[AusNOG] Australian senate passes controversial anti-piracy, website-blocking laws

[Paul Brooks]

On 23/06/2015 6:41 PM, Paul Wilkins wrote:
> Paul,
> The point is, per 115A(2) which requires reasonableness, 115A(5e) which requires a
> proportionate response, and 115A(5i) which requires 115A to consider other remedies
> available under the rest of the Copyright Act, the question is, is it reasonable to
> switch off your access routers and go home? In my opinion, the only reasonable
> reasonable and proportionate remedy available is to terminate the user's service.


The point is - this has nothing to do with a user. There is no-one to terminate. This
is about international websites.

115A(2) requires *you* to determine what you believe are reasonable steps to comply
with the order to block the website from *all* your users, after you have received the
injunction. The court order will not make that determination for you. Sure, you could
shrug and write back to the court "there is nothing I could reasonably do to comply
with this order to block, so as a consequence the site is still wide open for all my
customers". Or, you could block the IP address, knock off several thousand other
innocent sites, and let the press ridicule at the courts make a statement. Or, you
could fiddle with the DNS entry. You might think of something else. You will get to
choose what you think is reasonable, but if it isn't effective you may need to explain
why what you did was or was not reasonable attempt to comply.

115A(5e) requires *the court* to determine if the initial request for blocking is a
proportional response. If you've already received the injunction papers to block the
site, the court will have clearly made that determination already. You don't get to
make that call. Same with 115A(5i) etc - if you've already got the injunction papers
in your hand asking you to block the site, all those factors have already been
evaluated by the court.




>
> (I am not a lawyer. This is not legal opinion)
>
> Paul Wilkins
>
> On 23 June 2015 at 17:59, Paul Brooks <pbrooks-ausnog at layer10.com.au
> <mailto:pbrooks-ausnog at layer10.com.au>> wrote:
>
>     On 23/06/2015 5:09 PM, Paul Wilkins wrote:
>>     I haven't read the Copyright Act 1968 in its entirety (and perhaps I should),
>>     but it looks like (ianal), legal remedies are as:
>>
>>     116AG       (3)  For an infringement of copyright that occurs in the course of
>>     the carrying out of a Category A activity, the relief that a court may grant
>>     against a carriage service provider is limited to one or more of the following
>>     orders:
>>
>>                          (a)  an order requiring the carriage service provider to
>>     take reasonable steps to disable access to an online location outside Australia;
>>
>>                          (b)  an order requiring the carriage service provider to
>>     terminate a specified account.
>>
>>     I doubt on the strength of that, courts will go further than orders to
>>     terminate specific accounts. What's a bit sneaky, is the courts may rely on
>>     data retention records in identifying infringing accounts.
>
>     Huh?
>     This has nothing to do with infringing accounts or terminating users.
>
>     A copyright holder goes to the courts and says 'I found this website on these
>     pages is hosting my movie that I hold the copyright for. The site clearly has
>     its primary purpose to facilitate infringement of copyright. Please issue an
>     injunction to all the ISPs to have the site blocked under Section 115A of the
>     Copyright Act please'.
>
>     You and all our colleagues on and off this list get the court injunction
>     requiring you to block access to that/those websites for all your customers. No
>     user identified, no account to terminate.
>
>     They may be preparing the submission to the courts to have 100/200/300+ sites
>     blocked as we speak.
>
>     If your only capability to comply to block access to those hundreds of sites is
>     to switch off your access routers and go home, it might be an issue to ponder on
>     and plan for a better alternative.
>
>     P.
>
>
>
>>
>>     On 23 June 2015 at 15:05, Will Dowling <will at autodeist.com
>>     <mailto:will at autodeist.com>> wrote:
>>
>>         > However, if *you* are the first test case, how do you plan to show to the court what
>>         you interpreted as reasonable, and how you tried to use reasonable means?
>>         The court order won't tell you what 'reasonable' might mean, or what
>>         measures might be considered unreasonable. The content organisation that
>>         asked for the injunction certainly won't tell you.
>>
>>         I’m more than certain the rights holders will be lining up to tell you what
>>         they think is “reasonable”.
>>
>>         Which brings us back to who has the burden for establishing it… likely it
>>         will be the courts until precedent is set.
>>
>>
>>         Will Dowling
>>
>>         E: will at autodeist.com <mailto:will at autodeist.com>
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>>
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