Australia’s first test-case of legislation that enables rights holders to block access to overseas piracy websites at the ISP level is wrestling to define what constitutes an “online location”.
Rights holders and Australia’s biggest telcos fronted a court hearing today in the first use of site blocking legislation passed by the Senate last year.
Foxtel and Village Roadshow are jointly seeking to ban access to torrent sites The Pirate Bay, Torrentz, Torrenthound and IsoHunt, as well as streaming site SolarMovie.
The new section 115a of the Copyright Act states a court can order a telco to block access to an overseas “online location” if it is satisfied the primary purpose is to infringe or facilitate the infringement of copyright.
The explanatory memorandum to the bill leaves the definition of the term ‘online location' “intentionally broad” to include a “website” and also “future technologies”.
It specifically identifies online locations as those that provide “programs, links, directories, indexes or other tools to assist copyright infringement”.
Foxtel and Village Roadshow today argued the definition was broader than a website URL or IP address, and could cover an entity that provided access to infringing digital content.
“[It’s] a broader shorthand reference for the idea that those responsible for the publication of the digital content at the website accessible by various URLs and IP addresses are within the broader definition of online location,” Foxtel and Roadshow counsel Richard Lancaster said.
“And the reference to future technologies makes one immediately think of the cloud, which is digital content hosted somewhere on servers. The methods of access might be various, and indeed in this case there are numerous pathways to substantially identical digital information that we’d call the online location.”
He argued that from the user’s perspective, the online location was the same if it offered the same content.
“It doesn’t matter if the technical means of perceiving that content is one URL or one IP address or another,” Lancaster said.
However, Justice Nichols indicated he was unlikely to agree with rights holders' assessment of the legislative term. Part of the issue lies in the bill’s requirement that rights holders prove the online location is housed outside of Australia.
“Well it does [matter], because one [server] might be in Australia and one might be outside Australia. So it can’t be what’s perceived by the user,” Justice Nichols said.
“Location is a geographical term. So when you talk about the cloud, that would depend on where the servers holding that information are.”
Lancaster said the expert advice Foxtel had relied on used WhoIs searches to identify location and ownership of those providing access to the infringing content.
“And then they can say the servers are located in Canada or wherever they might be,” he said.
The definition of the term will have a big impact on the effectiveness of a site blocking injunction and its ability to stop piracy sites from reappearing under a new URL or IP address.
Rights holders and governments the world over have long faced the problem of proxy or mirror sites, which provide alternate access to a site blocked by a carriage service provider.
Swedish police famously took down The Pirate Bay in late 2014, only for it to reappear hours later under a Costa Rica domain.
A new partnership with CloudFlare last year to handle the site’s traffic also made it far more difficult for telcos to block access to The Pirate Bay’s main portal, and rendered many existing ISP-level blocks useless.
“One of the things that is against us in terms of new access pathways - how to deal with new ways to access this content - raises this very issue,” Foxtel counsel Richard Lancaster said.
“Clearly the way that we proposed your Honour should interpret ‘online location’ is an umbrella broader than merely identified websites; that is the actual address or particular IP address to the digital content accessible there.”
Foxtel is pushing for the top-level domains of the identified sites to be blocked, but also wants a way to deal with the alternate pathways that pop up when a particular piracy site URL or IP address is blocked, through a rolling injunction.
But the rights holders and telcos have been unable to agree as to how this would work.
The ISPs will make their arguments on Friday.
The judge has asked Foxtel's experts to appear to provide a technical explanation of their definition of online content in relation to geography and content.