In the High Court of New Zealand

Auckland Registry
CIV-2017-404-

under: the Copyright Act 1994

between: SKY Network Television Limited, a duly registered

company having its registered office at Auckland and
carrying on business as a media company
Applicant

and: Spark New Zealand Limited, a duly incorporated

company having its registered office at Auckland and
carrying on business as a telecommunications company
First Respondent

and: Vodafone New Zealand Limited, a duly incorporated

company having its registered office at Auckland and
carrying on business as a telecommunications company
Second Respondent

and: Vocus (New Zealand) Limited, a duly incorporated

company having its registered office at Auckland and
carrying on business as a telecommunications company
Third Respondent

and: Two Degrees Mobile Limited, a duly incorporated

company having its registered office at Auckland and
carrying on business as a telecommunications company
Fourth Respondent

Originating application by applicant for site blocking injunction

Dated: September 2017

REFERENCE: Matt Sumpter (matt.sumpter@chapmantripp.com)

Justin Graham (justin.graham@chapmantripp.com)

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ORIGINATING APPLICATION BY APPLICANT FOR SITE BLOCKING

INJUNCTION

To the Registrar of the High Court at Auckland

And
To the first to third respondents

This document notifies you that

1 The applicant, SKY Network Television Limited, will

on apply to the court for orders that:

1.1 within 10 working days of the date of notification under

order 1.3, the Respondents shall block or attempt to block
access to:

(a) the Target Websites set out and defined in Schedule 2

to this Order, their domains and sub-domains; and

(b) any other IP address or URL (as defined in order 1.7)

notified to them by the Applicant or its agents whose
sole or predominant purpose is to enable or facilitate
access to a Target Website.

1.2 for the avoidance of any doubt:

(a) a Respondent complies with order 1.1 if it uses the

technical means set out in Schedule 3 to this Order or
any alternative and equivalent (including replacement)
technical means to those set out in Schedule 3 to this
Order, provided that the Respondent gives notice to
the Applicant of the change;

(b) a Respondent who adopts IP address blocking

measures shall only be required to block IP addresses
in respect of which the Applicant or its agents notify
the Respondents that the server with the notified IP
address does not also host a site that is not part of a
Target Website (whether as defined in this Order or in

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any earlier order of the Court made pursuant to an

application under section 92B of the Copyright Act
1994 or the equitable or inherent jurisdiction of the
Court);

(c) the Respondents are wholly reliant on the Applicant

accurately identifying the IP addresses and/or URLs
which should be blocked under the terms of this Order.
The Respondents have no obligation to verify whether
the Applicants or its agents determination is correct;

1.3 the Applicant or its agents must notify the Respondents

should:

(a) any IP address and/or URL which has already been

notified to the Respondents under the terms of this
Order cease to be a location whose sole or predominant
purpose is to enable or facilitate access to a Target
Website. In such a case, the Respondents shall no
longer be obliged to block that IP address and/or URL;

(b) any Target Website move to an IP address where the

server at that IP address hosts a site or sites that are
not part of a Target Website, or should a server hosting
a Target Website commence hosting a site or sites that
are not part of a Target Website;

(c) any Target Website where the server with the notified
IP address hosts a site or sites that are not part of a
Target Website and one or more of the site or sites that
are not part of a Target Website ceases to carry out
unlawful activity. In this case the Respondents shall
not be required to block that IP address.

1.4 notification under order 1.3 above must:

(a) be sent as soon as reasonably practicable from the

date on which the Applicant or its agents become
aware of the change in status of the Target Website or
server, as the case may be;

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(b) be sent electronically according to a schedule and in a

machine readable digital format to be agreed with each
of the Respondents;

(c) be provided no more frequently than once per week on

a day to be agreed with the Respondents;

(d) be sent to all Respondents on the same date; and

(e) be implemented by the Respondents within 10 working

days of receipt of a notification in the format agreed
pursuant to order 1.4(b) of this Order.

1.5 where access to a Target Website is blocked by a Respondent

pursuant to order 1.1 above, that Respondent must take
reasonable steps to inform customers whose access is
impeded that access to the website has been blocked by court
order. Such information may be provided by directing the
customer to another URL containing the required notice.

1.6 a Respondent will not be in breach of this Order if it

temporarily ceases to take the steps ordered in order 1.1
(either in whole or in part) upon forming the reasonable view
that suspension is necessary:

(a) in order to:

(i) correct or investigate over-blocking of material

which is, or is reasonably suspected to be,
caused by the steps taken pursuant to order 1.1;

(ii) ensure the reliable operation of any existing or

future blocking system, if it reasonably considers
that compliance with these orders is likely to
impair the operation of that system;

(iii) maintain the integrity of its internet service or

the functioning of its blocking system;

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(iv) upgrade, troubleshoot or maintain its blocking

system; or

(v) avert or respond to an imminent security threat

to its networks or systems;

(b) and provided that:

(i) it notifies the Applicant or its agents of such

suspension and the reasons for the same as
soon as reasonably practicable; and

(ii) such suspension lasts no longer than is

reasonably necessary.

1.7 where this Order refers to a URL, that is a reference to a

uniform resource locator for a specific internet resource which
comprises a fully qualified domain name. The URL will be
deemed to include all sub-pages of the URL.

1.8 where the operator of a Target Website has provided a

contact email address which appears to be intended to
receive communications about the operation of that site, the
Applicant shall give notice of this Order to the operator by
sending a copy of it, together with a copy of the originating
application submitted to the court, to the email address
provided.

1.9 the proceeding shall be stayed, save for the purposes of any
application to give effect to the terms of this Order and save
that the parties have leave to apply on notice in the event of
any material change of circumstances including, without
limitation, in respect of the costs, consequences for the
parties and effectiveness of the technical means specified in
Schedule 3.

1.10 the operators of the Target Websites and the operators of any
other website who claim to be affected by this Order and any
customer of the Respondents, are to have permission to apply
on notice to vary or discharge this Order insofar as it affects

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such an applicant, any such application to be on 10 working

days notice to all the parties and to be supported by
materials setting out and justifying the grounds for the
application, including (supported by evidence) clear indication
of the status of the applicant.

1.11 the Respondents shall each separately bear their costs of

implementing the terms of this Order. There is no other
order as to costs.

1.12 this Order is to expire 24 months after it is made except

where extended by agreement between the parties and/or
further order of the Court.

2 The grounds on which each order is sought are as follows:

(a) as set out in Schedule 1;

(b) an injunction is required to protect and enforce the

Applicants rights;

(c) damages would be an inappropriate and ineffective remedy,

given:

(i) the infringement of the Applicants rights is by

operators of websites designed to commit and facilitate
copyright infringement on a vast scale; and

(ii) those operators are beyond the Courts jurisdiction

and/or routinely take steps to make enforcement of
copyright impracticable;

(d) The Applicant has consulted with the Respondents over the
orders sought and has done everything possible to ensure the
proposed orders are proportionate to the harm it is suffering;

(e) The Respondents can comply with the orders sought;

(f) The orders sought will not cause the Respondents any undue
commercial hardship or inconvenience;

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(g) The orders sought will be an effective remedy to protect the

Applicants rights;

(h) there is nothing in the Applicants conduct which weighs

against the grant of the orders sought; and

(i) the orders sought are in the interests of justice.

3 The application is made in reliance on:

Section 92B, Copyright Act 1994;

Rules 1.2 and 1.6 of the High Court Rules and the Courts
inherent jurisdiction;

TV3 Network Ltd v Eveready New Zealand Ltd [1993] 3 NZLR

435 (CA);

Roadshow Films Pty Ltd v Telstra [2016] FCA 1503;

Universal Music v TPG Internet Pty Ltd [2017] FCA 435;

Cartier International v British Sky Broadcasting [2016] EWCA

658;

Dramatico Entertainment Ltd and others v British SKY

Broadcasting ltd and others (No.2) [2012] 3 C.M.L.R. 15;

The Football Association Premier League Limited v British SKY

Broadcasting Limited [2013] EWHC 2058 (Ch);

EMI Records Ltd and others v British SKY Broadcasting Ltd

and others [2013] EWHC 379 (Ch);

Paramount Home Entertainment International Ltd v British

SKY Broadcasting Ltd [2014] E.C.D.R. 7;

The Football Association Premier League Limited v British

Telecommunications Plc & Ors [2017] EWHC 480;

[list affidavits to be referred to in support of application]

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Date: August 2017

Signature:

Matt Sumpter
Solicitor for applicant

This document is filed by MATTHEW CARGILL SUMPTER, solicitor for the

applicant, of the firm Chapman Tripp. The address for service of the
applicant is at the offices of Chapman Tripp, Level 38, 23 Albert St,
Auckland.

Documents for service on the applicant may be delivered to that address

or may be:

(a) posted to the solicitor at PO Box 2206, Auckland; or

(b) emailed to the email addresses on the front page of this document
provided that a hard copy is also posted.

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SCHEDULE 1

1 The applicant (SKY) is a media company. SKY either owns or is the

exclusive licensee of copyright in various valuable works including
films, television programmes and sporting broadcasts.

2 By way of example, SKY is the exclusive licensee of copyright

subsisting in the following films in New Zealand:

2.1 [Name films]

(the Films).

3 SKY has paid the Films copyright owners substantial amounts for
the exclusive right to show the Films in New Zealand on television,
computers and other devices.

4 The respondents (respectively, Spark, Vodafone, and Vocus,

collectively ISPs) are telecommunications companies who offer
Internet services to the public. Together, the ISPs account for
around 90% of all Internet service accounts in New Zealand.
By accessing the Internet using accounts provided by the ISPs,
users can access websites, including:

4.1 [List websites]

(the Target Websites).

5 The Target Websites reproduce and make available for free, high
quality unauthorised copies of, inter alia, the Films over the Internet
by way of download or streaming.

6 The primary purpose of the Target Websites is to infringe, or

facilitate the infringement of, copyright in works including the Films.

7 The Target Websites make enormous profit through pop-up

advertising shown to the millions of users who access the Target
Websites each year in search of free films and other entertainment
content.

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8 The Target Websites infringe copyright in the Films by:

8.1 communicating the Films to the public (ss16(1)(f), 29 and 33,

Copyright Act 1994); and/or

8.2 authorising infringement of copyright in the Films by others

(ss16(1)(h), 29, 30 and 33, Copyright Act 1994); and/or

8.3 commercial dealing in the Films knowing that they are dealing
in infringing objects (s36, Copyright Act 1994).

9 The copyright infringement by the Target Websites is flagrant and in

contempt of SKYs legal rights and interests.

10 Were it practicable for SKY to pursue the Target Website operators

for copyright infringement, SKY would be entitled to seek relief by
way of declaration, damages, an injunction, orders for delivery up
and destruction, additional damages, interest and costs.

11 The Target Websites have damaged and will continue to damage to

SKYs business by offering the Films at no cost to the same New
Zealand consumers who can and do otherwise purchase access to
the Films through SKY.

12 Courts in other countries have ordered ISPs to disable access to the

Target Websites on grounds of copyright infringement. The orders
sought by SKY are equivalent in scope to the orders granted by
those Courts.

13 The Court is empowered, by virtue of s92B of the Copyright Act

1994 and/or its inherent jurisdiction to grant orders restricting
access to the Target Websites.

14 The impact of such orders on any person would be minimal and

proportionate:

14.1 restricting access to the Target Websites would not restrict

access by Internet users to legitimate online content;

14.2 the ISPs already have the technology available for site
blocking. The application of site blocking mechanisms to

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restrict access to the Target Websites would involve minimal

time and effort and would be proportionate to the need to
protect SKYs intellectual property and commercial rights.

15 The Target Websites have been notified of their infringements of

copyright and of the making of this application, but have not taken,
and are unlikely to take, any steps to respect SKYs rights.

16 Unless restrained by the orders sought the Target Websites will

continue to infringe SKYs rights and cause SKY substantial loss.

17 SKY has consulted with the ISPs over the orders sought in this
originating application. SKY has done everything practicable to
accommodate the ISPs requests and suggestions on the orders.

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SCHEDULE 2

Target Websites

The target websites are:

the website that is currently accessible at [name];

the website that is currently accessible at [name];

and include any name and URL changes to these websites notified in
writing to the Respondents by the Applicant from time to time (together
the Target Websites and each a Target Website).

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SCHEDULE 3

Technical Means

1 The technical means are:

(i) IP blocking in respect of each and every IP address notified to

the Respondents for IP blocking in accordance with this order;
and

(ii) IP address re-routing in respect of each and every IP address

notified to the Respondents for re-routing in accordance with
this order; and

(iii) DNS blocking in respect of each and every domain notified to

the Respondents in accordance with this order.

2 In respect of its customers who use the Respondents Domain Name

System (DNS) servers, the technical means is DNS blocking in
respect of each and every domain name or sub-domain notified to
the Respondents in accordance with this Order.

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