Roadshow Films Pty Limited v Telstra Limited

A. INTRODUCTION 1 Before me today, is an application for orders under s 115A of the Copyright Act 1968 (Cth) (Act) for site blocking and ancillary orders. The proceeding was commenced by an originating application and statement of claim. 2 The applicants rely on the following evidence: (a) affidavits of Andrew Gavin Stewart affirmed on 30 June 2023 and 6 July 2023. Mr Stewart is the solicitor on the record for the applicants and has been the solicitor on the record and given evidence in 12 previous applications before this Court for site blocking and ancillary orders under s 115A of the Act involving similar applicants and respondents (Previous Roadshow Applications); and (b) an affidavit of Jackson Ion Moir affirmed on 30 June 2023. Mr Moir is a paralegal acting under the supervision of Mr Stewart.

B. BACKGROUND 3 The applicants are each engaged in the creation, distribution, licensing, and/or marketing of theatrical motion pictures, television programming, videos/DVDs, Blu-ray discs, digital downloads and related products throughout the world, including in Australia. 4 The respondents are carriage service providers. They are the same respondent groups as in the Previous Roadshow Applications. The respondents comprise Telstra (the first respondent), Optus entities (the second to twelfth respondents), Vocus entities (the 13th to 27th respondents), TPG entities (the 28th to 46th respondents), and Vodafone entities (the 47th and 48th respondents). The 49th respondent, Aussie Broadband, was a respondent in the two most recent of the Previous Roadshow Applications. 5 The Telstra, Optus and Aussie Broadband respondent groups have all filed submitting appearances. The Vocus, TPG, and Vodafone respondents have been served but have failed to file either a notice of address for service or a submitting appearance, contrary to orders made by this Court. None of the respondents has sought to be heard in the proceeding. 6 The cinematograph films relied on by the applicants (Cinematograph Films) are listed in Sch 2 to the statement of claim dated 2 June 2023. 7 The applicants rely on the presumptions in s 126 and s 131 of the Act, and on deemed admissions as to ownership of copyright. Although it is not necessary, Mr Stewart also gives evidence of the applicants' ownership of copyright in the Cinematograph Films on information and belief.

C. GRANT OF RELIEF UNDER S 115A OF THE ACT 8 Section 115A of the Act relevantly provides: 115A Injunctions relating to online locations outside Australia Application for an injunction (1) The owner of a copyright may apply to the Federal Court of Australia to grant an injunction that requires a carriage service provider to take such steps as the Court considers reasonable to disable access to an online location outside Australia that: (a) infringes, or facilitates an infringement, of the copyright; and (b) has the primary purpose or the primary effect of infringing, or facilitating an infringement, of copyright (whether or not in Australia). … Granting the injunction (2A) The Court may grant the injunction in the terms, and subject to the conditions, that the Court considers appropriate. … (2B) Without limiting subsection (2A), the injunction may: (a) require the carriage service provider to take reasonable steps to do either or both of the following: (i) block domain names, URLs and IP addresses that provide access to the online location and that are specified in the injunction; (ii) block domain names, URLs and IP addresses that the carriage service provider and the owner of the copyright agree, in writing, have started to provide access to the online location after the injunction is made; and … 9 Section 115A(4) of the Act permits the Court to make an order dispensing with service on the carriage service provider, online search engine provider and the operator of the online location on such terms as it thinks fit, if the Court 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. 10 The target online locations that are alleged by the applicants to infringe or facilitate infringement of copyright in the Cinematograph Films are identified by Mr Moir in tables in the annexures to his affidavit (Target Online Locations). They fall into three classes, (a) a "linking" location, (b) "streaming" locations, and (c) "torrenting" locations. The classes have been the subject of previous applications under s 115A, including in each of the Previous Roadshow Applications. 11 The Target Online Locations are accessible at identified target uniform resource locations (Target URLs), which incorporate identified target domain names (Target Domain Names); and at identified target internet protocol addresses (Target IP Addresses). The URLs, domain names, and IP addresses for each of the Target Online Locations are set out in Table 1 to the Annexure JIM-1 to the affidavit of Mr Moir. 12 There are three types of Target Domain Names: (a) "primary" domain names, which are the main locations that provide the functionality complained of by the applicants, (b) "secondary" domain names, which redirect users to corresponding primary domain names, and (c) "mirror" domain names. A mirror domain name is a location substantially identical to another location, so that it appears to be the same website hosted on multiple domains simultaneously. 13 The applicants rely on the presumption in s 115A(5A) of the Act, that in proceedings for an injunction under s 115A, the online location is presumed to be outside Australia, unless the contrary is established. The applicants also rely on searches undertaken by Mr Moir that show that each of the Target IP Addresses was registered or created, and each of the Target Domain Names was registered, overseas. 14 Mr Moir gives evidence that (a) he visited all of the Target Online Locations, and noted which of the Cinematograph Films were available at each location, (b) for each location, he then navigated to a link to at least one of the Cinematograph Films, then, (c) depending on the type of the online location, streamed or downloaded the film, and (d) in each case, he watched certain parts of the film and confirmed that it was a true copy of the film in question. 15 Further, Mr Moir gives evidence that when he visited each of the Target Online Locations, he found that (a) their primary service was to provide simple access without charge online to motion pictures and television programs, (b) each location made available large numbers of other motion pictures and television programs, and (c) the majority of them carried advertising. I am satisfied that this evidence establishes that the primary purpose or effect of each of the Target Online Locations is to infringe, or to facilitate the infringement of, copyright. 16 I can readily infer from the evidence given by Mr Moir summarised at [14]-[15] above, that the applicants have not granted any licence or consent to the owners or operators of the Target Online Locations to copy or communicate the Cinematograph Films: see Foxtel Management Pty Ltd v TPG Internet Pty Ltd [2017] FCA 1041 at [117] (Burley J); Foxtel Management Pty Ltd v TPG Internet Pty Ltd [2018] FCA 933 at [12] (Nicholas J) . There is also evidence to this effect from Mr Stewart on information and belief. 17 I am satisfied that the evidence relied upon by the applicants establishes that each of the Target Online Locations infringes copyright in one or more of the Cinematograph Films. 18 The matters to be taken into account in determining whether to exercise the Court's discretion to grant an injunction, are relevantly identified in s 115A(5) of the Act, which provides: 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)(b); (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; (ea) if the application under subsection (1) also sought for the injunction to apply against an online search engine provider - whether not providing search results that refer users 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; (ga) if the application under subsection (1) also sought for the injunction to apply against an online search engine provider - whether it is in the public interest not to provide search results that refer users 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. 19 I am satisfied that the evidence relied upon by the applicants has established the following matters that weigh heavily in favour of the exercise of the discretion to grant an injunction under s 115A of the Act. 20 First, by reason of the matters identified at [14]-[16] above, the infringement of copyright at each of the Target Online Locations can be appropriately characterised as flagrant. 21 Second, the Target Online Locations are simple to use, they offer large catalogues of infringing material, and most of them make money by displaying advertising to users. 22 Third, the vast majority of them have directories, indexes or categories of motion pictures and television programs. 23 Fourth, the operators of the locations also display a disregard for copyright generally. Many include statements about copyright compliance, claiming to have a copyright they offer large catalogues of infringing material, and most of them make money by displaying advertising to users. 24 Fifth, the operators have been substantially unresponsive to notifications about their infringing conduct. 25 Sixth, at least three of the Target Online Locations are the subject of orders from a court in another country on the ground of, or on grounds related to, copyright infringement. 26 I am also satisfied that the applicants have complied with s 115A(4) of the Act as far as is reasonably possible. They have notified the carriage service providers and they have exerted reasonable efforts to notify the operators of the Target Online Locations. The applicants' solicitors sent notices about the proceedings, by email and post, to the addresses identified at the Target Online Locations, and also to addresses identified in the domain name and IP address searches. Where the Target Online Locations had web forms, the applicants' solicitors navigated there and attempted to complete the forms. 27 Generally, the owners or operators of the Target Online Locations did not respond. When they did, the responses were largely not substantive. Most were automated responses from hosting services and domain-name registrars. No owner or operator has appeared at the hearing today. 28 Other remedies are not reasonably available to the applicants because the Target Online Locations are located outside of Australia. Given the volume and flagrancy of the infringement, I am satisfied that disabling access to the Target Online Locations is a proportionate response, and that it is in the public interest. There is no evidence or indication that there will be any impact on any person or class of persons likely to be affected by the grant of the injunction, except that users will not be able to access infringing material, and that the operators of the site will be deprived of visits by Australian users.

D. DISPOSITION 29 The orders sought by the applicants are in substantially similar form to the orders made in the most recent of the Previous Roadshow Proceedings (NSD 952 of 2022), subject to a minor amendment to proposed orders 8(b) and 17(a)(i), inserting the words "or the primary effect" for consistency with the language of s 115A(1)(b) of the Act. 30 In my view, this is an appropriate case for making the site blocking and ancillary orders sought by the applicants. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.

SCHEDULE OF PARTIES NSD 509 of 2023 Applicants Fourth Applicant: PARAMOUNT PICTURES CORPORATION Fifth Applicant: COLUMBIA PICTURES INDUSTRIES, INC Sixth Applicant: UNIVERSAL CITY STUDIOS LLC. Seventh Applicant: WARNER BROS. ENTERTAINMENT INC. Eighth Applicant: NETFLIX STUDIOS, LLC Ninth Applicant: NETFLIX WORLDWIDE ENTERTAINMENT, LLC Respondents Fourth Respondent: OPTUS ADSL PTY LIMITED (ACN 138 676 356) Fifth Respondent: OPTUS SATELLITE PTY LIMITED (ACN 091 790 313) Sixth Respondent: UECOMM OPERATIONS PTY LIMITED (ACN 093 504 100) Seventh Respondent: OPTUS INTERNET PTY LIMITED (ACN 083 164 532) Eighth Respondent: OPTUS MOBILE MIGRATIONS PTY LIMITED (ACN 092 726 442) Ninth Respondent: OPTUS WHOLESALE PTY LIMITED (ACN 092 227 551) Tenth Respondent: AMAYSIM MOBILE PTY LIMITED (ACN 645 692 093) Eleventh Respondent: VAYA PTY LTD (ACN 150 761 032) Twelfth Respondent: VAYA COMMUNICATIONS PTY LTD (ACN 608 385 520) Thirteenth Respondent: M2 WHOLESALE PTY LTD (ABN 99 119 220 843) Fourteenth Respondent: M2 WHOLESALE SERVICES PTY LTD (ACN 071 659 348) Fifteenth Respondent: M2 COMMANDER PTY LTD (ACN 136 950 082) Sixteenth Respondent: PRIMUS NETWORK (AUSTRALIA) PTY LTD (ACN 109 142 216) Seventeenth Respondent: PRIMUS TELECOMMUNICATIONS PTY LTD (ACN 071 191 396) Eighteenth Respondent: PRIMUS TELECOMMUNICATIONS (AUSTRALIA) PTY LTD (ACN 061 754 943) Nineteenth Respondent: DODO SERVICES PTY LTD (ACN 158 289 331) Twentieth Respondent: ENGIN PTY LD (ACN 080 250 371) Twenty First Respondent EFTEL CORPORATE PTY LTD (ACN 154 634 054) Twenty Second Respondent EFTEL RETAIL PTY LTD (ACN 092 667 126) Twenty Third Respondent EFTEL WHOLESALE PTY LTD (ACN 123 409 058) Twenty Fourth Respondent WHOLESALE COMMUNICATIONS GROUP PTY LTD (ACN 109 626 011) Twenty Fifth Respondent VOCUS PTY LTD (ACN 127 842 853) Twenty Sixth Respondent AMNET BROADBAND PTY LTD (ACN 092 472 350) Twenty Seventh Respondent NEXTGEN NETWORKS PTY LTD (ACN 094 147 403) Twenty Eighth Respondent TPG INTERNET PTY LTD (ACN 068 383 737) Twenty Ninth Respondent TPG NETWORK PTY LTD (ACN 003 064 328) Thirtieth Respondent FTTB WHOLESALE PTY LTD (ACN 087 533 328) Thirty First Respondent CHARIOT PTY LTD (ACN 088 377 860) Thirty Second Respondent SOUL PATTINSON TELECOMMUNICATIONS PTY LIMITED (ACN 001 726 192) Thirty Third Respondent SPT TELECOMMUNICATIONS PTY LIMITED (ACN 099 173 770) Thirty Fourth Respondent SPTCOM PTY LIMITED (ACN 111 578 897) Thirty Fifth Respondent SOUL COMMUNICATIONS PTY LTD (ACN 085 089 970) Thirty Sixth Respondent PIPE NETWORKS PTY LIMITED (ACN 099 104 122) Thirty Seventh Respondent INTRAPOWER TERRESTRIAL PTY LTD (ACN 081 193 259) Thirty Eighth Respondent IINET LIMITED (ACN 068 628 937) Thirty Ninth Respondent INTERNODE PTY LTD (ABN 82 052 008 581) Fortieth Respondent TRANSACT CAPITAL COMMUNICATIONS PTY LTD (ACN 093 966 888) Forty First Respondent TRANSACT VICTORIA COMMUNICATIONS PTY LTD (ACN 063 024 475) Forty Second Respondent WESTNET PTY LTD (ACN 086 416 908) Forty Third Respondent ADAM INTERNET PTY LTD (ACN 055 495 853) Forty Fourth Respondent AAPT LIMITED (ACN 052 082 416) Forty Fifth Respondent REQUEST BROADBAND PTY LTD (ACN 091 530 586) Forty Sixth Respondent TPG TELECOM LIMITED (ACN 096 304 620) Forty Seventh Respondent VODAFONE NETWORK PTY LIMITED (ACN 081 918 461) Forty Eighth Respondent VODAFONE PTY LIMITED (ACN 062 954 554) Forty Ninth Respondent AUSSIE BROADBAND LIMITED (ACN 132 090 192)