Pirate Bay and Friends Scuttled? Roadshow Films Pty Ltd v Telstra Corporation [2016] FCA 1503

Friday 16 December 2016 @ 1.27 p.m. | IP & Media | Torts, Damages & Civil Liability

In what is seen as a very important decision with the ". . . potential to affect how all Australians use the internet", the decision of Justice Nicholas in Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503 (15 December 2016) has seen the court order that internet companies are required to block five copyright-infringing websites, including the renowned torrent website "The Pirate Bay".

Background to the Case

The case was made under section 115A of Copyright Act 1968 (Cth) which deals with injunctions against carriage service providers (CSPs) providing access to online locations outside Australia. The proceedings were initiated by various copyright owners against various CSPs providing internet access to customers and at issue was whether CSPs should be ordered to take reasonable steps to disable access to a range of online locations that infringe or facilitate the infringement of copyright.

The key issue was the proper interpretation of s 115A(1) which provides:

The Federal Court of Australia may, on application by the owner of a copyright, grant an injunction referred to in subsection (2) if the Court is satisfied that:
(a) a carriage service provider provides access to an online location outside Australia; and
(b) the online location infringes, or facilitates an infringement of, the copyright; and
(c) the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia).

The court, in reaching its decision, had to consider the appropriate form of injunctions and ancillary orders relating to existing and future scope and operation of injunctions, and whether the applicants should be required to pay the CSPs’ costs of complying with the injunctions and, if so, in what amounts. Further, there was the consideration of  whether the applicant copyright owners should pay the CSPs’ costs of the proceedings.

The Federal Court Decision

The resulting decision and orders have been described as the first time the site-blocking laws have been used successfully in Australia, and is seen as a win for copyright holders who have long wanted to see the end of copyright infringing sites.

Justice Nicholas ruled that Australia's CSPs must ". . .take reasonable steps to disable access" to sites like "The Pirate Bay" and "TorrentHound" and that Internet companies had 15 business days to implement such blocks.

The decision is seen as a win for the CSPs, who contested having to pay the bill for site blocking and the copyright holders including Foxtel and Roadshow Films will have to pay the costs of the site blocking. Justice Nichola's decision required CSPs, including Telstra, TPG, Optus and iiNet, ordered to block a number of overseas-based piracy sites would be required to be paid AD$50 per domain blocked. As well the rights holders were also ordered to pay the CSPs' legal costs.

The sites ordered to be blocked are: The Pirate Bay, Torrentz, TorrentHound, IsoHunt and SolarMovie (as well as a raft of their mirror sites and proxies). But in a sign of the potential future difficulties of site-blocking, Justice Nicholas also noted that the site blocks would not apply to a "small number" of sites that have become inactive since the case began.

It should be noted that, as the ABC Reports, while two of the copyright holders got the order they were after, namely, a block, Justice Nichols did not ordered a ". . . rolling injunction",  that would allow new websites to be added without court approval or oversight - instead, Foxtel or Village Roadshow will have to file and serve a new affidavit outlining the new website's domain name or IP address. However, even with this limitation, the decision is being claimed as a victory and step forward in reducing online piracy.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.


Related Articles: