There was much confusion in the Federal Court last week over how to interpret piracy legislation passed just over a year ago.
According to reports from the two-day court hearing in the Foxtel/Village Roadshow case — seeking to get streaming sites and several overseas torrent websites, including The Pirate Bay, blocked by Australian internet service providers — there was much disagreement between the film studios and the internet service providers about what exactly an “online location” is.
The rights holders would prefer the “online location” to point to a specific piece of infringing material rather than an IP address or URL, so that multiple instances of the infringement online (various servers of the same website and other versions of it) can all be blocked at once, rather than just one IP address or URL. This would allow the courts to effectively allow “rolling injunctions” to be placed on internet service providers so that in the constant game of whack-a-mole that is battling online piracy, whenever a new site pops up containing the pirated content, the rights holders can order the ISPs to add that new location to the list of blocked pages.
The problem for the ISPs is that, over time, what might seem like a small cost for them initially (estimated at a bit over $50 per site according to TPG, between $400 and $800 according to M2) can end up costing lots more when more sites are added to the list. It also raises issues of transparency and accountability. When the government introduced the legislation, it implied the blocks would be court-ordered. But the courts only block sites on the initial list — there is no court oversight over the new sites added.
When the government introduced legislation last year, Parliament was warned by several organisations that using the term “online location” to describe what was to be blocked was too vague and could result in gaming of the system and “overblocking” legitimate websites.
“The problem is, if you make the site blocking orders too broad, you then run the risk of capturing all these other ones that you did not ever intend to capture. I am not really talking here about whether site-blocking itself is a good or a bad thing; it is just that the way that it is implemented in this bill is highly problematic,” Carolyn Dalton, executive director of the Australian Interactive Media Industry Association Digital Policy Group, told the parliamentary committee during the one hearing it held before the legislation passed, with Labor support.
As a side note, the rights holders did have a point in suggesting that language in law should be kept as technology-neutral as possible to ensure it doesn’t go out of date quickly, but rights holders often resist other attempts to introduce technology-neutral language into the Copyright Act.
The judgment has yet to be handed down. Getting the first set of site-blocking orders right is important as it is likely to set a precedent for future site-blocking cases, including one brought on by the music industry to block another popular torrent website, KickAss Torrents. While Telstra, Optus and TPG are making their stands on specific issues — like costs, what users will see when trying to get to a blocked site, and how the blocks would operate — they have made the case they are innocent parties and are not contesting large parts of the case. I can’t help but wonder what the case would have been like if the big consumer advocate that was iiNet before it was bought out by TPG was still on the scene.