Zeina Milicevic, Special Counsel in RRIC, gives an overview of the role she played working with Foxtel to successfully block access to pirate websites.
As a Special Counsel in MinterEllison's Dispute Resolution – Intellectual Property, I have played a leading role as part of the specialist copyright team (including John Fairbairn, Helen Lauder and Sheenal Singh) working on a number of cases with Foxtel to successfully block access to pirate websites. Sheenal Singh, a lawyer in our team, has worked closely with me on these matters, particularly during the evidence gathering stages.
As more and more media and entertainment is consumed online, media companies are finding themselves increasingly vulnerable to content theft. While this type of theft – or piracy – has been around for decades, the digitisation of content and the speed with which it can be distributed, is helping copyright infringers circumvent traditional copyright laws. By copying subscription-based content in particular, and re-distributing it to the public across unauthorised digital platforms, content pirates are having a negative impact on the overall media marketplace.
For leading content providers like Foxtel, the exclusivity of their content remains paramount. For example, when a blockbuster movie like Spiderman or popular TV show like Game of Thrones is pirated and re-distributed to a public audience free of charge, it undercuts the value of the content and the subscription offering.
With all of this in mind, I worked closely with Foxtel on ways to use their rights under Copyright Act 1968 (Cth) (Act) to block access to pirate online locations. This has included testing a new section of the Act and being involved in a number of follow on cases in relation to that section.
In the first of these cases in 2016, the Federal Court found that Foxtel and Village Roadshow had established that pirate websites The Pirate Bay, TorrentHound, IsoHunt, Torrentz and SolarMovie infringed or facilitated copyright infringement, including in Foxtel's original productions of Wentworth, Open Slather, A Place to Call Home and Real Housewives of Melbourne. Another case followed shortly after, in which I was also involved on behalf of Foxtel in its role as an Internet Service Provider (ISP), where owners of music copyright obtained similar findings in relation to various KickassTorrents sites. As a result of these cases, ISPs are now required to block access to those pirate sites. If a web user attempts to access the site, they’ll be redirected to a webpage hosted by either the media company or the ISP itself.
Since those first cases, I have been involved in bringing an number of additional cases on behalf of Foxtel in which we have been successful in obtaining injunctions ordering ISPs to block access to websites such as CartoonHD, YesMovies and Torlock.
I have been involved in all aspects of the work that MinterEllison has done for Foxtel in this space. From assisting in law reform efforts to preparing the cases for the Federal Court, including preparing Foxtel's evidence and submissions. This has involved working closely with the client and expert witnesses and managing the matters on a day-to-day basis.
The cases are great to be involved in because, in addition to being the first of their kind in Australia, they require you to have an in depth understanding of Foxtel and its business model as well as the pirate websites and the technology used. The idea is to also run them as efficiently as possible given the number of pirate sites that exist and the number of cases that therefore need to be brought. As a result, we need to think more creatively about the type of evidence we present and how we present it and there are therefore a lot of opportunities for junior lawyers in the team to get involved.
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It is a great to be part of a case, or cases, that are the first of their kind in Australia and seen as leading the way for others to follow. You feel a certain sense of responsibility to get it right and it becomes a real team effort.
The impact of cases such as these are likely to filter throughout the wider media industry and business community at-large, and help to set the bar for enforcing copyright nationally. The cases also help to redefine the parameters of responsibility around protecting content and define the extent to which, and the basis on which, ISPs who have the ability to block infringing sites co-operate in the fight against piracy.
While this work is helping to regulate digital content consumption and distribution, it’s also helping to shift public perception about illegal downloading and streaming, an important component of the fight against content piracy long-term.