Set-top box piracy crackdown: Show me the evidence, (Australian) judge tells rights holders

A Federal Court (Australia) judge has warned copyright holders that they shouldn’t assume that he will automatically grant site-blocking injunctions if they fail to produce convincing evidence in their attempt to stifle illicit set-top-box streaming services.

Case management hearings were today held in Sydney for two applications for injunction brought under 2015 changes to the Copyright Act. Those changes allow copyright holders to seek Federal Court orders directing ISPs to block their customers from accessing a particular online service (or services) whose primary purpose is copyright infringement or facilitating copyright infringement.

Currently before the court are separate applications brought by Village Roadshow and Hong Kong broadcaster Television Broadcasts Limited (TVB).

Although rights holders including Roadshow have obtained a number of successful site-block orders, previous injunctions have targeted online services that link to BitTorrent files, sites that act as search engines for infringing online content and sites that allow web-based streaming of copyright material.

The current applications from Roadshow TVB seek to hamstring Android-based set-top boxes that the two companies claim are used for unauthorised streaming of their copyright material.

Justice Nicholas told the applicants that he will “need to be satisfied by evidence to the point where I’ve got a good understanding of how it all works - I know precisely what the relationship is between the box the programs that are accessible at these URLs and the sites at which they are downloaded.”

“I don’t want the evidence in any respect to be scant on those issues in particular because if it is you may find there is no order made,” he warned.

Roadshow is seeking to block access to an Android app/service for set-top boxes called HDSubs+. Its application lists 10 domains that it says provide authentication for HDSubs+, updates for the app, information on the location of illicit streaming services, an electronic program guide, and/or a means of paying for an HDSubs+ subscription.

TVB wants to block 21 individual URLs that it says are used by set-top boxes — dubbed “illicit streaming devices” or ISDs in its application — to stream its copyright material.

The application cites seven Android-based ISDs that use the URLs: A1, BlueTV, EVPAD, FunTV, MoonBox, Unblock, and hTV5.

To convince the court to grant a site-blocking application, the two companies will have to overcome a number of hurdles; not only do they have to convince the court that “the online location infringes, or facilitates an infringement of” material they are the copyright holder or licensee of, they must also produce evidence that “the primary purpose of the online to infringe, or to facilitate the infringement of, copyright”.

If a set-top box requires access to a particular URL to function and has functions not linked to copyright infringement, that could potentially weigh against the granting of an injunction.

Under the legislation, the court can also consider a number of other factors when deciding whether to grant an injunction. For example, whether disabling access to the online a proportionate response to the copyright infringement and whether there is a public interest in granting the injunction.

Another potential complication was raised by Roadshow during a case management hearing late last year. Roadshow told the court that following its attempt to contact the owner of the HDSubs+ service, it had noticed a change in the app’s behaviour — an update was replacing HDSubs+ with a different app dubbed PressPlayPlus that relied on different online locations to function. Roadshow indicated there was a chance it may need to seek IP-based blocking; however, it indicated today that the forced upgrade process seemed to have ceased.

Counsel for Roadshow today said that it appeared the HDSubs+ operators were responding to its legal action – including removing films referred to in Roadshow’s concise statement and even a particular season of a TV show that the company had listed in its application for injunction. For that reason the company was seeking a swift hearing of its application.

Hearings for both the Roadshow and the TVB matter will take place on 13 April.

The initial court actions taking advantage of the site-blocking legislation were brought by pay TV company Foxtel and Roadshow in 2016, followed closely by another application for injunction brought by music industry organisations.

Although ISPs did not oppose the move to block the piracy-linked websites targeted by rights holders, the parties clashed over the proposed court orders and who should pay for implementing the site blocks.

Subsequent site-blocking applications have followed the precedent set in those cases — and both Roadshow and Foxtel have successfully sought additional injunctions.

The ISPs have not entered an appearance in response to the current applications.