In April and June 2018, the Federal Court of Australia ordered Australian ISPs to block access to an additional 40+ websites including those used in connection with the subscription streaming app "HD Subs". The app allowed users to stream movies and TV shows without the license of the copyright owners.
Foxtel, and the Roadshow collective of film and television studios, continue to be the main users of section 115A of the Copyright Act 1968 (Cth), obtaining orders from the Federal Court requiring ISPs to disable access to overseas online locations used primarily to infringe copyright.
As expected, the turnaround time for obtaining these orders has reduced significantly. The most recent orders were made the day after the hearing before Justice Nicholas, and less than 12 weeks from the commencement of proceedings.
What was blocked?
On 19 June 2018, orders were made blocking access to 28 websites which allowed users to access copyright material, including popular films and television programs, using either streaming or BitTorrent technology.
Earlier in April 2018, orders were made blocking access to online locations which facilitated an IPTV subscription streaming app "HD Subs".
What is HD Subs, and how does it work?
Unlike BitTorrent tracker or index websites, HD Subs provided a paid subscription streaming service that allowed users to stream movies or TV shows through their HD Subs+ App. The HD Subs+ App came pre-installed on some smart set-top boxes and could also be downloaded from the HD Subs website.
The HD Subs+ App used certain online locations to interact with its servers and deliver to the App files that included information required by the App to stream the requested content. With the exception of HD Sub's own site (https://hdsubs.com), the target online locations were not websites, but "specific locations" from which files could be downloaded. A HD Subs user would not be aware of these specific locations.
Do the online locations used by HD Subs facilitate the infringement of copyrighted materials?
Justice Nicholas found that the target online locations provided updates, authenticated users, and provided EPG information for the HD Subs service that allowed for the electronic transmission of unlicensed film and television broadcasts. Additionally, the HD Subs website processed payments and provided activation codes that enabled users to access the HD Subs service. His Honour determined that these activities contributed functionality to the HD Subs service, which in turn facilitated the unlicensed transmission of copyrighted materials.
Justice Nicholas further found that the activities mentioned above were the sole function of the online locations and, therefore, satisfied the "primary purpose" requirement under Section 115A.
- Copyright owners continue to use s 115A to block online locations outside Australia which have the primary purpose of infringing or facilitating the infringement of copyright.
- Section 115A can be used to hamstring apps that facilitate the infringement of copyright by blocking the online locations used by those apps for ancillary functions such as user authentication, updates and EPG information.
- The procedure for obtaining s 115A orders is becoming more efficient, with orders being made shortly after hearings.
- ISPs have not actively participated in any recent cases.
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