There's one good reason why pirates are winning the race against rights holders, and I just spent several hours sitting through it this morning.
Foxtel was back in the Australian Federal Court in its bid to shut down more than 120 domains associated with pirated movies and TV. It's a case that's been running since May, and the third intellectual property case Foxtel has fought in the federal court in the last two years.
The Foxtel case centres on the company's attempts to shut down a number of sites -- including Cartoon HD, WatchSeries and Putlocker -- that it alleges have infringed its copyright by sharing episodes of the Foxtel original show "Wentworth."
But the case is also a prime example of why rights holders can win the legal battle but lose the war.
TL;DR? Court cases = long. Domain hopping = easy.
First up, it's taken ages to get this far
Rights holders lobbied for site-blocking laws for years, and even after they were passed in June 2015, it took another eight months for Foxtel to bring its first site-blocking case. It then took a further 10 months for a judge to agree to force ISPs to block Foxtel's list of sites. And even then, it wasn't totally effective.
Now, rights holders need to prove the piracy sites are based overseas
Rather than country codes like .com.au or .co.uk, a lot of these sites end in country codes like .ac (Ascension Island!) or .to (Tonga!) -- but according to Foxtel's legal team, those country codes are "not determinative of the location" of a site. To present the proof required by law, they need to do that digging.
Delay: Hours of research, by a team of well-paid tech contractors.
…Then they need to contact the pirates
Foxtel said it made "significant attempts" to notify the hosts of each pirate site on its site-blocking list. But these guys aren't traditionally the kind of people that keep well-publicised postal addresses or respond to emails from litigants.
Delay: three to five business days.
…Then the sites jump all over the internet.
One of Foxtel's expert witnesses spent time recording details of more than 120 domains to be blocked. But in between researching the list and then going back to record screenshots as evidence for court, one of the sites, PutLocker9.to, had already moved.
"When she originally viewed [the site], it appeared," said counsel for Foxtel. "But when she went back to record her evidence she wasn't able to get onto it again."
It's whack-a-mole all over again.
Delay: "Ah man, it was there yesterday!"
…Then there's the court action
Having sat through a number of these copyright cases in the federal court now, I can not only paint a vivid picture of the arctic air conditioning and uncomfortable chairs, but I can also tell you just how long the legal proceedings take.
In the Dallas Buyers Club case, when rights holders chased iiNet for details on individual pirates, we spent days listening to evidence about how torrents work. Today, it was a detailed description of how streaming works, what IMDb is, and why this torrent site is different to that one.
Understandably, a good barrister must lead the judge to their evidence and convince him or her of the finer points of the case. But sitting in court for several hours, I couldn't help but think I could have registered 10 new domains in that time.
Delay: one morning in court, two and a half hours of evidence, one rigid chair.
…Then there are the tech demos
Then the rights holders need to prove these sites have the "primary purpose" of infringing copyright. So how did Foxtel prove it? We were given a guided tour and shown the start of the most recent episode of "Game of Thrones" (which aired 24 hours before the hearing). I'm all for making a point, but dammit Foxtel -- no spoilers!
Delay: An hour-long demo and seven seasons worth of plot exposition.
…Now we play the waiting game
After months of legal action, we're still awaiting a judgement. And even if Justice Burley finds in favour of Foxtel (which he is likely to do, considering the points of law and little opposition from the ISPs) they may still have to come back to court to get more sites added to their block list.
It seems the only real way to speed this up is trial by combat, and considering Foxtel's exclusive local rights to "Game of Thrones" we know they'd be behind that.
Shotgun bringing The Mountain.
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