Roadshow Films Pty Ltd v Telstra Corporation Ltd  FCA 1503 (Roadshow)
On Thursday 15 December 2016, the Federal Court ordered Australia’s largest internet service providers (ISPs) to block the streaming service SolarMovie, plus the file-sharing websites The Pirate Bay, Torrentz, TorrentHound and IsoHunt. Visitors to the blocked sites will now see a page informing them the site has been disabled by court order. This is the first time that the Copyright Act 1968 (Cth) has been used to prevent access to websites whose primary purpose is to infringe, or facilitate infringement, of copyright.
The comparison to another famous (and recent) attempt to prevent copyright infringement is instructive. In 2015, the copyright owners of the film Dallas Buyers Club (DBC) sought to serve notices of copyright infringement on individual users of these file-sharing websites. The claim sought monetary compensation from individual users of these file-sharing sites. The Federal Court acknowledged that DBC’s claim had merit; however, it opted not to allow all of DBC’s claim because it would have put DBC in a better position than it would have been in if the infringements had never occurred.
The key differences in the Roadshow case were the applicants’ reliance on a new section of the Copyright Act (115A, not 115), and their claim for an injunction rather than compensation. This new section, enacted in 2015, is directed towards ISPs such as Telstra, Optus, TPG, M2 (Dodo, iPrimus) and iiNet. By contrast, the claim in Dallas Buyers Club required consideration of the flagrancy of the infringement and the
benefit gained by the defendant, which draws attention to the individual circumstances of each copyright infringement. For DBC’s claim, the Court was required to treat each breach individually; the provision relied on in Roadshow allows websites to be blocked if they have a primary purpose of facilitating copyright infringement (that is, in aggregate).
The injunction issued under this new provision requires ISPs to block certain websites, reducing copyright infringement by the average internet user. Previously, aggrieved copyright owners had to seek damages or injunctions against individual internet users, but “speculative invoicing” was not an option, because of the evidential requirements of each individual claim. Generally, the value of each claim will be outweighed by the cost of gathering evidence. As a result, the utility of litigation against individual users of these file-sharing sites is limited.
There are still limitations to the use of this new provision. The Roadshow order will block specifically-mentioned websites, but streaming and file-sharing may continue at other, unnamed sites until the court adds them to the order. The onus has been placed on Foxtel or Roadshow to police this order; other copyright-holders cannot add new websites to this list, although they may commence their own litigation in the Federal Court to seek the same protection. While the respondent ISPs account for over 90% of internet services in Australia, smaller ISPs are not subject to the order in Roadshow, and are not compelled to comply.
Roadshow also highlights the lack of effective penalties in the Act for individual internet users who attempt to access file-sharing sites.
Copyright infringement pre-dates the internet, and the decision in Roadshow will not end illegal sharing of music, movies, TV shows and other content. However, after the unsuccessful claim in Dallas Buyers Club, the success of Roadshow is likely to change attitudes towards the effectiveness of the law when it comes to copyright protection. Infringement, once commonplace, will be greatly reduced by the practical effect of the Court’s order in Roadshow. The law around copyright protection has become more enforceable. Copyright holders have a new mechanism by which they may protect their valuable property.
Authors: Dan Pearce and Jeremy Roe
Dan Pearce, Partner
T: +61 3 9321 9840
Lyn Nicholson, General Counsel
T: +61 2 8083 0463
Trent Taylor, Partner
T: +61 7 3135 0668
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Published by Dan Pearce