For a long time, pirate site blocking was regarded as a topic most U.S. politicians would rather avoid.
This stance was a remnant of the SOPA defeat, which drove copyright holders to focus on blocking efforts in other countries instead, with success.
Those challenging times are now more than a decade old, and momentum is shifting. After more than forty countries around the world instituted site-blocking measures, including in Canada, U.S. lawmakers may be more receptive to revisiting this topic.
Future Anti-Piracy Strategies
An ideal opportunity to discuss the site-blocking potential arrived earlier this year when the U.S. Government’s Patent and Trademark Office (USPTO) launched a consultation to discuss future anti-piracy and counterfeiting strategies.
Several stakeholders submitted their comments this week and while the responses cover a wide range of issues, site blocking is mentioned repeatedly.
Technically, it is already possible for rightsholders to request blocking injunctions, and that has happened in the past. However, the text of the law is not entirely clear on whether ISPs have to be held liable or not. That further complicates the issue.
Ideally, rightsholders would like to change the legal framework in the United States to allow for so-called ‘no fault’ injunctions on home turf. Supporters argue that, with proper judicial oversight, courts should be able to instruct Internet providers to block foreign pirate sites, without holding intermediaries liable.
Piracy: An Existential Threat
Creative Future is one of the most vocal proponents of site blocking. The group represents hundreds of companies and organizations, as well as 300,000 individuals who work in the creative industry. According to CEO Ruth Vitale, piracy is an existential threat to the livelihood of these people.
“Our nation’s creative economy, the world’s best, continues to be under siege by digital piracy despite the almost universal availability of our work in the legitimate digital marketplace,” Vitale writes.
Concerns about piracy are nothing new but the fact that the U.S. harbors the most pirates worldwide and lacks simple and effective tools to combat known pirate sites, is a real issue.
“To make matters worse, most piracy that is consumed in the United States is coming from territories beyond the reach of U.S. law enforcement. What is as incomprehensible? The fact that there are commonsense measures in place around the world that have proven to be effective anti-piracy tools in situations like this, but that are not available here at home.”
Court-ordered site-blocking injunctions are the most obvious tool, according to Vitale, who mentions that these have proven to be effective in other parts of the world.
“Such site blocking has proven to be an effective remedy against piracy in the more than 40 countries that have implemented court-adjudicated site blocking – including western democracies like Canada and the UK,” she notes.
Site Blocking: A Game-Changer
The submission reads as a personal plea but also cites various studies and statistics to argue in favor of blocking. This includes academic research which found that, if done right, blocking injunctions can trigger some pirates to pay for additional legal subscriptions.
With dozens of millions of pirates in the United States, this translates into significant revenues; that could be a potential game changer.
“This kind of shift away from illegal pirate sites and toward the legal marketplace could be a game-changer not only for America’s film and television industry and its 2.4 million workers, but for all Americans,” Vitale writes.
Creative Future is well aware of the site-blocking concerns voiced by opponents. This includes the concern that overblocking can restrict freedom of expression.
While we have seen serious but isolated incidents in other countries, Vitale believes that these “outdated arguments” shouldn’t stop Congress from seriously considering site-blocking.
Publishers Push Site-Blocking
Creative Future is not the only organization urging the Government to consider site-blocking legislation. The Association of American Publishers (AAP) requests the same.
AAP has two main legislative suggestions. The first is to implement a takedown-staydown policy, to ensure that content isn’t reuploaded on platforms once it’s removed. The second is site-blocking.
“Website blocking works to disrupt piracy or large-scale copyright infringement occurring on or facilitated by blatant pirate sites located in foreign jurisdictions,” AAP writes.
The publishers stress that thousands of domains have been blocked in dozens of countries around the world, but not in the US. While the association admits that it’s no “silver bullet to cure all online piracy ills,” it will help to combat the problem.
“This remedy has already proven effective in multiple jurisdictions around the world, and a similar remedy should be adopted in the United States,” AAP writes.
This isn’t the first time that rightsholders have urged U.S. rightsholders to consider site blocking. Thus far, no concrete plans have surfaced, but there is some movement in the Capitol.
US Senator Thom Tillis previously asked the public to share their views on site blocking. This triggered unanimous support from the Motion Picture Association, but there was plenty of opposition too, as always.