Site Blocking: A Controversial Way to Combat Online Piracy
Site blocking has been implemented around the globe except in the United States., What is it and why is it controversial?
Attribution
Annoyed Freelancer by Andrea Piacquadio on Pexels
One-in-three Americans have admitted to pirating a movie, TV show, or sporting event in the past year. This represents a massive amount of potential revenue that the major streaming services, like Disney or Netflix, are missing out on. The United States government has also taken keen notice, a Chamber of Commerce report in 2019 stated that the economy lost $29.2 Billion dollars due to online digital piracy. A method used to combat piracy in jurisdictions around the globe, from the United Kingdom to the European Union, India, and Brazil is ‘site blocking’. The basic premise of site blocking is that a government, usually at the request of a third party, like the MPAA for example, obtain a court order demanding Internet Service Providers (ISPs) prevent all of their subscribers from accessing websites that host content with copyright violations.
The United States was almost the first to implement site blocking in 2011. The Stop Online Piracy Act, or SOPA, aimed to require online service providers, Internet search engines, payment network providers, and Internet advertising services to cease affiliations with sites hosting copyrighted material. This act ignited a fierce debate with open internet activists who alleged that these measures could “break the internet”. The technical reasoning was the potential damage to the Domain Name Service (DNS) infrastructure. In plain terms, this is what allows users to type words in a search bar to access webpages without having specific knowledge of every IP address on the web. like Wikipedia and Google redirected users to a black screen on their websites, essentially closing down their sites, in protest of the bill. After lengthy protests, support for the bill was dropped and the bill never passed.
Proponents of SOPA argued that site blocking was the most effective way to combat copyright infringement done by actors overseas. The Digital Millennium Copyright Act of 1998 (DMCA) constitutes the current system for taking down illegal content hosted in the United States. However, the DMCA makes it difficult to enforce against actors who host websites in countries that have weak or unfavorable laws towards United States-based copyright claims. The differences between site blocking and the DMCA are the ability to stop overseas actors and the ability to cast a much wider net in stopping infringement through site blocking rather than just targeted takedowns as the DMCA does.
An example of the efficacy of site blocking comes from the United Kingdom. In 2012, the United Kingdom blocked a single, but perhaps the most notorious, pirating website – The Pirate Bay. It was estimated that The Pirate Bay had an estimated 3.7 million users and made approximately $3 million per month. After the block, there was a minimal impact on the piracy market in the United Kingdom. Most users pivoted to other piracy websites, showing no increase in visits to legitimate websites. However, when widespread site blocking took place in 2013, there was a twelve percent increase in traffic to legal content platforms.
Site blocking also allowed for the ability to crack down on proxies. After the ineffective single block of The Pirate Bay, a new court order in 2015 allowed ISPs to block any and all suspected proxy websites without each URL having to be subject to the same due process as the original, allowing for a quicker stamping out of piracy. (For example, the original Pirate Bay was listed at thepiratebay.org, and the 2015 order shut down sites like piratebayproxy.co.uk, piratebayproxylist.com, and ukbay.org.) Owners of several of the proxies filed suit claiming that these bans don’t target copyrighted material, only resources and information for accessing that material elsewhere.
Rulings in this matter have popped up in the European Union. In 2017 the Court of Justice of the European Union (CJEU) held that the facilitation of mass copyright infringement was enough to have websites blocked under site blocking laws. The new rules applied in the E.U. to issue a dynamic injunction against ISPs had to strike a balance between freedom of information, privacy rights, costs of enforcement, and the property rights of the user base of those ISPs. The Dutch Court made this decision in the face of the scale of piracy at play in this case.
An overlooked aspect of site blocking is the permanent implementation and costs assessed by ISPs. ISPs that do not comply with court orders run serious legal risks, but in order to comply, “blocking would require additional investment in network hardware and, dependent on volumes, increase operational overheads including staff numbers.” While bigger ISPs would have little trouble implementing these changes, “the cost burden for smaller ISPs would need careful evaluation as would legal concerns related to compatibility with privacy, data protection, and interception rules.” Given how many piracy sites operate outside the jurisdictions of E.U. or U.S. courts, collecting judgment for implementation could be unfeasible.
The debate between the major players in copyright law like the MPAA or the RIAA and the defenders of open internet continues in the U.S. There are major concerns that many ‘innocent’ websites would get caught up in widespread blocking sweeps. ISPs have websites listed on blocklists that are not included in any of the publicly available blocklists. For instance, in Spain, websites promoting Catalonian independence were blocked after a court order made a blanket block against all .cat domains. Site-blocking proponents argue the inefficiency of specific DMCA takedowns, and point out that U.S. enforcement is confined by U.S. jurisdictions. The Chairmen of the Movie Picture Association announced earlier this year, that the organization was working with Congress to draft new site-blocking legislation. If the legislation comes down to fruition, rounds of blacked-out websites in protest will arise again, repeating what happened in 2011.