More third party website blocking injunctions

Nicholas J has granted another round of injunctions ordering ISPs to block access to offshore copyright infringing sites.

Having established the ground rules in the earlier applications (here and here), the ISPs didn’t turn up; essentially just filing submitting appearances and agreeing to be bound by the orders.

According to this News report, once these orders are implemented a total of “65 piracy sites and 340 domains” will be blocked in Australia. That is claimed to be “95 per cent of the criminal trade blocked”.

Apparently, the film companies:

plan, later this year, to sue any individual that continues to download pirated content.

Roadshow Films Pty Ltd v Telstra Corporation Limited [2017] FCA 965

Third party website blocking Down Under – second look

Following up last week’s quick note, a closer look at Nicholas J’s decision in Roadshow Films v Telstra ordering the ISPs to block access to a number of offshore websites on the basis that they were primarily sites which infringe, or facilitate the infringement of, copyright (which unhelpfully didn’t publish last year on schedule)Oh well, hopefully better late than never!

There were two separate actions: one brought by Roadshow Films and the second brought by Foxtel. Both proceedings sought orders against essentially three groups of ISPs: Telstra, Optus and TPG. Roadshow also sought orders against M2. Roadshow was seeking orders under s115A compelling the ISPs to block their subscribers’ access to a number of SolarMovie sites (which in the end resolved back solarmovie.ph). Foxtel was seeking the injunctions to block access to various Pirate Bay, Torrenz, TorrentHound and IsoHunt websites.

The ISPs did not contest the injunctions, but there were disputes about some of the terms.

The injunctions

Nicholas J therefore ordered that each of the ISPs take reasonable steps to disable access to “the Target Online Location”. By way of example, the Target Online Location in the Roadshow matter was defined as the online location or online locations known as “SolarMovie” that are or were accessible:

(A) at the following URLs:

  (I) https://www.solarmovie.is

  (II)    http://www.solarmovie.com;

  (III)   http://www.solarmovie.eu; and

  (IV)    https://www.solarmovie.ph;

  (together, the Target URLs);

(B) at the following IP Addresses:

  (I) 185.47.10.11;

  (II)    205.204.80.87;

  (III)   188.92.78.142; and

  (IV)    68.71.61.168;

  (together, the Target IP Addresses);

(C) at the following Domain Names:

  (I) solarmovie.is;

  (II)    solarmovie.com;

  (III)   solarmovie.eu; and 

  (IV)    solarmovie.ph.

Order 3 then provided that the ISP would be deemed to have taken reasonable steps if it took any one or more of the following steps:

(a) DNS Blocking in respect of the Target Domain Names;[1]

(b) IP Address blocking or re-routing in respect of the Target IP Addresses;[2]

(c) URL blocking in respect of the Target URLs and the Target Domain Names;[3] or

(d) any alternative technical means for disabling access to a Target Online Location as agreed in writing between the applicants and a respondent.

It seems from his Honour’s reasons that the ISPs expect to use DNS Blocking.

After the hearing in June, the particular Solarmovie sites went offline. Nicholas J was satisfied, however, that s 115A still permitted him to make orders blocking access. In contrast, his Honour did not consider there was sufficient evidence to block access to some of the Pirate Bay URLs associated with “CloudFlare”, but which had always been inactive. Nichols J accepted that these websites gave rise to “suspicion”, but it was not strong enough to warrant ordering an injunction.

Landing pages

Nicholas J further ordered that the ISPs must redirect communications attempting to view the “blocked” websites to a landing page. The ISP could choose to set up its own landing page but, if it did not wish to incur those costs, it was required to notify the relevant applicant. Once notified, the relevant applicant had to set up a landing page stating that access to the website had been disabled because the Court has found that it infringes, or facilitates the infringement of, copyright.

Whack-a-mole

Given the ease with which a website can be shifted to a new address, Roadshow and Foxtel sought orders that they add to the list of blocked addresses by letter to the ISPs.

Unlike the English courts, Nicholas J considered that an extension of the orders to other websites should require the involvement of the Court. Accordingly, his Honour ordered that applications to extend the orders to new iterations should be made to the Court on affidavit with proposed short minutes of order to extend the injunctions. This imposes some constraint on the use of such injunctions by enabling the ISPs to object.

How long

Nicholas J ordered that the scheme set in place should run for an initial period of 3 years. Six months before that expiry, however, the applicants can provide affidavit evidence to set out their case for an extension. The ISPs then have an opportunity to object or, if no objection is forthcoming, the Court may order an extension.

Costs

Roadshow and Foxtel did not seek costs. The respondents did.

Nicholas J considered that the costs of the ISPs incurred in setting up the technical requirements for the scheme to operate were simply costs of doing business and so to be borne by them. They were costs that would have to be incurred independently of these particular actions.

However, his Honour ordered that each ISP could charge $50 for each domain name included in the orders. His Honour considered that, as each ISP proposed to use DNS Blocking, a uniform figure should be used. $50 was a bit lower than some ISPs wanted and a bit higher than others.[4]

Nicholas J also ordered that the applicants pay the ISPs costs of the proceeding relating to the method for extending the regime to new iterations of a website and compliance costs.

Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503 (Nicholas J)


  1. Nicholas J defined DNS Blocking as “a system by which any user of a respondent’s service who attempts to use a DNS resolver that is operated by or on behalf of that respondent to access a Target Online Location is prevented from receiving a DNS response other than a redirection as referred to in order 5.” Apparently, at [13], “ISPs can block access to specific online locations entered into the address bar of the Internet browser, by configuring their DNSS to either return no IP Address so that an error message is displayed to users or so that users are directed to a predetermined IP Address that differs from that designated by the specific online location’s IP Address.”  ?
  2. At [15], his Honour explained that IP Address Blocking involves the ISP not routing outbound traffic to the specified address. This apparently can be problematic as it can also block access to other websites stored on the server with the specified address. Hello ASIC, anyone?  ?
  3. At [14], Nicholas J described URL Blocking as comparing the destination address specified in a “packet” of data being routed across the internet to a list of addresses to be blocked and, if there is a match, blocking transmission.  ?
  4. This amount is an interesting contrast to the figures quoted by the Court of Appeal in the Cartier case in England at [19] which ranged from (in GBP) three figures to six figures each year. See also [129] – [150] of Cartier.  ?

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.  ?