Playing catch up: last month saw some significant developments for online copyright infringement in Australia:

  1. First, Dallas Buyers Club’s lawyers announced it is no longer pursuing its court action to get prelimiary discovery of the contact details of the 4726 alleged infringers: it’s over;
  2. Secondly, Mr Burke from Village Roadshow announced that the proposed Graduated Response industry code has been shelved;
  3. Thirdly, Village Roadshow and Foxtel announced that they are both bringing court proceedings to obtain website blocking injunctions against ISPs.

Graduated response (or 3-strikes)

One of the factors in the iiNet case which influenced the High Court to find that iiNet did not authorise the infringing acts of its subscribers was that iiNet could not credibly threaten to discipline subscribers accused of infringing by peer to peer downloading because, in the absence of an Industry Code, the subscribers could simply switch to another provider.

In response to that, the draft Industry Code arose from [a Government warning][agltr] that, if the parties did not come up with a solution, the Government would impose one.

However, Mr Burke has now reported that it would cost between $16 and $20 to issue each Infringement Notice under the proposed scheme because it would be necessary to check each notice manually. As he pithily explained, it would be cheaper to give the (putative) infringer a copy of the film:

“And it’s just so labour intense, that it’s somewhere in the vicinity of $16 to $20 per notice, which is prohibitive. You might as well give people a DVD.”

According to Mr Burke, if it is possible to develop an automated scheme, the costs should fall to “cents”. Until then, the scheme has been shelved.[1]

Finally, Mr Burke did go on to say that it was incumbent on rights holders to fight piracy by improving access to their content.

I wonder if we shall see a resumption of efforts to “fix” the authorisation provisions in the Act?

Website blocking injunctions

In the meantime, you will remember that last year Parliament added s 115A to the Copyright Act 1968, giving rights holders power to go to court to get injunctions ordering ISPs to block access to offshore piracy websites.

Now Village Roadshow and a number of Hollywood studios have brought action in the Federal Court seeking orders to block access to Solamovie, which is alleged to facilitate unauthorised streaming. There are 50 named ISP respondents including Telstra, Optus, M2 and TPG. The first directions hearing appears to be scheduled before Nicholas J in Sydney at 9:30am on 16 March. The website s115a.com has links to the Court documents, including the Originating Application and the Statement of Claim uploaded by Rohan Pearce.

Meanwhile, in a separate action, Foxtel has also gone after The Pirate Bay, Torrenz, TorrentHunt and IsoHunt. Nicholas J is holding the first directions for this one at 9:30am on 15 March. As with the Village Roadshow case, s115a.com has links to the documents, courtesy of Mr Pearce.


  1. The announcement seems to have come as some surprise to the ISPs. The report did not indicate who would pay for the development of the prognoticated automated system.  ?