During December 2014, Attorney-General George Brandis and Communications Minister Malcolm Turnbull asked the Australian Cabinet to approve the development of a new legal mechanism which would allow rightsholders to obtain site-blocking injunctions against ISPs. Today that legislation was introduced to parliament.
Kept under wraps until this morning, the site-blocking elements of the Copyright Amendment (Online Infringement) Bill 2015 are likely to please rightsholders with their significant reach.
Injunctions against providers
In order to apply for an injunction against an ISP, rightsholders need to show that the provider in question provides access to “an online location” outside Australia and that the “location” infringes or facilitates infringement of copyright. The location’s primary purpose must be to infringe copyright, “whether or not in Australia”.
Aside from the rightsholder and ISP, operators of “locations” (the word ‘site’ is not used, presumably to add breadth) will be given the option to apply to become party to any proceedings.
Once an injunction is handed down against an ISP it will be required to take “reasonable steps” to disable access to the infringing site. What amounts to reasonable will almost certainly be the subject of further discussion as any over-broad moves could result in collateral damage and bad PR.
Issues determining whether sites/locations become blocked
Currently there are 11 areas that the Court will examine when deciding whether to hand down an injunction. The key issues involve intent, in particular whether a location/site’s primary purpose is to infringe and the flagrancy of any infringement.
In a nod to BitTorrent and similar indexes around today (Pirate Bay, KickassTorrents and Usenet sites, for example), the Court will consider whether the location “makes available or contains” any “directories, indexes or categories of the means to infringe, or facilitate an infringement of, copyright.”
The Court will also consider whether the operator of the “location” demonstrates “disregard” for copyright. In the case of The Pirate Bay, for example, that should be easy to show but for others such as KickassTorrents – which removes masses of content following rightsholder request – the line becomes more wavy.
That being said, removing content alone won’t be enough to save a site from the blocklist. The Court will also take into consideration whether a site has already been blocked on copyright infringement or related grounds anywhere else on the planet. That immediately puts at least 110 UK-blocked sites in the spotlight.
Other issues to be considered are more focused on the needs of the public, such as whether blocking a resource would be “proportionate”, in the public interest, or likely to have a “an impact” on third parties. Who will be allowed to have an input into these matters is not detailed but participating in court proceedings could prove prohibitively expensive for smaller groups.
The draft caters for injunctions to have a limited duration, and be rescinded or varied upon application. While ISPs will be expected to spend money on implementing injunctions, they won’t be liable for any costs in relation to injunction proceedings, unless they wish to take part. Unless rightsholders go overboard or there is public outcry, it seems unlikely that Aussie ISPs will choose to do so.
While the draft is now up for debate and amendment, changes are reported to have been introduced as late as last week, delaying its introduction. According to SMH the legislation was worded in such a way that VPN providers could have been eligible for blocking if the Court decided they were facilitating infringement.
“In an area such as this if you are not really specific you end up catching a lot more stuff than you are potentially targeting,” a source explained.
Of course, the current draft could still scoop up a VPN provider if it marketed itself as a service designed for piracy, but there are few if any that are that naive today.
As it currently stands the draft appears to have ‘teeth’ and the scope to take down any significant ‘pirate’ site or service on the planet, at least as far as regular Aussie Internet subscribers are concerned and provided their ISPs have the technical ability.
Another rightsholder-pleasing aspect of the Bill is the lack of limits being placed on the number of sites that can be blocked in a single injunction. While it may make sense to have the facts heard against a few well-known sites in an initial order, subsequent orders could potentially list hundreds of additional sites alongside comment that they are “structurally similar” to those already presented.
Also of interest is the continued use of the words “online location” instead of “site”. This is likely in preparation for new technologies, or perhaps even some of the decentralized technologies already available today.
There will now be a six week consultation period for additional submissions and tweaks.