Legislation introducing a site-blocking remedy for online copyright infringement has been passed by the Australian parliament, essentially in the form in which it was originally proposed.

The Copyright Amendment (Online Infringement) Act 2015 provides that a copyright owner may apply to the Federal Court of Australia for an injunction requiring ISPs to block access to a foreign “online location”, where the “primary purpose” of the online location is to infringe, or facilitate the infringement of, copyright (whether or not in Australia).

Both the Minister’s Second Reading speech and the Explanatory Memorandum make clear that the legislation is not intended to block access to a virtual private networks (VPN) that might be used to access infringing material, because a VPN has uses other than to access infringing material and so it could not be said that its “primary purpose” is to facilitate infringement.

The only substantive amendment made to the Bill following its consideration by the Senate committee was to make the list of matters to be taken into account by the court in considering whether to grant a site-blocking remedy be made inclusive, rather than prescriptive.

The Australian Senate committee reviewing the legislation providing a site-blocking remedy for online copyright infringement has recommended adoption, subject only to minor changes.

The committee’s report proposes the following four amendments be made to the Copyright Amendment (Online Infringement) Bill 2015:

1. the list of matters to be taken into account by the court in considering whether to grant a site-blocking remedy be made inclusive, rather than prescriptive;
2. it be specified that “reasonable steps to disable access to an online location” may include use of a landing page stating that the location has been blocked by court order;
3. a formal review of the effectiveness of the legislation be completed two years after its enactment; and
4. the Explanatory Memorandum accompanying the legislation provide greater clarity and guidance on the issue of the service provider’s costs of, and liability subsequent to, compliance with a site-blocking order.

The Australian ISP industry’s Copyright Notice Scheme Code of Conduct, providing a ‘three strikes’ system for notification of online copyright infringements, has been submitted to the government regulator.

The Code of Conduct submitted by the Communications Alliance was a revision of an earlier draft providing a Copyright Notice Scheme. The main changes made in the final version of the Code, in response to public submissions, were:

• removal of the $25 fee to be paid by internet users to obtain an independent review of an infringement notice; and
• strengthened consumer representation on the Copyright Information Panel, a body that will oversee the operation of the notice scheme.

The Code of Conduct is now being considered by the government regulator, the Australian Communications and Media Authority (ACMA).

In a default judgment regarding illegal download of pornographic films, a US district court has awarded damages of $750 per film – for a total damages award of $9,000 plus $2,525 in costs and attorney’s fees.

According to Holland & Knight’s report, mindful of the concerns with copyright trolls (and without characterising the plaintiff as a troll) the Court declined to find the infringement willful based upon circumstantial evidence.

For the practical implications of the Dallas Buyer Club decision, read, and listen to, the interview I gave to SBS News.

The Federal Court of Australia has ordered ISPs to disclose the name and address (but not email address) of the account holders whose IP address was used to illegally “share” (i.e. make available for download by others) the film ‘Dallas Buyers Club’.

Unlike the earlier case brought, unsuccessfully, against iiNet alleging copyright infringement by authorisation, in Dallas Buyers Club v iiNet no claim of liability was made against the ISPs themselves. Instead, the court was asked to order the ISPs to disclose account holder information that would allow the copyright owners to identify who was responsible for providing the copies of the film for infringing download.

In arguing that the court should not exercise its discretion to make the order sought, the ISPs asserted that:

• the evidence did not prove any actual act of infringement – since only “slivers” of the film could be shown to have been provided for download
• the trivial nature of any infringement meant there was no real prospect of legal action by the rights holders – since the value of each copy of the film was only $10
• there was no realistic chance rights holders would obtain injunctive relief in any court action – because all that was shown was the sharing of a sliver and there was no demonstrated risk of repetition
• the rights holders had failed to do adequate monitoring which could have revealed serious infringers – i.e. persons involved in multiple downloads of multiple films
• there was evidence that the rights holders would engage in “speculative invoicing” if given the information sought – i.e. demand from account holders a large sum of money and offer to settle for a smaller sum that was still in excess of what might actually be recovered in a court case
• the ISPs were subject to privacy obligations to their customers, which should be respected
• an industry code of conduct dealing with internet piracy was being formulated, and the Court should wait until that code was in place rather than granting the relief sought
• the court process was being used as a tool of investigation rather than identification

The court dismissed these arguments, and exercised its discretion to make the order, on the grounds that:

• it was satisfied that the evidence showed actual infringement by “making available” copies of the film had occurred
• it concluded that action for relief by the rights holders might well be brought, and succeed, due to their desire to provide deterrence against future infringements
• it could avoid “speculative invoicing” by requiring rights holders to seek its approval to the form of any letters sent to account holders
• it could accommodate the customers’ privacy interests by imposing conditions restricting rights holders’ use of the account information provided by ISPs

The proposed legislation requiring ISPs to block access to sites facilitating online infringement has been referred by the Australian Senate to the Legal and Constitutional Affairs Legislation Committee (LACALC) for inquiry and report.

The Copyright Amendment (Online Infringement) Bill 2015 was in introduced into parliament on 26 March. It provides that a copyright owner may apply to the Federal Court of Australia for an injunction requiring ISPs to block access to a foreign “online location”, where the “primary purpose” of the online location is to infringe, or facilitate the infringement of, copyright (whether or not in Australia).

Phil Dobbie has produced a thought-provoking audio discussion of the Bill, in which the (lack of) effectiveness of site-blocking is explored.

The closing date for submissions to the LACALC inquiry is 16 April 2015. LACALC is due to report on 13 May 2015.

The Australian communications industry body, the Communications Alliance, has released a draft Code of Conduct providing a ‘three strikes’ system for notification of online copyright infringements.

The key provisions of the procedure set out in the draft Code are:

• a Rights Holder adopts a process for detection of online copyright infringements;
• the detection process is audited and certified by an independent Certification Body to be one that “will give reasonable grounds to believe” that a person has used an ISP’s service to infringe copyright;
• a Rights Holder sends a report of infringement detected by the certified process to the relevant ISP;
• each time an infringement report is received, the ISP will send a notice to the Account Holder of the account used to infringe copyright;
• the first notice will be an Education Notice, the second notice will be a Warning Notice, and the third notice will be a Final Notice;
• an Account Holder who has received a Final Notice may challenge it before an Adjudication Panel;
• a Rights Holder may request an ISP to provide a list stating the number, and the IP addresses, of Account Holders who have received a Final Notice;
• based on the information by provided by the ISP, a Rights Holder may apply to a Federal court or tribunal for an order that the ISP disclose the identity of an Account Holder who has received a Final Notice;
• the ISP will comply with any court order requiring disclosure of an Account Holder’s identity.

The draft Code was prepared by the Communications Alliance with input from Rights Holder organisations, but is not a final agreed position. Discussions continue with those organisations.

The draft Code has been published to allow a 30 day Public Comment period.

In a move claimed to be “a practical example of [their] willingness to help rights holders tackle the infringement problem”, Australian ISPs propose to not advertise their services on websites that promote or facilitate online copyright infringement – the so-called “follow-the-money” strategy.

According to the ISP industry body’s media release, the follow-the-money strategy resulted in “an immediate reduction of 12% in advertising revenue” to infringing websites when trialled in the UK recently.

Due to concerns about contravening competition law prohibitions on collective arrangements that lessen competition, the ISPs have sought authorisation for its proposal from the Australian Competition and Consumer Commission.