In these orders:
(a) Domain Name means a name formed by the rules and procedures of the Domain Name System (DNS) and includes subdomains.
(b) DNS Blocking means a system by which any user of a Respondent's service who attempts to use a DNS resolver that is operated by or on behalf of that Respondent to access a Target Online Location is prevented from receiving a DNS response other than a redirection as referred to in order 5.
(c) IP Address means an Internet Protocol address.
(d) Optus means the twenty second to thirty first Respondents.
(e) Target Online Locations means the online locations referred to in this Application as YesMovies, Vumoo, LosMovies, CartoonHD, Putlocker, Watch Series 1, Watch Series 2, Project Free TV 1, Project Free TV 2, Watch Episodes, Watch Episode Series, Watch TV Series, The Dare Telly, Putlocker9.is, Putlocker9.to, Torlock, 1337x, that are or were accessible:
(A) at the URLs listed in Schedule 2 to this order (together, the Target URLs);
(B) at the IP Addresses listed in Schedule 2 to this order (together, the Target IP Addresses); and
(C) at the Domain Names listed in Schedule 2 to this order (together, the Target Domain Names).
(f) Telstra means the nineteenth to twenty first Respondents.
(g) TPG means the first to eighteenth Respondents.
(h) URL means a Uniform Resource Locator.
(i) Vocus means the thirty second to forty ninth Respondents.
THE COURT ORDERS THAT:
The requirement under s 115A(4) of the Copyright Act 1968 (Cth) that the Applicant give notice of its application to the persons who operate the Target Online Locations be dispensed with in so far as any such notice has not already been given.
Each Respondent must, within 15 business days of these orders, take reasonable steps to disable access to the Target Online Locations.
Order 2 is taken to have been complied with by a Respondent if that Respondent implements any one or more of the following steps:
(a) DNS Blocking in respect of the Target Domain Names;
(b) IP Address blocking or re-routing in respect of the Target IP Addresses;
(c) URL blocking in respect of the Target URLs and the Target Domain Names; or
(d) any alternative technical means for disabling access to the Target Online Locations as agreed in writing between the Applicant and a Respondent.
If a Respondent in complying with order 2 does not implement one of the steps referred to in order 3, that Respondent must, within 15 business days of these orders, notify the Applicant of the step or steps it has implemented.
Each Respondent must redirect any communication by a user of its service seeking access to a Target Online Location which has been disabled pursuant to order 2 to a webpage established, maintained and hosted by either:
(a) the Applicant, or its nominee, pursuant to order 6; or
(b) that Respondent or its nominee.
The Applicant's obligations pursuant to orders 6 and 7 only arise if a Respondent notifies the Applicant that the Respondent will redirect a communication pursuant to order 5(a) and for so long as at least one Respondent redirects communications to that webpage.
The Applicant, or its nominee, must establish, maintain and host a webpage which informs users of a Respondent's service who have been redirected to the webpage pursuant to order 5 that access to the website has been disabled because this Court has determined that it infringes or facilitates the infringement of copyright.
Within 5 business days of these orders, the Applicant will notify each of the Respondents in writing of the URL of the webpage established, maintained and hosted under order 6 and, if the webpage ceases to operate for any reason, will notify each of the Respondents in writing of a different URL that complies with order 6.
If, in complying with order 5, a Respondent redirects any communication by a user of its service to a webpage established, maintained and hosted by it, that Respondent or its nominee must ensure that the webpage informs the user of that Respondent's service that access to that the website has been disabled because this Court has determined that it infringes or facilitates the infringement of copyright.
In the event that the Applicant has a good faith belief that:
(a) any Target URL, Target IP Address or Target Domain Name which is subject to these orders has permanently ceased to enable or facilitate access to a Target Online Location; or
(b) any Target URL, Target IP Address or Target Domain Name has permanently ceased to have the primary purpose of infringing or facilitating the infringement of copyright,
a representative of the Applicant must, within 15 business days of the Applicant forming such a good faith belief, notify each Respondent of that fact in writing, in which case the Respondents shall no longer be required to take steps pursuant to order 2 to disable access to the relevant Target URL, Target IP Address or Target Domain Name that is the subject of the notice.
A Respondent will not be in breach of order 2 if it temporarily declines or temporarily ceases to take the steps ordered in order 2 (either in whole or in part) upon forming the view, on reasonable grounds, that suspension is necessary to:
(a) maintain the integrity of its network or systems, or functioning of its blocking system;
(b) upgrade, troubleshoot or maintain its blocking system;
(c) avert or respond to an imminent security threat to its network or system; or
(d) ensure the reliable operation of its ability to block access to online locations associated with criminal content if it reasonably considers that such operation is likely to be impaired, or otherwise to comply with its legal obligations (other than any contractual obligations to its customers) including under section 313(3) of the Telecommunications Act 1997 (Cth) or otherwise,
provided that:
(e) unless precluded by law, it notifies the Applicant or their legal representative(s) of such suspension, including the reasons and the expected duration of such suspension by 5.00 pm on the next business day; and
(f) such suspension lasts no longer than is reasonably necessary and, in any case, no longer than 3 business days or such longer period as the Applicant may agree in writing or the Court may allow.
The owner or operator of any of the Target Online Locations and the owner or operator of any website who claims to be affected by these orders may apply on 3 days' written notice, including notice to all parties, to vary or discharge these orders, with any such application to:
(a) set out the orders sought by the owner or operator of the Target Online Locations or affected website; and
(b) be supported by evidence as to:
(i) the status of the owner or operator of the Target Online Locations or affected website; and
(ii) the basis upon which the variation or discharge is sought.
The parties have liberty to apply on 3 days' written notice, including, without limitation, for the purpose of any application:
(a) for further orders to give effect to the terms of these orders;
(b) for further orders in the event of any material change of circumstances including, without limitation, in respect of the costs, consequences for the parties and effectiveness of the technical methods under order 3; and/or
(c) for orders relating to other means of accessing the Target Online Locations not already covered by these orders.
If a website the subject of any of the Target Online Locations is at any time during the operation of these orders provided from a different Domain Name, IP Address or URL:
(a) the Applicant may file and serve:
(i) an affidavit which:
(A) identifies the different Domain Name, IP Address or URL;
(B) states that, in the good faith belief of the deponent, the website operated from the different Domain Name, IP Address or URL is a new location outside Australia for the Target Online Locations the subject of these orders and brief reasons therefor; and
(ii) proposed short minutes of order to the effect that:
(A) the definition of Target Online Locations in these orders is amended to include the different Domain Name, IP Address or URL; and
(B) the time period in order 2 of these orders starts to run in relation to the different Domain Name, IP Address or URL upon service in accordance with order 17(d) of the orders as made.
These orders are to operate for a period of 3 years from the dates of these orders.
Six months prior to the expiry of these orders:
(a) the Applicant may file and serve:
(i) an affidavit which states that, in the good faith belief of the deponent, that some or all of the Target Online Locations continue to have the primary purpose of infringing or facilitating the infringement of copyright; and
(ii) short minutes of order extending the operation of these orders in relation to the relevant Target Online Locations for a further 3 year period; and
(b) the process contained in order 17 shall apply.
The affidavits referred to in orders 13 and 15 are to be given by a deponent duly authorised to give evidence on behalf of the Applicant and may be given by its solicitor.
If an affidavit and short minutes of order are filed and served in accordance with orders 13 or 15:
(a) within 7 business days, the Respondents must notify the Applicant and the Court if they object to the orders being made in accordance with the short minutes of orders served by the Applicant;
(b) if any Respondent gives notice of any objection, or the Court otherwise thinks fit, the proceeding will be relisted for further directions;
(c) if no Respondent gives notice of any objection and the Court does not otherwise require the proceeding to be relisted, then the Court may make orders in terms of the short minutes of orders served by the Applicant without any further hearing; and
(d) the Applicant must serve on the Respondents any such orders made.
The Applicant pay Telstra's, Optus', Vocus' and TPG's compliance costs calculated at the rate of $50 per Domain Name the subject of DNS Blocking undertaken for the purposes of complying with order 2 hereof.
There be no other order as to costs.
[2]
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
[3]
INTRODUCTION
1 On 18 August 2017 I made orders (as set out above) which are substantially in accordance with those sought by Foxtel Management Pty Limited (Foxtel) and indicated that I would publish my reasons for doing so soon after. These are my reasons.
2 Foxtel is the co-owner of copyright in episodes of the television series called "Wentworth". It seeks orders pursuant to s 115A of the Copyright Act 1968 (Cth) (Act) that will have the effect of disabling access in Australia to 127 internet locations that it alleges infringe, or facilitate the infringement of its copyright in Wentworth. Foxtel has categorised the locations into 17 different groups having the names; yesMovies, Vumoo, LosMovies, CartoonHD, Putlocker, Watch Series 1, Watch Series 2, Project Free TV 1, Project Free TV 2, Watch Episodes, Watch Episode Series, Watch TV Series, The Dare Telly, Putlocker9.is, Putlocker9.to, Torlock and 1337x. These are collectively referred to below as the online locations. A full list of the online locations is set out in schedule 2 to these reasons.
3 Foxtel brings these proceedings against 49 named respondents, which are internet service providers that provide access to the internet for users in Australia. They can conveniently be collected into four corporate groups; the first to eighteenth respondents (TPG respondents), the nineteenth to twenty first respondents (Telstra respondents), the twenty second to thirty first respondents (Optus respondents) and the thirty second to forty ninth respondents (Vocus respondents). A full list of the respondents is set out in schedule 1 to these reasons.
4 The respondents have played no active part in the proceedings. The Telstra respondents and the Optus respondents have entered submitting appearances. The TPG respondents have indicated that they consent to the orders proposed by Foxtel. The Vocus respondents have not entered any appearance, but by letter confirmed that they are carriage service providers and otherwise raise no objection to the form of the orders sought.
5 A person who operates an online location will be a party to an action seeking orders under s 115A if, but only if, that person makes an application to be joined as a party to the proceedings; s 115A(3)(c). In the present case no person who operates any of the online locations has made an application to be joined as a party to the proceedings.
6 In its amended statement of claim, Foxtel alleges that each of the online locations, with the exception of those identified as Torlock and 1337x, utilises, directly or indirectly, streaming technology by which digital content is provided to users. The two exceptions are alleged to use torrent technology. These terms are explained further below.
[4]
SECTION 115A OF THE ACT
7 Section 115A of the Act provides:
Injunctions against carriage service providers providing access to online locations outside Australia
(1) The Federal Court of Australia may, on application by the owner of a copyright, grant an injunction referred to in subsection (2) if the Court is satisfied that:
(a) a carriage service provider provides access to an online location outside Australia; and
(b) the online location infringes, or facilitates an infringement of, the copyright; and
(c) the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia).
(2) The injunction is to require the carriage service provider to take reasonable steps to disable access to the online location.
Parties
(3) The parties to an action under subsection (1) are:
(a) the owner of the copyright; and
(b) the carriage service provider; and
(c) the person who operates the online location if, but only if, that person makes an application to be joined as a party to the proceedings.
Service
(4) The owner of the copyright must notify:
(a) the carriage service provider; and
(b) the person who operates the online location;
of the making of an application under subsection (1), but the Court may dispense, on such terms as it sees fit, with the notice required to be sent under paragraph (b) if the Court is satisfied that the owner of the copyright is unable, despite reasonable efforts, to determine the identity or address of the person who operates the online location, or to send notices to that person.
Matters to be taken into account
(5) In determining whether to grant the injunction, the Court may take the following matters into account:
(a) the flagrancy of the infringement, or the flagrancy of the facilitation of the infringement, as referred to in paragraph (1)(c);
(b) whether the online location makes available or contains directories, indexes or categories of the means to infringe, or facilitate an infringement of, copyright;
(c) whether the owner or operator of the online location demonstrates a disregard for copyright generally;
(d) whether access to the online location has been disabled by orders from any court of another country or territory on the ground of or related to copyright infringement;
(e) whether disabling access to the online location is a proportionate response in the circumstances;
(f) the impact on any person, or class of persons, likely to be affected by the grant of the injunction;
(g) whether it is in the public interest to disable access to the online location;
(h) whether the owner of the copyright complied with subsection (4);
(i) any other remedies available under this Act;
(j) any other matter prescribed by the regulations;
(k) any other relevant matter.
Affidavit evidence
(6) For the purposes of the proceedings, section 134A (affidavit evidence) applies as if the reference in paragraph 134A(f) to a particular act included a reference to a class of acts.
Rescinding and varying injunctions
(7) The Court may:
(a) limit the duration of; or
(b) upon application, rescind or vary;
an injunction granted under this section.
(8) An application under subsection (7) may be made by:
(a) any of the persons referred to in subsection (3); or
(b) any other person prescribed by the regulations.
Costs
(9) The carriage service provider is not liable for any costs in relation to the proceedings unless the provider enters an appearance and takes part in the proceedings.
8 The requirements that an applicant must satisfy in order to be entitled to orders pursuant to s 115A have been considered in two recent decisions of this Court; Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503; (2016) 122 IPR 81 (Roadshow) and Universal Music Australia Pty Limited v TPG Internet Pty Ltd [2017] FCA 435 (Universal).
[5]
THE WITNESSES
9 In order to satisfy the evidentiary requirements of s 115A, Foxtel relies on the evidence of the following witnesses. Their evidence is uncontested.
10 Claire Southey, is the Head of Technology Development - Security and Compliance at Foxtel. Ms Southey is responsible for ensuring that new products and services developed by Foxtel comply with internal and external standards for content security and anti-piracy and her role includes negotiating contractual terms with suppliers of content to Foxtel concerning physical and electronic protection of Foxtel's licensed content. She gives evidence about Foxtel's business, Foxtel's ownership of copyright in Wentworth, the impact of piracy of copyright content on Foxtel, the steps taken to access and investigate the online locations and details of her own investigations of the online locations.
11 Nigel John Carson, is a partner at KordaMentha and the head of that firm's Forensic Technology service line. He has 27 years of experience in forensic investigation and significant experience in conducting computer investigations including as an Information Technology Security Manager and as an officer of the New South Wales Police Force working on cyber cases within the Computer Based Evidence unit. Mr Carson gives an independent expert report which includes an overview of the technology involved in the operation of the online locations and a review of the evidence of Ms Southey concerning her attempts to identify whether the online locations are located inside Australia.
12 Sheenal Shalini Singh, is a solicitor in the employ of MinterEllison, the solicitors representing Foxtel in these proceedings. She gives evidence concerning; the respondents' status as carriage service providers (CSPs) pursuant to the Telecommunications Act 1997 (Cth) (Telecommunications Act); steps taken by other courts to disable some of the online locations; Foxtel's attempts to notify the operators of the online locations of the present application and various investigations conducted relevant to the activities of the online locations.
[6]
BACKGROUND TECHNOLOGY
13 Mr Carson gives background information relevant to the application of s 115A of the Act, parts of which are summarised below.
14 Internet service providers such as the respondents connect their subscribers to the internet through public IP addresses with the use of hardware devices such as routers. Subscribers can access a variety of internet services through their internet service providers, including online locations. If an online location is active (not turned off or off-line) it is available for access by subscribers to all internet service providers unless it has been blocked by the subscriber's provider. In the present case, Foxtel seeks orders requiring the respondent internet service providers to use site-blocking technology to block their subscribers' access to the online locations.
15 Public IP addresses and domain names are allocated by the Internet Assignment Numbers Authority (IANA) globally. That organisation delegates the assignment of blocks of IP addresses to Regional Internet Registries which then allocate them to internet service providers and other entities.
16 In order for computers to communicate with each other, they must adopt the same protocol. The protocol relevant to the internet is the internet protocol and the transmission control protocol. The internet protocol enables data to be sent in packets, encapsulating them with header information such as the delivery address containing sequence information to ensure that when the packets arrive they are assembled into the correct order. The address of a packet is known as an IP address, which is commonly expressed as four numbers separated by decimal point such as "192.168.0.1". IP addresses must be unique to ensure that data is delivered to the correct address. Each online location has an IP address which is allocated to it by an internet service provider or another entity. In order to determine which internet service provider or other entity has been allocated a specific IP address or range of IP addresses, an "IP address lookup" can be performed using specific applications or internet-based services, in what is known as an "IP Whois" search.
17 Domain names are a hierarchical label allocated by a registrar and provide a manageable way for users to interact with the internet because the domain name is typically a word (rather than a number or string of random letters). The hierarchy increases in significance from left to right. In a domain name such as "Google.com" the least significant component on the left side of the name may represent a specific web server service (such as "www", which is often assumed as a host name and does not need to be typed to the left of the domain name when accessing many websites), and the most significant is ".com", which is the top-level domain. The top-level domain ".com" is one of a core group of top-level domains (others including ".net" and ".org"). Further top-level domains are country specific. IANA is responsible for delegating the management of country top-level domains to a trustee. Examples of country code top-level domains include ".au", ".uk" and ".us". In order to determine which public IP addresses have been assigned to domain names, and who has registered those domain names, IP Whois and Domain Whois searches can be performed using one of numerous internet-based services that are available.
18 In Mr Carson's opinion, the location of the ISP or entity allocated an IP address is a very reliable method to identify the country of origin of an online location using that IP address.
19 Proxies are intermediary computers that relay computer data between a sender and a receiver. A proxy operates by passing an IP packet through its service and encapsulating that packet with its own IP address to give the appearance that it is the originating computer. Proxies may be used to bypass country-based domain name blocking of particular sites. In his evidence, Mr Carson gives as an example the site at https://proxybay.la/ which maintains a list of proxies that enable access to a website called "The Pirate Bay" should the main site be blocked.
20 Cloudflare is identified by Mr Carson as a popular online service that acts as an intermediary for websites. It is known as a reverse proxy because it retrieves information on behalf of the customer servers and returns this information as though it originated from Cloudflare. Customers of Cloudflare are, it seems, often allocated two or more IP addresses for client websites. The evidence in these proceedings indicates that Cloudflare provides reverse proxy services to a number of the providers of the online locations in suit.
21 Mr Carson in his evidence provides some background information as to how peer to peer networks operate. Peer to peer networks are a collection of participating computers or devices acting as members of a network which share information using a decentralised model. BitTorrent is a type of peer to peer network. It utilises a distributed file sharing protocol where a large number of devices can download a file simultaneously by means of that file being split into a number of smaller pieces, with each piece being separately and simultaneously distributed. With BitTorrent, a person wishing to gain access to content will first download BitTorrent client software, which allows their device to connect to other devices making use of the BitTorrent protocol. The software also reassembles pieces of a file downloaded into a copy of the original file being shared. The technical background is set out in greater detail in in Universal at [33] - [34] and Roadshow at [17] - [21], and it is not necessary to repeat it here.
22 Streaming technology allows electronic data to be delivered through internet connected devices in a continuous flow in the form of data packets from the source location to other devices connected to the internet. It is primarily used for delivering electronic copies of audio, video and other multimedia content. In order to achieve interruption-free delivery of data packets, streamed media is buffered (that is, temporarily stored) on the receiving device in some manner. Depending on the particular streaming technology, this buffering can occur in a number of ways. Mr Carson gives 3 examples. The first is where small portions of the content are stored in the temporary memory of the device, the second where substantial portions of the content are stored on the storage media of the device, and the third is where a complete download of the streamed content is stored on the device. A user may gain access to streamed content from online locations in several different ways (NC 60); it may stream directly from a website, it may receive "framed delivery", where the user stays on one website but the content originates from a different service, or it may receive "linked delivery", where the user selects content on one website and is transferred (upon clicking a link) to a different site for delivery of that content.
23 Mr Carson gives evidence from his sampling of the online locations in issue in the present case that one or more of these delivery technologies may be utilised. Regardless of the particular delivery mechanism used, it is apparent that where the streamed content is unauthorised copyright material, the online location providing access (whether by direct streaming, framed delivery or linked delivery) will be, at the very least, "facilitating" copyright infringement within s 115A(1)(b) of the Act.
[7]
GENERAL REQUIREMENTS OF SECTION 115A
24 Foxtel has pleaded and provided evidence of its entitlement to relief pursuant to s 115A in relation to each individual one of the 127 online locations. That is an appropriate course to take. The Court must be satisfied that each of the requirements of that section is met for each of the individual online locations in respect of which relief is sought; see Universal at [10] - [20], and Roadshow at [35] - [49].
25 In the present case, it is nevertheless appropriate to make some general findings that are applicable to the relief sought against all of the online locations.
26 First, in its amended statement of claim Foxtel pleads that it is an owner in Australia of copyright in the television program known as Wentworth (it is a co-owner with a third party to the proceedings); that each episode of Wentworth was commissioned by Foxtel pursuant to an agreement for valuable consideration and made in Australia pursuant to such agreements; that each episode of the Wentworth program includes a copyright notice which appears in the credits when the episode is made available to the public including by broadcast on subscription television; and that, to the extent necessary, Foxtel relies on the presumptions in Division 4 of Part V of the Act.
27 None of the respondents have put the ownership or subsistence of copyright into issue. That circumstance alone is sufficient to establish ownership and subsistence on the part of Foxtel in the relevant work; see s 126 of the Act and Universal at [55].
28 The fact that Foxtel is a co-owner of copyright with another party does not preclude it from bringing the action in its own right. One co-owner can sue for infringement and obtain an injunction, as well as damages, without joining the other co-owner(s); Copinger and Skone James on Copyright, 14th ed, Sweet & Maxwell, London 1999 at 5-165; Prior v Sheldon [2000] FCA 438; (2000) 48 IPR 301 (Prior v Sheldon) at [79]; Nine Films & Television Pty Ltd v Ninox Television Limited [2005] FCA 249; (2005) 64 IPR 308 at [15].
29 By reason of these matters, I find that Foxtel has established that it is the owner of copyright in Wentworth, as required by the chapeaux to s 115A(1) of the Act.
30 Secondly, in its amended statement of claim Foxtel pleads that each of the respondents is a carriage service provider within the meaning of that term as it is used in s 115A of the Act (see Universal at [15]). Each of the respondents admit this fact in terms, and I find that it has been established for the purpose of these proceedings.
31 Thirdly, the amended statement of claim pleads that each of the respondents provides access to the internet for users of its internet services in Australia, and that at all relevant times each of the online locations was available and accessible on the internet including to users in Australia. Having regard to the manner in which the internet operates, as described in section 4 above, it is apparent that an internet service provider enables its users access to the internet and thereby access to such websites as can be located on the internet.
32 Accordingly, I find that Foxtel has established that each of the respondents is a carriage service provider that provides access to an online location within the requirements of s 115A(1)(a) of the Act. A further requirement is that such access be provided to an online location outside Australia. In order to make findings of fact in relation to this, it is necessary to refer to facts peculiar to each of the online locations, which I address in section 7 below.
33 Fourthly, it is possible to make a general finding in relation to the question of the unauthorised use of the copyright material in respect of which copyright is claimed in these proceedings. It is to be noted that s 115A(1)(b) of the Act requires that the Court be satisfied that the online location infringes or facilitates an infringement of the copyright. In the present case the copyright claimed by Foxtel is in the episodes of Wentworth.
34 Copyright in relation to a cinematograph film includes the exclusive right to make a copy of the film and to communicate the film to the public; s 86 of the Act. In this context, "communicate" means "make available online or to electronically transmit" the film; s 10 of the Act. A communication is taken to have been made by the person responsible for determining the content of the communication and a person is not so responsible simply because he or she has taken a step to access what has been made available online; ss 22(6) and (6A) of the Act. A person infringes the copyright subsisting in a cinematographic film if he or she does an act comprised in the copyright without the license of the owner of the copyright; s 101(1) of the Act.
35 The relevant question arising under s 115A(1)(b) of the Act is whether the online location infringes, or facilitates an infringement of, the copyright. The term "facilitates" is deliberately broad; see Universal at [18]. As Nicholas J said in Roadshow at [47]:
In determining whether an online location facilitates the infringement of copyright, the Court will seek to identify a species of infringing act and ask whether the online location facilitates that act by making its performance easier or less difficult. An online location may both infringe and facilitate the infringement of copyright by making an electronic copy of a work or other subject matter available online for transmission to users. But it may also facilitate the infringement of copyright merely by making it easier for users to ascertain the existence or whereabouts of other online locations that themselves infringe or facilitate the infringement of copyright.
36 The evidence of Ms Southey records that Foxtel has not granted to any of the operators of any of the online locations a license or the authority to do any act comprised in the copyright in any episode of Wentworth. As a co-owner of copyright, it is necessary for any use of the copyright work to be approved by Foxtel; Prior v Sheldon at [79]; Allen House Mirror & Glass Pty Ltd v Hamilton [2012] FCA 464 at [11].
37 For each online location, Ms Southey (or, for some recent sites, Ms Singh) found that she was able to stream or download an episode of Wentworth (season 3 or season 4) which she did free of charge and, with the exception only of the domain name cartoonhd.be, without the need for registering for an account.
38 Ms Southey gives evidence that Foxtel has not licensed or authorised the operations of any of the online locations to make available, reproduce or provide access to Wentworth. In the case of online locations where she was redirected to other websites which then enabled her to stream or download torrent files and associate content for the episodes of Wentworth that she watched (being season 3, episode 11, or season 4, episode 1), Ms Southey confirms that Foxtel did not authorise any of those sites to make such reproductions.
[8]
6.1 Notice of the application to the Online Locations
39 Subsection 115A(3)(c) provides that the person who operates the online location will be a party to the proceedings if they make an application to be joined. Subsection 115A(4) provides that the owner of the copyright must notify the person who operates the online location of the application, but that the Court may dispense with the notice if it is satisfied that the owner of copyright is unable, despite reasonable efforts, to determine the identity or address of the person who operates the online location, or to send notices to that person. Subsection 115A(5)(h) provides that a matter that may be taken into account in determining whether to grant the injunction sought is whether the owner of copyright has complied with s 115A(4). Accordingly, the question of service upon the online location is significant in the context of the relief that is sought. In this section I address in general terms the steps that Foxtel has taken to notify each of the online locations of the application. I address this further in the context of each of the online locations in section 7 below.
40 The evidence discloses that Ms Singh accessed each online location and searched within it for a contact form, messaging facility or email contact details. Where one of those was available she sent notice in conformity with that information. Where such contact details were not supplied, Ms Singh used a "Whois" database to identify email contact details for the registrant of the domain name and/or the registrar of the domain name and notice was sent to both of those addresses, where they were available.
41 On occasion, when Ms Singh attempted to access a particular online location, she was redirected to another website, either automatically or via a hyperlink to the other website. In most cases that redirection was to another online location associated with the same name (for instance, for the LosMovies set of online locations, when she accessed a location via the "losmovies.ch" domain name, she was redirected to "losmovies.cc"). When that occurred Ms Singh sent notification to the contact form, messaging facility or email contact details provided on that site.
42 Where such notices were sent, and Ms Singh received notification that her message had been received, or did not receive a delivery failure notification, she took no further steps to notify the owner or operator of the online location of the application.
43 Ms Singh's evidence indicates that from time to time the ability to contact the operator of the site was limited by the form of messaging that was available. For instance, in the case of the Yesmovies group there was no facility to attach documents to a message sent. In such case the messages were sent as to the formal title of the proceedings, the identity of the applicant and clear notice that Foxtel sought orders to disable access to the online location pursuant to s 115A of the Act. The notification then offered to send the pleadings to any contact email address supplied by the recipient of the message, notified the return date of the application and stated that if the recipient wished to become a party to the proceedings he or she would need to make an application to the Federal Court in accordance with s 115A(3)(c) of the Act.
44 Details of the particular steps taken, and the responses received in relation to each online location, are set out in section 7 below.
[9]
6.2 Location of each of the online locations
45 It is a pre-requisite to relief that the relevant online location be located outside Australia (s 115A(1)(a) of the Act). Foxtel has sought to establish that each of the online locations is located outside Australia in the following manner.
46 First, Ms Southey used the "Network WHOIS" search function of the Domain Dossier website to determine the public IP address or addresses from which the domain name resolves and recorded the IP location reported by the Regional Internet Registry each address.
47 Secondly, she conducted "WHOIS" domain name searches to inquire of the database records for one or more of the relevant Regional Internet Registries to ascertain information about the registered users or assignees of each domain name. She recorded the domain location for each of the online locations.
48 Thirdly, Mr Carson was asked to review the searches conducted by Ms Southey and give his independent expert opinion as to whether the steps that she took to identify whether an online location is outside Australia were appropriate or whether further steps should be taken. Mr Carson reviewed Ms Southey's evidence and verified the IP location details examined by Ms Southey by using an additional WHOIS search service. He expresses the opinion that where the online location is been delivered through a proxy service, such as Cloudflare, the location of that proxy becomes the effective IP location.
49 Mr Carson concludes that no additional steps to those taken by Ms Southey are required to confirm the IP location of the online locations and that each of the online locations is located out of Australia.
50 Mr Carson reports on one search for the domain name watchepisodesseries.com which has a domain location of "Australia". However, in his opinion the domain location does not signify the location of the online location; it is only the IP location that is significant in determining whether the online locations are located within or outside of Australia.
51 On the basis of this evidence, and the detailed schedules provided by Foxtel in relation to each of the 127 online locations in suit, I am satisfied that each is located outside Australia as required by s 115A(1)(a). I assess the location of each of the online locations in section 7 below.
[10]
6.3 The digital content available via each online location
52 Subsection 115A(1)(b) requires that the Court be satisfied that the online location infringes or facilitates an infringement of the copyright. Subsection 115A(1)(c) requires that the Court be satisfied that the primary purpose of the online location is to infringe or facilitate the infringement of copyright. Subsection 115A(5) provides various matters that the court may take into account in considering the grant of injunctive relief, including the flagrancy of the infringement or facilitation of infringement, whether the online location makes available directories, indexes or categories of the means to infringe, whether it is in the public interest to disable access and other relevant matters. These requirements point to the need for a review of each of the online locations in order to ascertain the manner in which they make available content to users.
53 Ms Southey visited most of the online locations, took screenshots of the material displayed on her computer as she navigated about those locations and also took videos, which she exhibited, indicating her interaction with those sites. In order to investigate the online locations that used peer to peer technology she downloaded software relevant to that task (which was free of charge and readily available on the internet). For a few additional sites that were discovered more recently, Ms Singh visited the locations and reported on her investigations.
54 In section 7 below, I summarise some particular aspects of the online locations having regard to my review of the evidence provided in relation to each.
[11]
7.1.1 Service upon the operator
55 Ms Singh sent notice of the proceedings via a message facility listed on the website accessible from the domain name yesmovies.to on a page entitled "DMCA Policy" and which included the statement:
We provide a service that automatically offers users with relevant search results for various types of media.
We do not actively monitor, screen or otherwise review the media which is generated from our third-party service providers.
We take copyright violation very seriously and will vigorously protect the rights of legal copyright owners.
If you are the copyright owner of content which appears on the YesMovies.to website and you did not authorize the use of the content on the third-party site you must notify us in writing in order for us to identify the allegedly infringing content and take action.
…
56 No response was received. A link purporting to direct users to contact details was available on the site, but did not work. In the absence of a response, it is not clear that the notice sent was received by the person who operates the online location. However, I am satisfied that the requirement that the person who operates the online location be notified of the application set out in s 115A(4) maybe dispensed with, in accordance with that subsection because, despite reasonable efforts to determine the identity or address of that person, Foxtel has been unable to do so.
[12]
7.1.2 Location of the online site
57 The evidence of Ms Southey demonstrates that the domain name yesmovies.to is associated with an IP address owned by Cloudflare that is located in the United States. Accordingly, I am satisfied that the respondents provide access to this location outside Australia within the requirement of s 115A(1)(a) of the Act.
[13]
7.1.3 The online content made available
58 The website that is accessed via the domain name yesmovies.to is, in my view, clearly directed to facilitate infringement of copyright. It contains a homepage that promotes the free access for users to movie and television content. One drop-down item on the menu entitled "genre" includes a list setting out types of content that may be accessed such as "action", "family", "horror", and so on. The menu also supplies opportunities to search by way of country and provides a "search" function. Beneath the horizontal toolbar on the home page is a carousel depicting contemporary popular movies or TV shows and including in respect of each an opportunity to select a "Watch Now" feature. There follows, as one scrolls down, a very large array of movies listed by depicting promotional images of each, which display their titles. A section entitled "Latest Movies" depicts movies that appear to be recent releases in the cinema and there follows a "Latest TV-Series" list. For the movies listed, when the cursor is hovered over the title details such as; the year of release, the duration of the movie, a 5-star rating and a short synopsis appear. Hundreds of movies appear to be available for download. For instance, within the genre "action" there are 96 pages of options offered.
59 Ms Southey was able to locate season 3 of Wentworth on the website, which recorded that it had been viewed 26,397 times. She was provided with an option to play an episode of Wentworth on one of 3 servers and was subsequently able to play the entirety of an episode, including the credits at the end which include a copyright notice. As I have noted, no permission has been provided by Foxtel for such conduct. Accordingly, the online location infringes or facilitates an infringement of copyright in Wentworth.
60 More generally, having regard to the content available via the domain name yesmovies.to, I am satisfied that the online location facilitates the infringement of copyright and that the primary purpose of the online location is to infringe or facilitate the infringement of copyright. In particular, I am satisfied that the website was designed and operated to facilitate easy and free access to cinematographic films made available online on such a scale and extent that, I infer, has occurred without the permission of the owners of copyright in such films. The website appears to be intended to promote, encourage and enable users to download content having no regard to the rights of the owners of copyright in that content.
[14]
7.1.4 Entitlement to an injunction
61 Having regard to the discretionary matters referred to in s 115A(5), the activities facilitated on this online location include the flagrant infringement of copyright in Wentworth and of copyright in the cinematograph works that it promotes more generally. That facilitation includes the use of directories, indexes and categories to facilitate infringement and represents on the part of the operator of the online location a disregard for copyright generally. In my view, the orders sought represent a proportionate response to the activities of the online location and, having regard to the content of the website, it is unlikely that persons having legitimate rights will be adversely affected.
[15]
7.2.1 Service upon the operator
62 Ms Singh gives evidence that the website accessed using the domain name vumoo.li provides no website contact form or email address. An email was sent to the registrar responsible for the domain name, but no response was received. I am satisfied that reasonable efforts have been taken to serve the online operator and that in the circumstances, the requirement of notice may be dispensed with such that no further steps are required.
[16]
7.2.2 Location of the online site
63 The evidence of Ms Southey demonstrates that the domain name vumoo.li is associated with an IP address that is located with a Cloudflare IP owner which is located in the United States. Accordingly, I am satisfied that the respondents provide access to this location outside Australia within the requirement of s115A(1)(a) of the Act.
[17]
7.2.3 The online content made available
64 The online location listed in schedule 2 is accessed by entering the domain name vumoo.li. This reveals a home page which has various banners listing titles under the categories "Popular This Week", "Currently Watching", "New Releases" and "Recently Added". Along the top of the webpage is a search bar, along with a browsing dropdown button. Clicking on this expands the options available to the user and makes available different genres of content. Also, along the top of the webpage is an option titled "TV Shows", which, when selected, includes "Trending Television" suggestions and titles appeared.
65 Ms Southey was able to stream episode 11 of season 3 of Wentworth from the website. The website also offers an option to download the episode, which is apparently available only to "premium users". Ms Southey did not endeavour to become a premium user. As I have noted, no permission has been provided by Foxtel for such conduct. Accordingly, the online location infringes or facilitates an infringement of copyright in Wentworth.
[18]
7.2.4 Entitlement to an injunction
66 Having regard to the discretionary matters referred to in s 115A(5), the activities facilitated on this online location include the flagrant infringement of copyright in Wentworth and of copyright in the cinematograph works that it promotes more generally. That facilitation includes the use of directories, indexes and categories to facilitate infringement and represents on the part of the operator of the online location a disregard for copyright generally. In my view, the orders sought represent a proportionate response to the activities of the online location and, having regard to the content of the website, it is unlikely that persons having legitimate rights will be adversely affected.
[19]
7.3.1 Service upon the operator
67 The evidence of Ms Singh indicates that the LosMovies websites contain within them an email address for contacting the operator. Emails were sent to that address notifying the operator of the present proceedings, enclosing the pleadings and drawing attention to the provisions of s 115A of the Act. The same address was provided in respect of each of the LosMovies sites. No response was received. In the circumstances, I am satisfied that whilst it is not clear that the person who operates the online location actually received the notification, Foxtel has used reasonable efforts to determine the identity or address of the operator and to send notices to that person. I accordingly dispense with the requirement for notice and pursuant to s 115A(4).
[20]
7.3.2 Location of the online site
68 The evidence of Ms Southey demonstrates that the LosMovies websites are variously associated with IP addresses that are located in Lithuania or the United Kingdom. Accordingly, I am satisfied that the respondents provide access to this location outside Australia within the requirement of s 115A(1)(a) of the Act.
[21]
7.3.3 The online content made available
69 The group of seven LosMovies online locations is listed in schedule 2. The website that is accessed by entering the domain name losmovies.cc is referred to by Ms Southey in her evidence as the "primary" LosMovies website. This is because when the domain names losmovies.ch, losmovies.club and losmovies.com are entered into an internet browser, one is automatically redirected to the LosMovies primary site.
70 Ms Southey's evidence reveals that on the homepage of the primary site appears a heading "Watch Free Movies Online" followed by what appears to be 683 pages of suggestions of content to view. Each page appears to contain 24 separate suggestions. The suggestions are shown in pictures of the content available for viewing, which appear to be the promotional images released by the authorised distributors of the works, including "T2 Trainspotting", "Boss baby", "Before I Fall" and many others. A menu also invites a user to search for movies or TV shows by reference to countries, actors, genres, directors or top movies. There is also, on the homepage, a search bar for a user to operate.
71 Ms Southey successfully searched for episode 11 of season 3 of Wentworth and subsequently played and reviewed that episode. It concluded with a copyright notice recording the owners of copyright.
72 Ms Southey also viewed the content available utilising the domain name losmovies5-cc.unblocked.lol and took screenshots which indicate that this website is substantially similar to the primary LosMovies website, although there are some small, nonmaterial variations. Like the primary LosMovies website, this website contains a very large number of pages (855) of suggestions and otherwise appears to have each of the functions to which reference has been made in relation to the primary LosMovies website. Ms Southey's evidence reveals that the domain names losmovies4-cc.unblocked.lol and losmovies2-club.unblocked.lol each resolve to the website accessible from losmovies5-cc.unblocked.lol.
[22]
7.3.4 Entitlement to an injunction
73 In addition to the foregoing, the evidence of Ms Singh indicates that online locations known by reference to the name "LosMovies" have been blocked by order of courts in the United Kingdom. Such blocked websites include; losmovies.ch, losmovies.club and losmovies.com. No doubt this explains why some of the LosMovies domain names include within them the words "unblocked.lol".
74 Having regard to the discretionary matters referred to in s 115A(5), the activities facilitated on this online location include the flagrant infringement of copyright in Wentworth and of copyright in the cinematograph works that it promotes more generally. That facilitation includes the use of directories, indexes and categories to facilitate infringement and represents on the part of the operator of the online location a disregard for copyright generally. In my view, the orders sought represent a proportionate response to the activities of the online location and, having regard to the content of the website, it is unlikely that persons having legitimate rights will be adversely affected.
[23]
7.4.1 Service upon the operator
75 The CartoonHD consists of 5 domain names and their associated IP addresses and URLs. The domain names are cartoonhd.be, cartoonhd.cc, cartoonhd.online and cartoonhd.website and cartoonhd.global.
76 In May and July 2017 Ms Singh sent notice of the proceedings to the email addresses provided on each of the domain names, but received delivery failure notifications for each. Further notices were sent to the domain name registrants and/or domain name registrars, again with no substantive response.
77 According to the second affidavit of Ms Singh, on 4 August 2017 she opened the internet browser on her computer and sequentially entered each of the domain names listed. On each occasion she was automatically redirected to the website at cartoonhd.global. After conducting IP address and domain "Whois" searches, email notification was sent to an address identified on the website but delivery notification failure was received. Emails were also sent to the email addresses of the registrant of the domain name and the registrar responsible for the domain name. In each case either a delivery notification failure was received or no response at all was received.
78 In the circumstances, I am satisfied that Foxtel has used reasonable efforts to determine the identity or address of the operator and to send notices to that person. I accordingly dispense with the requirement for notice pursuant to s 115A(4).
[24]
7.4.2 Location of the online site
79 The evidence of Ms Southey demonstrates that IP addresses associated with the cartoonHD domain names are variously associated with IP addresses located in the United States and Iceland. Accordingly, I am satisfied that the respondents provide access to this location outside Australia within the requirement of s 115A(1)(a) of the Act.
[25]
7.4.3 Online content made available
80 Initially, the evidence of Ms Southey describes a cartoonHD primary site, which is the online location accessible at the domain name cartoonhd.be, and secondary sites which are the locations accessible at the other domain names (excluding cartoonhd.global). According to the second affidavit of Ms Singh, the website accessible at the domain name cartoonhd.global became the primary site. Ms Singh gives evidence of her investigations in relation to this later website which reveal, from my examination, that the website accessible at that later time is substantially similar to that which was accessed by Ms Southey in her affidavit evidence. Having regard to each of these affidavits I am able to make the following observations and findings in relation to the content available via these domain names.
81 Upon entering the domain names, a homepage invites the user to "Watch Movies and TV Shows Online Free". It presents drop-down menus for "Movies", "TV shows" and "New". There is also a search facility. The homepage includes an extensive list of recently released movies and television episodes that may be watched including "Guardians of the Galaxy Volume 2", "Game of Thrones" and many others. The content is arranged by reference to "New TV Episodes", "Trending Series and Movies", "Popular on Cartoon HD" and many similar titles. The website includes an option for a person to enter a removal request, however, as noted above, when Foxtel attempted to contact the operators in relation to the current application, no response was received.
82 Ms Southey was able to live stream episode 11 of season 3 of Wentworth from this website. Ms Singh was also able to stream episode 11 of season 3 Wentworth from the website accessible at cartoonhd.global. In order to do so, it was necessary for her to register an account using a functioning email address. Payment was not required. She was also able to stream other contemporary movie content including the 2017 feature film "Wonder Woman", and episode 3 of season 7 of Game of Thrones.
[26]
7.4.4 Entitlement to an injunction
83 Having regard to the factors referred to in s 115A(5), in my view the activities facilitated on this online location include the flagrant infringement of copyright in Wentworth and of copyright in the cinematograph works that it promotes more generally. That facilitation includes the use of directories, indexes and categories to facilitate infringement and represents on the part of the operator of the online location a disregard for copyright generally. In my view, the orders sought represent a proportionate response to the activities of the online location and, having regard to the content of the website, it is unlikely that persons having legitimate rights will be adversely affected.
[27]
7.5 Putlocker, Putlocker9.is and Putlocker9.to - Items E, N and O
[28]
7.5.1 Service upon the operator
84 Items E, N and O in schedule 2 refer to domain names that commence with the word "putlocker".
85 In respect of item E "Putlocker", the only domain name is "putlocker.today". The evidence of Ms Singh indicates that the website accessed via this domain name offers no formal contact or email address. Emails attempting to notify the registrant of the domain name, and registrar responsible for it, were sent on behalf of Foxtel but no response was received. When the domain name for item N, "Putlocker9.is", was entered, the website provided a contact form that Ms Singh attempted to use but found the "send" button was not functional. Notices were then sent to the email address of the registrant of the domain name and also the registrar responsible for the domain name. Again, no response was received. Three domain names are associated with item O, "Putlocker9.to", being putlocker9.com, putlocker9.to and putlocker9.co. The primary site was found to be at putlocker9.com, to which the other two sites were redirected. No contact form or email addresses were listed on the website and Ms Singh sent emails to the available registrant of the domain names and the registrar responsible for the domain name putlocker9.com, although no responses were received.
86 In the circumstances I am satisfied that Foxtel has used reasonable efforts to determine the identity or address of the operator and to send notices to that person. I accordingly dispense with the requirement for notice pursuant to s 115A(4).
[29]
7.5.2 Location of the online sites
87 The evidence of Ms Southey indicates, and I find, that the domain names identified in items E, N and O are variously located in the United States, and Canada. Accordingly, I am satisfied that the respondents provide access to this location outside Australia within the requirement of s 115A(1)(a) of the Act.
[30]
7.5.3 Online content made available
Item E - Putlocker
88 The website accessible using the putlocker.today domain name adopted a form which is now familiar. The homepage includes a series of drop-down menus entitled "Browse", "Genres", "Countries", "Years", "Anime" and "TV Series", amongst others. Features included listings of a very large range of movie and television content including movies which appear to be recent releases. The website also provided a searching facility. It included headings such as "Newest Movies in Cinema". Under the heading "Action", the menu offers access to 263 pages of listed TV and movie content, with each page apparently containing 40 different titles.
89 Ms Southey was able to stream episode 11 of season 3 of Wentworth by conforming with the instructions on the site.
Item N - Putlocker9.is
90 The website accessible using the putlocker9.is domain name is slightly different in look and feel to the website accessible via the putlocker.today domain name. Instead of a horizontal drop-down menu it contains menus on the left hand side of the homepage and the artwork is slightly different. The menu includes items such as "Movies", "TV Series", "New Episodes" and so on. The homepage lists 60 separate titles of different genres which are apparently available for streaming or download and records that there are 12 additional pages that may be perused giving a total available content of about 720 titles.
91 Ms Southey was able to live stream episode 11 of season 3 of Wentworth.
Item O - Putlocker9.to
92 Ms Southey records that the primary site in this group is the online location accessible at putlocker9.com. This online location is viewable as a website which is the same as that which was accessible using the putlocker9.to .domain name. When Ms Southey entered the domain name putlocker9.co on 11 July 2017 she was informed that the content was not accessible.
93 When the 2 functional domain names were used by Ms Southey she observed that there is displayed a homepage with a menu bar with options including "Movies", "TV Series", "New Episodes", "Genre" and "Country", and many of these options include drop-down menu options. Further down the homepage there are categories of "Suggestions", "Popular Movies" and "Popular TV Shows". There are additional movie subcategories at the end of the homepage. Users can also subscribe to receive updates on movies, TV series and news. Under the menu item "Movies" is a page containing 32 movies that are offered for viewing. The site suggested that there were 539 further pages listing available movies. When TV Series was clicked, the latest season and episode of Game of Thrones could be selected and watched in its entirety.
94 Ms Southey was able to live stream episode 11 of season 3 of Wentworth.
[31]
7.5.4 Entitlement to an injunction
95 In addition to the foregoing, the evidence of Ms Singh indicates that online locations known by reference to the name "putlocker" may have been blocked by order of courts in the United Kingdom and Italy. Ms Singh refers, in this respect, to media reports. There is also a suggestion that blocking orders were made in Norway in respect of domain names putlocker.is and putlocker.bz.
96 Having regard to the discretionary matters referred to in s 115A(5), I note that the activities facilitated on this online location include the flagrant infringement of copyright in Wentworth and of copyright in the cinematograph works that it promotes more generally. That facilitation includes the use of directories, indexes and categories to facilitate infringement and represents on the part of the operator of the online location a disregard for copyright generally. In my view, the orders sought represent a proportionate response to the activities of the online location and, having regard to the content of the website, it is unlikely that persons having legitimate rights will be adversely affected.
97 Despite the fact that the putlocker9.co could not be accessed by Ms Southey on 11 July 2017 it is appropriate to make an order in respect of that online location; Roadshow at [53].
[32]
7.6 The "Watch Series" locations - Items F, G, J, K and L
[33]
7.6.1 Introduction
98 The evidence indicates that there are 5 sets of online locations that include or are related to the word "watch". They are; Watch Series (65 online locations), Watch Series 2 (4 online locations), Watch Episodes (3 online locations), Watch Episode Series (2 online locations) and Watch TV Series (3 online locations).
[34]
7.6.2 Service upon the operator
99 In relation to Watch Series 1 (item F), Ms Singh gives evidence that the same sort of attempts were made to contact the operators of the online locations as have been described above. For the main part, notification was sent on behalf of Foxtel either to email addresses or contact forms made available on the websites accessible by the domain names. Where available, they were also sent to the email address given of the registrant of the domain name and the email address of the domain name registrar. On rare occasions a response was provided. For instance, for the domain name watchseries.unblocked.ltd an email was received from the "Unblocked Team" stating that they "do not wish to be a party in any of the proceedings. … This applies to all of the unblocked domains that you have reached out to.". In a handful of other instances, similar responses were received.
100 I am satisfied that Foxtel has used reasonable efforts to determine the identity or address of the operator and to send notices to that person. Whilst it is apparent from the receipt of some responses that a person who may be responsible for the operation of some of the domain names has received notice, the anonymity of the responses, and the danger that such responses may have been automated such that the initial notification may not have come to the attention of the operator of the online locations concerned, satisfies me that it is appropriate to dispense with the requirement for notice pursuant to s 115A(4).
101 In relation to Watch Series 2 (item G), Watch Episodes (item J), and Watch Episode Series (item K), Ms Singh gives evidence that attempts were made on behalf Foxtel to contact the operator of each of the domain names listed by sending details to the website contact form that was available. No email address or details of a domain name registrant or registrar were available. For the reasons given in the preceding paragraph, I am satisfied that Foxtel has used reasonable efforts to determine the identity or address of the operator and to send notices to that person and it is appropriate to dispense with the requirement for notice pursuant to s 115A(1)(4) of the Act.
102 In relation to Watch TV Series (item L), email addresses were provided on the websites which were accessible from the 3 domain names listed, but no response was received. Again, for the reasons identified in relation to item F, I am satisfied that it is appropriate to dispense with the requirement for notice pursuant to s 115A(4) of the Act.
[35]
7.6.3 Location of the online sites
103 The evidence of Ms Southey that the IP addresses associated with the domain names in item F are variously Panama and the United States. The IP addresses associated with the domain names in items G, J, K and L are associated with Cloudflare as a reverse proxy and are located in the United States. Accordingly, I am satisfied that that the respondents provide access to this location outside Australia within the requirement of s 115A(1)(a) of the Act.
[36]
7.6.4.1 Watchseries 1 - Item F
104 The evidence of Mr Southey indicates that, despite the 65 different domain names listed under item F of schedule 2, the online location accessible at the domain name mywatchseries.to is materially the same for each of the other domain names listed. Having reviewed the evidence, I find that mywatchseries.to is the primary site with the other sites either automatically redirecting to it, as is the case in onwatchseries.to, or in the case of watchseries.bypassed.cc, automatically redirects to online locations that are in all respects materially the same as the online location accessible at mywatchseries.to. In this regard, the choice of domain name including words such as "unblocked", "bypassed" and "immunicity" might provide an indication as to the reason why so many different domain names have been chosen by the operators of the websites. As I note below, a number of "watchseries" domain names generally have been the subject of a site blocking orders internationally since at least March 2015.
105 The homepage that is accessed via the mywatchseries.to domain name includes a horizontal menu that includes "Series", "Newest Episodes Added", "This Week's Popular Episodes", "TV Schedule", and a search facility. The homepage contains suggestions of television shows to watch including "Latest Popular Episodes" and "Most Popular Shows", the latter of which include "Narcos", "Game of Thrones" and "Suits". When the user clicks on one of the drop-down menus, he or she is provided with hundreds of TV episodes to watch. For instance, within the "Newest Episodes Added" menu are apparently 45 pages having almost 50 items listed upon each one.
106 Ms Southey was able to live stream episode 11 of season 3 of Wentworth by navigating the prompts on the website.
[37]
7.6.4.2 Watch Series 2 - Item G
107 The Watch Series 2 group contains 4 domain names. On 6 August 2017 Ms Singh entered the domain names; onwatchseries.ac, mywatchseries.ac and mewatchseries.ac and found that she was taken to a webpage which said "under maintenance, but you can check new domain". By clicking on the hyperlink provided Ms Singh was taken to a website at a further domain "watchseries.to". The homepage includes a banner that states "Mewatch.to is our new domain, please update your bookmarks!". By conducting relevant WHOIS searches, Ms Singh ascertained that the IP address was owned by Cloudflare and located in the United States. Ms Singh sent notification of the proceedings using the contact form provided on the site, but received no response.
108 The homepage and website accessed have substantially the same features of those described in relation to the website accessible via the Watch Series 1 domain names, and it is unnecessary to repeat the detail here. Ms Singh accessed the website, searched for the television series Wentworth, selected season 3 and navigated to episode 11. She was able to stream a copy of this episode without making any payment.
[38]
7.6.4.3 Watch Episodes - Item J
109 The Watch Episodes group consists of 3 domain names. Ms Southey records that the primary site is accessed directly by entering the domain name watchepisodes4.com and when either the watchepisodes.com or the watchepisodes3.com domain names are entered, the user is automatically redirected to the homepage of the primary site.
110 The watch episodes.com homepage is somewhat different in look and feel, but nevertheless to the same effect as the other Watch Series websites. It contains horizontally arranged lists of drop-down menus including "Browse Series", "New Series", "Popular Series", "Schedule", "New Latest Episodes" and so on. The menu bar also contains a search facility. In the main panel of the homepage is a selection of content which names a large list of popular television series including "Teen Mom 2", "MasterChef Australia Season 9", "Love & Hip Hop: Atlanta" and many others. When the user clicks on the "Browse Series" menu item, he or she is presented with a list of TV series which may be downloaded including "The Flash", "Arrow" and "Game of Thrones". When the "Popular Series" menu item is selected the reader is offered about 153 listed popular TV series to access and stream. As with the other Watch Series websites, it is apparent that the structure and arrangement of the site is designed to ensure that users may easily and readily, for no cost, stream popular television content.
111 Ms Southey successfully searched for, and live streamed, episode 11 of season 3 of Wentworth.
[39]
7.6.4.4 Watch Episode Series - Item K
112 The Watch Episode Series consists of 2 domain names. The primary site is accessed via the domain name watchepisodeseries.com and the secondary site is accessed via watchepisodes1.com. When the secondary domain name is used one is automatically redirected to the homepage of the primary site.
113 The primary site contains many of the now familiar features present in other websites examined in the course of this judgement. On the homepage, in a top bar there are the options to "Browse Series", "New Series", "Popular Series" and "Schedule" and beneath that there are the categories of "New Latest Episodes" and "Popular Episode This Week" (sic), and "Reviews". There is also a "Trending Series" categories with a selection of TV shows on the right hand side, and reviews next to it. It is apparent that the website is directed towards enticing the user to search for and select TV content for streaming without cost.
114 Ms Southey successfully searched for and streamed episode 11 of season 3 of Wentworth.
[40]
7.6.4.5 Watch TV Series - Item L
115 The Watch TV Series group consists of 3 domain names. When they are entered they provide access to websites that have substantially the same functionality as that described in previous summaries. Ms Southey was able to live stream episode 11 of season 3 of Wentworth free of charge by utilising search functions and following the prompts on the webpages made available by utilising each of the domain names.
[41]
7.6.5 Entitlement to an injunction
116 The evidence of Ms Singh refers to a searchable list of websites available at the website of "TalkTalk", a telecommunications and internet service provider in the United Kingdom that identifies various domain names that have been the subject of blocking style orders made by the UK High Court. This site indicates that 38 of the online locations known by reference to the name "watchseries" (within the Watch Series 1 item F group) have been blocked by order of court in the United Kingdom. There are no published reasons or orders exhibited to the evidence of Ms Singh to support the media reports. In proceedings such as this, it is appropriate to take into account such reports as one amongst a number of factors that may assist in considering whether or not to grant an injunction, bearing a mind that s 115A(5)(d) calls attention to question of whether access to the online location has been disabled by orders from any court of another country. However, given that the provenance of the information is uncertain, little weight can be ascribed to it. The large number of Watch Series 1 (item F) domain names, and the use of words such as "unblocked", "bypassed" and "immunicity" does suggest that the media reports are accurate, and that the operators of the sites have circumvented prior blocking orders.
117 The evidence concerning the Watch Series sites, whether considered individually having regard to each group listed in schedule 2, or collectively, presents a compelling case for the grant of the injunctive relief sought. The websites accessed via the domain names are plainly designed primarily, if not entirely, for the purpose of facilitating the infringement of copyright from enormous catalogues of contemporary television content and invite users to stream that content free of charge. I infer that the owners of copyright in that content do not consent to such use of it.
118 Having regard to the discretionary matters referred to in s 115A(5), I note that the activities facilitated on this online location include the flagrant infringement of copyright in Wentworth and of copyright in the cinematograph works that it promotes more generally. That facilitation includes the use of directories, indexes and categories to facilitate infringement and represents on the part of the operator of the online location a disregard for copyright generally. In my view, the orders sought represent a proportionate response to the activities of the online location and, having regard to the content of the website, it is unlikely that persons having legitimate rights will be adversely affected.
[42]
7.7 Project Free TV 1 and Project Free TV2 - Items H and I
[43]
7.7.1 Service upon the operator
119 Project Free TV 1 (item H) is a group of 11 domain names. The website accessible by all of these domain names includes an email address to which the representatives of Foxtel sent notice of the proceedings. No response was received. I am satisfied that Foxtel has used reasonable efforts to determine the identity or address of the operator and to send notices to that person. I accordingly dispense with the requirement for notice pursuant to s 115A(4).
120 Project Free TV 2 (item I) is a group of 2 domain names, each of which provides access to a website that includes an email address for contacting the operator. The representatives of Foxtel sent notification of the proceedings to these email addresses, but no response was received. I am satisfied that Foxtel has used reasonable efforts to determine the identity or address of the operator and to send notices to that person. I accordingly dispense with the requirement for notice pursuant to s 115A(4).
[44]
7.7.2 Location of the online sites
121 The evidence of Ms Southey is that the IP addresses associated with the domain names in items H and I are variously Romania, the Netherlands and the United States. Accordingly, I am satisfied that the respondents provide access to this location outside Australia within the requirement of s 115A(1)(a) of the Act.
[45]
7.7.3 The online content made available
122 Two slightly different websites are accessible, one via the project-free-tv.li domain name and the other via all the other domain names. The 2 websites are substantially similar and it suffices to provide a brief description of the first.
123 The homepage includes a title "Project-Free TV" and a subheading "Watch all your favourite tv-shows and movies online 4 FREE". There is a horizontal bar with drop-down menus including "TV Shows", "Movies" and "Submit Video", among others. At the bottom of the homepage is a short description which provides that:
Project Free TV is your free source of TV shows and movies. You can check TV Series section and here you have a lot of TV series ordered from a to z, all your favourite TV shows. For Recently Aired New Episodes and Upcoming New Episodes please visit Calendar section. We add every day last episodes aired and a lot of movies. Btw for movies, please check Movies section and watch online for free.
124 The website provides access to hundreds of movies and TV shows, inviting users to either search or utilise extensive menus providing lists of content. It is apparent from reviewing the content that many contemporary and commercially available movies and TV series are made available. Ms Southey was able to live stream episode 11 of season 3 of Wentworth by following the prompts on the website. No charge was required.
[46]
7.7.4 Entitlement to an injunction
125 Having regard to the discretionary matters referred to in s 115A(5), I note that the activities facilitated by these online locations include the flagrant infringement of copyright in Wentworth and of copyright in the cinematograph works that it promotes more generally. That facilitation includes the use of directories, indexes and categories to facilitate infringement and represents on the part of the operator of the online location a disregard for copyright generally. In my view, the orders sought represent a proportionate response to the activities of the online location and, having regard to the content of the website, it is unlikely that persons having legitimate rights will be adversely affected.
[47]
7.8.1 Service upon the operator
126 The Dare Telly is a group of 2 domain names, both of which provide access to a website that includes an email address for contacting the operator. The representatives of Foxtel sent notification of the proceedings to these email addresses, but no response was received. I am satisfied that Foxtel has used reasonable efforts to determine the identity or address of the operator and to send notices to that person. I accordingly dispense with the requirement for notice pursuant to s 115A(4).
[48]
7.8.2 Location of the online sites
127 The evidence of Ms Southey is that the Dare Telly domain names are associated with IP addresses owned by Cloudflare, which are located in the United States. Accordingly, I am satisfied that the respondents provide access to this location outside Australia within the requirement of s 115A(1)(a) of the Act.
[49]
7.8.3 The online content made available
128 The evidence of Ms Southey describes a primary site, which is the online location accessible at the domain name thedarewatch.com, and a secondary site which automatically redirects to the primary site. The homepage of the primary site displays a horizontal bar with drop-down menus including "Schedule", "Latest", "TV Shows", "Movies", "Box Office", and so on. Underneath this is a carousel depicting contemporary popular TV shows, such as "House of Cars" and "Better Call Saul". Further down the home page there is section titled "Today's TV Schedule", which appears to be a programming schedule for popular programs (including Australian programs such as "Masterchef Australia"), and another section titled "Recently Updated Movies".
129 Ms Southey successfully searched for and streamed episode 11 of season 3 of Wentworth. The episode concluded with a copyright notice recording the owners of copyright.
[50]
7.8.4 Entitlement to an injunction
130 Having regard to the discretionary matters referred to in s 115A(5), I note that the activities facilitated by these online locations include the flagrant infringement of copyright in Wentworth and of copyright in the cinematograph works that it promotes more generally. That facilitation includes the use of directories, indexes and categories to facilitate infringement and represents on the part of the operator of the online location a disregard for copyright generally. In my view, the orders sought represent a proportionate response to the activities of the online location and, having regard to the content of the website, it is unlikely that persons having legitimate rights will be adversely affected.
[51]
7.9.1 Service upon the operator
131 Torlock is accessible via the domain name torlock.com, which provides access to a website that includes an email address for contacting the operator. The representatives of Foxtel sent notification of the proceedings to this email address, but no response was received. I am satisfied that Foxtel has used reasonable efforts to determine the identity or address of the operator and to send notices to that person. I accordingly dispense with the requirement for notice pursuant to s 115A(4).
[52]
7.9.2 Location of the online sites
132 The evidence of Ms Southey is that the Torlock domain name is associated with an IP address owned by Cloudflare, which is located in the United States. Accordingly, I am satisfied that the respondents provide access to this location outside Australia within the requirement of s 115A(1)(a) of the Act.
[53]
7.9.3 The online content made available
133 The only online location for Torlock listed in schedule 2 is accessed by entering the domain name torlock.com. This site makes available access to peer to peer networks that have been described above (at [21]). Ms Southey downloaded the software free of charge to enable her to utilise the technology to download content.
134 The Torlock home page has a search function and a menu bar in the top right corner with drop-down items such as "Categories", "News", "Fresh" and "Top 100". Clicking on "Categories" reveals a number of hyperlinked items, including "Movies", "Television", "Music", "Audiobooks", and others. Below the menu bar is a selection of hyperlinked content, such as "Bruno Mars" and "Game of Thrones". Further down the page is a section titled "Fresh Popular Torrents", which lists content by how long ago it was uploaded, the size of the file, and other technical information. Below this there are similar sections for "Movie Torrents", "TV Torrents", "Games Torrents" and others.
135 Ms Southey successfully searched for and downloaded episode 11 of season 3 of Wentworth using a link available on the website and relevant BitTorrent software. The episode concluded with a copyright notice recording the owners of copyright.
[54]
7.9.4 Entitlement to an injunction
136 Having regard to the discretionary matters referred to in s 115A(5), I note that the activities facilitated by these online locations include the flagrant infringement of copyright in Wentworth and of copyright in the cinematograph works that it promotes more generally. That facilitation includes the use of directories, indexes and categories to facilitate infringement and represents on the part of the operator of the online location a disregard for copyright generally.
137 Having regard to s 115A(5)(d) specifically, I note that the first affidavit of Ms Singh also exhibits a copy of the judgment in 1967 Ltd v British Sky Broadcasting Ltd [2014] EWHC 3444 (Ch), in which the UK High Court blocked the domain name torlock.com. Ms Singh's evidence also indicates that this domain name has been blocked in Portugal, however this is only supported by media reports, and as noted above, given that the provenance of this information is uncertain, little weight can be ascribed to it.
138 In my view the orders sought represent a proportionate response to the activities of the online location and, having regard to the content of the website, it is unlikely that persons having legitimate rights will be adversely affected.
[55]
7.10.1 Service upon the operator
139 The evidence of Ms Singh indicates that notification of the proceedings was sent to the owner of the domain name 1337x.to using a contact form available on the website. Ms Singh also deposes that she attempted to provide notice to the owners of the secondary domain names listed in item Q in schedule 2 using similar contact forms, but found that the "send" button was not functional. Ms Singh then sent notices to the email addresses for the registrants of these secondary domain names, but did not receive a response.
140 I am satisfied that Foxtel has used reasonable efforts to determine the identity or address of the operator and to send notices to that person. I accordingly dispense with the requirement for notice pursuant to s 115A(4).
[56]
7.10.2 Location of the online sites
141 The evidence of Ms Southey is that the 1337x domain names are associated with IP addresses owned by Cloudflare, which are located in the United States. Accordingly, I am satisfied that the respondents provide access to this location outside Australia within the requirement of s 115A(1)(a) of the Act.
[57]
7.10.3 The online content made available
142 The evidence of Ms Southey describes a primary site which is the online location accessible at the domain name 1337x.to, and secondary sites which are locations accessible at the other domain names listed in item Q in schedule 2. Ms Southey deposes that the secondary sites prominently displayed the 1337x logo, and their content was "substantially similar" to that of the homepage of the primary site.
143 The primary site reveals a home page which has a large search bar in the centre of the screen, and a menu bar at the top of the page. The menu bar includes the items "Top 100", "Trending" and "Upload", among others. Beneath the search bar is the following notice (errors in original):
New Index Page
Due to our old index being blocked by search engines new users were having issues finding website. We developed new index page that contains only search so we don't get blocked by search engines in the future. Old home page is here [hyperlink], you can also click "full home page" link in the header or 1337x logo. 1337x main domain is 1337x.to [hyperlink], if this domain isn't blocked in your country use it.
144 Beneath the notice is a series of links, which include "Movies", "Television", "Games", "Music" and so on. As mentioned in the quote above, at the bottom of the page is a link to the "full home page", which reveals a website in a format similar to many of the other websites considered in these reasons.
145 This site makes available access to peer to peer networks that have been described above (at [21]). Ms Southey downloaded the software free of charge to enable her to utilise the technology to download content. Ms Southey successfully searched for and downloaded episode 11 of season 3 of Wentworth using a link available on the website and relevant BitTorrent software. The episode concluded with a copyright notice recording the owners of copyright.
[58]
7.10.4 Entitlement to an injunction
146 Having regard to the discretionary matters referred to in s 115A(5), I note that the activities facilitated by these online locations include the flagrant infringement of copyright in Wentworth and of copyright in the cinematograph works that it promotes more generally. That facilitation includes the use of directories, indexes and categories to facilitate infringement and represents on the part of the operator of the online location a disregard for copyright generally.
147 Having regard to s 115A(5)(d) specifically, I note that the first affidavit of Ms Singh exhibits a copy of the judgment in Cartier International AG and Ors v British Sky Broadcasting Limited and Ors [2014] EWHC 3354, which at [55] refers to orders made by the UK High Court on 8 October 2013 blocking the online location of 1337x. Ms Singh was unable, however, to identify the particular domain names blocked on 8 October 2013, and did not exhibit a copy of those orders or the relevant judgment. Ms Singh does identify three 1337x domain names which are listed by the "TalkTalk" website as having been blocked by the UK High Court. Ms Singh's evidence also indicates that online locations known as 1337x have been blocked in Italy and Portugal. Having regard to the admission made on the "New Index Page" (quoted above), I am satisfied that the 1337x online location has previously been subject to blocking orders.
148 In my view the orders sought represent a proportionate response to the activities of the online location and, having regard to the content of the website, it is unlikely that persons having legitimate rights will be adversely affected.
[59]
DISPOSITION
149 Orders were made on 18 August 2017.
I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.