30 April 2018

 

On 27 April 2018, the Federal Court handed down its decision in Roadshow Films Pty Limited v Telstra Corporation Limited [2018] FCA 582, another Section 115A order for internet service providers to block access to domain names enabling access to infringing content. What distinguishes this case from previous cases is that the domain names were not accessed through a website or web-browser, rather, they were accessed via apps installed on a TV smart box.

 

The facts

Like previous Section 115A cases, the application was brought by Roadshow Films and the major Hollywood studios against Telstra, Optus, and the various other Australian internet service providers. Other than targeting different online locations, the application sought by Roadshow was on the same grounds as orders made in previous cases.

In this particular case, the rightsholder applicants sought to block online access to 16 domain names and their internet protocol (IP) addresses, all registered overseas in locations including the Netherlands, France, and the United States of America. Unlike previous cases, these online locations do not host a website but rather, are specific online locations accessible via three apps installed and operated through the Android operating system on a TV smart box.

In essence, a TV smart box is a miniature computer containing a browser and apps which connect to the internet. By connecting a smart box to a TV or computer screen, a user can use the apps as a portal to access online content. In this case, the apps in question required a user to purchase a subscription and register a user account. Once registered, a user could use the apps to stream a large selection of movies and TV shows, and access various TV channels, including BBC1, BBC2, Disney, Disney Junior, EPL Extra 1, 2 and 3, Fox HD, and Nat Geo Wild. All media streamed through the apps to the user's screen was enabled via the domain names targeted in the application, and without the authorisation of the relevant copyright owners.

 

The decision

Under Section 115A of the Copyright Act, the Federal Court can order an internet service provider to block access to overseas online locations that facilitate copyright infringement.

Based on the evidence provided, and following the reasoning set down in Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503, the first Section 115A decision, the Federal Court found that:

  • the ISPs provided access to the targeted online locations located outside Australia;
  • each of the targeted online locations facilitated the infringement of the applicants' copyright; and
  • the primary purpose of each of the targeted online locations was to facilitate the infringement of copyright.

The court further observed that, "it is apparent from the evidence that the target online locations have facilitated the infringement of copyright in cinematograph films and television broadcasts on a widespread scale. This facilitation of the infringement of the copyright is flagrant and demonstrates a disregard by the operators of the service for the rights of copyright owners."

On this basis, the court was satisfied that the requirements of section 115A were established, and that an injunction should be granted to block access to those websites. As with previous cases, the order was made on largely the same terms as those set down in previous section 115A decisions. The court also noted that the orders would not have any impact on the use of the TV smart boxes, except with respect to the streaming of copyright material using the installed apps.

 

Final note

The rising popularity of streaming services, together with faster high-capacity internet connections and smart device technology, has meant that it is increasingly popular to access unauthorised content via streams instead of downloading. While smart internet-connected TV devices such as set-top boxes and Kodi boxes have legitimate uses, at the same time it is not uncommon for such boxes to be loaded with apps that enable access to unauthorised content. This case indicates that Section 115A is applicable to such technology which, although using a different interface, is still simply an internet connection to an overseas online location that facilitates copyright infringement.

 

Decision: Roadshow Films Pty Limited v Telstra Corporation Limited [2018] FCA 582