A group including Facebook and Twitter has told the Australian Senate Standing Committees on Environment and Communications that the proposed piracy site-block amendments “expand the scheme far beyond what is reasonable”.
The Australian government introduced the new legislation in October, proposing to expand piracy site-block laws from carriage service providers to online search engine providers.
The Bill would also allow faster blocks of mirror sites, reduce the burden of proving that a site is hosted outside of Australia, and expand the legislation to sites that not only have the “primary purpose”, but also to those that have the “primary effect” of infringing copyright.
“Our members spend thousands of hours and millions of dollars in developing technology-based solutions to fighting online infringement, from deprioritising search results to hash-based solutions, to developing better ways of processing takedown notices,” the Digital Industry Group Inc (DIGI) — whose members also include Google, Instagram, Yahoo, YouTube, Redbubble, and Oath — said in its submission [PDF] to the Copyright Amendment (Online Infringement) Bill 2018 consultation.
According to DIGI, the five major issues with the Bill are that there is no need for the amendments, as a site-blocking application has never been rejected by the court; that it makes the scheme so broad that it risks legitimate websites being blocked; that the expansion to online search engines is “unprecedented and unnecessary”; that the safe harbour scheme must be expanded if the site-blocking scheme is expanded; and that it is “highly problematic” that Federal Court oversight is being removed.
“It is highly inappropriate to expand the potential scope of the site-blocking scheme beyond the ‘worst of the worst’ websites to everyday legitimate websites, platforms, applications, and services that may have the primary effect of facilitating copyright infringements, but are no way involved in the type of flagrant online piracy that the site-blocking scheme is designed to address,” DIGI said.
“For example, the Australian government’s own regulatory stocktake for cloud computing highlights that the legality of cloud computing under the Copyright Act 1968 is unclear, potentially meaning that common cloud services such as Dropbox, Flickr, iCloud, etc would have the primary effect of copyright infringement if operated in Australia and would be vulnerable to a site blocking order under the proposed amendment.”
DIGI suggested either removing the words “primary effect” or changing “copyright infringement” to “flagrant copyright piracy”, and emphasised the importance of expanding the safe harbour scheme.
“If the Parliament decides to proceed with this reform, it is absolutely critical that any expansion of the site blocking scheme to include search must be accompanied by a corresponding expansion to the safe harbour scheme to include online service providers (which would include search engines),” DIGI said.
“It is essential that any additional regulatory obligations imposed under the site-blocking scheme are matched by the necessary legal protections under the safe harbour scheme. Failure to do so will materially increase the risks of operating technology firms in Australia, in circumstances where Australia is already out of step with global norms in failing to provide safe harbour protections to its technology industry.”
In an individual submission published last week, Google said it strongly disagrees with the amendment, arguing that it would remove Federal Court control over what websites are blocked, handing it instead to commercial entities.
“Google is concerned the Bill is being rushed forward despite no substantive evidence that the current legislation is deficient,” Google said.
“Google’s view is that there is presently no reasonable policy basis for these amendments.”
The search engine giant pointed out that the government’s own research has shown that piracy is decreasing every year, and that no other nation has extended site-blocking schemes to search engines.
Village Roadshow CEO Graham Burke said Google’s claims of fighting piracy are a “sham”.
“Their [sic] sole interest is using a treasure trove of stolen movies as part of attracting people to a business model that is strengthened by theft,” Burke said about Google in the Village Roadshow submission.
“Google auto complete and search are used to steal movies. This is no different from stealing a loaf of bread from a 7-11 store.”
According to Foxtel, the existing legislation has so far seen around 88 sites and 475 domains blocked, but said it “can be difficult” to prove that some online locations have the primary purpose of infringing locations, such as file-hosting services and cyberlockers.
“Foxtel strongly believes that extending the site blocking-powers to search engines so that they must not provide search results that refer users to online locations that infringe copyright would have a substantial impact on reducing online copyright infringement in Australia,” it added.
The new Bill comes despite the existing Copyright Amendment (Online Infringement) Act, which passed both housesof Parliament in mid-2015, successful track record in blocking hundreds of torrenting and streaming websites in an increasingly speedy way, as well as its recent expansion to smart TV boxes and sites providing subtitle files.
Under the initial Federal Court 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.