Category: Piracy

Site Blocking Is Effective Worldwide Says New Report by IP House and DCA

site-blocking

Overseas and Out of Reach:  International Video Piracy and U.S. Options to Combat It, released today by IP House and Digital Citizens Alliance (DCA) is one more reason the U.S. Congress should adopt site-blocking legislation to protect American creators and consumers.

Thirteen years ago this coming January, Congress shelved bipartisan legislation that was designed to restrict foreign-based criminal enterprises from access to American consumers. Generally referred to as “site-blocking,” the focus was (and remains) combatting media piracy operators who illegally distribute or perform motion pictures, music, publications, etc.—most of which are produced in the United States. In 2011/12, Silicon Valley funded a multi-lateral disinformation campaign that frightened people into believing that site-blocking would chill speech, sidestep due process, and “break the internet.”

None of those allegations were true then, and if Congress revisits site-blocking, which it should, lawmakers can rely on the new IP House report showing that more than 50 countries have implemented some form of this piracy mitigation strategy without any of the negative consequences foretold by Big Tech and its network of hacktivists. Unsurprisingly, the report reveals that speech rights, due process, and functioning internet services persist in nations that have had site-blocking in force for about a decade or more.

Contrary to those who predicted that more access to more media would reduce piracy, Americans have more access today than they have time to consume, and yet piracy grew by 36 percent between 2021 and 2022, during which time, 13.5 billion visits to film and TV piracy sites originated in the U.S. Meanwhile, to those who claimed that site-blocking was too risky because piracy cannot be restrained, the report demonstrates that site-blocking measures have resulted in increased traffic to legal platforms for media entertainment.

Three separate studies—focused on the United Kingdom, Portugal, and Australia—found that when sites were blocked, traffic decreased to those sites. The decrease was substantial; traffic decreased by 89 percent in the United Kingdom, 70 percent in Portugal, and 69 percent in Australia.

Even if skeptics choose to doubt that, say, Russia is a reliable speech-right and due-process country, fair enough; but Australia, Canada, the UK, France, Germany, and Sweden are among the nations with site-blocking measures in force while reporting no harm to protected speech, the functioning of the internet, or the kind of indiscriminate over-blocking that Big Tech and its “digital rights” allies insisted would be inevitable. Of course, much of that hyperbole has ebbed amid a more sober understanding that the internet is not the boon to democracy Google et al. proclaimed. So now, perhaps, we can have a sober discussion about the rationale for site-blocking and how it is implemented.

How Site-Blocking Works

As the new report describes in detail, most sophisticated pirate platforms operate between the shadows of online anonymity, in physical jurisdictions beyond the reach of U.S. law enforcement, and “in concert with other criminal entities.” As a $2bn+ industry, these enterprises have the resources to build nimble, complex systems, and so, shutting down one of the major operations and/or convicting the owners is nearly impossible—even with cooperation among friendly nations. For instance, the infamous Megaupload founder Kim Schmitz (Kim Dotcom) was arrested in New Zealand in 2012, but it was only this past August when that government agreed to extradite him to the U.S. to stand trial.

In response to the challenge of stopping “out of reach” criminals, site-blocking prevents, or at least limits, foreign illegal platforms’ capacity to reach consumers in the target nation. To implement a block, a complainant party (e.g., a major owner of IP being infringed) bears a high burden of proof to show (in the U.S. it would be a federal court) that a particular site is dedicated, or substantially dedicated, to mass piracy. If the court orders a block, the major ISPs in that nation are then instructed to restrict access through various means like DNS blocking, blacklisting URLs, etc., depending on the nature and structure of the pirate operator.

Piracy is About Harm to Creators and Consumers

Nearly 80 percent of piracy sites delivered malware-ridden ads to their users….More than half of the $121 million generated ($68.3 million) from malvertising came from U.S. visits to these sites.[1]

Even if site-blocking were solely about mass theft of creative works, it is absurd that the U.S., as the world’s largest and most diverse producer of such works, lags so far behind other nations in adopting this commonsense strategy to mitigate harm to American businesses. But in addition to the new report’s evidence that site-blocking has been effective without significant negative consequences, Congress must also recognize that both media piracy and cybercrime in general have become more sophisticated in the last decade.

For instance, two of the more popular modes of media piracy are the video on demand (VOD) and internet protocol TV (IPTV) models whereby operators sell subscriptions to platforms that look like Netflix or Hulu, but which stream and/or enable downloads of media files that are obtained and stored illegally. Many consumers are aware that these sites are piracy-based, but because the platforms look and feel like legit platforms, many consumers may not be aware that they are paying criminal enterprises, making themselves vulnerable to cyber-attacks and/or supporting a broad range of unsavory activity, including extortion, narcotics, human trafficking, and terrorism.

Al-Manar is a Lebanese television outlet operated by the extremist political party Hezbollah and is banned from operating in the United States after the U.S. government labeled it a “Specially Designated Global Terrorist entity. Nevertheless, Al-Manar was offered on at least half of the piracy IPTV services…

Several DCA reports have presented substantial evidence of a nexus linking mass media piracy to organized crime, and as this new report states, “The more profitable piracy is, the more likely organized criminals are or will become involved in it.” Past reports have shown that platforms are major vectors for malware, including ransomware and remote access trojans (RATs) used to slave computers, or that visitors to pirate sites are “disproportionately vulnerable to credit card fraud.”

Meanwhile, it is hard to miss the fact that buying ordinary products online today, even on major ecommerce platforms, requires heightened vigilance to avoid counterfeits that may be faulty or dangerous.  Add to this chaos the potential of AI to amplify a broad range of assaults on American institutions, businesses and consumers, and it is clearly a moment for Congress to fan away the dust of the “Stop SOPA” campaign of 2012 and reaffirm that site-blocking is a practical tool in defense of the public interest. “The lack of evidence of abuse suggests that site-blocking orders are fair, rigorous, and issued only in legitimate cases of large-scale piracy,” the report states. That was predictable more than a decade ago. Time to catch up.

[1] IP House report citing this article.

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Site-blocking: can the U.S. finally get it done?

site-blocking

The Motion Picture Association (MPA) has prefaced a renewed interest in site-blocking legislation to combat piracy. Will things be different this time?

When the internet industry killed the antipiracy bills SOPA and PIPA in January 2012, I was a newbie blogger but guessed at the time that those parties had totally blown their wad on that campaign. First, there was the boy-who-cried-wolf limitation suggesting that Google & Co. had deployed too much hyperbole to ever again sound the “death of the internet” alarm. Next, the general belief that “the internet” is inherently a force for good was a notion that waned perceptibly after 2012 and then fell off the cliff circa 2016. Today, neither the general public, the government, nor the press fawns over the “white knights” of Silicon Valley as they did when those bills were scuttled.

None of that addresses the fact that the “Stop SOPA” campaign was a tidal wave of disinformation, but it would be naive to think that facts would win today any more than they did twelve years ago. When new site-blocking proposals begin to make headlines, and the network of tech-funded groups howl BEWARE SOPA 2!!, it will be interesting to see whether the same, or similar, false talking points are effective in an environment that is more skeptical of Big Tech in general.

What is site-blocking and why do It?

Site-blocking today would probably work much as it was intended back in 2011. A complainant would have the burden to prove to a court that a platform is principally engaged in illegal activity (e.g., media piracy) and is operating outside the reach of U.S. law enforcement. With sufficient evidence, the complaining party(ies) would obtain an injunction to deny the platform access to the U.S. market. The basic mechanisms are not much more complicated than that, though we can expect the same network of “digital rights” groups to sharpen the rhetorical pitchforks and again stoke allegations that this process will “break” the internet or that it violates the speech right.

Of course, neither claim is true. Site-blocking is employed as a remedy throughout the democratic world where the internet still functions, and speech rights are not infringed (at least not because of site-blocking). There is no more a speech implication to blocking a criminal web platform from access to the U.S. than there would be by interdicting a cargo ship full of counterfeit electronics. On that subject, the need for site-blocking legislation today is more urgent than it was in 2011, and not just for movies and music.

Although the MPA et al. will naturally focus on sites illegally hosting and/or streaming pirated entertainment, establishing a broader rationale for site-blocking—i.e., getting past unfounded ideological opposition—will serve other business and private interests. Online predators of every type have continued to adapt since 2012; evidence shows that media piracy is integrated with a broad spectrum of cybercrime; and the U.S. lags behind the EU et al. in adopting this basic mechanism of protection.

For instance, small-business owners making creative products sold on eCommerce platforms lack the resources to combat, or the margins to absorb, the pace of counterfeiting by foreign actors. Advancements in small-batch production methods and drop-shipping offer new flexibility for counterfeiters to flood the U.S. market with cheap knockoffs, harming both legitimate producers and consumers. Meanwhile, media pirate sites are delivery platforms for malware used for cyber extortion (including sextortion), identity theft, and direct theft of private and sensitive material from personal and business networks.

So, although the MPA will likely be the most prominent advocate of site-blocking legislation, there are many disparate parties—from small-business owners to advocates fighting online sexual abuse—who may see the value in the U.S. finally adopting a remedy the EU et al. have had in place for a decade or more.

An Interesting Moment

In 2011, it was easy to spread the message that site-blocking was only about “Hollywood” protecting its wealth to the detriment of speech on the internet. It wasn’t true then, of course, but it will be interesting to see whether some form of the same rhetoric will gain traction in the coming years. Specifically, a whole generation has grown to young adulthood since then—kids who never heard the proverbial boy cry wolf the first time. Notably, Torrentfreak reports that GenZ exhibits a high rate of pirate site access, citing familiar rationales that streaming subscriptions are too expensive and/or that interest in one title militates against subscribing to the necessary channel.

But what will really be interesting to watch over the next few months will be GenZ’s susceptibility (or not) to the “Save TikTok” campaign already underway. On April 24, President Biden signed a solidly bipartisan law stating that TikTok will be banned in the U.S. unless, within nine months, owner Bytedance sells the platform and, thereby, severs all ties to the Chinese Communist Party (CCP). Bytedance, in addition to vowing it will fight the law in U.S. courts, has already launched a PR campaign, including social media messages that will tap into the same emotional triggers used during the “Stop SOPA” campaign.

As Google & Co. did in 2011/12, Bytedance will use its addictive interface to promote the message that its business interests are synonymous with their users’ rights, only this time, the rhetoric isn’t coming from Big Tech filtered through the Electronic Frontier Foundation—it’s a psyop of the CCP. The efficacy of the “Save TikTok” campaign will be telling, not only about the viability of site-blocking legislation, but about the hoped-for savvy that “digital natives” might reveal about navigating the perils of cyberspace.

In 2011, it was frightening to watch the platforms use the insidious power of the platforms to advocate the policy interests of the platforms. Now, that same playbook is being run by a foreign adversary targeting 170 million 18-29-year-olds, and it is an anxious moment, to say the least, waiting to see how they respond. Regardless, the underlying rationale for site-blocking is sound, and I hope that both copyright and non-copyright interests see it as a necessary protection of American enterprise and security.

Photo by: tommoh29

EFF to Honor Scientific Paper Pirate Sci-Hub

The Electronic Frontier Foundation (EFF) announced that among the 2023 recipients of the EFF Award (formerly the Pioneer Award), it will honor Sci-Hub founder Alexandra Asanova Elbakyan this September. The Russian-based Sci-Hub is an enterprise-scale pirate site specifically built to host scientific papers about which the EFF states:

Through Sci-Hub, Elbakyan has strived to shatter academic publishing’s monopoly-like mechanisms in which publishers charge high prices even though authors of articles in academic journals receive no payment. She has been targeted by many lawsuits and government actions, and Sci-Hub is blocked in some countries, yet she still stands tall for the idea that restricting access to information and knowledge violates human rights. 

In addition to the EFF’s usual flare for the dramatic, the organization continues to flaunt its unwavering hostility toward all copyright rights as a foundational raison d’etre. Note the word shatter in that quote above. To the ideologues at EFF et al., Sci-Hub is not merely a response to subscription fees but should be revered for its assault on the very idea that journal publishers ought to exist in the first place. In fact, the timing of this award is telling in that it comes two years after a landmark, open access agreement was negotiated by the University of California (UC) with publishing giant Elsevier.

Although subscription cost has often been a point of contention for many in the academic community, even contributing authors, the UC has been negotiating open access agreements with academic publishers on behalf of colleagues at smaller institutions with more limited resources. “We refer to these agreements as transformative open access agreements because they convert subscription payments into payments for open access publishing (with reading provided for free). It is a new approach we helped develop with other leading institutions a few years ago, in large part through the OA2020 initiative,” says librarian and economics professor Jeffrey MacKie-Mason of UC Berkeley.

Settled in March of 2021, the Elsevier deal was the ninth open access agreement the UC negotiated with academic publishers, which suggests that many authors of scientific research papers do not view a pirate site like Sci-Hub as a viable “solution” to whatever criticisms they have of the commercial publishers. While I do not presume to have expertise about the complex world of scientific journal publishing, a 2018 article by industry consultant Kent Andersen lists “102 things journal publishers do,” and it’s a lot more than hosting PDFs on a website. Notably, even among some of the critical comments on that article, which appear to be written by academic authors, there is no mention of Sci-Hub in particular, or piracy in general, as obviating the role played by journal publishers in the industry.

Although it is true (as the EFF emphasizes) that the authors of these papers are not paid for their writing, the academic publisher is more like a venue operator than a trade book publisher—a venue operator that, at best, serves as a neutral party to control quality. These journals invest substantial resources to review millions of submissions, prepare documents, maintain databases, check for plagiarism, organize peer review, etc. And although these investments need to be recovered profitably for the publisher to exist, the UC deals indicate that there is room for negotiation, which leaves EFF’s panegyric to Sci-Hub sounding as hollow as it is untimely.

Speaking of timing, with academics, policymakers, journalists, artists, and just about everyone else wondering how badly generative AI might exacerbate the misinformation problem, could there be a worse moment to award a pirate of scientific journals? How is Sci-Hub not the natural place for a generative AI developer to harvest scientific writing to train an algorithm to, perhaps, “write” papers without scientists? Notably, in the class-action case Tremblay et al. v. OpenAI, the plaintiffs allege that the defendant obtained literary works for machine learning (ML) from “shadow libraries,” (i.e., pirate sites like Z-Library). So, by the same logic, Sci-Hub would seem to be a natural source where an AI developer can scrape scientific papers.

I am neither motivated nor qualified to critique the entire scientific publishing ecosystem, let alone to dispute complaints among some academics about cost, et al. I would grant Elbakyan the benefit of the doubt that her intent is at least distinguishable from the typical entertainment media pirate whose only motive is financial, and I recognize that scientists and academics in various regions have access Sci-Hub for what may be difficult to obtain information. Nevertheless, the worn out view that piracy is a solution to imperfections in a given system is, at best, narrowly focused on distribution while ignoring the means and motives for production.

Not unlike Peter Sunde’s mourning the lost Marxist idealism he saw in the The Pirate Bay, Elbakyan echoed this same naivete when she told the Washington Post in 2016, “On my website, any person can read as many papers as they want for free, and sending donations is their free will. Why Elsevier cannot work like this, I wonder?” Indeed. The alleged “white hat” pirate never seems to grasp that there is always a cost to production and that, whatever system covers that cost, it won’t be a damn tip jar, and it will rely on copyright in some form. As the court stated in 2015 when Elsevier successfully sued Sci-Hub for infringement, “Elbakyan’s solution to the problems she identifies, simply making copyrighted content available for free via a foreign website, disserves the public interest.”

As for the EFF Award, it’s worth asking what Sci Hub’s agenda is in 2023, if indeed traditional publishers are adopting open access agreements and academics are still willing to work with those publishers? Is it truly Elbakyan’s mission to “shatter” the entire scientific publishing ecosystem and, with it, essential processes like peer review? Or is that just the EFF’s hyperbole? Presumably, it’s both. And by honoring Sci-Hub, the EFF proves once again that it will promote any anti-copyright agenda—legal or otherwise—with the zeal of a conspiracy theorist watching “chemtrails” fill the sky.