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Foxtel and Roadshow pull on site-blocking thread but find a tangled Web

Foxtel and Village Roadshow have started legal action to block piracy sites like The Pirate Bay. But with so many rights holders, Internet providers and IP addresses in the game, just how they'll do it is another question.

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Chris McElcheran/Corbis

In 2015, it was all about Dallas Buyers Club. Now, the legal fight against piracy is ramping up once more with two of Australia's biggest names in entertainment petitioning the Federal Court to block piracy websites.

Both Foxtel and Roadshow Films -- the movie distribution arm of Village Roadshow -- appeared before Justice John Nicholas in the Federal Court in Sydney today, in what was the first legal action under new website-blocking legislation passed by Parliament in June last year.

Between them, Foxtel and Roadshow are seeking court orders to force the likes of Telstra, Optus, TPG and iiNet to block some of the biggest websites in the torrenting game.

Just like the case between Dallas Buyers Club and iiNet, this new legal battle over copyright has the potential to change the way Australians use the Internet. The Federal Court has the power to order Australian ISPs to block overseas websites deemed to be facilitating the infringement of copyright, meaning Internet users could be met with a court-ordered landing page any time they try to go to a URL that has been blocked.

But while lawyers say discussions between the rights holders and ISPs have been "fruitful" so far, there is yet to be agreement on how the sites will be blocked. Indeed, lawyers have already admitted to a game of cat and mouse in trying to pin down the exact online locations of the sites in question and who runs them, and the proposition of DNS blocking has already been floated.

While the Dallas Buyers Club case pitted the makers of one film against one ISP (with a few sister ISPs also appearing) today's hearing saw a cadre of lawyers filing into the court room, all representing different players in the piracy debate.

The legal action involves two concurrent cases:

Roadshow Films v. Telstra

  • Website targeted:
    SolarMovie.
  • Other rights holders involved:
    Columbia Pictures, Disney, Paramount Pictures, Warner Bros. Entertainment
  • Other major ISPs mentioned as respondents:
    Optus, iiNet, Internode, Dodo, M2, Pacnet, Primus, TPG, Transact, Virgin Mobile.

Foxtel v. TPG

  • Websites targeted:
    The Pirate Bay, Torrentz, TorrentHound and isoHunt.
  • Other major ISPs mentioned as respondents:
    Telstra, Optus, iiNet, Pacnet, TPG, Virgin Mobile.

Leading the charge today and representing Roadshow was Richard Lancaster SC, who copyright enthusiasts will remember as the barrister for iiNet in last year's long-running case against Dallas Buyers Club.

Laying out this first-of-its-kind case, Lancaster said the rights holders would need to satisfy the court on the main points of the site-blocking laws. That is, that the websites are run overseas, and that their primary purpose is to facilitate the infringing of copyright. To that end, Lancaster said the rights holders would be able to present both lay and expert evidence as well as screenshots of the sites.

But there were early signs today that blocking 5 websites is not as simple as it sounds.

While Foxtel is going after 4 "bundles" of websites, including Pirate Bay, Lancaster conceded that these sites are accessible "by a number of different addresses." Foxtel has only been successful in contacting 43 of 61 domain names bundled into these sites, and counsel considered it "unlikely" anyone representing the sites would show up in court.

Similarly, counsel for TPG Chris Burgess said he'd already gone down the whack-a-mole path trying to find the first IP address on Foxtel's blocking wishlist.

"When I visited that IP address with my instructing solicitors, it's no longer associated with the Pirate Bay website," he said, adding that "IP addresses change very rapidly."

As a result, Mr Burgess advised that TPG would be "seeking" DNS blocking.

Typically, ISP website blocking is focused on blocking lists of IP addresses from being accessed. But the domain name to access a website can be moved to a different server, which gives it a different IP address (hence the game of whack-a-mole). IP addresses and domain names are tied together through the Domain Name System, or DNS. So now comes DNS blocking, where the ISP will have the power to block the actual domain name from being accessed -- you simply won't ever be able to connect to again to blocked-torrent-site.com.

When he introduced the laws to Parliament, then Communications Minister Malcolm Turnbull was at pains to assert that site blocking did not amount to an Internet filter. But with content owners winning the right to throw a proverbial sheet over certain websites at an ISP level, we may soon see certain websites being expurgated altogether from Australian Internet browsers.

The case continues.