Google has said it strongly disagrees with the Australian government’s proposed piracy site-block amendments, arguing that they would remove Federal Court control over what websites are blocked, handing it instead to commercial entities.
The Australian government had last month introduced the new legislation, proposing to expand it from carriage service providers to online search engine providers, as well as allowing faster blocks of mirror sites, reducing the burden of proving that a site is hosted outside of Australia, and expanding the legislation to sites that not only have the “primary purpose”, but also to those that have the “primary effect” of infringing copyright.
“Google is concerned the Bill is being rushed forward despite no substantive evidence that the current legislation is deficient,” the search engine said in its submission to the Senate Standing Committees on Environment and Communications consultation on the Copyright Amendment (Online Infringement) Bill 2018.
“Google’s view is that there is presently no reasonable policy basis for these amendments,” it said.
“Google is not aware of any instances where the Federal Court has refused to make site-blocking orders because of the current formulation of the law. Google is not aware of any evidence that follow-on orders are slow or expensive to obtain.”
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.
Google also added that rights holders should support an expansion of the safe harbour scheme to all online service providers, and that it is already combating online piracy with its takedown process for copyright owners and Trusted Copyright Removal Program (TCRP), which has seen it remove more than 3 billion URLs from search results.
Further, the site blocks already in place mean that even if Google does serve up a link to a blocked website, clicking through will result in the consumer reaching the block notice.
“As such, to the extent that the address for a blocked site continues to appear in a search index, the website itself remains inaccessible. Google submits that by efficiently cutting off access to a website at the ISP level, there is no additional utility provided by extending the site-blocking scheme to search engines,” it argued.
Village Roadshow CEO Graham Burke said Google’s claims that it is 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 Village Roadshow’s 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.”
While the Department of Communications acknowledged that search engine providers have been employing voluntary measures to help fight piracy, it said the amendments remain important as a “backstop should voluntary arrangements to address large-scale copyright infringement prove to be ineffective, either now or into the future”.
Roadshow conceded that the legislation must be accompanied by a “legally available cheap product” as well as winning the “hearts and minds” of consumers by encouraging them that piracy is wrong, but supported all amendments to the Bill.
Foxtel — which called itself a “key stakeholder” in the legislation, and said it was involved extensively during consultation on the Bill — also said it “supports the amendments proposed by the Bill and believes they will further enhance the section’s operation and effectiveness”.
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 Department of Communications also lauded its own expansion of the laws to improve speed and timeliness of injunctions and allow open-ended blocking.
“Under the existing website blocking arrangements, injunctions have taken between four to twelve months from the application to the granting of the injunction, and the Federal Court has not granted any interlocutory injunctions to date,” the Department said.
“As a result, copyright owners bear the direct burden of court costs and indirect costs of extended periods of copyright infringement. Follow-on orders can be more expedient, taking a number of weeks, but rely on there being a primary order in the first place. Although some stakeholders have argued that there is no evidence that the injunction process under section 115A is too slow or costly, the experience with the existing arrangements does not support this view.”
Electronic Frontiers Australia (EFA), however, reiterated its submission from when the original legislation was introduced back in 2015, arguing that the laws are not necessary.
“The core issue relating to copyright infringement is fair price and accessibility. Since then, while some progress has been made, there is a large volume of copyright material which is advertised to Australians despite not being commercially available to them in any form or at any price,” EFA said.
“We repeat our 2015 recommendation that the abovementioned issue should be addressed as a matter of priority, and that any efforts invested by rights holders into enforcement, litigation, or lobbying should be matched or exceeded by efforts to innovate and overcome accessibility issues.”
Last month, Labor MP Ed Husic also criticised the amendments, saying an expansion of Australia’s piracy site-block laws is “a form of regulatory hallucinogen”, and adding that the voice of the consumer needs to be heard and rights holders should be less “resistant” to digitisation and reforming their systems.
“The big challenge is the freeing-up of copyright to ensure that innovation can spread more widely and to face up to big rights holders and the types of hysterical arguments we get in this space,” Husic said.
“These rights holders think that by constantly using legal mechanisms through this place and elsewhere, piracy will disappear. The reality is that piracy is a reflection of a market failure.”
Husic also suggested that political donations from rights holders such as Roadshow might sway votes on the legislation.
The Bill has received bipartisan support, however, after a review earlier this year of the laws found them to be “operating effectively”, but that search engines are enabling users to discover alternative pathways to blocked websites and that online piracy types have become broader with mirror sites popping up.
The new Bill comes despite the existing law’s 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.