The messy mechanics of blocking piracy sites in Australia

On the eve of the country's next major copyright showdown, confusion continues to reign between Australian ISPs and rights holders on how the blocking of piracy websites will be determined.

Legal action launched last month by Foxtel and Village Roadshow against The Pirate Bay and SolarMovie is the first test case for site-blocking legislation voted through the Senate last year.

The case involves Australia's biggest four telcos - Telstra, Optus, TPG and M2 - and is already highlighting ambiguities in the new law, before the parties have even entered the court room.

According to the legislation, internet service providers are only required to take "reasonable steps" to disable access to a specific website. The bill notes that the court has the power, if it chooses, to be detailed in terms of the technical blocking methods to be adopted by a telco.

The legislation does not prescribe how a site is to be blocked, which the ISP industry at the time labelled concerning.

While the Communications Alliance has argued telcos should be able to choose how to meet a site-blocking injunction - should one be issued - it's currently unknown how technically prescriptive the court will opt to be.

"Should courts decide to order that more complex and costly blocking methods be used, this needs to be taken into account in the court order as it relates to compensation for ISPs’ implementation costs," the Comms Alliance said at the time.

However, iTnews can reveal that Telstra, Optus, TPG and M2 believe the method of blocking will be out of their hands, and have already put forward a case to the court for DNS-level blocking.

They argue this method is more readily implementable than other approaches, which include employing a filter at the network edge or blocking access to specific IP addresses.

The movie studios, meanwhile, have made the same argument as in the UK and say telcos should use the systems they already have in place for blocking access to child pornography sites, which predominantly also use DNS poisoning.

"The respondents already have a well-developed and often-used system for site blocking for the purposes of responding to requests from law enforcement in Australia," Village Roadshow wrote in its statement of claim.

Therefore blocking access to the SolarMovie site would involve "minimal time and effort", it argued.

However, Village also said it would consider ISPs to have complied with a court order if they had blocked relevant IP addresses, URLs, or used "any alternative technical means" for disabling access to the stated websites.

Foxtel said it expected the court would decide on the method of blocking, but based on a technical approach agreed to prior by ISPs and rights holders and put to the court for confirmation.

"This is the first time this horse has run," Communications Alliance CEO John Stanton told iTnews.

"It'll be instructive and if the process happens over time it should become more mechanistic."

According to industry expert and former iiNet chief regulatory officer Steve Dalby, the court will need to be "very specific" about what is to be blocked, but should leave the technical delivery of the order to ISPs.

"Is it an IP address? A domain? And then let the ISPs work out how to do that," he said.

"But if you just say in general terms 'you must stop people getting things from Pirate Bay', I think there'll be a few people scratching their heads and saying, 'What do we do?'"

Diving underwater?

The ambiguity of the site-blocking legislation could mean that action is taken upstream of the retail ISP.

One possibility to emerge in the test case already is that websites could be blocked at the subsea cable landing stations that supply Australia with internet.

The primary respondents in the court action are Telstra (in the case of Village Roadshow) and TPG (in the case brought by Foxtel), along with Australia's three other major internet service providers.

But the list of other respondents to the claims include Australia's top subsea cable operators and backhaul providers.

Pacnet, Pipe Networks, Internode, Optus' infrastructure arm, TransACT, and TPG's backhaul and infrastructure division are among those listed as respondents to the claims.

It is understood these names appear in court lists simply as a result of ISPs listing those of their business units that may need to play a role in any site blocking, rather than a deliberate attempt by rights holders to block access at the subsea cable level.

However, going after backhaul and subsea cable operators could mean rights holders ensure alleged pirates don't simply hop from one internet service provider to another to access sites blocked by a particular ISP.

Dalby said while bringing cable and backhaul providers into the mix would close the net somewhat, it wouldn't address the ability for piracy site operators to simply change location.

"It’s probably a slightly more sensible approach because it reduces the number of points you have to have the injunction apply to; if 500 ISPs are all using the same subsea cable, why seek to injunct 500 ISPs, just get the guy providing the cable," Dalby told iTnews.

"But it’s still going to be ineffective.

"Pirate Bay can just throw in a new line of code or tick a box in an existing piece of software to change their location. You can do that when you’re running a software-driven business. They would have other locations that aren't covered in the injunction already established to throw the switch and reroute traffic."

However, general manager of networks and technology for Trident Subsea Cable Paul Brooks said it was not technically feasible for cable operators to block a particular website.

"Cable operators just do layer 1 optical paths - we're not operating an internet service," he said.

"Any ISP that deals directly with a cable operator generally operates at the wavelength level - so the point to point light path from their own equipment overseas to the cable landing station in that city, through the cable to the landing station in Australia, and from there to the ISPs data centre and their equipment is generally a direct wavelength optical connection.

"There's no way the submarine cable owner can intercept that and block individual IP packets."

First movers

Despite being introduced into law mid last year, this is the first time rights holders have taken the opportunity to use the new legislation.

It follows the breaking down of talks between rights holders and the ISP industry over a voluntary code for copyright infringement last month.

The two parties had remained in discussions over the scheme's operation after handing a draft code into the Australian Communications and Media Authority last April.

But despite coming to broad agreement on an escalating notice scheme for fixed-line residential users who rights holders claim infringed copyright, the two parties once again failed to agree on who would pay for the processing of notices, with Village Roadshow last month announcing the scheme would be ditched.

The same stumbling block broke down similar talks in 2012.

Rights holders and ISPs had been forced into action in late 2014 after the federal government warned that it would legislate a code should ISPs and rights holders not come to agreement on a voluntary scheme within four months.

The push followed pressure from rights holders for the government to act on copyright infringement.

The government is understood not to be pursuing any action for the parties' failure to come to agreement given rights holders called off the talks.