Online copyright infringement in australia

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.  ?

Dallas Buyers Club No 5

Perram J has rejected Dallas Buyers Club’s latest attempt to get permission to send those letters of demand out.

Last time out, Perram J said DBC could get the names and addresses of the 4726 “downloaders”[1] only if it gave undertakings to use the information for the purposes of resolving its infringement allegations. limited the demands for compensation to the retail price of a download and some part of the unrecovered costs of detection and put up a bond of $600,000.

This time round, DBC wanted to claim monetary compensation on a different basis, including additional damages under s 115(4) and restrict the bond to $60,000 as it was only seeking release of details of about 10% of the “downloaders”. It also did not offer up the undertakings.

Perram J told them, no sale; they had their shot at what they wanted in the previous hearing(s). His Honour gave them until 11 February 2016 to comply with his previous orders or he would dismiss the application.

Dallas Buyers Club LLC v iiNet Limited (No. 5) [2015] FCA 1437


  1. By which I really mean the account holders whose accounts the ISPs’ records showed were using the IP addresses at the time of the alleged infringements.  ?

Three strikes in Australia

The Communications Alliance has published a draft Code for a copyright notice scheme in Australia.

The draft Code will apply to residential, fixed line accounts only. It appears to be intended to apply to all ISPs of (an as yet to be determined) minimum size. The scheme does not involve ISPs terminating, suspending or throttling accounts, but leads up to the rights holders potentially making applications for preliminary discovery to identify egregious account holders. Participation in the scheme, however, does not preclude a rights holder from taking infringement proceedings at any stage.

The draft Code envisages 3 stages of notice:

  1. an Education Notice;
  2. a Warning Notice; and
  3. a Final Notice.

A rights holder who alleges an infringement would send a notice in the agreed form to the relevant ISP which would then issue a notice at the appropriate level to the account holder. The ISP must not at any stage disclose any personal information “including the identity or any contact details of an Account Holder at any stage of the copyright notice scheme, unless there is a court order or written permission from the Account Holder”.

Each type of notice will include, amongst other things, details about the alleged infringement and information where legitimate content can be obtained.

A Final Notice would be issued only within the 12 months from issue of the most recent Education Notice. If more than 12 months has passed, the process resets to the Education Notice.

If a Final Notice is sent, it will include a warning that the Account Holder may be subject to court proceedings including an application for preliminary discovery. An Account Holder who receives a Final Notice may challenge it before an Adjudication Panel on payment of a $25 fee. Until the challenge is resolved, the Account Holder must not be included in “the Final Notice List”. The costs of the Adjudication Panel are otherwise to be borne by the rights holders.

Rights holders can seek access to each ISP’s Final Notice List – which must be provided in a way that does not include any personal identification material and, having received it, the rights holder may apply to “a federal court or tribunal” for preliminary discovery and the ISP must abide by the outcome.

It is envisaged that the Code will operate for 18 months and then be subject to an evaluation.

The draft has been prepared through consultations involving:

  • on the ISPs side: Telstra, Optus, iiNet, IP Star, M2, Verizon and Vodafone Hutchison; and
  • on the rights holders side: APRA AMCOS, ARIA, Australia Screen Association, Copyright Agency, Foxtel, Free TV Australia, Music Rights Australia, News Corporation Australia, Village Roadshow Limited and World Media.

The implementation of the scheme will be overseen by a Copyright Information Panel, consisting of representatives of the ISPs, rights holders and “the Consumer Organisation”. The Copyright Information Panel will also be responsible for appointing the Adjudication Panel.

In addition to the size of ISPs who must participate, the press release notes that the parties are still to agree on the funding arrangements – i.e., who will bear the costs of the notices and administration – and how many notices an ISP may have to handle in any given month.

The publication of the draft reflects the ultimatum from the Attorney-General back in December.

The draft is now open for public comment until 23 March 2015. The intention is that, once finalised, the draft will be submitted to the Australian Communications and Media Authority for registration as an Industry Code under s 112 of the Telecommunications Act 1997.

Draft Code here (pdf).

Press release here.

3 strikes in Kiwi land

Looks like New Zealand will be repealing its law imposing a “3 strikes” ban requiring ISPs to cut off infringing downloaders.

Howard has the news at Excess Copyright. Imagine how much lobbying is going to take place now? How long before the USTR has to fly all the way down “here”?

Howard also links to an interesting article about the settlement by Eire’s biggest ISP.

Our law, s 116AG, already gives the Court power to order an ISP to do this and, of course, the case against iiNet is still winding its way through the legal process.

Irish ISP and 3 strikes

IPKat reports that the case in Eire in which the record companies sued the ISP, Eirecom, has settled after 8 days of the scheduled 4 weeks of trial.

Amongst other details, the ISP adopted a 3 strikes policy and the record companies deployed a service to monitor (entrap?) file”sharers”.

Read more here.

Some other background and 3 other strikes here, here, here and here.

3 strikes – across the Tasman

Apparently, New Zealand’s copyright law has been amended to require ISPs to terminate the account of a “repeat infringer”.

Excess Copyright has the links.

Our law – Copyright Act s 116AG – already provides that a Court may order the “carriage service provider” to terminate a specified account.