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KickassTorrents kicked out again, this time by Australia

Court deems the site's for copyright infringement, orders DNS blocks

Australia's Federal Court has come to the conclusion that KickassTorrents' primary purpose is copyright infringement and has therefore ordered the nation's internet service providers to block access to its many URLs.

The case is notable because it's the second win for Big Content under Australia's site-blocking regime and also because it re-enforces findings from the first. Future requests for site blocks may therefore require less time and argument to sort out.

That Kickass is a site of dubious repute has been known for some time: British courts came to the conclusion in 2013 and ordered local ISPs to block it, but Australia didn't have site-blocking laws in place at that time. The laws that are now in force require copyright holders to convince a Federal Court Judge that a site's primary purpose is indeed copyright infringement. If that judge is satisfied that's the case, he or she can then order ISPs to erect DNS-level blocking of the site in question.

Which is what's happened in Universal Music Australia Pty Limited v TPG Internet Pty Ltd. Sony and Warner Music, plus local royalty-distribution organisations, joined Universal as applicants. 33 more entities associated with ISPs were considered respondents.

Justice Burley heard the case last October, submissions were made until December 23, 2016 and the judgement landed late last Friday.

There's a little comedy to be had in the judgement, which records how the applicants' lawyers pursued the site by sending it emails that generated pro forma responses rejecting the claim on the grounds the claim was not in English. Which of course it was! The applicants lawyers also tried emailing the WhoIs anonymising services Kickass employes, with predictable lack of results.

Justice Burley was not impressed by those antics and wrote “It appears to me that the operator of the KAT website has taken steps to avoid proper engagement on the question of copyright infringement.”

After poking around the site, the judge also noticed that “The online location provides explanations for how to use the site, how to upload content for other users to download by means of the BitTorrent protocol, and provides a mechanism for users to request that particular content be uploaded and made available free of charge.”

All of which made it hard to avoid the conclusion that Kickass needs its ass kicked. Leading Justice Burley to order that respondents block access to Kicasss Torrents by implementing DNS blocks. The respondents indicated it's no hassle to do so and will accept a proposed fee of AU$50 per domain blocked.

But the applicants were lumped with some of the respondents' costs, partly because Burley felt the matter could have been settled earlier.

The ISPs now have 15 days in which to implement their DNS blocks.

All of which is lovely, save for the fact that nearly four years on from the UK's block the site is still up and running and has at least seven working domains from which it can be assessed.

Big Content, however, has another precedent it can use to expedite future such cases. And given that a fair bit of the argument in this case was about whether or not to follow precedents established in the first, there's every chance future such cases will result in faster approval of blocks. ®

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