These domain blocking mechanisms were pioneered by mostly US companies seeking to enforce their rights overseas. They sought something broadly similar through the SOPA legislation in the United States but when that failed, no effort was made to test a blocking request in court under existing law.
As it recently turned out, the ability was there all along.
Groundbreaking Site Blocking Order
In 2021, companies including United King Film Distribution, DBS Satellite Services, and Hot Communication filed three copyright infringement lawsuits in a New York district court. Each complaint targeted a single pirate streaming site – Israel-tv.com, Israel.tv and Sdarot.tv – the latter being Israel’s most popular pirate streaming site.
As expected, none of the defendants mounted a defense meaning they lost by default judgments. The operators of the three sites were found liable for $7,650,000 in damages each but the awards were almost a footnote when compared to the terms of the injunction.
Proving the naysayers wrong, in one fell swoop the plaintiffs obtained not only three regular site-blocking injunctions but dynamic ones that could adapt to countermeasures. In some countries it has taken years to get these injunctions accepted but in these three cases, the plaintiffs just asked and the judge signed the order.
“All ISPs…and any other ISPs providing services in the United States shall block access to the Website at any domain address known today…or to be used in the future by the Defendants…by any technological means available on the ISPs’ systems,” the injunctions read.
Going further, all three injunctions prevent any company (ISPs, webhosts, CDN providers, DNS providers, domain companies, advertising services, financial institutions, payment processors) from doing any business with the sites, now or in the future.
As piracy-fighting tools go, it doesn’t get better than this in the United States. That makes the most recent developments in the case even more puzzling.
We Might Not Need Site-Blocking After All
After Judge Failla gave the plaintiffs everything they asked for on April 26, 2022, a little under a month later they were back in court with a new request to put the brakes on the powers they had been given.
“Plaintiffs are engaging diligently in efforts to enforce the Orders against the non-party registrars and registries [covered by the injunctions] and the service providers [listed] in each of the Orders,” a letter to the Judge reads.
“Plaintiffs hope that because of such efforts, Defendants’ streaming of pirated content that infringes upon Plaintiffs’ copyrights will be limited. As such, it might not be necessary to enforce the Orders against the ISPs.”
With that, the plaintiffs asked the court not to enforce the blocking orders against every ISP in the United States (that they themselves had asked for), but to wait until further notice. Judge Failla had no issue with the request.
“The Court hereby STAYS enforcement of the obligations imposed upon the Internet Service Providers (ISPs) by the default judgment and permanent injunction Orders entered into in the above-captioned cases, pending further order of the Court,” her order reads.
Why Throw Away The Holy Grail?
While it’s entirely reasonable to take the plaintiffs’ statement on face value, that becomes more difficult when placed alongside some of the other issues related to the three cases.
Israel-tv.com had already been down for months when a site-blocking injunction was requested so if a domain seizure (including future domains) made sense at that time, so would ISP blocking, if only as a backup if fresh domain seizures could not be carried out after any resurrection.
Israel.tv, on the other hand, has continued operations despite the seizure of several domains, including several .to variants that are usually considered a more stable option for pirate sites. The site has other domains including isratv.ru and israeltv.cn and remains in operation even today. We’ll have more detail on these domains later but we suspect that seizing them won’t be straightforward.
When it comes to Sdarot.tv, the request not to enforce the orders against ISPs is most puzzling of all. Sdarot is the most popular pirate site in Israel with millions of visitors and has been the subject of legal action for at least six years. In 2016, the plaintiffs in the US case (members of anti-piracy group Zira) were granted an ISP blocking order against the site in Israel, so they’re clearly not averse to ISP blocking per se.
So why, having just been awarded an even broader blocking order in the US, are the plaintiffs now suggesting that ISP blocking might not be needed, even though Sdarot remains up and fighting?
“Sdarot’s cyber experts have been preparing for any scenario in advance, right from the start of the trial in the United States. The site will continue to be the No. 1 direct viewing site in Israel (and now probably also in the United States),” an announcement on the site reads.
History shows that when copyright holders are given powers, they tend to guard them because they often become even more useful in the future. At least in our experience, it is unusual for copyright holders to return to court asking for those powers to be limited, even if only temporarily. Especially given that in this case, attorneys’ fees and costs exceed $73,400 and may never be recovered.
There are no official entries on the docket but it’s at least feasible that US ISPs view the order as troublesome and may have even raised concerns in private. The same may also be true for CDN providers and other intermediaries.
The situation may become clearer in the weeks to come but at least as far as Sdarot and Israel.tv are concerned, domain seizures alone have proven disruptive, but certainly not fatal. Whether that will reignite the desire to compel ISP blocking remains to be seen but if that does go ahead, more requests are sure to follow.
The letter to the court and order on motion to stay can be found here (pdf)