, legislation was passed that allowed content rights holders to apply for an order to block websites that facilitate piracy in Australia. Today, Foxtel and Village Roadshow are setting a precedent in court as the first parties applying to block Australians' access to The Pirate Bay, SolarMovie, Torrentz, TorrentHound and IsoHunt websites.

Image: Shutterstock

According to iTnews, today's application by the two rightsholders targets a total of five websites, with a total of 61 different URLS including different top-level domains. To win, Foxtel and Village Roadshow will have to prove to the court that the sites are used primarily for copyright infringement. The legislation requires that the sites be made aware of the court action, but Foxtel legal representative Richard Lancaster said no communication had been received from any of the site owners to be involved in the court case.

Representatives for Telstra, Optus, TPG and M2 are also present, and while being actively involved in discussions on how to move forward, will not be submitting a defence. They may, however, be required to provide evidence surrounding the technicalities of website blocking.

iTnews revealed that the ISPs have expressed interest in blocking at the domain name system (DNS) level, as opposed to the blocking of IP addresses and URLs proposed by Foxtel and Village Roadshow. This point is particularly important, as it will set the precedent for cases to come.

Optus want a court registrar to oversee a case management conference to get all parties on the same page and make the process as "quick, inexpensive and efficient as possible", according to iTnews.

The other ISPs said they would rather work out any disputes among themselves and the rights holders before bringing in a third party, to which the court agreed. On 6 May 2015 the ISPs and rights holders will return to court along with details on what has been agreed — and disagreed — upon.

The rights holders will also bring along their evidence of how the sites they are seeking to block operate. [iTnews]


Comments

    DNS Blocking is great, most of us won't even see the block message that way :)

    And so the waste in the courts and to the tax payer begin.

    Meanwhile the same workarounds pointed out during Conroy's time will still stand tall and any outcome from this will have bugger all impact on piracy because they are of the assumption pirates infringe in the clear over HTTP and not via Tor and VPNs.

    Last edited 15/03/16 2:11 pm

    Pirate Bay and ISOHunt are still things? Didn't they die out years ago?

      Looks like they are still about. My guess is some still go there to get the magnet links out of convenience.

      $5 says they will bring up the .torrent file in the technicalities even though that file is virtually not used anymore.

      $10 says Village-Roadshow will still maintain that said sites host the files in question when the reality is said sites do not.

      Last edited 15/03/16 2:20 pm

    Everyone put your hands up if you have heard of solarmovie before village roadshow announced it to Australia?

    "To win, Foxtel and Village Roadshow will have to prove to the court that the sites are used primarily for copyright infringement."

    Not really, no. From the Act, I think they're more likely to target the following:

    (5) In determining whether to grant the injunction, the Court may take the following matters into account:
    (b) whether the online location makes available or contains directories, indexes or categories of the means to infringe, or facilitate an infringement of, copyright;

      (b) whether the online location makes available or contains directories, indexes or categories of the means to infringe, or facilitate an infringement of, copyright;

      I think something is off with that wording. I'm no lawyer but I'm seeing something in the wording here that might make enforcing this impossible.

      The passage again, emphasis mine:

      (b) whether the online location makes available or contains directories, indexes or categories of the means to infringe, or facilitate an infringement of, copyright;

      When someone infringes, the goal is to obtain a copy of a binary object without authorisation; the binary object is the end goal.

      Effectively, that rules out both the desired file and any magnet link and/or .torrent file as on their own they don't technically facilitate anything.

      To facilitate in the copy a torrent client is used and I'm not certain that torrent sites point to torrent clients.

      If they do, I'll accept being wrong but based on the current wording I don't think it will hold as what is being indexed can only be considered facilitating by broadening the term facilitate.

      But that is my view as while a magnet/.torrent acts as a index it's the BitTorrent client that does the facilitation.

      Might be clearer (at least to me) if it matters or not if something actively facilitates an act (in this case, the BitTorrent client) or passively enables the act (indexes, etc.).

      Last edited 15/03/16 3:00 pm

        I like your reasoning. Unfortunately, facilitate just means aid, or help. Purposefully broad.

          Again, I'm no lawyer but I do know what facilitate means and if it the passage you presented follows the dictionary definition like a lemming then pretty much anything is in violation of section 5(a).

          Again with the magnet and .torrent (basically have those tattooed in my head from them being significant in my pre-PhD candidature days), without going into too much detail they are basically index entires (.torrents also have hash codes but they are old hat so this is the last I'm mentioning them).

          In abstract, they point to sources of which a binary object can be obtained and put together to achieve the end file even if the original source no longer exists.

          But if that is all it takes to be in violation of section 5(a), then how does that not make Google, DuckDuckGo, Bing, Yahoo, Lycos, and any other search engine out there illegal as they themselves can be deemed facilitating infringement by providing a means to facilitate in the search of unauthorised copies?

          This is also getting a bit far reaching but by association how is distributed computing not illegal then because similar mechanics (such as Distributed Hash Tables) are also used in BitTorrent clients?

          Overall that passage on its own without any extra context basically means anything can be deemed facilitating infringement and thus illegal.

          Last edited 15/03/16 3:29 pm

            I was just pointing out that there's a more likely avenue of reasoning than that presented in the article.

            Technical considerations aren't relevant, other than as high-level concepts.

            If you follow the bouncing ball, you can work out why Google, and others, are not likely to be directly affected.

    Just looked at the list or sites they wish to block. It looks like they are going for the 'trusted/well-known' brands.

    Naturally, the TMB has shown even back when it was still TPB, any blocking measure will fail. My guess is Village-Roadshow and those associated are so invested in what they preached they have to follow with it even if failure is a guaranteed outcome.

    Personally, I think this is more symbolic than productive yet it's the tax payer that will be footing the bill for this unfunny joke.

    Last edited 15/03/16 2:47 pm

    Well, looks like I won't be affected at all due to OpenDNS

      Nor will those who use Tor (or any form of Onion networking), VPNs (or any form of tunnelling), or those who get pirated copies from overseas flea markets, make a copy at home and then pass to their friends in physical form.

      I could go on but if I did my post would have more pages than Burke has zeros in his pay packet.

        Just use google DNS. You'll never have a problem with (this form of) site blocking again.

          Yes but depending on your provider and or site, the traffic may not count to one's free usage (such as FreeZone with iiNet).

          That aside, chances are they will try and make the ISP police the traffic thus even if you don't use your ISP's DNS there is still the chance the traffic can be seen and then blocked.

          And once again, that implies that most pirate infringe in the clear and not use Tor nor VPNs, which is not the case at all.

          Honest truth, no matter what comes out of this it is not going to work. If anything it will amplify piracy and in a form that cannot be measured.

    "primarily" is the right key here

    This cases will block legit uses and the it will have negative effect.. since TPB and any piracy site also has legal torrents to like Linux distros... and other open source for the distribution main model they would use.

    So, just just file haring companies like Dropbox, u block access, u'r also blocking legit users too, so it will never work in the end. VPN's same thing.

    I wish some eggheads (real smart people within the government) actually got together to peruse what "hasn't" already be tried many times before. Here's a brain storm: Think of something NEW for a change. otherwise their just living in their own fantasy world. It's what i've always said, hackers and the rest of are will always be smarter than the the big guys. I stand by that 100%

    Last edited 15/03/16 6:30 pm

    On 6 May 2015 the ISPs and rights holders will return to court
    Don't you mean 2016?

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