What happened?

Yesterday, the Federal Court of Australia granted injunctions under a special provision of the Copyright Act. It ordered a group of Australian ISPs, including all the big guys, to block access to dozens of overseas streaming sites found to be infringing copyright in films and TV shows.

The applicants were a coalition of major film studios and streaming platforms. Their evidence was that the international sites were making or facilitating unauthorised access to their content. The injunctions require the ISPs to implement technical measures such as DNS, IP, and URL blocking. They are also required to redirect users attempting to access the blocked sites to a notice page explaining the reason for the block. Cue fantastic stock image of road block.

Why did the film studios get what they wanted?

The rationale for this is pretty hard to argue with: these infringements are flagrant. And in the words of Her Honour Justice Younan, there’s a “public interest in ensuring that copyright owners can exercise their legal monopoly in their rights, and not have their rights infringed by overseas actors whose conduct cannot otherwise be restrained”. In other words, the court has to target the local ISPs to stop these infringements reaching Australia from offshore.

The film studios satisfied the Court that:

• The ISPs are “carriage service providers” under the relevant legislation.
• The targeted online locations are outside Australia and primarily exist to infringe or facilitate infringement of copyright.
• The film studios own or exclusively license the relevant copyright in Australia.
• The sites in question offered large catalogues of infringing material, ignored copyright notices, and generated revenue through advertising.
• Blocking access was a proportionate and reasonable response, with minimal impact on legitimate users.

The ISPs did not contest the application. They filed “submitting notices” meaning that they passively submitted to whatever orders were made. The injunctions will apply for three years, with a process for extension or variation (including expansion to cover phoenix domains) if needed.

Take home points

• Australian ISPs must now block access to a long list of piracy streaming sites, with technical and procedural safeguards in place.
• The decision demonstrates the effectiveness of s 115A of the Copyright Act. Its purpose-built site-blocking injunctions are a tool for copyright holders to combat online infringement.
• Users trying to access blocked sites will be redirected to a notice page explaining the block.
• The orders include mechanisms for updating the list of blocked sites. They also provide for affected site operators to challenge the block if they think they’ve got nothing to answer for.
• This judgment continues a trend of robust judicial support for copyright enforcement in the digital environment. Similar orders were made in a previous case last year.