Mickey Mouse gets tough

In Disney Enterprises, Inc. and others v. M1 Limited and others [2018] SGHC 206, Disney and five other major film studios applied for site block orders against the five main retail ISPs in Singapore.

Apart from the main site blocking injunction which was targeted at 53 websites which provided unauthorised access to the applicants’ films, the court also granted a ‘dynamic’ injunction to the effect that the ISPs would be required to block new domain names, URLs and/or IP addresses (“Fully Qualified Domain Names” or “FQDNs”) which provide access to the same websites.

The court agreed with the applicants that this was necessary to prevent circumvention of the main injunction by the operators merely moving the infringing content from one FQDN to another – a practice known as ‘site hopping’. The court also observed that the dynamic injunction could potentially reduce the burden on the ISPs by obviating the need for them to return to court to respond to applications for a variation of the main injunction every time a new FQDN arises.

As for the mechanism, the applicants are required to notify the defendants by serving on the defendants and filing in court an affidavit identifying the additional FQDNs and providing reasons why these FQDNs provide access to the websites identified in the main injunction. The ISPs would not be required to block the additional FQDN if they believe that the reasons provided in the affidavit are insufficient. In such a case, the parties may bring the issue before the court.

Still not enough bite?

This decision is certainly a step in the right direction for content owners. However, a key limitation of site blocking injunctions – whether static or dynamic – is that they only target websites and do not prevent the making available of infringing content via other interfaces which provide access to infringing content.

It remains to be seen whether the Singapore courts will go as far as the English courts have done in The Football Association Premier League Limited v. British Telecommunications Plc and others [2017] EWHC 480, where a ‘live’ blocking order directed at streaming servers used to transmit the infringing streams to the user interface (be it a website, set-top box, media player or app) was granted.

The availability of a blocking order of this nature can be especially crucial when the content to be protected is footage of live events (e.g. sports events) where the content is of little value once it is first broadcast. Given the broad interpretation that the court in Disney has taken of the statutory provisions governing site blocking injunctions in Singapore, there appears to be ample room to argue that the Singapore courts have the power to make a similar order in an appropriate case.

The war goes on…

It has been suggested that heavy-handed enforcement of copyright is not the answer and the real goal is to persuade consumers to go to legitimate sources for content. Indeed, this is especially so when the law is constantly struggling to keep pace with technology. A two-pronged approach is required, comprising of both public education to raise awareness of and respect for copyright and developing new and innovative ways to deliver content to consumers in such a way that the consumers will pay for the content.

As Walt Disney once said: “There is no magic in magic, it’s all in the details.”

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