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[2022] FCA 1468
Federal Court of Australia
2022-12-06
Nicholas J
Original judgment source is linked above.
THE COURT NOTES: In these orders, the following terms have the following meanings: (a) Aussie Broadband means the fifty-second Respondent. (b) Domain Name means a name formed by the rules and procedures of the Domain Name System (DNS) and includes subdomains. (c) 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 4. (d) IP Address means an Internet Protocol address. (e) Optus means the second to twelfth Respondents. (f) Target Online Locations means the online locations as referred to in Schedule A and that are or were accessible: (i) at the URLs listed in Schedule A to this Order (together, the Target URLs); (ii) at the IP Addresses listed in Schedule A to this Order (together, the Target IP Addresses); (iii) at the Domain Names listed in Schedule A to this Order (together, the Target Domain Names); and (iv) any other domain names, URLs and IP addresses that the Applicants notified to the Respondents pursuant to Order 12 (subject to the procedure set out in that Order). (g) New Target Online Locations means the locations referred to in Order 13. (h) New Target Online Location Orders refers to orders sought or made under Orders 13 or 15 hereof. (i) Telstra means the first Respondent. (j) TPG means the thirty-first to the forty-ninth Respondents. (k) URL means a Uniform Resource Locator. (l) Vocus means the thirteenth to twenty-third, twenty-fifth, twenty-seventh, and twenty-ninth to thirtieth Respondents. (m) Vodafone means the fiftieth to fifty-first Respondents.
NICHOLAS J: 1 Before the Court is an application for orders under s 115A of the Copyright Act 1968 (Cth) ("the Act") for site blocking and ancillary orders. The proceeding was commenced by an originating application and statement of claim. 2 The applicants are well-known producers and distributors of commercially released films and television programs. The respondents are carriage service providers. All except for the fifty-second respondent is a member of the Telstra, Optus, Vocus or TPG groups. The proceeding as against the twenty-fourth, twenty-sixth and twenty-eighth respondents has been discontinued. The thirteen to thirtieth respondents have not filed any submitting notice or notice of address for service. All other respondents filed submitting notices. None of the operators of the online locations which are the subject of the applicants' proposed orders applied to be joined or otherwise appeared in the proceeding. 3 The application is supported by affidavits made by the applicants' expert witness, Gregory Donald Fraser, and the applicants' solicitors, Andrew Gavin Stewart, Peter Carstairs, Jackson Moir and Tiffany Britchford. Among other things those affidavits recount the efforts made to bring to the attention of the operators of the online locations the existence of this proceeding and the site blocking orders sought by the applicants. 4 The evidence relied on by the applicants shows that each of the online locations is most likely situated overseas. The applicants also rely on the statutory presumption in s 115A(5A) of the Act. The evidence satisfies me that the primary service provided by each of the relevant online locations involves providing online access without charge to motion pictures and television programs. The vast majority of the online locations carry advertising. The motion pictures and television programs made available at the online locations include large numbers of well-known commercially released titles, the copyright in which is owned by one or more of the applicants or other copyright owners. The evidence satisfies me that the primary purpose and effect of each of the online locations is to infringe, or facilitate the infringement of, copyright in motion pictures and television programs. 5 Turning to the matters relevant to the discretion to make an order under s 115A, it is apparent from the evidence that the online locations facilitate copyright infringement on a large scale. Some act as proxy servers to other servers and some share Torrent files using the BitTorrent protocol (see Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503; (2016) 248 FCR 178) at [17]-[20]. The vast majority of the online locations provide access to directories, indexes and content descriptions which assist users in locating titles for streaming, download or sharing. 6 Many of the websites at the relevant online locations purport to provide a notification system enabling a copyright owner to give notice that its material is being made available online in breach of copyright. Many of the websites also include statements stating or implying that their activities do not infringe copyright. The notification systems do not appear to provide any genuine, reasonable or effective means for notifying operators of copyright infringement occurring at their online locations. 7 Most of the operators did not respond to communications from the applicants' solicitors and those that did respond do not appear to have taken any steps to cease making the applicants' motion pictures and television programs available online. Some of the responses received (of which there were only a few) came from persons or entities claiming to be the domain name registrar or hosting provider who said they lacked power to control content on the site. 8 The evidence satisfies me that the copyright infringement engaged in, or facilitated by, the relevant online locations is flagrant and that the operators display a disregard for the rights of copyright owners. 9 In my opinion this is an appropriate case for making the site blocking and ancillary orders sought by the applicants. 10 Orders accordingly. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas.
SCHEDULE OF PARTIES NSD 680 of 2022 Applicants Second Applicant VILLAGE ROADSHOW FILMS (BVI) LTD Third Applicant DISNEY ENTERPRISES, INC. 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 Respondents Second Respondent OPTUS MOBILE PTY LIMITED (ACN 054 365 696) Third Respondent OPTUS NETWORKS PTY LIMITED (ACN 008 570 330) 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 LTD (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 Fifth Respondent WHOLESALE COMMUNICATIONS GROUP PTY LTD (ACN 109 626 011) Twenty Seventh Respondent VOCUS PTY LTD (ACN 127 842 853) Twenty Ninth Respondent AMNET BROADBAND PTY LTD (ACN 092 472 350) Thirtieth Respondent NEXTGEN NETWORKS PTY LTD (ACN 094 147 403) Thirty First Respondent TPG INTERNET PTY LTD (ACN 068 383 737) Thirty Second Respondent TPG NETWORK PTY LTD (ACN 003 064 328) Thirty Third Respondent FTTB WHOLESALE PTY LTD (ACN 087 533 328) Thirty Fourth Respondent CHARIOT PTY LTD (ACN 088 377 860) Thirty Fifth Respondent SOUL PATTINSON TELECOMMUNICATIONS PTY LIMITED (ACN 001 726 192) Thirty Sixth Respondent SPT TELECOMMUNICATIONS PTY LIMITED (ACN 099 173 770) Thirty Seventh Respondent SPTCOM PTY LIMITED (ACN 111 578 897) Thirty Eighth Respondent SOUL COMMUNICATIONS PTY LTD (ACN 085 089 970) Thirty Ninth Respondent PIPE NETWORKS PTY LIMITED (ACN 099 104 122) Fortieth Respondent INTRAPOWER TERRESTRIAL PTY LTD (ACN 081 193 259) Forty First Respondent IINET LIMITED (ACN 068 628 937) Forty Second Respondent INTERNODE PTY LTD (ABN 82 052 008 581) Forty Third Respondent TRANSACT CAPITAL COMMUNICATIONS PTY LTD (ACN 093 966 888) Forty Fourth Respondent TRANSACT VICTORIA COMMUNICATIONS PTY LTD (ACN 063 024 475) Forty Fifth Respondent WESTNET PTY LTD (ACN 086 416 908) Forty Sixth Respondent ADAM INTERNET PTY LTD (ACN 055 495 853) Forty Seventh Respondent AAPT LIMITED (ACN 052 082 416) Forty Eighth Respondent REQUEST BROADBAND PTY LTD (ACN 091 530 586) Forty Ninth Respondent TPG TELECOM LIMITED (ACN 096 304 620) Fiftieth Respondent VODAFONE NETWORK PTY LIMITED (ACN 081 918 461) Fifty First Respondent VODAFONE PTY LIMITED (ACN 062 954 554) Fifty Second Respondent AUSSIE BROADBAND LIMITED (ACN 132 090 192)
Roadshow Films Pty Ltd
Telstra Corporation Limited
(2016) 248 FCR 178