Is Site Blocking Finally Within Sight?

With all the talk about AI, one might think the problem of old-school media piracy has abated, but this week, the House Judiciary Committee held a hearing entitled Digital Copyright Piracy:  Protecting American Consumers, Workers, and Creators. Although much of the conversation was familiar territory (i.e., the economic value of the creative industries and the cost of piracy), the legislative question in the room was whether the United States will finally adopt site blocking provisions as many other nations have done. In her testimony, Motion Picture Association (MPA) general counsel Karyn Temple stated:

…over the past decade, more than 40 countries, including leading democracies such as the U.K., much of Western Europe, Canada, Australia, India, Brazil, South Korea, and Israel, have enacted no-fault injunctive relief regimes that expressly authorize courts or administrative agencies to issue orders directing internet service providers (“ISPs”) and other online intermediaries to disable access to websites dedicated to piracy. Pursuant to these laws, courts and administrative agencies have disabled access to more than 90,000 domains used by over 27,000 websites engaged in blatant piracy after affording full due process.

“No-fault injunctive relief” and “full due process” is key language to keep in mind as Congress re-opens this discussion and the self-appointed defenders of the internet respond like Sauron’s orcs to the battle cry. After all, things got a bit heated “twelve years ago,” as noted by Rep. Zoe Lofgren in reference to the SOPA/PIPA legislation that was doomed by an extraordinary disinformation and fear-mongering campaign coordinated and funded by the internet industry. And although that story ought to be old news, the testimony of Matt Schruers, president of the Computer and Communications Industry Association (CCIA), rang the “Stop-SOPA” bell with statements like the following:

Content filtering by automation is not always effective or accurate. In particular, “off-the-shelf” filtering technologies tend to be focused only on specific classes of works, and cannot necessarily provide meaningful protection to content on sites whose users can create many different types of works. Automated tools are also unable to take into account context or nuance of individual uses, so may result in over-removal of non-infringing, fair uses. These false positives merit particular attention because any unjustified content filtering or takedown may suppress lawful expression.

That commentary is dog-whistling because it has nothing to do with the purpose of, or mechanisms inherent to, site blocking. Schruers is referring to imperfections in the DMCA notice-and-takedown provisions, exaggerating its effects on protected speech, and eliding the fact that a distinguishing aspect of a site blocking provision is that it requires a party to present evidence to obtain a court order and provides ample opportunity for both service providers and the allegedly infringing website to rebut the evidence. No party would be empowered to “automate” site blocking the way that, for instance, copyright owners can automate DMCA takedown notices.

Homing in on Schruers’s rhetoric, the highlight of the hearing was arguably Rep. Ted Liu, who used his phone to access the pirate site F Movies, which he confirmed with Ms. Temple cannot be accessed in most of Europe. Emphasizing the fact that the F Movies site has been available to Americans since 2016, Liu stated, “We’re trying to be reasonable here. This is such an unreasonable case. This is so clearly online piracy, copyright infringement, and you don’t want your organization, your members, defending something so blatantly unlawful and unreasonable. I just ask your members to block that site today.”

In response, Schruers first noted that the broadband providers were not testifying, but Liu pressed on, “You cannot defend this. This is not defensible.” Schruers stated that his members are also content creators, that piracy is a shared concern with other content creators, and then reiterated the argument that the best remedy to piracy is more widespread, legal, availability of more content.

This rhetoric, dating back to NAPSTER (1999), has not aged well in a time when, if anything, consumers often feel that there are too many channels requiring too many subscriptions. But that is a business narrative still evolving in the streaming market, and not one that justifies access to pirate sites. More to the point, the “more access” argument completely ignores the myriad reasons to finally adopt site blocking, even if the harm to content creators were minimal. 

For instance, Rep. Lofgren resurfaced the prospect of prohibiting payment processors (i.e., credit card companies) from doing business with the pirate sites, but as film producer Richard Gladstein noted, the pirate’s revenue is not derived solely, if at all, from traditional credit card transactions. Although Mr. Gladstein did not go into much detail, he did mention the use of cryptocurrency in illegal trade of this nature, and Rep. Lofgren failed to note that voluntary initiatives between copyright owners and payment processor companies to prevent known infringing sites from accessing payment networks have existed for years and only do so much to stifle piracy.

Moreover, as reported on this blog in several posts, Digital Citizens Alliance has provided extensive reports on the complex, malware-based, dark web market for which pirated media is merely used as bait. Thus, even if not a single professional in media production were financially harmed by piracy, the use of media piracy as a conduit to more dangerous forms of cybercrime is reason alone for Congress to finally block these sites from access to the U.S. market.

Of course, piracy is a threat to not only creators, but everyone involved in bringing entertainment, including live broadcasts of sporting events, to fans. As described Riché McKnight, general counsel for the Ultimate Fighting Championship, “UFC estimates that within hours of a single UFC event, hundreds of thousands of viewers may have already seen infringing versions of the event…UFC further estimates that due to piracy, multiple millions of dollars are diverted from legitimate purchases of UFC content each year,” McKnight states in his written testimony.

McNight’s testimony also highlights a major problem with the DMCA — that while it calls for service providers to take down infringing content “expeditiously,” there is no clear definition of that term. This is extremely problematic for industries broadcasting live sporting events, where the value of the broadcast may last minutes or seconds and then diminish greatly once the event concludes.

What About Felony Streaming?

In 2020, against the objections of the usual anti-copyright parties, the Protect Lawful Streaming Act was passed, which made enterprise-scale piracy by means of streaming a felony rather than a misdemeanor. The question as to how effectively the Justice Department has used this provision was raised in the hearing, perhaps as a distraction from site blocking, but there are at least two answers to why PLSA is not a complete remedy for piracy. One is of course the resources of the DOJ, and the other is that site blocking provisions exist to prevent access to the domestic market by sites operating outside U.S. jurisdiction.

As Chairman Darrell Issa noted at the end of the hearing U.S. Customs and the International Trade Commission are empowered to stop the importation of physical goods that violate intellectual property law. As such, he asks, “Today, aren’t we just talking about finding the equivalent of what for two-hundred plus years, our Customs and other agencies have done when there is due process and entities such as Article III courts have reached a decision, the execution of that protection is done by our government, or on behalf of our government, by orders to those who participate in brining things into the United States?”

Perhaps not the most concisely worded question, but it is exactly right. The U.S. bars illegal goods from overseas from entering the country, and there is no threat to constitutional principles for doing likewise when the means of “importation” is digital transmission. Moreover, as stated here many times, an infringing digital transmission of a work can cause immensely more damage than even thousands of physical bootlegs. Assuming the HJC proceeds toward site blocking legislation, I imagine we’ll hear some SOPA-like noise begin to rumble online. But based on my read of that hearing and the market overall, I wouldn’t expect that noise to make much difference this time.

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