The Future of Aussie Pirate Site Blocking: Six Additional Facts

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This week pirate site blocking arrived in Australia after years of planning and negotiations. We take a look at some of the lesser-discussed points from the Federal Court's ruling which allow for the rapid expansion of site blocking based on the trusted words of rightsholders.

ausIt took a change in the law and significant effort from rightsholders but this week the Aussie content industry’s dreams of website blockades came to fruition.

In a ruling handed down by Justice John Nicholas of the Federal Court, The Pirate Bay, Torrentz, TorrentHound, IsoHunt, SolarMovie, and dozens of proxies and mirrors were ordered to be blocked by ISPs including Telstra, Optus, TPG and iiNet.

While this process has certainly taken a long time and been somewhat controversial, if nothing else the ruling of the Federal Court is comprehensive. It’s clear that every conceivable loophole has been closed to not only tackle fluid pirate sites but also to protect rightsholders and ISPs from liability.

Firstly, it’s worth pointing out that the Federal Court has stated clearly that all blocks can be challenged. Any website operator negatively affected by the blocks, whether that’s a ‘pirate’ site owner or some ancillary actor, can appeal to the Court to have the block overturned.

They must provide evidence as to their status and the reasoning behind their request to qualify but that’s normal in any case. Of course, it’s extremely unlikely that any “overseas” pirate site operator will file an appeal but if an innocent party is affected, they have a chance to get things put right.

One of the lessons learned from injunctions in other jurisdictions is that when sites have been blocked, proxies, mirrors, and other workarounds have quickly appeared to evade the bans. The Australian court order deals with that eventuality in a very streamlined manner.

When copyright holders spot domains, URLs or IP addresses that facilitate access to blocked sites, they merely have to file an affidavit with the Court stating which locations the sites are attempting to operate from. The ISPs listed in the original court order will be required to block these new additions within 15 days.

In an effort towards balancing things up, the Court has also built in a mechanism designed to limit over-blocking.

If the copyright holders have a “good faith belief” that any target IP address, domain name or URL has permanently stopped infringing or facilitating the infringement of copyright, they must advise the ISPs within 15 days, in writing. From that point, ISPs will no longer have to block the locations in question. Whether copyright holders will advise ISPs promptly will remain to be seen, however.

Clearly, ISPs are required by law to block the domains detailed in the order. However, should they need to unblock them temporarily to maintain their regular systems or the blocking mechanism itself, that is permitted. Also, abandoning site-blocking in the face of a security threat is also allowed.

That being said, the ISPs can’t suspend blockades without taking action. In the event of a suspension, ISPs must advise the copyright holders of the issues being faced by 5:00pm of the next business day. They then have three days to reblock the sites or obtain permission for a further extension.

Finally, the blocking order handed down this week against The Pirate Bay and others is not indefinite. Initially, it will be in effect for a period of three years. However, six months before it’s due to expire the copyright holders can ask for an extension.

In common with having additional proxies, mirrors, and IP addresses added to the order, all they have to do is file an affidavit with the Court stating that the sites are still infringing. That should be enough to obtain a further three years’ worth of blocking.

New injunctions will need to be obtained to block additional sites not mentioned in the original order but with a system as apparently streamlined as this, there doesn’t appear to be too many roadblocks ahead.

The full judgment can be found here.

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