The Continued Evolution of Site Blocking

By Frank Rittman, posted on 20 May 2017

Recent news out of Australia following a third successful application for injunctive relief against overseas copyright-infringing sites, and an unrelated related case in the United Kingdom, further illustrates the global effectiveness and evolution of site blocking to contain online infringement. By now more than 42 countries worldwide, including Singapore, have adopted one or another legislative or administrative means that rights owners have utilized to effectively restrict access to notoriously infringing online locations, such as the Solar Movie and the Pirate Bay, within their jurisdictions. Because the relevant means of redress in both Australia and Singapore was were modeled on Section 97A of the UK’s Copyright Act, evolving UK jurisprudence provides even further insight into how site blocking legislation might be similarly utilized to address even newer forms of online infringement in Asia.

Section 97A enables a means of ‘no-fault’ redress by which aggrieved rights owners can petition courts and obtain orders compelling internet service providers to employ reasonable measures to disable their consumers’ access to defined online locations found to be primarily engaged in the infringement of their works. Singapore adopted similar provisions into its Copyright Act in 2014, while Australia followed suit the following year. Since then, copyright owners from the music, film, and television industries have collectively mounted four successful actions in the two jurisdictions resulting in blocking orders issued against six different infringing locations.[1]

Most recently, Australia Federal District Court Justice Burley ruled in favor of Universal Music Australia Pty Limited and others on their application against Kickass Torrents, requiring carriage service providers TPG, Telstra, Optus, Foxtel and others to employ DNS blocking or such other means agreed between the parties to disable access to seven different domain names through which the since-seized network could be obtained[2] (see here).

This comes on the heels of previous orders issued by Justice Nicholas last December in favor of films and television industry plaintiffs against Solar Movie, the Pirate Bay, Torrentz, Torrent Hound and IsoHunt. In February, Village Roadshow and others filed another application (yet to be heard) seeking relief against more than 41 additional infringing sites.   Petitioners in Singapore have meanwhile obtained orders in that jurisdiction disabling access to Solar Movies and are reportedly preparing further actions. This shows that rights owners there (and here) will make good use of available remedies to protect their investments against pilferers and thieves.

Because of the UK’s influence on evolving common-law, and particularly commonwealth jurisprudence, courts in Australia and Singapore, among others throughout Asia, invariably view legal developments there for guidance with respect to matters within their own jurisdictions. This is particularly relevant in the light of evolving modes of online infringement. Whereas unauthorized file sharing remains a primary concern for the creative industries, consumers worldwide are increasingly turning to so-called illicit streaming devices and mobile device apps through which they can access infringing content, rather than sourcing it through specific websites locatable by means of web browsers running on computers.

For a number of years, both Singapore and Australia have been plagued by the proliferation of such consumer-friendly devices – sometimes called Kodi-style boxes – allowing users to view illicit content on their TVs by means of set-top devices pre-loaded with third party add-on applications providing direct access to various unnamed servers from which the infringing content is communicated. This has detrimentally impacted both traditional and emerging subscription-based delivery services providing lawful and relatively inexpensive content to consumers in each market. But a game-changing UK High Court decision issued in March provides further guidance for plaintiffs and practitioners in each territory (and ostensibly elsewhere in the region) by extending the interpretation of Section 97A to encompass not only individually infringing websites, but also various and frequently changing IP addresses of ‘target servers’ onto which infringing content is deposited and stored and from which it is disseminated.

In that case[3], (see here) Justice Arnold determined that the operators of such target servers, which frequently incorporate advertising targeted at UK consumers into their delivery networks, were the crucial link through which infringing content (specifically unauthorized transmissions of Premier League football competition) is typically embedded onto individual websites and/or otherwise delivered to individual consumers. Illicit streaming devices typically combine separate and individual component servers performing customer authentication, electronic programming guidance, and content delivery functionalities. IP investigators operating in the market effectively de-constructed such a device and forensically traced the source of the various servers in question, thus enabling the identification of one or more IP addresses that Justice Arnold determined were statutorily responsible for unauthorized communications of copyrighted works to the public.

In a related development, the Court of Justice of the European Union ruled on April 26th that the mere sale of multimedia players which enable films that are available illegally on the internet to be used easily and for free on a television screen could constitute an infringement of copyright.[4] (see here).

In light of these rulings, it would seem that copyright owners in Australia and Singapore could also petition their courts for similar relief against target servers communicating live streams of infringing content, particularly live sporting events, into their respective jurisdictions, as well as retailers of such devices. It will be interesting to see whether any suitably qualified plaintiffs based in either country might now mount a test case along these lines, since the prospects for success in each country appear favorable.

The growing awareness by legislatures and courts around the world that site blocking provides cost-effective and meaningful (if not total, silver-bullet) relief against online infringement without inordinately disrupting unrelated internet operations has therefore helped staunch the flow of misappropriated content from some of the most egregiously infringing sites to which internet users have historically flocked. In the UK, at least, the tool also seems available to address infringing content sourced from illicit streaming devices, too. Site blocking provisions in Asia, in whatever form, should likewise apply to new and evolving forms of online infringement whenever and wherever possible.

[1] It should be noted, however, that the order against the six sites listed a number of different domain names through which the target sites could be accessed.

[2] The United States Department of Justice announced in July, 2016 that the alleged mastermind behind the site had been apprehended and the main site, http://kat.cr,and various permutations had been seized by the authorities. The site nonetheless remained available in Australia and elsewhere through other, different proxies.

[3] The Football Premier League Ltd. v British Telecommunications Plc & Ors [2017] EWHC 480 (Ch) (13 March 2017)

[4] Case C-527/15 Stichting Brein v Jack Frederik Wullems (26 April 2017)

Frank Rittman is the Founding Director and Counsel for the Centre for Content Promotion. He previously served for more than a decade as the Senior Vice President, Deputy Managing Director, and Regional Policy Officer for the Motion Picture Association.