Mar 26, 2015, 07:04 am
(This post was last modified: Mar 26, 2015, 07:10 am by The_Abee. Edited 1 time in total.)
No limits: rights holders could potentially block hundreds of piracy websites in Australia with a single strike
Movie, music and TV rights holders will be able to request judges block an unlimited number of overseas websites facilitating online piracy in the one court case under the Abbott government's website-blocking legislation, due to be introduce into parliament on Thursday, Fairfax Media has learned.
The Copyright (Online Infringement) Bill 2015, which is set to cost telcos about $130,000 a year, contains no cap on the number of websites rights holders can request a judge to block in a single injunction.
Critics of the regime are likely to argue that having no cap on the scheme could result in what happened in India, where a number of legitimate websites were blocked, including Google services, when a judge agreed to block some 472 websites. An updated judgment fixed the error.
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The bill, a draft of which Fairfax obtained before a final version became publicly available on Thursday, also does not say how the sites should be blocked. This means that it will be up to judges to decide whether to stipulate in their rulings how a site is blocked, or for internet providers to figure it out for themselves if a judge makes no mention of this.
The bill only states that the injunction requires internet providers listed in court cases by rights holders to take "reasonable steps to disable access to the online location".
How sites are blocked is important, as some of the cheaper blocking methods can result in collateral damage. Australia's corporate watchdog ASIC, for instance, inadvertently blocked access to more than 250,000 innocuous websites when trying to block one believed to be defrauding Australians.
ASIC did this by identifying the IP address of the web server the fraudulent website was hosted on and ordering internet providers to block it under a controversial section of the Telecommunications Act called section 313, which requires the providers to co-operate with Australian enforcement agencies.
But the problem was the IP address blocked was shared by many other websites, leading to hundreds of thousands of other sites also being blocked.
Also not in the bill is a mandated consumer advocate in the court cases, meaning it will be up for the judge to weigh up the public interest in blocking a website. Citizens and digital rights groups won't be prevented from going to cases and raising issues as a third-party, although this could be costly.
But it appears consumers and rights groups won't be able to apply to a court to revoke blocks, as they are not listed as one of the types of parties that can do this.
The competition watchdog, the ACCC, and the communications regulator, the ACMA, are the only people envisaged by the government to be able to apply to revoke a block other than the people behind a blocked site, an internet service provider asked to block it, or a rights holder.
Scheme to cost internet providers $130,000 a year to run
There is also no provision in the bill for ISPs to be compensated for setting up a site-blocking regime. The bill's explanatory memorandum states that the introduction of the site-blocking regime is estimated to cost the entire Australian telecommunications industry $130,825 a year to run, which could push up the price of internet.
Sites proposed to be blocked will have to be informed; however a judge could waive this requirement "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" facilitating access to the infringing material.
Before ordering websites to be blocked, a judge must take into account a number of things, including whether other jurisdictions have blocked the site and whether it is in the public interest to disable access to the piracy site.
An earlier draft of the bill also suggested that freedom of expression be taken into account but this was not in the final bill.
A judge must also consider whether blocking the site is a proportionate response; the site also has to be hosted outside Australia.
The site must also be a service whose "primary purpose" is to facilitate copyright infringement. It must also be proven that it is facilitating an infringement in Australia.
Also to be taken into account is whether the site is "flagrantly" infringing copyright, the bill states.
There is no mention of a public register or similar where Australians can see which sites have been blocked. There's also no mention of whether citizens will see a message when accessing a site that informs them why it was blocked.
In good news for digital rights groups, a judge may limit the amount of time a site is blocked for and, upon application, revoke or vary a block.
The bill was introduced into parliament on Thursday by Communications Minister Malcolm Turnbull. It is due to be referred to a parliamentary committee for scrutiny.
It's understood that only six weeks will be given for the committee to examine and hold public consultations.
"There will be adequate time for consultation and for people to make submissions throughout this process," a spokesperson for Attorney-General George Brandis said.
Unintended consequences in drafting
The bill was initially slated to be introduced last week. But a number of "unintended consequences" identified in the bill caused it to be delayed, Fairfax Media has been told.
One of those unintended consequences, according to sources familiar with the drafting of the legislation, could have resulted in the websites of virtual private networks (VPNs) also being caught up in the blocking regime if they were deemed by a judge as facilitating copyright infringement.
VPNs are often used to circumvent website filtering in countries by allowing users to "tunnel" their internet traffic through another country where there is no filtering. But some countries, such as China, have attempted to block access to them.
One such VPN website, TorGuard, promotes itself as being able to "unblock any website regardless of geographical location", and it's understood there were fears in some circles that the way the legislation was initially drafted could have meant VPNs facilitating or allowing piracy could have been blocked as well.
A number of other drafting issues meant the bill was sent back to the Attorney-General's Department for redrafting by the Attorney-General.
"He didn't like the drafting," a government source said of Senator Brandis' reading of the bill.
"In an area such as this if you are not really specific you end up catching a lot more stuff than you are potentially targeting," another source said.
It's not clear whether the final bill addresses the concerns of VPNs being blocked.
Simon Bush, head of the Australian Home Entertainment Distributors Association, which represents the $1 billion Australian film and TV home entertainment industry, confirmed the bill had been delayed because of a number of unintended consequences in the drafting.
But Mr Bush would not say whether one of them was the prospect of VPN websites being blocked.
"There did appear to be some unintended consequences in the drafting of the bill," he said. "The minister's office has identified those [and has looked to fix them]."
http://www.smh.com.au/digital-life/digit...m3y6c.html
Movie, music and TV rights holders will be able to request judges block an unlimited number of overseas websites facilitating online piracy in the one court case under the Abbott government's website-blocking legislation, due to be introduce into parliament on Thursday, Fairfax Media has learned.
The Copyright (Online Infringement) Bill 2015, which is set to cost telcos about $130,000 a year, contains no cap on the number of websites rights holders can request a judge to block in a single injunction.
Critics of the regime are likely to argue that having no cap on the scheme could result in what happened in India, where a number of legitimate websites were blocked, including Google services, when a judge agreed to block some 472 websites. An updated judgment fixed the error.
Advertisement
The bill, a draft of which Fairfax obtained before a final version became publicly available on Thursday, also does not say how the sites should be blocked. This means that it will be up to judges to decide whether to stipulate in their rulings how a site is blocked, or for internet providers to figure it out for themselves if a judge makes no mention of this.
The bill only states that the injunction requires internet providers listed in court cases by rights holders to take "reasonable steps to disable access to the online location".
How sites are blocked is important, as some of the cheaper blocking methods can result in collateral damage. Australia's corporate watchdog ASIC, for instance, inadvertently blocked access to more than 250,000 innocuous websites when trying to block one believed to be defrauding Australians.
ASIC did this by identifying the IP address of the web server the fraudulent website was hosted on and ordering internet providers to block it under a controversial section of the Telecommunications Act called section 313, which requires the providers to co-operate with Australian enforcement agencies.
But the problem was the IP address blocked was shared by many other websites, leading to hundreds of thousands of other sites also being blocked.
Also not in the bill is a mandated consumer advocate in the court cases, meaning it will be up for the judge to weigh up the public interest in blocking a website. Citizens and digital rights groups won't be prevented from going to cases and raising issues as a third-party, although this could be costly.
But it appears consumers and rights groups won't be able to apply to a court to revoke blocks, as they are not listed as one of the types of parties that can do this.
The competition watchdog, the ACCC, and the communications regulator, the ACMA, are the only people envisaged by the government to be able to apply to revoke a block other than the people behind a blocked site, an internet service provider asked to block it, or a rights holder.
Scheme to cost internet providers $130,000 a year to run
There is also no provision in the bill for ISPs to be compensated for setting up a site-blocking regime. The bill's explanatory memorandum states that the introduction of the site-blocking regime is estimated to cost the entire Australian telecommunications industry $130,825 a year to run, which could push up the price of internet.
Sites proposed to be blocked will have to be informed; however a judge could waive this requirement "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" facilitating access to the infringing material.
Before ordering websites to be blocked, a judge must take into account a number of things, including whether other jurisdictions have blocked the site and whether it is in the public interest to disable access to the piracy site.
An earlier draft of the bill also suggested that freedom of expression be taken into account but this was not in the final bill.
A judge must also consider whether blocking the site is a proportionate response; the site also has to be hosted outside Australia.
The site must also be a service whose "primary purpose" is to facilitate copyright infringement. It must also be proven that it is facilitating an infringement in Australia.
Also to be taken into account is whether the site is "flagrantly" infringing copyright, the bill states.
There is no mention of a public register or similar where Australians can see which sites have been blocked. There's also no mention of whether citizens will see a message when accessing a site that informs them why it was blocked.
In good news for digital rights groups, a judge may limit the amount of time a site is blocked for and, upon application, revoke or vary a block.
The bill was introduced into parliament on Thursday by Communications Minister Malcolm Turnbull. It is due to be referred to a parliamentary committee for scrutiny.
It's understood that only six weeks will be given for the committee to examine and hold public consultations.
"There will be adequate time for consultation and for people to make submissions throughout this process," a spokesperson for Attorney-General George Brandis said.
Unintended consequences in drafting
The bill was initially slated to be introduced last week. But a number of "unintended consequences" identified in the bill caused it to be delayed, Fairfax Media has been told.
One of those unintended consequences, according to sources familiar with the drafting of the legislation, could have resulted in the websites of virtual private networks (VPNs) also being caught up in the blocking regime if they were deemed by a judge as facilitating copyright infringement.
VPNs are often used to circumvent website filtering in countries by allowing users to "tunnel" their internet traffic through another country where there is no filtering. But some countries, such as China, have attempted to block access to them.
One such VPN website, TorGuard, promotes itself as being able to "unblock any website regardless of geographical location", and it's understood there were fears in some circles that the way the legislation was initially drafted could have meant VPNs facilitating or allowing piracy could have been blocked as well.
A number of other drafting issues meant the bill was sent back to the Attorney-General's Department for redrafting by the Attorney-General.
"He didn't like the drafting," a government source said of Senator Brandis' reading of the bill.
"In an area such as this if you are not really specific you end up catching a lot more stuff than you are potentially targeting," another source said.
It's not clear whether the final bill addresses the concerns of VPNs being blocked.
Simon Bush, head of the Australian Home Entertainment Distributors Association, which represents the $1 billion Australian film and TV home entertainment industry, confirmed the bill had been delayed because of a number of unintended consequences in the drafting.
But Mr Bush would not say whether one of them was the prospect of VPN websites being blocked.
"There did appear to be some unintended consequences in the drafting of the bill," he said. "The minister's office has identified those [and has looked to fix them]."
http://www.smh.com.au/digital-life/digit...m3y6c.html