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ISPs, rights holders wrangle over ongoing court oversight for website blocks

Rohan Pearce | July 4, 2016
Who pays the costs of blocking pirate websites also remains a key dispute

The degree of ongoing court oversight involved in the blocking of pirate websites was a central disagreement as Village Roadshow, Foxtel and a group of ISPs returned to Federal Court in Sydney on Friday. It was the second day of a hearing into two applications by the rights holders to compel the ISPs - Telstra, Optus, TPG and M2 - to block access to a number of web services linked to online piracy.

Foxtel wants to have ISPs block The Pirate Bay, Torrentz, TorrentHound and IsoHunt. Village Roadshow wants ISPs to block streaming site Solar Movie.

The ISPs are not opposing the applications, which are being made under anti-piracy laws introduced last year. However, the parties have found themselves in disagreement on three main issues and a number of minor ones, despite extensive out of court negotiations.

Whether the rights holders should foot the bill for implementing website blocks is one of the key areas of divergence. Foxtel and Village Roadshow argued in court that implementing a site block, as envisaged by the anti-piracy legislation, should merely be considered a cost of doing business for an ISP.

The ISPs argued on Friday, however, that they are innocent parties in this process and that the costs of implementing a block should be treated somewhat akin to those incurred in processes such as identity discovery when a business is subpoenaed for details about a customer.

Similarly, the cost of paying for the costs of the current legal proceedings are disputed; the rights holders argue that it is ISPs fault that the two applications for site blocks have turned into contested proceedings.

Perhaps of most significance, however, are the opposing views between the rights holders and the ISPs on how to deal with the problem of mirror and proxy sites that replicate the websites targeted in the applications for injunction.

The rights holders have fought to have the term "online location", which is used in the site-block legislation but not defined, be based on "digital content", rather than a single domain name, URL or IP address.

Foxtel and Village are seeking what has been dubbed a "rolling inunction", whereby the ISPs subject to an injunction will, on the basis of this definition, be forced to add additional replica pirate sites to their block lists.

The process outlined in court on Friday by Foxtel and Village would involve the rights holders, after they witness an alternative domain for a pirate site popping up, checking its IP address and identifying its geographic location (the legislation applies only to sites hosted overseas), and then giving ISPs an out of court notification that the domain or URL represents "an alternative means of access" to a blocked site.


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