How that should be carried out in practice is a matter for debate. In most cases thus far, sites that carry or index a large proportion of infringing content have been targeted by legal action, with rights holders arguing that whole domains should be blocked by ISPs.
In other cases, arguments have been made for pinpoint action against specific URLs, although this clearly has its problems. URLs are easily removed or replaced, and entertainment companies would much rather take out a whole domain for good instead of playing a game of cat and mouse.
Over in India, this debate has been playing out in a case involving Star India Pvt Ltd, an entertainment company owned by 21st Century Fox. Back in 2014, Star filed a complaint against more than 70 websites that were preparing to stream copyrighted sports broadcasts without permission.
The Delhi High Court considered the merits of the case and sided with Star, ordering local Internet service providers to block 73 websites which contained the specific URLs listed in the complaint.
However, the Department of Electronics and Information Technology (DEIT) filed an appeal early 2015, opposing the positioning of the government in the middle of a private copyright dispute and arguing that whole sites should not remain blocked once the events in question had concluded. The public should not be denied access to content that does not infringe Star’s rights, lawyers for the government added.
In March 2016, the Delhi High Court sided with the government, ruling that in the interests of free access to information only specific URLs carrying or linking to infringing content should be blocked. Star immediately filed another appeal, with success.
In a decision handed down last Friday, the High Court found that blocking entire sites engaged in large volumes of infringement is a justified course of action for copyright holders.
“In relation to websites which have hardly any lawful business and which are in entirety or to a large extent indulging in piracy, merely blocking a URL where the infringing content is located not an effective solution,” the Court ruled.
The Court found that dozens of sites carried up to 2,000 infringing URLs, each linking to cricket matches to which Star owned the rights. Blocking each one individually would prove an arduous task.
“It would be a gargantuan task for [Star] to keep on identifying each offending URL and especially keeping in view that as and when the respondent identifies the URL and it is blocked by the ISP, the rogue website, within seconds can change the URL thereby frustrating the very act of blocking the URL,” the Court’s added.
However, in instances where sites contain infringing URLs but are not “entirely or to a large extent indulging in piracy”, requests can be made to block only the URLs in question.
In respect of the assertion by the Department of Electronics and Information Technology that government departments shouldn’t become involved in private copyright disputes, the Court found that it is the “duty of the government” to “assist in the enforcement of court orders.”
Star India welcomed the decision.
“We believe that this landmark judgment will have a positive impact as it creates a fair balance between rights owners and public interest allowing for rights owners to more efficiently protect their rights against outright rogue or pirate websites that blatantly infringe copyright and contain large extent of infringing content,” the company’s legal team said.
Whether this ruling will prompt a new wave of blocking requests remains to be seen but that seems the most likely outcome.