Federal Court hands down first site blocking decision under section 115A
15 December 2016
The Federal Court has today handed down its judgment in Roadshow Films Pty Ltd & Ors v Telstra Corporation Ltd & Ors and Foxtel Management Pty Ltd v TPG Internet Pty Ltd & Ors. These are the first cases to be decided under section 115A of the Copyright Act 1968 (Cth), where an internet service provider (ISP) can be ordered to block access to overseas websites which facilitate copyright infringement.
Section 115A was added to the Copyright Act in June 2015 as part of the Copyright Amendment (Online Infringement) Bill 2015. This section provides that a copyright owner may apply to the court for an injunction against a carriage service provider to take reasonable steps to disable access to an online location outside Australia. Section 115A enables the Federal Court to grant an injunction requiring an ISP to block a website, provided that three conditions are satisfied:
1. that the ISP provides access to an online location outside Australia;
2. the online location infringes copyright, or facilitates an infringement of, copyright; and
3. the primary purpose of the online location is to infringe or facilitate the infringement of copyright (whether or not in Australia).
In February 2016, Roadshow Films, together with a number of film companies including Disney, Universal Studios, Twentieth Century Fox, and Warner Bros., applied to the Federal Court for a section 115A injunction against SolarMovie, an overseas website providing unauthorised online streaming of films and TV shows. The case was filed against a number of Australian ISPs including Telstra, Optus, TPG, and iiNet. At the same time, Foxtel Management filed its case against the same ISPs, applying for a section 115A injunction against websites The Pirate Bay, Torrentz, isoHunt, and TorrentHound, which provide .torrent files to enable copyright infringement of films and TV shows. The two cases were heard over the course of the year, with much of the discussion around the costs of implementing a block against the websites, and whether the costs should be borne by the ISPs or the applicants.
The Federal Court handed down a single judgment for the two matters on 15 December 2016. In both matters, it ordered that:
· the ISPs must take reasonable steps to disable access to the named websites, and reroute any connection attempts to a webpage explaining that access has been disabled by court order for facilitating copyright infringement;
· the injunction be subject to court oversight, including allowing the operators of the blocked websites be permitted to apply to vary or stop the injunction if they so wish; and
· the applicants pay a portion of the ISPs’ compliance costs. The quantum was based on the estimation of Optus ($1,500) and TPG ($50 per domain name), rather than Telstra’s estimation of some $10,000 in set-up costs. The applicants were also ordered to pay the ISPs’ agreed costs of putting on further evidence.
The injunctions are to last for three years, and may be extended upon application from the content-owners. The ISPs have 15 days from the date of decision to implement the site blocks.
A third section 115A case is still in progress, filed by various Australian music labels and APRA|AMCOS who are seeking a section 115A injunction for Australian ISPs to block access to the website KickAss Torrents.
· Roadshow Films Pty Ltd v Telstra Corporation Ltd  FCA 1503
· Copyright Infringement & Site Blocking information sheet
· Copyright Infringement & Site Blocking – Section 115A for ISPs
· Universal Music Australia Pty Limited ACN 000 158 592 & Ors v TPG Internet Pty Ltd ACN 068 383 737 & Ors