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.
