Australia's four major internet service providers and two of the world's biggest content producers say discussions on blocking a handful of alleged piracy sites have so far been "very fruitful", but the parties already are at odds over how a block should be implemented.
Representatives for Foxtel, Village Roadshow, Telstra, Optus, TPG and M2 appeared in court today as part of the first test of new legislation allowing rights holders to apply for an order to have a piracy-facilitating website blocked for Australian users.
The two content owners launched the first court action seeking to make use of the website-blocking legislation - passed into law last year - in February.
Foxtel and Village Roadshow are separately seeking to restrict local access to The Pirate Bay, SolarMovie, Torrentz, Torrentound and IsoHunt websites, which they claim exist solely to facilitate copyright infringement.
The legislation requires that the operators of the websites facing potential blocking be notified of the court action.
In court today, counsel for Foxtel Richard Lancaster revealed the firm had had no contact from any of the site owners indicating a desire to be involved in the court case, and did not expect any to be forthcoming.
Similarly, ISPs will also not submit a defence to the site-blocking applications.
The two parties are currently in negotiations outside of court as part of the precedent-setting case over how best to implement a block should one be granted by the court.
Both have called the discussions "fruitful" and say they expect to agree on the majority of issues.
However one rift has already emerged in how a website block will be implemented from a technical standpoint.
The ISPs have put forward their case for blocking at the domain name system (DNS) level, while Foxtel and Village Roadshow are pushing for blocking of IP addresses and URLs.
Counsel for TPG also revealed Foxtel specifically was seeking the ability to add extra IP addresses to a site-blocking injunction from time to time, which "might give rise to a question about what an online location is", as specified in the legislation.
"Is a new IP a new online location?" TPG counsel questioned.
"We wish to seek to negotiate an arrangement for DNS blocking. If [Foxtel] were pushing for a broader blocking mechanism that might be an issue.
"One example is, if one looks at the first IP address listed for The Pirate Bay, when I visited the address .. it's no longer associated with The Pirate Bay website. IP addresses change very rapidly."
Optus suggested the parties attend a case management conference before a court registrar to iron out any differences.
But other ISPs say they would prefer to work with the other respondents and rights holders to agree on the orders to be put to the court.
"This will be the first of several proceedings, and we really want to establish best practice from the outset," Optus counsel said, arguing the process should be as "quick, inexpensive and efficient as possible".
TPG's counsel said the parties should identify any areas of dispute first before bringing in an arbitrator.
Justice Nicholas agreed, and set down the 6th May for the parties to return to court after a period of negotiation. He asked the ISPs and rights holders to bring with them an outline of what was and wasn't agreed on at that point.
Creating a template
Both parties highlighted the precedent-setting nature of the proceedings and indicated a need for "careful consideration" given the template the case would provide for further use of the legislation.
"We are concerned and ISPs are concerned that the orders in this case provide a template for the future," Foxtel's counsel said.
"We expect that will be done by careful consideration in the proceedings and by an eye for efficiency in future proceedings."
The test of success in the case will be whether Foxtel and Village Roadshow can prove to the judge that the sites they are seeking to block are used primarily for copyright infringement, as required under the legislation.
The rights holders will bring both expert and lay evidence to the 6th May, providing a "snapshot" of the way the sites in question operate, using things like screenshots and a "description of somebody sitting down and going through the website", Foxtel's counsel said.
"In each case we are very well advanced with the preparation of evidence and will be filing it in the coming weeks," Foxtel's counsel said.
ISPs indicated they may also have a need to similarly put forward evidence, contingent on the result of negotiations, in regards to the technical issues involved in website blocking.