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Court struggles to define 'online location' in Australia's first site blocking case

Sites like Pirate Bay are one step closer to being blocked in Australia, just as soon as anyone can figure out the meaning of "online location."

In Sydney Thursday, the court heard arguments from Foxtel and Roadshow as part of their bid to have Solar Movie, Pirate Bay, Torrentz, TorrentHound and IsoHunt blocked for Australian Internet users. It's the first test of Australia's new site blocking law, which was passed in 2015.

The law allows copyright holders to seek an injunction in Federal Court that forces Australian Internet service providers (ISPs) to block foreign websites that facilitate copyright infringement.

Unsurprisingly, no representative from Solar Movie, Pirate Bay, Torrentz, TorrentHound and IsoHunt appeared to argue they don't primarily help people illegally access shows and movies, so the court's attention was directed instead at how "online locations" that facilitate copyright infringement should be defined.

When the law was passed, many digital advocates suggested it relied on terms that were confusing and overly broad — criticisms that were apparent in the arguments Thursday.

A significant portion of the discussion focused on what legislators meant by the term "online location," which the government failed to provide examples of or specifically define.

Foxtel and Roadshow, which are sharing a lawyer, Richard Lancaster, argued in favour of a broad definition. Lancaster noted that the bill's explanatory memorandum shows online location is "not just specific URLs or IP addresses."

"It's a broad reference to the content offered by the online location," Lancaster said. "It's an umbrella broader than the actual website. It's the digital content accessible there."

According to the memorandum, the term is left "intentionally broad," and is intended to accommodate future technologies.

Lancaster pointed to the reference to future technologies when making his argument. "[It] makes one immediately think of the cloud, which is digital content hosted somewhere on servers," he said. "The methods of access might be various, and indeed in this case there are numerous pathways to substantially identical digital information that we'd call the online location."

Instead, Lancaster suggested it should be the infringing content that defines the online location, allowing for the fact there can be numerous pathways to substantially identical material.

Justice Nicholas did not appear entirely persuaded by that interpretation, however. If a server hosts identical infringing content within Australia, it would fall outside the law, he suggested. For the purposes of the bill, the online location must be foreign. 

"When you talk about the cloud, that would depend on where the servers holding that information are," he said.

A broad interpretation of online location would benefit Foxtel and Roadshow, as well as future copyright holders who use the law to block other torrenting and streaming locations. A key problem for them is that when a site is blocked, a new version is bound to pop up immediately at a new location.

What Lancaster called "new access pathways" could render any injunction almost useless. The rights holders are clearly seeking a process from the judge by which new versions of infringing sites could be blocked easily without returning to court.

Lancaster argued the process to block a new online location should not be cumbersome if the torrent and streaming sites emerge at new URLs or IP addresses.

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