The precedent-setting Dallas Buyers Club case and the passing of a new anti-piracy Act are set to enable content owners to pursue internet users for copyright infringement, to cause overseas file-sharing sites to be blocked, and to compel internet service providers (ISPs) to assist.
The unenforceability of copyright in online content has begun to seem like the inexorable consequence of the internet. In response to high-speed and readily modifiable online file-sharing technologies, content owners have been battling to ascribe liability for infringement to the different players involved. Attempts by content owners to force ISPs to disclose the identities of their subscribers, to sue internet users and to expand authorisation laws to intermediaries (such as ISPs) have become public relations fiascos and have largely failed.
But recent ‘wins’ for content owners may begin to stem the widespread dissemination of copyrighted material online. What are these changes to the anti-piracy laws?
The Dallas Buyers Club Copyright Infringement Case
In April, the Federal Court has ruled in favour of a ‘preliminary discovery’ application by Voltage Pictures LLC, the film studio behind the Dallas Buyers Club movie. Justice Perram ordered that several ISPs provide the studio with the identities of customers it alleged had shared the movie online.
The ruling means that 4,726 Australian internet account holders are likely to receive letters from Dallas Buyers Club LLC threatening legal action if the recipients do not enter into settlement negotiations with the studio.
However, Justice Perram ordered that these letters must first be seen by him to ensure that the film studio is not engaging in unlawful ‘speculative invoicing’ (i.e. making unreasonable, unsubstantiated demands). His Honour reviewed and rejected several versions of the proposed letters. Unless Voltage Pictures LLC dramatically revised its claims in such letters and provided a $600,000 bank bond to the court (to compel Voltage to comply with any undertakings it provides to the court), His Honour refused to order the release of the downloader’s names and addresses.
The Dallas Buyers Club case is ground-breaking.
Content owners who were previously unable to compel ISPs to provide subscriber information because of due process, privacy and other considerations, will now be able to obtain the information they need to take a litigious approach to enforcing copyright. This move is a strong warning to internet users that they are no longer anonymous online and immune from liability.
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New Piracy Website-Blocking Laws
In a bid to prevent Australians from accessing overseas peer-to-peer file sharing sites (such as Torrentz and the Pirate Bay), the government has introduced the Copyright Amendment (Online Infringement) Act 2015 (the Act).
The Act, which came into effect several months ago, enables content owners to apply for an injunction requiring an ISP to ‘take reasonable steps’ to disable access to an online location (which may include blocking the location entirely). The primary purpose of the online location is to infringe copyright or facilitate copyright infringement.
The primary purpose test is intended to prevent the inadvertent blocking of websites that may have a legitimate use. In determining whether to grant an injunction, courts may consider a list of factors, including the flagrancy of the copyright infringement (or the facilitation of the infringement) and whether the owner/operator of the online location/website demonstrates a disregard for copyright.
The Act enables content owners to start applying to the Federal Court for anti-piracy injunctions, which means certain overseas sites will become inaccessible. Australian ISPs will need to be familiar with the new laws and their rights and obligations under the Act.
Groups opposed to the new laws have argued that methods for side stepping domain name filtering are likely to mean anti-piracy injunctions will fail to curb illegal file sharing. Blocking a domain name will not prevent the website creators from changing their domains and internet users from changing their domain name system lookup server or using a virtual private network (VPN) to access the filtered location. These groups have raised concerns that, despite being futile, the injunction will filter the internet and there is a risk that the laws may later be extended to other categories of content.
It is unclear whether VPNs will be captured by the new laws. VPNs provide gateways for protected communications and so can be used for a range of necessary purposes as well as for copyright infringement. While the Act’s Explanatory Memorandum states that ‘The test is also not intended to capture VPNs that are promoted and used for legitimate purposes’, there is also no specific protection for these VPNs. As such, there is a risk that lawful VPNs may fall within the ambit of the laws.