Judge warns Roadshow against providing 'scant' alleged piracy evidence

[Len]

The hearings for Roadshow and two Hong Kong media broadcasters to have ISPs block apps used by smart TV boxes to allegedly facilitate copyright infringement have been pushed to April.

The Australian Federal Court has delayed Roadshow Films' application to have an alleged piracy-facilitating streaming app and associated websites blocked by Australia's internet service providers, moving it from March to mid-April to be heard alongside a similar hearing by two Hong Kong-based media broadcasters.

According to Justice Nicholas, the separate applications by Roadshow and by TVBO Productions and Television Broadcasts (TVB), the world's largest producers of Chinese media content, deal with different enough technology to previous site-block hearings to warrant additional time and evidence to deal with them.

"I will need to be satisfied by evidence so that I have a good understanding of how it works, I know what the precise relationship is between this box, the apps, and the site from which [content is] downloaded," Nicholas J warned counsel for Roadshow and TVBO/TVB.

"I don't want the evidence in any respect to be scant on those issues; otherwise, you might find the orders won't be made."

Counsel representing Roadshow and TVB/TVBO had previously argued that the case is similar to previous site-block orders in that the box forms the role of the PC, and the apps on the box form the role of the browser -- except that these "browsers" cannot access any other content than alleged piracy websites.

Nicholas J further expressed dissatisfaction on any urgency by Roadshow to have its application heard sooner than April, stating that the state of "flux" argued by counsel in regards to the apps should simply be described through supplementary evidence.

Counsel for Roadshow and TVBO/TVB had argued that "the changing nature of this system" means it has diverted users to various different apps over the past several months.

"[In late December] the HD Subs Plus app updated to send users to a different app ... in early January we noticed that the system reverted back to the HD Subs Plus app," counsel explained, saying this demonstrates the urgency of the application for injunction.

The content owners are seeking to have the domain names that are allegedly facilitating copyright infringement associated with the apps blocked. Such apps are proprietary to the smart TV box in question, counsel said.

"These domain names we seek to block are not associated with the streaming service," counsel explained, adding that the alleged copyright infringement cannot be done without those boxes, as the alleged piracy sites cannot be reached without the box and apps.

No ISPs showed up on Friday, after last year establishing the procedure of not being present during piracy site-blocking hearings.

The case-management hearing follows TVBO and TVB beginning proceedings in mid December, taking aim at proprietary smart TV boxes that, when connected to a TV and the internet, have specific apps that allow users to access allegedly copyright-infringing content including television, movie, and sporting streams.

Counsel had said the TVBO/TVB application is to block the sites that facilitate the boxes using apps to access alleged infringing content, with two to three sites per box and seven boxes being targeted.

The case had largely mirrored one brought by Roadshow Films -- which leads a group of film studios including Disney, Universal, Warner Bros, Twentieth Century Fox, and Paramount -- a week earlier, which sought to have an alleged piracy-facilitating streaming app and associated website blocked by Australia's ISPs, saying that smart TV boxes facilitate copyright infringement.

Counsel for Roadshow pointed towards the HD Subs app that can be used with the device, which facilitates streaming at a subscription cost of between $35 and $240.

The app itself isn't doing the streaming; it's an interface that allows the streaming to occur, counsel said. It enables access to live cable TV channels such as the BBC and on-demand content including TV series and movies, he claimed.

Previous site-blocking hearings have seen content owners successfully seek blocks against Kickass Torrents, the Pirate Bay, and more than 200 additional alleged piracy sites.

Under the initial ruling, rights holders are to pay a AU$50 fee per domain they want to block, with the websites to be blocked within 15 business days.

Website blocking was legislated under the Copyright Amendment (Online Infringement) Act, which passed both houses of Parliament in mid-2015 and allows rights holders to obtain a court order to block websites hosted overseas that are deemed to exist for the primary purpose of infringing or facilitating infringement of copyright under Section 115A.