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[2024] FCA 246
Federal Court of Australia
2024-03-15
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 forty-ninth 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 twenty-eighth to the forty-sixth Respondents. (k) URL means a Uniform Resource Locator. (l) Vocus means the thirteenth to twenty-seventh Respondents. (m) Vodafone means the forty-seventh and forty-eighth Respondents.
NICHOLAS J: 1 This is an application for orders under s 115A of the Copyright Act 1968 (Cth) ("the Act") for site blocking and ancillary orders in respect of what are defined in the applicants' proposed orders as Target Online Locations. The proceeding was commenced by an originating application and statement of claim filed on 9 November 2023. Amended versions of these documents were filed on 5 March 2024. The application is supported by affidavits made by Andrew Stewart and Vaughan Marega from Baker & McKenzie (the applicants' solicitors) and Jackson Moir who was previously employed by that firm. 2 The applicants are producers and distributors of commercially released motion pictures and television programs. The respondents are carriage service providers. All except for the forty-ninth respondent ("Aussie Broadband") is a member of the Telstra, Optus, TPG, Vodafone, or Vocus groups. The Telstra, Optus, TPG, Vodafone and Aussie Broadband respondents have filed submitting appearances. The Vocus respondents have not appeared or sought to be heard. 3 There are thirty-three Target Online Locations most of which are accessible via a number of domain names, URLs and IP addresses. These are identified in the proposed orders as Target Domain Names, Target URLs and Target IP Addresses respectively. For example, the first of the Target Online Locations (guazitv) is, or at least was, accessible via three Target Domain Names (guazitv9.com, guazitv.tv and gztv.tv), three corresponding Target URLs (eg. https://guazitv9.com) and seven different Target IP Addresses. 4 The evidence describes the efforts made by the solicitors for the applicants to bring to the attention of the operators of the Target Online Locations the existence of this proceeding and the site blocking orders sought by their clients. I am satisfied that the operators of the Target Online Locations have been duly notified of this proceeding and the orders sought by the applicants or, to the extent they have not been so notified, that reasonable efforts to notify them have been made. None of the operators of the Target Online Locations the subject of the applicants' proposed orders applied to be joined or otherwise appeared in the proceeding. 5 Evidence relied on by the applicants shows that each of the Target Online Locations is most likely situated overseas. In addition to that evidence, the applicants rely on the statutory presumption in s 115A(5A) of the Act. Mr Moir and Mr Marega have between them visited all of the Target Online Locations and noted which of the relevant motion pictures or television programs (copyright in which is owned by the applicants) were available at that location or, in the case of proxy locations, at some of the third-party sites to which the proxy location directed them. For each such location, they then navigated to a link to at least one of those films and then, depending on the type of online location, streamed or downloaded the film in question. In each case they watched certain parts of the film and confirmed that it was a true copy of the film. They also observed that each of the Target Online Locations provide access to directories, indexes and content descriptions which assist users in locating titles for streaming, downloading or sharing. 6 When Mr Moir and Mr Marega visited each of the Target Online Locations, they also observed that the primary service offered by those locations was to provide online access without charge to large numbers of motion pictures and television programs. The motion pictures and television programs made available at the Target Online Locations include many well-known commercially released titles. They further observed that the majority of the Target Online Locations carried out advertising. 7 Many of the Target 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. However, most of the operators did not respond to communications from the applicants' solicitors or take any steps to cease making the applicants' motion pictures and television programs available online. Some of the responses received came from persons or entities claiming to be the domain name registrar or hosting provider. In almost every case the notification system does not appear to provide any genuine or effective means for notifying the operators of the Target Online Locations of copyright infringement occurring at their online location or to facilitate genuine or effective remedial action in relation to any such infringement by the operator. 8 In one case, the applicants' solicitors' notification appears to have had the desired effect. Earlier this year, Mr Marega ascertained that what was previously the thirty-fourth Target Online Location (dramacool accessible via dramacool.sr and dramacool.ge) no longer made available any of the films on which the applicants rely and, consequently, relief is now not sought with respect to that Target Online Location. 9 The applicants also received a response to a notice sent to the domain registries for the domain names "guazitv9.com" and "gogoanime.mom". The response said the domain registrar had suspended those domain names, "thereby rendering all services availed by the domain names inoperative". When Mr Marega again attempted to navigate to those domain names, he found that they no longer provided access to the Target Online Location via the Target Domain Names "guaziTV" and "gogoanime". However, it remained accessible via the domain name gztv.tv and, in those circumstances, the applicants maintain the claim for relief in respect of that Target Online Location. There are a number of other Target Online Locations that appear to have changed the domain names from which they can be accessed. The changes appear to be aimed at circumventing the site blocking orders sought by the applicants and do not appear to me to involve any genuine attempt at eliminating or curtaining copyright infringement at the Target Online Locations concerned. 10 I am satisfied that each of the Target Online Locations infringes the applicants' copyright in one or more of the relevant motion pictures or television programs. I am also satisfied that the primary purpose or effect of each of the Target Online Locations is to infringe, or to facilitate the infringement of, copyright. The evidence satisfies me that the copyright infringement engaged in, or facilitated by, the Target Online Locations is flagrant and that the operators display a blatant disregard for the rights of copyright owners. In my opinion this is an appropriate case for making the site blocking and ancillary orders sought by the applicants. 11 Orders accordingly. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas.
SCHEDULE OF PARTIES NSD 1323 of 2023 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 Ninth Applicant: Netflix Worldwide Entertainment, 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-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)
Roadshow Films Pty Ltd
Telstra Limited