Roadshow
Films Pty Limited v Telstra Corporation Limited [2020] FCA 507
FEDERAL COURT OF
AUSTRALIA
BURLEY
J
BURLEY J:
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1........................................................................................... INTRODUCTION
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[1] |
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1.1......................................................................................... The
Parties
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[3] |
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1.2..................................................................................... The
Evidence
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[5] |
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1.3............................................ Proof
of Standing to Sue and Service
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[18] |
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1.4....................................... Overview
of the Target Online Locations
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[27] |
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2..................................................... THE
MPA/ROADSHOW APPLICATION
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[38] |
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3............................................................................. THE
TVB APPLICATION
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[57] |
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4................................................................... THE
MADMAN APPLICATION
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[61] |
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5..................................................................................... FORM
OF ORDERS
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[71] |
1 This is a site blocking case. The
applicants rely on s 115A of the Copyright
Act 1968 (Cth) to obtain orders
requiring the respondents, who are carriage service providers, to disable
access to 86 different target online
locations that are situated outside Australia. The applicants contend that
each of the target online locations infringes or facilitates the infringement
of the applicants’ copyright in certain cinematograph films and literary works.
For the reasons set out below, I am satisfied that it is appropriate to grant
relief under the section.
2 The orders that I propose to make
are in a slightly different form to those made in previous s 115A applications.
They provide a new process by which the applicants can bring within the scope
of existing orders new URLs, domain names and IP Addresses that provide access
to target online locations which are the subject of existing orders. The Court
has the power to enable this process pursuant to subsection 115A(2B), which was
introduced by the Copyright Amendment
(Online Infringement) Act 2018 (Cth). The proposed order is set out in
Order 12 in Annexure A to these reasons. Having regard to the novelty of this
form of order, I will allow the parties 14 days within which to file
submissions addressing that form, which differs from the form proposed in the
amended originating application.
3 The applicants fall into three
groups. The first to eighth applicants are each engaged in the creation,
distribution, licensing and/or marketing of theatrical motion pictures,
television programming, DVDs, digital downloads and related products throughout
the world. They are conveniently grouped together and referred to as the MPA/Roadshow applicants and each claims
to be either an owner or exclusive licensee of such popular cinematograph films
as The Lego Movie, Toy Story, Transformers: Age of Extinction, Spider-Man 2,
Despicable Me 3, Dunkirk and Stranger Things (season one episode eight). The
ninth and tenth applicants create, distribute, license and market Chinese
television programs throughout the world including Dead Wrong (episode one) and
Provocateur (episode one) and are referred to as the TVB applicants. The eleventh applicant, which I refer to below as Madman, distributes, licenses and
markets in Australia the cinematograph film Tokyo Ghoul (episode one).
4 There are 50 named respondents, but
they can conveniently be collected into five groups, representing their
corporate grouping, being Telstra
(the first to third respondents), Optus
(fourth to 11th respondents), Vocus
(12th to 29th respondents), TPG (30th to 47th respondents) and Vodafone (48th to 50th
respondents). The Telstra, Optus and Vodafone respondents filed submitting
appearances. The Vocus and TPG respondents did not. The evidence indicates that
each individual respondent was served personally.
5 In order to satisfy the evidentiary
requirements of s 115A, the applicants rely on the affidavit evidence of the
following witnesses. Their evidence is uncontested.
6 Akiko
Fukushi is the Team Lead of the International Distribution and Licensing
Team of Pierrot Co., Ltd. Ms Fukushi gives evidence in relation to the
ownership of copyright in the cinematograph film Tokyo Ghoul (episode one) and
licensing arrangements between Pierrot Co., Ltd and Madman.
7 Andrew
Gavin Stewart is a solicitor at Baker McKenzie, and the solicitor on the
record for the applicants in these proceedings. He gives evidence concerning:
the ownership of copyright and licensing arrangements in relation to the
applicants’ cinematograph films, scripts and subtitles; the respondents’ status
as carriage service providers; orders made by courts in other jurisdictions
which have had the effect of requiring access to a number of the target online
locations in issue in these proceedings to be disabled; correspondence with the
legal representatives of the respondents in relation to proposed amendments to
the originating application; and the purpose and effect of those proposed
amendments.
8 Anthony
Pasquale Guerrieri is a paralegal employed by Baker McKenzie, and gives
evidence of service on the respondents of notices to admit, as well as the
amended concise statement and amended originating application.
9 Belinda
Katherine Goh is a graduate-at-law employed by Baker McKenzie. She gives
evidence in relation to WhoIs look up searches she conducted in respect of the
domain names and IP Addresses of the MPA/Roadshow and TVB applicants’ target
online locations.
10 Gregory
Donald Fraser is the Content Protection Investigations Manager of Australia
and New Zealand for the Motion Picture Association, which represents the
interests of the third to eighth applicants in these proceedings. He has
extensive experience as an investigator specialising in the investigation of
piracy conducted on the internet. Mr Fraser gives evidence in relation to the
steps taken to identify the IP Addresses associated with the MPA/Roadshow
target online locations, the primary purpose of the MPA target online
locations, and identifying means of contacting the owners or operators of the
MPA/Roadshow target online locations.
11 Joel
Robert Vagnoni is the Business and Legal Affairs Executive for the Madman
group, of which the eleventh applicant is a related company. He gives evidence
in relation to Madman’s rights in respect of the cinematograph film Tokyo Ghoul
(episode one), as well as the primary purpose of the Madman target online
locations. Mr Vagnoni also gives evidence in relation to Madman’s licensing
rights in respect of cinematograph films such as Shonen Maid (series one,
episode one), K-On (series two, episode one), Fate/Zero (season one, episode
one) and Death Note (season one, episode one).
12 Kong
Wo Tang is accredited by the National Accreditation Authority for
Translators and Interpreters as a Cantonese interpreter and Chinese translator.
He provides English translations of Copyright Certificates issued by the Hong
Kong Motion Picture Industry Association Ltd. Those Copyright Certificates
certify the TVB applicants’ ownership of the cinematograph films House of
Spirits, Come Home Love: Lo and Behold, and May Fortune Smile On You.
13 Nicholas
Vincent Kraegen is a solicitor in the employ of Baker McKenzie. He gives
evidence in relation to the service of documents on the respondents. He also gives
evidence in relation to the Madman application, and specifically: identifying
the means of contacting the owners or operators of the Madman target online
locations; and correspondence he exchanged with a person who purported to be
the operator of the target online location ‘animelon’.
14 Sarah
Lee is a solicitor in the employ of Baker McKenzie. She gives evidence
about: the investigations she conducted to identify the registration details
for the target online locations; attempts made by the applicants to notify the
owners or operators of the target online locations of these proceedings; and
the functionality of and content made available at three of the Madman target
online locations.
15 Simon
Thomas Phillipson is a Director of the first applicant, and the General
Counsel of Village Roadshow Ltd, which controls or owns interests in the first
and second applicants. He gives evidence about the ownership and licensing of
the cinematograph film The Lego Movie in Australia.
16 Wu
Kam Ming is the Senior Executive Engineer at TVB. His role at TVB involves
work on anti-piracy litigation in jurisdictions such as Australia, the United
States and China. He gives evidence about his review of the TVB target online
locations, including: the primary purpose of those target online locations; the
functionality of those target online locations; the availability of the TVB
applicants’ films at those target online locations; and any contact details for
the owners or operators available on the websites for the TVB target online
locations. He also gives evidence in relation to the steps he took to identify
the IP Addresses of the TVB target online locations.
17 Xiaoguo
Weng is the Manager, Sales and Customer Service Department at TV Media
Australia Pty Ltd, which is TVB’s agent for its activities in Australia. He
gives evidence of the logistical support he provided to enable Mr Wu to conduct
his investigations.
18 As I have noted, section 115A was
amended by the Copyright Amendment
(Online Infringement) Act 2018 (Cth), which took effect on 11 December
2018. References to section 115A in these reasons are to the amended form of
that section. Subsections (1), (3) and (4) now read as follows:
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).
[…]
Parties
(3) The
parties to an action under subsection (1) are:
(a) the owner of the copyright; and
(b) the carriage service provider; and
(ba) if the application under subsection (1) also
sought for the injunction to apply against an online search engine provider—the
online search engine provider; and
(c) the person who operates the online location
if, but only if, that person makes an application to be joined as a party to the
proceedings.
Service
(4) The
owner of the copyright must notify:
(a) the
carriage service provider; and
(aa) if the application under subsection (1)
also sought for the injunction to apply against an online search engine
provider—the online search engine provider; and
(b) the person who operates the online
location;
of the making of an application under
subsection (1), but the Court may dispense, on such terms as it sees fit,
with the notice required to be sent under paragraph (b) if the Court is
satisfied that the owner of the 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.
19 Under ss 115A(1) and (3)(a) of the Act
it is “the owner of the copyright” who has standing to bring an application
under the section. In the case of the MPA/Roadshow and the TVB applicants, the
evidence indicates that both owners and, in some cases exclusive licensees of
the works in question are joined. There is accordingly no doubt about their
standing to bring the proceedings.
20 Madman, however, is the exclusive
licensee of Tokyo Ghoul (episode one) but not an owner, and no owner has been
joined. It seeks leave pursuant to s 120 of the Act to proceed without the
joinder of the owner. For the reasons set out in Universal Music Australia Pty Ltd v TPG Internet Pty
Ltd [2017] FCA 435; 348 ALR 493; 126 IPR 219 at [46] – [51] it is in my view appropriate to grant that leave. I
might observe at this point that none of the respondents have put in issue the
subsistence of copyright in any of the works involved in the present
application. Furthermore, the effect of s 126 of the Act is that copyright is
presumed to subsist in all of them: Universal
at [55].
21 The applicants contend that each
respondent is a “carriage service provider” within s 115A(1) and (3)(b), which
is in substance a person who provides a telecommunications service over a
network at least part of which is in Australia: Australasian Performing Right Association Ltd v Telstra Corporation
Limited[2019] FCA 751; 369 ALR 529 at [13]. I am satisfied that this is so.
First, because each has impliedly admitted the fact after being served with,
but failing to respond to a notice to admit that fact: r 22.04 of the Federal Court Rules 2011 (Cth). Secondly, because none of the respondents has
put into issue the fact, which is set out in the concise statement served on
them: r 16.07(2) of the Rules. Thirdly, because they are (unsurprisingly) the
same respondents as in numerous other site blocking proceedings where the Court
has found them to be carriage service providers: see, for example, Roadshow Films Pty Limited v Telstra
Corporation Limited [2019] FCA 885; 144 IPR 1 and Foxtel Management Pty
Limited v TPG Internet Pty Ltd [2019] FCA 1450; 148 IPR 432.
22 There are 86 target online locations
identified in the amended originating application. These are listed in the
Schedule to Annexure A of these reasons. Each target online location is
accessible by a Uniform Resource Locator (URL),
a domain name, and an Internet
Protocol address (IP Address). Those
terms were explained by Nicholas J in Roadshow
Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503; 248 FCR 178 (Roadshow No. 1) at [10], [11] and [9],
respectively.
23 By way of illustration, the first
target online location listed in the amended originating application is
described as “mrunlock”, which may be thought of as the name or title of the
website. When navigating to the “mrunlock” website, a user may be taken to:
(1) The URL “https://mrunlock.space/”, which
has the domain name “mrunlock.space”, and the IP Addresses 104.28.31.129 and
104.28.30.129; or
(2) The URL “https://mrunlock.red/”, which has
the domain name “mrunlock.red” and the IP Addresses 104.31.79.99 and
104.31.78.99.
24 The affidavit evidence describes in
some detail the attempts that were made on the part of the applicants to
contact the persons responsible for the operation of each target online
location. These involved:
(1) Messrs Fraser, Wu and Kraegen viewing the
websites available at the URLs for each of the target online locations to
identify any contact details provided, or any electronic forms which could be
completed in order to contact the owners or operators of each website;
(2) Ms Lee, and Messrs Fraser and Wu,
conducting Domain Name System queries to identify the correct IP Addresses for
the domain names of the target online locations;
(3) Ms Lee and Ms Goh conducting WhoIs look up searches
to identify the owners of the domain names and IP Addresses of the target
online locations;
(4) Ms Lee emailing a notice describing the
nature of these proceedings, attaching the originating application and concise
statement, to the email addresses identified through steps (1) and/or (3)
above;
(5) Ms Lee posting a notice describing the
nature of these proceedings, enclosing the originating application and concise
statement, to the postal addresses identified through steps (1) and/or (3)
above; and
(6) Ms Lee completing any electronic contact
forms provided by the target online locations, identified through step (1)
above, using a message which described the nature of these proceedings and
explained where the owner and/or operator of that website could obtain further
information about these proceedings.
25 With the exception of one, the
operator of the animelon website, to which I refer in more detail in section 4
below, no substantive response was received from any of the operators. None of the
operators of the relevant websites or target online locations applied to be
joined as a party to the proceedings and none sought to appear at the hearing
or made an application to be joined as a party. I am satisfied on the basis of
the evidence adduced that the applicants have made reasonable efforts to
determine the identity of, and to contact in order to provide relevant notice
of these proceedings to, the persons who operate the relevant websites: s
115A(4)(b) of the Act. To the extent that it is necessary to do so, I am
satisfied that it is appropriate to dispense with the notice requirement in s
115A(4) of the Act insofar as any such notice has not already been given.
26 On 13 February 2020 the applicants
filed an amended originating application and concise statement, which they
served on the respondents. The amendments removed one target online location
and otherwise adjusted the details of target URLs, target domain names and
target IP Addresses. They also changed the form of Order 12, which I deal with
further in section 5 below. In Schedule A to the amended originating
application, and in Schedule 2 to the amended concise statement, the applicants
added or corrected the URLs, domain names and/or IP Addresses for several of
the target online locations.
27 The evidence shows that the applicants
took steps similar to those outlined in [22] above to contact and notify the
owners and/or operators of those added or corrected URLs, domain names and IP
Addresses of these proceedings. Again, no substantive response was received. In
my view it is appropriate to permit the applicant to proceed on the basis of
the amended documents, notwithstanding that the owners and/or operators of the
domain names, URLs and IP Addresses listed in the originating application were
not served with the amended originating application.
1.4 Overview of the Target
Online Locations
28 The applicants categorise each of the
target online locations as falling into one of seven classes, as defined in Mr
Fraser’s first affidavit and described below.
29 First, linking target online locations are websites that provide a means
for users to locate third-party sources which allow content to be downloaded or
streamed. Upon navigating to a linking target online location website, a user is
often presented with the option to select featured content such as “New TV
Shows” or “Popular Movies”, or to search a catalogue or index for a particular
title. Once the user has clicked on the desired title, the user is presented
with a list of hyperlinks. Upon selecting a hyperlink, the user is re-directed
to a third-party website and is able to download or stream the chosen film or
television show.
30 Second, streaming target online locations are websites which allow a user
to stream content hosted on that website. As with the linking target online
locations, streaming target online locations often display featured content and
provide the user with the option to search a catalogue or index for a
particular title. Unlike the linking target online locations, however, the
streaming target online locations allow the user to view the material on that
same streaming target online location website without being re-directed to a
third-party website.
31 Third, torrenting target online locations are websites which allow a group
of users with the same networking program to connect with one or more other
users and directly access and download files from each others’ hard drives,
without connecting through a central server. To view content obtained through a
torrenting target online location, the user must first install software which
will enable the user to connect to other users and download the selected file.
As with the linking target online locations and streaming target online
locations, torrenting target online locations often display featured content
and provide the user with the option to search for a particular title in the
website’s catalogue or index. Upon selecting the desired title, the user
chooses to download a file called a torrent file or a magnet link. Once
downloaded, the file is opened using the torrenting software and the user is
able to view the film or television content.
32 Fourth, downloading target online locations are websites which make files
containing content available for download directly to a user’s hard drive,
without the need for the user to have installed software such as torrenting
software. Again, as with the linking, streaming and torrenting target online
locations, at a downloading online location users are typically presented with
featured content and the option to search for a particular title in the
website’s catalogue or index. The user then selects the title they wish to
view, and causes a file containing that film to be downloaded.
33 Fifth, subtitle target online locations are websites from which a user can
download a file, typically in SubRip Text (SRT)
format, which contains the subtitles to a cinematograph film. The two subtitle
target online location websites in issue in these proceedings present the user
with some featured content, such as “Most downloaded subtitles” or “Latest
subtitles”. The user also has the option to search the website’s catalogue or
index for a specific title. The user selects the title they wish to view, and
causes the SRT file to be downloaded. Once downloaded, the SRT files may be
opened or used in two ways. First, the user can view the text of the subtitles
with a text editor program. Second, the user can embed the file into a matching
video source, enabling the subtitles to be synchronised with the playback of
the cinematograph film. This is accomplished by the user opening the relevant
cinematograph film file through a computer program, such as VLC Player, and
either clicking and dragging the SRT file into the VLC Player, or by navigating
through the appropriate fields under user “preferences” to open the SRT file
from within the VLC Player.
34 The applicants advance a claim of
copyright in the subtitles as a literary work, separate to their claim of
copyright in the cinematograph film to which the subtitles are applied. A
person who does, or who authorises the doing of, any act comprised in the
copyright in a literary work without the licence of the copyright owner,
infringes copyright: s 36(1) of the Act. Section 14 of the Act provides that
references to the doing of an act in relation to a work “shall be read as
including a reference to the doing of that act in relation to a substantial
part of the work”. Mr Fraser exhibits to his first affidavit a table comparing
the applicants’ authorised subtitles to the subtitles made available through
the SRT files which he downloaded from the subtitle target online locations.
The discrepancies between the authorised subtitles and the SRT files are minor:
for example, in the authorised subtitles for Shameless (season four, episode
12) the authorised subtitles read “Two dollars”, while the SRT file subtitles
read “$2”. I am satisfied that the SRT files communicate to the public a
substantial part of the applicants’ literary works, and that such acts of
communication to the public are an infringement of copyright as they are done
without the consent or licence of the copyright owner.
35 Sixth, proxy target online locations are websites which do not themselves
provide links to content or offer users categories of content such as “New
Releases”. Rather, proxy target online locations provide links to third party
streaming, torrenting or downloading online locations. Typically, those third
party streaming, torrenting or downloading online locations are either
difficult to find, or operate under the same or a similar name to online
locations that have been the subject of injunctions ordered by this Court in
other proceedings. The links provided by the proxy target online locations
usually either redirect the user to webpages located at a different domain
name, or to webpages which are hosted as a subdomain of the proxy target online
location. Only after being redirected to the third party website or subdomain
is the user presented with categories such as “New Releases” or offered the
option to search a catalogue or index for particular content.
36 For example, the proxy target online
location “unblocked.to” provides a navigation bar from which a user can select
categories such as “Torrent Proxies”, “Streaming Proxies” and “Direct Download
proxies”. If the user selects “Torrent Proxies”, they are taken to a screen
which lists a number of third party websites, including The Pirate Bay, access
to which was blocked pursuant to orders made in Roadshow No. 1. If the user selects the link to The Pirate Bay
offered by the “unblocked.to” target online location, they are redirected to a
webpage at the subdomain “thepb.unblocked.to”, which displays what appears to
be the branding and homepage or landing page for the online location The Pirate
Bay, and allows the user to search for and download torrent files as if they
are using The Pirate Bay. Similarly, if the user selects “Streaming Proxies”
from the navigation bar, they are taken to a webpage which lists a number of third
party websites, including PrimeWire, access to which was blocked pursuant to
orders made in Roadshow Films Pty Ltd v
Telstra Corporation Limited [2017] FCA 965. By selecting PrimeWire, the user
is redirected to the subdomain “primewire.unblocked.to”, which uses the
PrimeWire branding and enables the user to search for and stream films as if
they are using PrimeWire.
37 Seventh, the Popcorn Time target online location is a website which does not
enable users to download, stream or torrent movies or television shows; rather,
it allows users to download a piece of software known as “Popcorn Time”,
through which software users can stream movies or television shows. Upon
visiting the Popcorn Time website, the user is prompted to click on a link to
download a version of the software which is compatible with their device’s
operating system, such as Windows or iOS. Once the software file has been
downloaded, the user can click on the file and cause the software to be
installed on their device. Once installed, the software can be opened and run.
At that stage, the user is presented with a selection of films and television
programs available to be viewed. The user can either select a film, or search for
a particular title. Once the user has selected a film to view, the film is
streamed and played within the Popcorn Time software window. The operation of
the Popcorn Time target online location is explained further at paragraph [52]
below.
38 It is convenient to consider the
applications brought in respect of the MPA/Roadshow, TVB and Madman claims
separately.
39 There are 70 target online locations
relevant to the MPA/Roadshow application. The MPA/Roadshow applicants assert
that each of those target online locations fall into one of the seven classes
described in section 1.4 above. Those target online locations are addressed in
the first affidavit of Mr Fraser. Exhibited to Mr Fraser’s affidavit are a
number of video recordings he made while viewing the content made available by
the target online locations. The evidence so provided enables the findings set
out in this section to be made.
40 By using the domain names associated
with each of the linking, streaming, torrenting and downloading
target online locations which the MPA/Roadshow applicants seek to have blocked,
one is able to stream, torrent or download copies of the MPA/Roadshow
applicants’ cinematograph films, or is redirected to a third party website from
which the MPA/Roadshow applicants’ cinematograph films can be streamed,
torrented or downloaded.
41 By using the domain names associated
with the proxy target online locations
one is redirected to a sub-domain of the proxy target online location or third party
website from which one can successfully stream, torrent or download copies of
the MPA/Roadshow applicants’ cinematograph films.
42 By using the domain names associated
with the subtitle target online
locations one can successfully download an unauthorised SRT file containing
English subtitles for the MPA/Roadshow applicants’ cinematograph films, and
then either view the text of the subtitles through a text editor program, or
embed and synchronise the subtitles so that they play together with the film.
43 By using the domain name associated
with the Popcorn Time target online
location, one can successfully download the Popcorn Time software and use
that software to stream a copy of the MPA/Roadshow applicants’ cinematograph
films.
44 Section 115A(1)(a) requires that the
target online locations infringe, or facilitate the infringement of, their
copyright. Section 115A(1)(b) further requires that the target online locations
have the primary purpose or primary effect of infringing, or facilitating an infringement
of, copyright. In Roadshow No. 1 Nicholas
J observed:
[47] An online location may both infringe and
facilitate the infringement of copyright by making an electronic copy of a work
or other subject matter available online for transmission to users. But it may
also facilitate the infringement of copyright merely by making it easier for
users to ascertain the existence or whereabouts of other online locations that
themselves infringe or facilitate the infringement of copyright.
45 I am satisfied, having regard to the
content made available at the target online locations, that each either makes
copyright works available online for transmission to users, or facilitates the
infringement of copyright by making it easier for users to ascertain the existence
or whereabouts of other online locations that themselves infringe or facilitate
the infringement of copyright within section 115A(1)(a). I am also satisfied
that the primary purpose or primary effect of the target online locations is to
infringe, or facilitate the infringement of, copyright: s 115A(1)(b).
46 Section 115A(5) lists the matters
which the Court may take into account in determining whether to grant an
injunction as follows:
(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.
47 I am satisfied that it is appropriate
to grant an injunction under s 115A having regard to the factors set out in s
115A(5). In this regard the following examples provided in the evidence of Mr
Fraser are illustrative of the matters that I have taken into account in
reaching this conclusion. Each site systematically promotes the viewing of
copyright works by offering extensive indices of content. Many have been the
subject of site blocking orders in other jurisdictions. I consider these sites
to engage in the flagrant facilitation of copyright infringement in disregard
of the rights of copyright owners. I consider the granting of the site blocking
orders to be a proportionate response to the conduct of the target online
locations.
48 The linking target online location
“heroturko” displays on its home page recent and well-known films including
Exit 0, Little Women and 1917. The website offers users the option to “select a
category” such as “Movies”, “Games”, “Software” and “Music”. Users can also use
a search bar at the top of the page to search for a particular title, and a
variety of films other than the MPA/Roadshow applicants’ films are made
available to users. On 14 November 2014 the United Kingdom High Court of
Justice ordered that access to “the website that is currently known as the
Heroturko website and that is currently accessible at www.heroturko.me” be
blocked.
49 The home page of
the streaming target online location
“movieon21” displays “New releases (2020)” as featured content, alongside
several advertisements. Users can search for their desired title using the
search bar, or can select from categories such as “Action”, “Crime”,
“Thriller”, “Release Year” and “Quality”. The homepage also lists the number of
18+, Action, Adventure and Animation titles available through the website. By
clicking on the “Fantasy” category, the user is presented with 16 pages of
results, and each of those pages displays 35 titles: a total of approximately
560 fantasy titles. In addition to making available films belonging to the
MPA/Roadshow applicants, the website makes available films belonging to other
copyright owners who are not party to these proceedings. In the navigation bar
at the top of the page there is a link to “DMCA”, and the page that the user is
directed to upon clicking that link claims that movieon21 indexes and embeds
links to third party sites, and states “it is not our responsibility for the
accuracy, compliance, copyright, legality and decency [sic]. If you have any
legal issues please contact the appropriate media file owners or host sites”.
50 The torrenting target online location “prostylex” displays
advertisements above a rotating banner of “Recommended Torrents”, and a list of
“Movies Torrents” which includes recent films such as Little Women, The
Invisible Man and 1917. Below that is a list of “TV Shows Torrents”, “Music
Torrents” and various other categories of content. Users can also elect to
“Browse Torrents”, “Upload Torrent” or “Search Torrents”. Users can also
torrent films belonging to copyright owners who are not party to these
proceedings. The site also includes links to “Site Friends” including ETTV, which
is an online location that has been blocked pursuant to orders made in Foxtel Management Pty Ltd v TPG Internet Pty
Ltd [2018] FCA 933.
51 “downloadha” is a downloading target online location which is almost exclusively
written in Persian. There are several advertisements displayed at the top of
the webpage in Persian, and links in the site map provide information about
placing advertisements on the website. Despite the primary language of the
website being Persian, the user can successfully search, in English, for the
MPA/Roadshow applicants’ cinematograph film The Lego Movie and download that
title in the original English, or dubbed in Persian. The user can also choose
to view titles in categories including “Software”, “Mobile”, “Play” and
“Multimedia”. Cinematograph films belonging to copyright owners who are not
party to these proceedings are also made available. At the footer of the page
there is a statement in Persian that “all downloads are copyrighted”.
52 The two subtitle target online locations the subject of the MPA/Roadshow
application both display indexes or categories of content: the “tvsubtitles”
target online location lists categories including “TV Shows”, “New”, and “Top”;
“msubs” provides categories such as “List Movies”, “Most Popular” and “New
subtitles”. Users of both target online locations are able to search for
subtitles for a desired television show or film, and both websites claim that
“Subtitles are available in multiple languages”. For example, users can
download subtitles for Shameless (season four, episode 12) from “tvsubtitles”
in five different languages. Both subtitle target online locations also make
available subtitles to popular or well-known films and television shows other
than the MPA/Roadshow applicants’ cinematograph films.
53 The proxy target online location “proxybit” provides links to third
party online locations including: torrenting online locations such as Kickass
Torrents, access to which was blocked pursuant to orders made in Universal; streaming online locations
such as ProjectFreeTV, access to which was blocked pursuant to orders made in Foxtel Management Pty Limited v TPG Internet
Pty Ltd [2017] FCA 1041; 349 ALR 154; 126 IPR 579; and downloading online
locations such as AllYouLike, access to which was blocked pursuant to orders
made in Roadshow Films Pty Limited v
Telstra Corporation Limited [2019] FCA 1328. From those third party
websites, users can torrent, stream or download the MPA/Roadshow applicants’
cinematographic films and content which belongs to or is licenced by entities
who are not party to these proceedings. The “proxybit” website displays
statements to the effect that: the purpose of the site is to bypass “internet
censorship”; that proxybit does not host any of the content; and that copyright
infringement notices should be sent to the “original” website owners. The
proxybit website displays advertising for a Virtual Private Network (VPN) at a
discounted rate, though it does not display any other advertising.
54 Like the proxy
target online locations, the Popcorn
Time target online location does not itself provide users with the ability
to stream, download or torrent the MPA/Roadshow applicants’ cinematograph
films. Nor does it provide links to third party website, or act as a proxy for
an online location which has previously been blocked pursuant to orders made by
this Court. Rather, the Popcorn Time target online location allows users to
download a piece of software called “Popcorn Time”. Once downloaded and
installed, the user is able to stream the MPA/Roadshow applicants’
cinematographic films, as well as films and television shows belonging entities
who are not party to this application, within the Popcorn Time software. That
is, once the Popcorn Time software has been downloaded, there is no need for a
user to revisit the Popcorn Time target online location. The terms of service
available at the Popcorn Time target online location state, among other things:
that Popcorn Time disclaims all warranties including warranties as to
“non-infringement, or other violation of rights”; that the content available
through Popcorn Time is not hosted by Popcorn Time, but rather is “pulled in
from the yify movie database”; that “by watching a movie with this application
you might be commiting [sic] copyright violations depending on your country’s
laws. We do not take any responsabilities [sic]”. Within the software, the user
is presented with a screen displaying a large number of movies, including
recent titles such as Frozen II, Parasite and Joker. Additional titles load
every time the user reaches the bottom of the screen. The user can select an
icon in the top left of the screen in order to view a similar display of
television shows. There is also a small bar on the left side of the screen
which, when hovered over, reveals categories which a user can select such as
“Action”, “Comedy”, “Romance” and “War”. Users can also sort the displayed
titles by popularity, date added, year or title. The search bar in the top
right of the software window can be used to search for a specific title.
55 In his first affidavit, Mr Stewart
lists the target online locations which have been the subject of site blocking
injunctions in other jurisdictions. Twenty-three of the MPA/Roadshow target
online locations have been the subject of such injunctions.
56 The MPA/Roadshow applicants submit,
and I accept, that there is no evidence or indication that there will be any
impact on any persons likely to be affected if an injunction is granted in
respect of any of the MPA/Roadshow target online locations, except to the
extent that users will not be able to access material which infringes copyright
and the operators of the target online locations will be deprived of visits
from Australian users.
57 Accordingly, in my view it is appropriate
to grant injunctive relief in relation to MPA/Roadshow target online locations.
58 There are six target online locations
relevant to the TVB applicants, who assert that they are either streaming or
linking target online locations. They are addressed in the evidence of Mr Wu.
Exhibited to Mr Wu’s affidavit are a number of video recordings, like those
exhibited to Mr Fraser’s affidavit. The evidence so provided enables the
findings set out in this section to be made.
59 There is no material difference
between the content and approach taken in relation to the TVB streaming and
linking target online locations when compared with the MPA/Roadshow streaming
and linking target online locations. It is unnecessary to set out details of
further examples of the activities of the TVB target online locations, which
are very similar to those described, by way of example, in section 2 at [48]
and [49] above. The target online locations which fall into these classes often
provide indices or categories of films or television shows which the user can
view, and offer the user the ability to search for a particular title. These
target online locations host a large volume of content, including content which
is owned by entities that are not party to these proceedings. Many of the
streaming and linking target online locations provide statements which: claim
they are in compliance with copyright; disclaim their liability for any
infringing content; and/or provide instructions to teach users how to access
infringing content. Several also display advertisements to users. One of the
TVB target online locations, namely “99kubo”, has been the subject of site
blocking injunctions in other jurisdictions, as set out in Mr Stewart’s first
affidavit.
60 Like the MPA/Roadshow applicants, the
TVB applicants submit, and I accept, that there is no evidence or indication
that there will be any impact on any persons likely to be affected if an
injunction is granted in respect of any of the TVB target online locations,
except to the extent that users will not be able to access material which
infringes copyright and the operators of the target online locations will be
deprived of visits from Australian users.
61 Having regard to the evidence, I am
satisfied that it is appropriate to grant injunctive relief in relation to the
TVB target online locations.
62 Madman submits that the 10 target
online locations relevant to its application are either streaming, torrenting
or linking target online locations. They are addressed in Mr Vagnoni’s
evidence, which enables the findings set out in this section to be made.
63 Again, there is no material difference
between the Madman streaming, torrenting and linking target online locations
and the MPA/Roadshow streaming, torrenting and linking target online locations
that I have described in section 2 above. The Madman target online locations
make available a large volume of television shows and movies, including content
that is owned or licenced by entities who are not party to this application,
and content which is licenced to Madman in Australia but which is not the
subject of these proceedings. Content is frequently categorised under headings
such as “Latest Episodes”, “Popular Anime” and “Top Dubbed”. Users can also
search for specific titles. Several of these target online locations display
advertisements. Several also display statements which claim the target online
location is in compliance with copyright law, or which disclaims responsibility
for infringement of copyright.
64 Madman submits, and I accept, that
there is no evidence or indication that there will be any impact on any persons
likely to be affected if an injunction is granted in respect of any of the
Madman target online locations, except to the extent that users will not be
able to access material which infringes copyright and the operators of the
target online locations will be deprived of visits from Australian users.
65 The only person to contest the making
of an order in relation to a target online location in these proceedings was a
person purporting to be one of the operators of the target online location
“animelon”, Sarah Florian. Ms Florian sent an email to the solicitors for the
applicant on 12 December 2019, which stated, among other things:
(1) that animelon is a non-profit educational
entity that uses animated videos to provide a novel and fun way for users to
learn the Japanese language;
(2) that animelon operates in countries where
copyright statute permits “fair use” for educational purposes;
(3) that there is a “possibility that our site
has unintentionally diverted some of the traffic away from sources of content
provided by [the applicants]”;
(4) that despite any such “unintentional”
diversion by animelon, any providers of the applicants’ content may similarly
divert traffic from one another; and
(5) that the owners and/or operators of
animelon did not have the resources to come to Australia to participate in
these proceedings, but hoped that the email would be brought to the Court’s
attention.
66 Ms Florian did not seek to be heard on
the application beyond the content of her email.
67 The applicants submit that:
(1) the email response from animelon merely confirms
that the animelon target online location has the primary purpose or effect of
infringing copyright;
(2) Ms Florian’s claim that all providers of
the applicants’ copyright content draw traffic away from one another is not
relevant;
(3) the closest approximation to the “fair use”
argument Ms Florian appears to be advancing is the Australian “fair dealing”
exception to infringement for the purposes of research or study, which is
provided for in s 103C of the Act; and
(4) the animelon target online location is not
engaging in fair dealing for the purposes of research or study.
68 The evidence indicates that Mr Vagnoni
reviewed the animelon website and noted that eight television series in which
Madman has licencing rights were available for users to stream. One of those
television series, On Piece, has over 850 episodes. The evidence indicates that
the owner of copyright in On Piece has not licenced any copyright rights in On
Piece to animelon. Mr Vagnoni also noted that the animelon website indexed or
categorised its content in groups such as “Recently uploaded”, “Popular Anime”
and “Everything on Animelon”. Mr Vagnoni observed that the animelon website did
not display advertising, but carried a copyright ‘disclaimer’. That disclaimer
is similar in terms to the matters raised by Ms Florian in her email. After
making those observations, Mr Vagnoni used the search functionality of the
animelon website to navigate to Tokyo Ghoul (season one episode one). He was
able to stream the film without making any payments, and to ensure that it was
a complete copy of the film he viewed portions of its opening sequence, middle
and final credits. Finally, Mr Vagnoni also used the animelon website to stream
portions of other films in which Madman has rights.
69 Having regard to Mr Vagnoni’s evidence
as to the content of the animelon website it is apparent that animelon
facilitates the infringement of copyright by providing a vehicle for users to
stream the entirety of the cinematograph films that it offers. Section 103C of
the Act sets out the fair dealing exception for the purpose of research or
study, which provides that in determining whether a dealing with an
audio-visual item constitutes a fair dealing, the following matters are to be
taken into account: the purpose and character of the dealing; the nature of the
audio-visual item; the possibility of obtaining the audio-visual item within a
reasonable time at an ordinary commercial price; the effect of the dealing upon
the potential market for, or value of, the audio-visual item; and the amount
and substantiality of any part copied, taken in relation to the whole item.
None of these matters are addressed by Ms Florian or are answered having regard
to the content of the animelon website. As I have noted, the website on its
face encourages the wholesale streaming of copyright films. It is not apparent
to me that a defence under s 103C could succeed, even if properly raised.
Furthermore, a site blocking order in Australia would not preclude Ms Florian
from relying on what she describes to be fair use defences in relation to
conduct in other jurisdictions, to the extent that such defences are available
elsewhere.
70 I am satisfied that the animelon
website flagrantly facilitates the infringement of copyright. I am not
satisfied that users of the target online location access the website do so
only for educational purposes. Rather, I consider, having regard to its content
and form, that it provides a vehicle for users to copy copyright material,
without recourse to the owner of that material, for their own purposes,
educational or otherwise. Having regard to the considerations set out in s
115A(5) of the Act, in my view it is appropriate that the site blocking orders
sought be made in respect of this target online location.
71 I am satisfied that it is appropriate
to grant injunctive relief in relation to each of the Madman target online
locations.
72 The orders sought by the applicants
are in all but one respect in similar form to those made in similar
applications: see, for instance, Universal
(126 IPR 219 at 242 to 246). The one material difference is that the applicants
seek an order that changes the process which enables additions to be made to the
domain names, URLs and IP Addresses of the target online locations the subject
of the orders after the orders have been made. The applicants seek orders that
enable such additions to be made by a four step process:
(1) The applicants provide notice in writing to
the respondents and the Court identifying any different domain name, IP Address
or URL for the target online locations the subject of the orders, and stating
that the applicants have the good faith belief that the website operated at the
different domain name, IP Address or URL is a new location for the target
online locations that are already the subject of the orders;
(2) Within seven days the respondents notify
the applicants if they object to taking the steps required by the original
orders to disable access to the different domain name, URL or IP Address;
(3) If any notice is given by a respondent, or
the Court otherwise thinks fit, the proceedings will be relisted for further
directions; and
(4) Otherwise, upon receipt of a further notification
from the applicants that no objection has been raised, the respondents must
take the steps set out in the original order to disable access to the
additional target online locations.
73 Previous forms of orders in s 115A
applications have required the applicants to file and serve a proposed form of
order, supported by affidavit evidence, seeking the leave of the Court to vary
the existing orders to include any additional domain names, URLs or IP
Addresses which commenced providing access to the target online location after
the original orders were made: see Roadshow
No. 1 at [137] – [139], where Nicholas J set out his reasons for requiring
that process to be followed. The applicants contend that the new form of order
they have proposed is necessary and appropriate to give effect to the
legislative intention underlying s 115A. Subject to some adjustments to the
form of order proposed, I agree, for the following reasons.
74 First, the evidence of Mr Stewart, who
has had considerable recent experience in s 115A applications, and applications
to amend existing s 115A orders, is that frequently, if not invariably, target
online locations engaged in the facilitation of copyright infringement employ
measures to circumvent the operation of orders. One example is by target online
locations actively redirecting internet users who seek access to a domain name,
URL or IP Address the subject of orders to a new version of the same online
location using domain names, URLs or IP Addresses not the subject of orders. Another
is by creating the same website at a new domain name, URL or IP Address, but
without actively redirecting the user to the new domain name, URL or IP
Address. Target online locations often commence using new domain names, URLs or
IP Addresses immediately after orders are made, or sometimes even after the
initiating process has been served such that by the date that the orders are
made, they are somewhat out of date.
75 Secondly, the expense of filing
affidavits and seeking orders from the Court is considerable and serves as a
deterrent to applicants from seeking amendments. As a consequence, they tend to
wait for the accumulation of a number of different URLs, domain names and IP
Addresses to begin to provide access to target online locations before bringing
any amendment application. To some extent this frustrates the objective of s
115A.
76 Thirdly, recent amendments to the Act
indicate that Parliament intends to implement a more liberal approach to
enabling amendments to orders than was the position when Roadshow No. 1 was
decided. Section 115A has been amended to introduce subsections (2A) and (2B),
which relevantly provide (emphasis added):
(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 copyright agree, in writing, have started to provide access to the online
location after the injunction is made; […]
...
77 In the Second Reading Speech to the
Copyright Amendment (Online Infringement Bill) 2018 (18 October 2018) Paul
Fletcher MP relevantly said of these amendments:
Australia’s piracy rate still remains higher
than in countries with strong copyright enforcement frameworks, such as the
United Kingdom and Canada. There is still a proportion of Australian users who
seek out infringing sites, and there are still pathways for them to get to
these sites, including blocked sites.
In February this year, the government reviewed
the existing scheme to determine whether it was operating effectively. In
general, this assessment found that the scheme is working well and that
blocking arrangements have been implemented by carriage service providers with
minimum disruption. However, there are some clear pressure points...new
pathways to the blocked sites appear after the initial blocking, and these new
pathways can’t be blocked because they are not part of the original court
order....
...
The bill will make clear that the Federal Court
has the power to issue responsive and adaptive injunctions, without the need
for the copyright owner to go back to the court. This will give the court the
power to grant injunctions on terms that allow the copyright owner and carriage
service provider, by agreement, to apply the injunction to block other pathways
that start to provide access to an infringing site.
78 It is apparent that the legislative
intention is to facilitate, in appropriate cases, a more expeditious and less
expensive means by which orders may be amended. Importantly, parliament did not
intend, and the orders I propose to make do not permit, the applicants to bring
new target online locations within the scope of the orders. Rather, the
applicants may only seek to bring within the scope of the orders new domain
names, IP Addresses or URLs for the 86 target online locations which are in
issue in these proceedings. Should the applicants wish to block access to a new
target online location, a separate application will need to be brought.
79 Having regard to these matters, in my
view the appropriate form of Order 12 is as follows. It is marked up to reflect
changes from the form sought by the applicants:
If
a website the subject of any of the Target Online Locations is at any time
during the operation of these Orders provided from a different Domain Name, IP
Address or URL, the Applicants may, by their solicitor:
(a) Provide a notice in writing to the
Respondents and the Court that:
(i) Identifies the different Domain Name, IP
Address or URL; and
(ii) Certifies states that, in
the good faith belief of the Applicants, the website operated from the
different Domain Name, IP Address or URL is a new location outside Australia
for the Target Online Locations the subject of these Orders and brief reasons
therefore;
(b) Within 7 14 business days
of the notice given pursuant to Order 12(a), the Respondents must notify
the Applicants and the Court in writing if they object agree to
taking steps pursuant to Order 1 [being the initial site blocking Order] to
disable access to the Domain Name, IP Address or URL notified in accordance
with Order 12(a);
(c) If any Respondents does not agree
to disable a Domain Name, IP Address or URL notified in accordance with Order
12(a) give notice of any objection, or the Court otherwise considers
it appropriate to do so thinks fit, the proceeding will be relisted
for further directions; and
(d) If any no Respondent agrees
to disable access to any Domain Name, IP Address or URL notified in accordance
with Order 12(a) gives notice of any objection and the Court does
not otherwise require the proceeding to be relisted, then upon receipt of a
notification from the Applicants that the Court does not require the matter
to be relisted, no objection has been raised, the that
Respondents must take steps pursuant to Order 1 to disable access to the
Domain Name, IP Address or URL the subject of the agreement notified
in accordance with Order 13(a).
80 The first alteration I have made to
the form of order proposed by the applicants is to require the applicants by
their solicitor to certify the matters set out in (b)(ii). It is appropriate
that an officer of the Court give such a certification. The second alteration
is to remove the requirement to specify that the online location is outside
Australia, since that fact is now presumed: see s 115A(5A). The third
alteration is to oblige the respondents to notify the applicants in writing
whether they agree with the proposed amendment to the orders, thereby
satisfying the requirements of s 115A(2B)(ii) of the Act. The fourth alteration
is to permit the respondents 14 days in which to respond to the notice. This
addresses a concern raised by the some of the respondents that the time period
should accommodate both the respondents and the Court’s workload.
81 Before concluding upon the form of
these orders, I will give the parties a further opportunity to address their
form.
82 Accordingly, the orders that I will
make are:
(1) Leave be granted to the Eleventh Applicant
to proceed with this application without joining the copyright owner of the
cinematograph film of which it is the exclusive licensee.
(2) The Applicants be granted leave to amend
their Originating Application and Concise Statement in the form filed on 13
February 2020.
(3) The requirement under s 115A(4) of the Copyright Act 1968 (Cth) that the
Applicants give notice of their application to the persons who operate the
Target Online Locations be dispensed with in so far as any such notice has not
already been given.
(4) Any party who wishes to address the terms
of draft Order 12 set out in Annexure A to the Reasons for Judgment delivered
on 20 April 2020 may do so in a written submission of no more than 3 pages in
length, to be filed and served on all other parties within 14 days of the date
of this order. Any party seeking to be heard on the form of order should
indicate so in their written submission. Otherwise, the form of order will be
finalised on the papers.
ANNEXURE A
In
these Orders, the following terms have the following meanings:
(a) Domain
Name means a name formed by the rules and procedures of the Domain Name System (DNS) and includes
subdomains.
(b) 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 6.
(c) IP
Address means an Internet Protocol address.
(d) Optus
means the fourth to eleventh Respondents.
(e) Target
Online Locations means the online locations as referred to in the Schedule
to these Orders and that are or were accessible:
(i) at the URLs listed in the Schedule to this
Order (together, the Target URLs);
(ii) at the IP Addresses listed in the Schedule
to this Order (together, the Target IP
Addresses);
(iii) at the Domain Names listed in the Schedule
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).
(f) Telstra
means the first to third Respondents.
(g) TPG
means the thirtieth to the forty-seventh Respondents.
(h) URL means
a Uniform Resource Locator.
(i) Vocus
means the twelfth to twenty-ninth Respondents.
(j) Vodafone
means the forty-eighth to fiftieth Respondents.
THE COURT ORDERS THAT:
1. Each
Respondent must, within 15 business days of service of these Orders (and
thereafter within 15 business days of an obligation to disable access to a
Domain Name, IP Address or URL arising under Order 12), take reasonable steps
to disable access to the Target Online Locations.
2. Order 1 is
taken to have been complied with by a Respondent if that Respondent implements
any one or more of the following steps:
(a) DNS Blocking
in respect of the Target Domain Names;
(b) IP Address blocking
or re-routing in respect of the Target IP Addresses;
(c) URL blocking
in respect of the Target URLs and the Target Domain Names; or
(d) any
alternative technical means for disabling access to the Target Online Locations
as agreed in writing between the Applicants and a Respondent.
3. If a Respondent in complying with Order 1
does not implement one of the steps referred to in Order 2, that Respondent
must, within 15 business days of service of these Orders, notify the Applicants
of the step or steps it has implemented.
4. Each Respondent must redirect any
communication by a user of its service seeking access to the Target Online
Locations which have been disabled pursuant to Order 1 to a webpage
established, maintained and hosted by either:
(a) the Applicants, or their nominee, pursuant
to Order 5; or
(b) that
Respondent or its nominee.
The
Applicants’ obligations pursuant to Orders 5 and 6 only arise if a Respondent
notifies the Applicants that the Respondent will redirect a communication pursuant
to Order 4(a) and for so long as at least one Respondent redirects
communications to that webpage.
5. The Applicants, or their nominee, must
establish, maintain and host a webpage which informs users of a Respondent’s
service who have been redirected to the webpage pursuant to Order 4
that access to the website has been disabled because this Court has determined
that it infringes or facilitates the infringement of copyright.
6. Within 5 business days of these Orders,
the Applicants will notify each of the Respondents in writing of the URL of the
webpage established, maintained and hosted under Order 4 and, if the webpage
ceases to operate for any reason, will notify each of the Respondents in
writing of a different URL that complies with Order 5.
7. If, in complying with Order 4, a
Respondent redirects any communication by a user of its service to a webpage
established, maintained and hosted by it, that Respondent or its nominee must
ensure that the webpage informs the user of that Respondent's service that
access to that the website has been disabled because this Court has determined
that it infringes or facilitates the infringement of copyright.
8. In the event that any of the Applicants
has a good faith belief that:
(a) any Target URL, Target IP Address or Target
Domain Name which is subject to these Orders has permanently ceased to enable
or facilitate access to any Target Online Location; or
(b) any Target URL, Target IP Address or Target
Domain Name has permanently ceased to have the primary purpose of infringing or
facilitating the infringement of copyright,
a
representative of the Applicants must, within 15 business days of any of the
Applicants forming such a good faith belief, notify each Respondent of that
fact in writing, in which case the Respondents shall no longer be required to
take steps pursuant to Order 1 to disable access to the relevant Target URL,
Target IP Address or Target Domain Name that is the subject of the notice.
9. A Respondent will not be in breach of
Order 1 if it temporarily declines or temporarily ceases to take the steps
ordered in Order 1 (either in whole or in part) upon forming the view, on
reasonable grounds, that suspension is necessary to:
(a) maintain the integrity of its network or
systems or functioning of its blocking system;
(b) upgrade, troubleshoot or maintain its
blocking system;
(c) avert or respond to an imminent security
threat to its networks or systems; or
(d) ensure the reliable operation of its
ability to block access to online locations associated with criminal content if
it reasonably considers that such operation is likely to be impaired, or
otherwise to comply with its statutory obligations including under section
313(3) of the Telecommunications Act 1997
(Cth),
provided
that:
(e) unless precluded by law, it notifies the
Applicants or their legal representative(s) of such suspension, including the
reasons and the expected duration of such suspension, by 5.00 pm on the next
business day; and
(f) such suspension lasts no longer than is
reasonably necessary and, in any case, no longer than 3 business days or such
period as the Applicants may agree in writing or the Court may allow.
10. The owner or operator of any of the Target
Online Locations and the owner or operator of any website who claims to be
affected by these Orders may apply on 3 days' written notice, including notice
to all parties, to vary or discharge these Orders, with any such application
to:
(a) set out the orders sought by the owner or
operator of the Target Online Locations or affected website; and
(b) be supported by evidence as to:
(i) the status of the owner or operator of the
Target Online Locations or affected website; and
(ii) the basis upon which the variation or
discharge is sought.
11. The parties have liberty to apply on 3
days' written notice, including, without limitation, for the purpose of any
application:
(a) for further orders to give effect to the
terms of these Orders;
(b) for further orders in the event of any
material change of circumstances including, without limitation, in respect of
the consequences for the parties and effectiveness of the technical methods
under Order 2; and/or
(c) for orders relating to other means of
accessing the Target Online Locations not already covered by these Orders.
12. If a website the subject of any of the
Target Online Locations is at any time during the operation of these Orders
provided from a different Domain Name, IP Address or URL, the Applicants may,
by their solicitor:
(a) Provide a notice in writing to the
Respondents and the Court that:
(i) Identifies the different Domain Name, IP
Address or URL; and
(ii) Certifies that, in the good faith belief
of the Applicants, the website operated from the different Domain Name, IP
Address or URL is a new location for the Target Online Locations the subject of
these Orders and brief reasons therefore;
(b) Within 14 business days of the notice given
pursuant to Order 12(a), the Respondents must notify the Applicants and the
Court in writing if they agree to taking steps pursuant to Order 1 to disable
access to the Domain Name, IP Address or URL notified in accordance with Order
12(a);
(c) If any Respondent does not agree to disable
a Domain Name, IP Address or URL notified in accordance with Order 12(a), or
the Court otherwise considers it appropriate to do so, the proceeding will be
relisted for further directions; and
(d) If any Respondent agrees to disable access
to any Domain Name, IP Address or URL notified in accordance with Order 12(a)
and the Court does not otherwise require the proceeding to be relisted, then
upon receipt of a notification from the Applicants that the Court does not
require the matter to be relisted, that Respondents must take steps
pursuant to Order 1 to disable access to the Domain Name, IP Address or URL the
subject of the agreement.
13. These Orders are to operate for a period of
3 years from the date of these Orders.
14. No less than two months prior to the expiry
of these Orders:
(a) the Applicants may file and serve:
(i) an affidavit which states that, in the
good faith belief of the deponent, the Target Online Location continues to have
the primary purpose of infringing or facilitating the infringement of
copyright; and
(ii) short minutes of order extending the
operation of these Orders for a further 3-year period; and
(b) the process contained in Order 16
shall apply.
15. The affidavit referred to in Order 16 is to
be given by a deponent duly authorised to give evidence on behalf of the
Applicants and may be given by their solicitor.
16. If an affidavit and short minutes of order
are filed and served in accordance with Order 14:
(a) within 7 business days, the Respondents
must notify the Applicants and the Court if they object to the Orders being
made in accordance with the short minutes of order served by the Applicants;
(b) if any Respondents give notice of any
objection, or the Court otherwise thinks fit, the proceeding will be relisted
for further directions;
(c) if no Respondent gives notice of any
objection and the Court does not otherwise require the proceeding to be
relisted, then the Court may make orders in terms of the short minutes of order
served by the Applicants without any further hearing; and
(d) the Applicants must serve on the
Respondents any such orders made.
17. The Applicants pay Telstra's, Optus',
Vocus', TPG's and Vodafone’s compliance costs calculated at the rate of $50 per
Domain Name the subject of DNS Blocking undertaken for the purposes of
complying with Order 1.
18. There be no order as to costs.
SCHEDULE
|
No |
Target
Online Location |
Target
URLs |
Target
Domain Names |
Target
IP Addresses |
|
1. |
mrunlock |
https://mrunlock.space/ |
mrunlock.space |
104.28.31.129 |
|
1. |
104.28.30.129 |
|||
|
1. |
http://mrunlock.red/ |
mrunlock.red |
104.31.79.99 |
|
|
1. |
104.31.78.99 |
|||
|
2. |
nocensor |
http://nocensor.surf/ |
nocensor.surf |
104.28.27.7 |
|
1. |
104.28.26.7 |
|||
|
1. |
https://nocensor.casa/ |
nocensor.casa |
104.24.103.195 |
|
|
1. |
104.24.102.195 |
|||
|
1. |
http://nocensor.fun/ |
nocensor.fun |
104.24.106.180 |
|
|
1. |
104.24.107.180 |
|||
|
3. |
unblockproject |
http://unblockproject.pw/ |
unblockproject.pw |
104.31.84.187 |
|
1. |
104.31.85.187 |
|||
|
1. |
https://unblockproject.icu/ |
unblockproject.icu |
104.31.93.108 |
|
|
1. |
104.31.92.108 |
|||
|
1. |
https://unblockproject.info/ |
unblockproject.info |
104.27.184.38 |
|
|
1. |
104.27.185.38 |
|||
|
4. |
123unblock |
http://123unblock.space/ |
123unblock.space |
104.31.64.59 |
|
1. |
104.31.65.59 |
|||
|
1. |
https://123unblock.fun/ |
123unblock.fun |
104.28.0.166 |
|
|
1. |
104.28.1.166 |
|||
|
1. |
http://unbl0ck.online/ |
unbl0ck.online |
104.18.56.20 |
|
|
1. |
104.18.57.20 |
|||
|
1. |
http://123unblock.icu/ |
123unblock.icu |
104.18.44.139 |
|
|
1. |
104.18.45.139 |
|||
|
5. |
prox4u |
http://prox4you.club/ |
prox4you.club |
104.18.49.160 |
|
1. |
104.18.48.160 |
|||
|
1. |
https://prox4you.pro/ |
prox4you.pro |
104.18.58.212 |
|
|
1. |
104.18.59.212 |
|||
|
1. |
http://prox4you.info/ |
prox4you.info |
104.27.182.91 |
|
|
1. |
104.27.183.91 |
|||
|
6. |
unblocked.to |
https://unblocked.to/ |
unblocked.to |
104.28.15.242 |
|
1. |
104.28.14.242 |
|||
|
7. |
prostylex |
https://prostylex.org/ |
prostylex.org |
104.18.56.4 |
|
1. |
104.18.57.4 |
|||
|
8. |
torrents.io |
https://torrents.io |
torrents.io |
104.27.208.30 |
|
1. |
104.27.209.30 |
|||
|
9. |
katcr.co |
https://katcr.co/ |
katcr.co |
91.212.150.157 |
|
10. |
katcr.to |
https://katcr.to/ |
katcr.to |
104.31.16.3 |
|
1. |
104.31.17.3 |
|||
|
11. |
kikass.to |
https://kikass.to/ |
kikass.to |
104.27.150.245 |
|
1. |
104.27.151.245 |
|||
|
12. |
kat.sx/ |
https://kat.sx/ |
kat.sx |
104.31.16.3 |
|
1. |
104.31.17.3 |
|||
|
13. |
kickass.sx |
https://kickass.sx/ |
kickass.sx |
104.31.18.30 |
|
1. |
104.31.19.30 |
|||
|
14. |
kickass1.to |
https://kickass1.to/ |
kickass1.to |
104.31.18.30 |
|
1. |
104.31.19.30 |
|||
|
1. |
https://kat.ag |
kat.ag |
104.31.18.30 |
|
|
1. |
104.31.19.30 |
|||
|
15. |
ibit |
https://ibit.to |
ibit.to |
104.31.94.163 |
|
1. |
104.31.95.163 |
|||
|
16. |
onionplay |
https://onionplay.eu |
onionplay.eu |
104.18.50.237 |
|
1. |
104.18.51.237 |
|||
|
1. |
https://onionplay-network.xyz/ |
onionplay-network.xyz |
104.28.12.127 |
|
|
1. |
104.28.13.127 |
|||
|
1. |
https://onionplay.co/ |
onionplay.co |
104.27.180.32 |
|
|
1. |
104.27.181.32 |
|||
|
1. |
https://proxyportal.org |
proxyportal.org |
104.31.82.250 |
|
|
1. |
104.31.83.250 |
|||
|
1. |
https://proxyportal.ws/ |
proxyportal.ws |
104.28.14.239 |
|
|
1. |
104.28.15.239 |
|||
|
17. |
p30download |
https://p30download.com |
p30download.com |
5.144.130.116 |
|
18. |
torrentquest |
https://torrentquest.com/ |
torrentquest.com |
104.27.156.51 |
|
1. |
104.27.157.51 |
|||
|
19. |
rutor |
http://rutor.info/ |
rutor.info |
91.132.60.13 |
|
20. |
btbtdy |
http://btbtdy.me/ |
btbtdy.me |
203.186.25.59 |
|
1. |
103.113.156.70 |
|||
|
1. |
116.92.208.79 |
|||
|
21. |
lookmovie |
https://lookmovie.ag/ |
lookmovie.ag |
104.31.112.70 |
|
1. |
104.31.113.70 |
|||
|
22. |
037hdd |
https://www.037hdd.com/ |
037hdd.com |
104.25.34.28 |
|
1. |
104.25.35.28 |
|||
|
23. |
cuevana3 |
https://cuevana3.io/ |
cuevana3.io |
172.64.100.14 |
|
1. |
172.64.101.14 |
|||
|
1. |
https://cuevana3.co/ |
cuevana3.co |
104.27.156.231 |
|
|
1. |
104.27.157.231 |
|||
|
24. |
exsite24 |
https://exsite24.pl/ |
exsite24.pl |
104.18.36.250 |
|
1. |
104.18.37.250 |
|||
|
25. |
downduck |
http://www.downduck.com/ |
downduck.com |
104.28.10.121 |
|
1. |
104.28.11.121 |
|||
|
26. |
downloadha |
https://www.downloadha.com/ |
downloadha.com |
79.127.127.25 |
|
27. |
emotionvideo-tv |
http://emotionvideo-tv.com/ |
emotionvideo-tv.com |
51.15.22.226 |
|
28. |
movieon21 |
http://movieon21.biz/ |
movieon21.biz |
103.194.171.190 |
|
1. |
http://movieon21.xyz/ |
movieon21.xyz |
104.27.142.143 |
|
|
1. |
104.27.143.143 |
|||
|
29. |
modufree |
http://m6.modufree.net |
modufree.net |
104.27.140.55 |
|
1. |
104.27.141.55 |
|||
|
1. |
https://j20.hitjjal.com/ |
j20.hitjjal.com |
104.27.160.54 |
|
|
1. |
104.27.161.54 |
|||
|
30. |
phim33 |
https://phim33.com/ |
phim33.com |
104.18.48.232 |
|
1. |
104.18.49.232 |
|||
|
31. |
tfpdl |
https://www.tfp.is/ |
tfp.is |
104.24.115.4 |
|
1. |
104.24.114.4 |
|||
|
32. |
tvsubtitles |
http://www.tvsubtitles.net/ |
tvsubtitles.net |
91.226.212.44 |
|
33. |
msubs |
http://www.msubs.net |
msubs.net |
91.234.33.166 |
|
34. |
dytt series |
https://dytt8.net/ |
dytt8.net |
127.66.100.10 |
|
35. |
ttdytt |
https://www.ttdytt.cc/ |
ttdytt.cc |
113.52.134.110 |
|
1. |
https://www.ttdytt.net/ |
ttdytt.net |
113.52.134.110 |
|
|
36. |
fast-torrent |
http://fast-torrent.ru/ |
fast-torrent.ru |
5.45.71.49 |
|
37. |
heroturko |
http://www.heroturko.net/ |
heroturko.net |
104.27.128.189 |
|
1. |
104.27.129.189 |
|||
|
38. |
imovies |
https://www.imovies.cc |
imovies.cc |
188.93.90.62 |
|
1. |
https://www.imovies.ge |
imovies.ge |
188.93.90.62 |
|
|
39. |
getpopcorntime |
https://getpopcorntime.is/ |
getpopcorntime.is |
185.198.57.17 |
|
1. |
81.17.30.43 |
|||
|
1. |
185.248.160.75 |
|||
|
1. |
62.141.46.79 |
|||
|
40. |
toxicwap |
http://toxicwap.com |
toxicwap.com |
104.27.240.249 |
|
1. |
104.27.241.249 |
|||
|
41. |
english-films |
https://english-films.com/ |
english-films.com |
51.77.244.43 |
|
42. |
topeuropix |
https://topeuropix.net/ |
topeuropix.net |
172.64.134.3 |
|
1. |
172.64.135.3 |
|||
|
1. |
https://topeuropix.com/ |
topeuropix.com |
104.27.164.14 |
|
|
1. |
104.27.165.14 |
|||
|
43. |
poseidonhd |
https://poseidonhd.me/ |
poseidonhd.me |
172.64.175.12 |
|
1. |
172.64.174.12 |
|||
|
1. |
https://poseidonhd.co/ |
poseidonhd.co |
172.64.136.36 |
|
|
1. |
172.64.137.36 |
|||
|
44. |
anakbnet |
http://www.anakbnet.com/ |
anakbnet.com |
104.25.151.16 |
|
1. |
104.25.150.16 |
|||
|
45. |
moviesjoy |
https://www.moviesjoy.net/ |
moviesjoy.net |
104.28.20.245 |
|
1. |
104.28.21.245 |
|||
|
46. |
filmlicious |
https://www.filmlicious.net/ |
filmlicious.net |
104.27.174.37 |
|
1. |
104.27.175.37 |
|||
|
47. |
proxybit |
https://proxybit.fun/ |
proxybit.fun |
104.24.113.183 |
|
1. |
104.24.112.183 |
|||
|
1. |
https://proxybit.pro/ |
proxybit.pro |
104.27.180.73 |
|
|
1. |
104.27.181.73 |
|||
|
48. |
123movies.love |
https://www.123movies.love/ |
123movies.love |
104.28.10.159 |
|
1. |
104.28.11.159 |
|||
|
49. |
movies.cab |
https://1primewire.com/ |
1primewire.com |
104.24.117.75 |
|
1. |
104.24.116.75 |
|||
|
1. |
https://movies.cab/ |
movies.cab |
104.27.157.142 |
|
|
1. |
104.27.156.142 |
|||
|
1. |
https://www1.putlocker.digital/ |
putlocker.digital |
104.24.110.101 |
|
|
1. |
104.24.111.101 |
|||
|
50. |
solarmoviefree |
http://www6.solarmoviefree.net/ |
solarmoviefree.net |
104.31.70.113 |
|
1. |
104.31.71.113 |
|||
|
51. |
solarmovie.net |
http://www1.solarmovie.net/ |
solarmovie.net |
104.26.5.191 |
|
1. |
104.26.4.191 |
|||
|
52. |
yifyddl.movie/yify.yt |
https://yifyddl.movie/ |
yifyddl.movie |
104.28.7.57 |
|
1. |
104.28.6.57 |
|||
|
1. |
https://yify.yt/ |
yify.yt |
104.31.65.120 |
|
|
1. |
104.31.64.120 |
|||
|
53. |
yifymovietorrent.com |
https://yifymovietorrent.com/ |
yifymovietorrent.com |
104.27.136.165 |
|
1. |
104.27.137.165 |
|||
|
54. |
ytsdownload.com |
https://ytsdownload.com/ |
ytsdownload.com |
104.28.6.79 |
|
1. |
104.28.7.79 |
|||
|
55. |
movie4k.ag |
https://movie4k.ag/ |
movie4k.ag |
5.254.40.240 |
|
56. |
fmovies.org |
http://www3.fmovies.org/ |
fmovies.org |
104.26.14.229 |
|
1. |
104.26.15.229 |
|||
|
57. |
5movies.cloud |
https://5movies.cloud/ |
5movies.cloud |
104.31.84.55 |
|
1. |
104.31.85.55 |
|||
|
58. |
couchtuner2.com |
http://couchtuner2.com/ |
couchtuner2.com |
54.38.69.123 |
|
59. |
couchtuner123.com |
https://couchtuner123.com/ |
couchtuner123.com |
104.31.76.207 |
|
1. |
104.31.77.207 |
|||
|
60. |
couchtuner.watch |
https://ww1.couchtuner.watch/ |
couchtuner.watch |
104.24.108.203 |
|
1. |
104.24.109.203 |
|||
|
61. |
couchtuner0.com |
https://couchtuner0.com/ |
couchtuner0.com |
104.28.12.68 |
|
1. |
104.28.13.68 |
|||
|
62. |
1watchfree.me |
https://2watchfree.me/ |
2watchfree.me |
162.251.108.146 |
|
1. |
https://1watchfree.me/ |
1watchfree.me |
162.251.108.146 |
|
|
63. |
putlockerstoworld2.com |
https://putlockerstoworld2.com/ |
putlockerstoworld2.com |
104.18.58.244 |
|
1. |
104.18.59.244 |
|||
|
64. |
putlocker.actor |
https://putlocker.actor/ |
putlocker.actor |
104.24.102.61 |
|
1. |
104.24.103.61 |
|||
|
65. |
zmz2019.com |
http://www.rrys2019.com/ |
rrys2019.com |
96.44.183.197 |
|
1. |
http://www.zmz2019.com/ |
zmz2019.com |
47.52.153.161 |
|
|
1. |
47.52.174.174 |
|||
|
66. |
m4ufree.tv |
http://m4ufree.tv/ |
m4ufree.tv |
104.31.90.131 |
|
1. |
104.31.91.131 |
|||
|
67. |
them4ufree.info |
http://them4ufree.info/ |
them4ufree.info |
104.31.84.227 |
|
1. |
104.31.85.227 |
|||
|
68. |
projectfreetv.xyz |
https://projectfreetv.xyz/ |
projectfreetv.xyz |
104.26.12.207 |
|
1. |
104.26.13.207 |
|||
|
69. |
yesmovies.ai |
https://www13.yesmovies.gg/ |
yesmovies.gg |
104.25.206.11 |
|
1. |
104.25.207.11 |
|||
|
1. |
https://yesmovies.ai/ |
yesmovies.ai |
104.26.5.144 |
|
|
1. |
104.26.4.144 |
|||
|
70. |
yesmovies.cloud |
https://www3.yesmovies.cloud |
yesmovies.cloud |
104.28.0.55 |
|
1. |
104.28.1.55 |
|||
|
71. |
99kubo |
http://www.99kubo.tv/ |
99kubo.tv |
104.20.182.100 |
|
1. |
104.20.181.100 |
|||
|
72. |
cayphim |
http://cayphim.net/ |
cayphim.net |
108.61.159.182 |
|
73. |
dramacool |
https://www4.dramacool.video/ |
dramacool.video |
104.26.12.197 |
|
1. |
104.26.13.197 |
|||
|
1. |
https://www1.dramacool.movie/ |
dramacool.movie |
104.26.9.156 |
|
|
1. |
104.26.8.156 |
|||
|
74. |
gimy |
https://gimy.tv/ |
gimy.tv |
104.26.1.83 |
|
1. |
104.26.0.83 |
|||
|
75. |
kenh88 |
http://kenh88.com/ |
kenh88.com |
104.28.25.86 |
|
1. |
104.28.24.86 |
|||
|
76. |
yeuphimmoi |
https://yeuphimmoi.com/ |
yeuphimmoi.com |
104.31.66.58 |
|
1. |
104.31.67.58 |
|||
|
77. |
Anime-sharing |
http://www.anime-sharing.com/ |
Anime-sharing.com |
104.25.24.115 |
|
1. |
104.25.23.115 |
|||
|
78. |
Tokyotosho |
http://tokyotosho.info/ |
Tokyotosho.info |
104.27.138.240 |
|
1. |
104.27.139.240 |
|||
|
79. |
animetosho |
https://animetosho.org/ |
animetosho.org |
185.22.172.173 |
|
80. |
animebam |
https://www.animebam.net/ |
animebam.net |
104.26.12.60 |
|
1. |
104.26.13.60 |
|||
|
1. |
https://www.animebam.se/ |
animebam.se |
104.31.76.148 |
|
|
1. |
104.31.77.148 |
|||
|
81. |
animelon |
https://animelon.com/ |
animelon.com |
104.27.155.10 |
|
1. |
104.27.154.10 |
|||
|
82. |
animejolt |
https://ww5.animejolt.com/ |
animejolt.com |
104.18.39.84 |
|
1. |
104.18.38.84 |
|||
|
83. |
project-gxs |
https://project-gxs.com/ |
project-gxs.com |
185.62.190.8 |
|
84. |
eyeonanime |
https://eyeonanime.tv/ |
eyeonanime.tv |
104.31.75.173 |
|
1. |
104.31.74.173 |
|||
|
85. |
animehd47 |
https://animehd47.com/ |
animehd47.com |
104.28.24.254 |
|
104.28.25.254 |
||||
|
86. |
animereborn |
http://animereborn.io/ |
animereborn.io |
104.24.118.26 |
|
1. |
104.24.119.26 |