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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

ISPs within 15 business days would be obliged to add the site to the list of secondary pirate sites they are blocking.

The issue of new mirrors and proxies popping up is "not a speculative issue - it's a real issue," Richard Lancaster SC told the court on behalf of the rights holders.

"We're concerned that a procedure be adopted that will not in effect create a real administrative burden for the future in having to do something unnecessary and elaborate such as the CSPs [carriage service providers] suggest," he said.

The telcos have sought to have some kind of court process employed when adding to the list of blocked sites.

Telstra, for example, argued that there should be some kind of oversight of the process of adding mirror or proxy sites to the block list and said that its proposal wouldn't require parties to return to court.

"All we're saying because this affects us and indirectly our customers there should be some satisfaction of jurisdictional requirements" the telco's counsel argued. In order for a mirror site to be blocked the court needs to be satisfied that its primary purpose is copyright infringement or facilitating copyright infringement and that it is hosted outside Australia.

The difference between the amount of work involved in sending a document to court and the amount of work internally for rights holders to ensure that a mirror or proxy site meets those criteria is "negligible", Telstra argued.

Optus similarly argued that orders adding a mirror site to a block list could be made in chambers without bogging down the court.

There are also other differences between the parties. For example, whether there should be a 'block' page notifying an ISP customer that a page they are attempting to access has been blocked by order of the Federal Court. The rights holders argue there should be and that such a block page can serve an educative purpose. The telcos expressed differences on the issue (and Telstra, for example, wants the right to determine whether or not it has a block page and, if so, the wording on it).

Another issue is any provision in the court's hypothetical injunction for a block to be suspended in exceptional circumstances. The rights holders want the limit of such a suspension to be limited to three days; the telcos have argued that this lacks flexibility.

Justice Nicholas reserved his judgment. His decision will help shape future applications to block piracy-linked websites - most immediately an application for injunction backed by a range of music labels.

case management hearing for that application is scheduled for 22 July. A number of music labels and licensing organisation APRA AMCOS are seeking to have Telstra, Optus and TPG, as well as Foxtel, block access to Kickass Torrents.

Source: Computerworld Australia 


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