‘Time for U.S. Lawmakers to Discuss Pirate Site Blocking’

Over the years, copyright holders have tried a multitude of measures to curb online piracy, with varying levels of success.

Site blocking has emerged as one of the preferred solutions. While blocking measures are not bulletproof, the general idea is that they pose a large enough hurdle for casual pirates to choose legal options instead.

The blocking approach was very controversial at the start of the last decade, particularly in the U.S., but elsewhere it’s increasingly being normalized. Dozens of countries have legal or procedural options to request ISP blockades, which currently block in excess of 20,000 sites around the world.

The Star-Spangled Elephant

American entertainment companies are the driving force behind most pro-blocking campaigns, which currently span all inhabited continents. This can be seen as a great achievement but there’s a star-spangled elephant that’s rarely brought up in site-blocking discussions; the lack of pirate site blocking in the U.S.

This isn’t a minor oversight as the United States actually harbors many millions of online pirates, more than any other country in the world. At the same time, however, the U.S. was also where the first major site-blocking legislation push failed more than a decade ago, following fierce protests from the public.

In recent years major rightsholders have slowly started to put the issue back on the political agenda. This week, CreativeFuture CEO Ruth Vitale wrote an op-ed for The Hill, calling for action.

CreativeFuture is an organization that represents the interests of over 500 copyright-reliant companies, as well as 300,000 individuals who work in the creative industries. The group is a fierce proponent of stricter copyright legislation including site blocking.

“Despite the long history of innovation in our creative communities, the U.S. is somehow lacking a commonsense and extremely effective anti-piracy tool: site blocking. And we need it now more than ever,” Vitale writes.

According to Vitale, it is “incomprehensible” that the U.S. sits on the sidelines while other countries are taking these “commonsense measures”.

No-Fault Injunctions

Technically, U.S. courts can already order intermediaries to block sites, 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. This makes it a complicated legal issue.

Ideally, rightsholders would like to change the legal framework in the United States to allow for these orders on home turf. Concrete proposals are yet to be formed but according to Vitale, it’s clear that site-blocking schemes work.

With proper judicial oversight, courts should be able to require Internet providers to block foreign pirate sites, without holding the intermediaries liable.

“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,” Vitale notes.

Western Democracy-Approved

The earlier “SOPA” site-blocking legislation became stranded after massive public protests were supported by tech giants including Google and Wikipedia. The main fear was that blocking would eventually lead to over-blocking and other problems affecting core internet infrastructure.

According to Vitale, those fears were overblown and unproven. There have been few issues in countries where site-blocking is operational. In fact, several of these counties rank higher on core democratic values than the United States.

“Many of the countries that permit judicial site blocking, including Canada, Australia, and the UK, ranked higher than the U.S. in the Economist Intelligence Unit’s latest annual index of the state of democracy around the world.

“The takeaway? There is little, if any, evidence of a negative correlation between site blocking and freedom of expression,” Vitale adds.

Calling on Congress

Opponents have pointed out that site blocking is a slippery slope that threatens free speech. In addition, the effectiveness of the measures are also in question, as they are easy to bypass or circumvent.

Vitale counters the latter by pointing to research that shows how site blocking can decrease piracy and increase legal consumption. It may not be perfect, but that’s besides the point.

“It is time for these outdated arguments against commonsense anti-piracy tools to stop. Protecting the creative industries has always been a bipartisan issue, and I hope that members of Congress on both sides of the aisle will soon be ready to discuss site blocking legislation,” Vitale concludes.

The fact that the headline of Vitale’s op-ed avoids the term ‘site blocking’ suggests that sensitivities remain. At this point, however, completely ignoring the site blocking issue is becoming increasingly uncomfortable.

There is some movement already, however. 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.