Lawyers use anti-piracy law to get website blocked over corporate ID brouhaha

Optus and Telstra would flip them the bird. But small ISPs ...

Burning copyright symbol. Photo by: Martin Fisch http://www.flickr.com/photos/marfis75/ on flickr"

Australian law firm Moray & Agnew has written to internet service providers (ISPs) in an attempt to have them block a site hosted in India, citing the new provisions of Australia's Copyright Act that target pirate websites as justifying the ban.

The letter, a copy of which has been seen by The Register, alleges that a site is conducting “corporate identify theft” of the firm's client.

The Register has visited the allegedly infringing page and can report it contains the logo of an Australian home-building company mentioned in the letter sent to ISPs. The letter from the firm says its client “has not given any authority whatsoever for the Infringing Site to use or publish material" belonging to its client.

The letter says that as the site is hosted offshore “we consider it incumbent upon you, as an internet service provider, to cease providing access to an online location outside of Australia, the primary purpose of which is to facilitate the infringement of copyright.”

That last sentence and the term "primary purpose" are very significant because they refer to section 115 of Australia's Copyright Act. The section became law only this year with the purpose of making it harder for Australians to access sites that operate with the primary purpose of offering free downloads of copyrighted films and music. But the section does not make it incumbent on ISPs to do anything until Australia's Federal Court issues an injunction.

Here's the test the Act applies:

(1) The Federal Court of Australia may, on application by the owner of a copyright, grant an injunction referred to in subsection (2) if the Court is satisfied that:
(a) a carriage service provider provides access to an online location outside Australia; and
(b) the online location infringes, or facilitates an infringement of, the copyright; and
(c) the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia).
(2) The injunction is to require the carriage service provider to take reasonable steps to disable access to the online location.

Lawyers have an obligation to explore avenues that might result in disputes being resolved without going to court. A letter that mentions Section 115 therefore seems to The Register to be asking ISPs to follow the law.

But the ISP staff who showed the letter to El Reg feel that the missive represents a scare campaign that suggests ISPs have an obligation when in fact they do not until the Federal Court acts. The letter mentions Federal Court action, but omits the fact that the Act specifies that no costs fall on ISPs unless they decide to participate in the application for a site blocking injunction.

ISPs we've spoken to say they'll give no attention to this and other such letters no heed: Optus, for example, says it will only ever block access to sites after the Federal Court tells it to do so.

A Telstra spokesperson sent us the following statement:

Telstra has the ability to block websites that the Federal Court determines have a primary purpose of infringing, or facilitating the infringement, of copyright. Telstra will comply with a Court order to this effect. The ability to make this determination should remain with the Court.

Telstra and Optus together hold around 60 per cent of the fixed line broadband market in Australia. So that's a big slab of subscribers that won't be blocked from seeing the offending site unless the firm and its client are willing to go to court. We've also asked TPG about its policy, as it holds about 25 per cent of the broadband market, but it hasn't responded to our requests at the time of writing.

Nor has Moray & Agnew. We've contacted the solicitor named in the letter, the partner who signed it off and the firm's marketing manager. The solicitor did not deny he was the source of the letter and said he would contact his superiors. The partner hasn't responded to email or voicemail. The marketing manager had the firm's IT manager call us, and he – of course – just isn't across cases the firm runs. We asked the IT manager to request a return call from the marketing manager but have had no reply.

Someone who did talk to us was Fiona Phillips, copyright expert and executive director of Australia's Copyright Council, an organisation that “advocates for the contribution of creators to Australia’s culture and economy.”

Phillips said that Section 115 was designed to prohibit access to pirate sites: “Your Pirate Bays and your MP3s4frees.”

That opinion is reflected in comments made by Pay TV provider Foxtel when Section 115 became law. The company praised Section 115 as representing “strong action to combat online piracy.”

Phillips added that seeking an injunction from the Federal Court “is an extreme measure and the reason we have not seen any cases just yet is the rights holders are choosing the right vehicles.”

A mis-used logo and false claims of affiliation are not, she feels, necessarily the best vehicle for an action under section 115.

The Register does not suggest that Moray & Agnew has done anything wrong or unethical with their approach to ISPs. Indeed, it's possible that they've come up with a useful way to put Section 115 to work as they pursue their client's desired outcome. Which may reflect poorly-drafted legislation that allows actions beyond its intended uses.

Unfortunately, the firm is making ISPs jittery along the way. The likes of Optus and Telstra can easily handle a legal letter. Smaller ISPs appear to be more nervous. And if such letters scare even one ISP into blocking any site mentioned in a similar letter, that's not going to be good for the rest of us. Especially if Moray & Agnew and other lawyers find this tactic works repeatedly. ®


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