Australia’s largest internet service providers are battling to force film and television companies to pay for them to block websites hosting their pirated content.

Village Roadshow and Foxtel have taken Australia’s largest ISPs, including Telstra, TPG and M2, to court to try to force them to block their customers from websites such as The Pirate BayIt is the first case of its kind since the government passed site-blocking legislation with Labor support late last year.

All parties are concerned that it will set the precedent for how all piracy websites are blocked in the future, and although the ISPs aren’t challenging that the sites in question infringe on copyright, they are concerned about how the sites will be blocked, and who should bear the cost.

In the Federal Court in Sydney this morning, counsel acting for Telstra revealed that there are nine points of disagreement between ISPs and rights holders, mainly to do with how ISPs would comply with orders to block websites, and the costs involved.

Piracy websites are like a hydra — when you cut off access to one site, another one pops up in its place. So in order to prevent people from finding a mirror to The Pirate Bay, for example, the court is considering ordering a “rolling injunction” that would allow mirror domains to be added to the list of blocked websites after an order has been made.

Of course, Australians with VPNs will still be able to access blocked websites.

But that rolling injunction means the costs will add up for ISPs if they have to keep blocking more and more websites, so there is a disagreement between the Foxtel, Village Roadshow and the internet providers on what the costs should actually be.

The government estimated the cost to be $263 to $350 per injunction (which could mean more than one website), and an annual cost to the entire industry of around $130,000.

But counsel acting for Foxtel Richard Lancaster argued that, based on international comparisons, “there is really nothing to it” in terms of ISPs complying with costs.

TPG said it would use DNS blocking to block piracy domains, and it estimated the cost would be $50 per domain. M2 said that it estimates costs at being between $400 and $800 plus additional overhead costs. Telstra has argued that, as an “innocent party”, it should not have to pay any costs associated with blocking websites.

A full hearing of the case has been set down for June 23 and 24, with the option of extending the hearing to June 27 if needed.

This case covers the first two of three cases filed since the passage of the legislation. The third case brought by the music industry will seek to block the piracy website KickAss Torrents.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey