The Normalization of Website Blocking Around the World in the Fight Against Piracy Online
The ease with which copyright-protected material—including books, movies, music, photos, software, and video games—can be copied and shared online across jurisdictional borders makes it challenging for rightsholders to protect their works online as they do offline. Intellectual property rules are territorial, while the Internet is not. In response to this, a growing number of countries are allowing rightsholders to get Internet Service Providers (ISPs) to block access to websites involved in the large-scale distribution of pirated material as these sites are typically based in foreign jurisdictions with weak/non-existent intellectual property rules and enforcement (there would be other legal remedies if these services were hosted domestically). Studies show that blocking regimes that target these large scale piracy sites (not sites that accidentally host pirated material) are an effective tool in reducing piracy and increasing the consumption of legal content and services. While website blocking was never going to be the silver bullet to solve piracy online, this was never the goal, merely that it be one of the many tools in the toolbox that countries can use to fight piracy and improve the market for legal content online. To show that it should be part of more countries’ anti-piracy toolbox, including the United States, this post provides an update on various countries’ efforts to use website blocking to fight online piracy.
Recent Website Blocking Developments
Australia – In February, 2018, the Australian government launched a review of its website blocking laws, which came into place in March, 2015. The review is examining how the website blocking regime is working and whether any changes are needed to improve it. Australian courts approved the first set of website blocking injunctions in December 2016. Two of the existing injunctions targeted leading torrent indexes and browser-based streaming sites, while two pending cases, heard in April, considered blocking Internet-connected set-top boxes that stream pirated content. A report by the Australian Screen Association analyzed the impact of website blocking, finding a 53 percent reduction in the use of pirate sites which were targeted by a blocking order. A separate report by INCORPRO showed that overall piracy in Australia decreased by 25 percent year-on-year.
Canada – The Canadian Radio-television and Telecommunications Commission (CRTC) is currently considering a proposal to require ISPs to disable access to specific piracy sites that are blatantly, overwhelmingly, or structurally engaged in piracy. The proposal before the CRTC would create an anti-piracy nonprofit called the Internet Piracy Review Agency (IPRA). The IPRA would identify websites that egregiously peddle pirated content and, upon the agency’s recommendations, the CRTC would work with ISPs to block subscribers’ access to those websites. Website owners would be entitled to object to the IPRA throughout the application process and would have access to legal recourse through judicial review by the Federal Court of Appeals if a website of theirs is blocked.
Denmark – In February 2018, a Danish court confirmed that ISPs must block websites involved in unlicensed gambling. Denmark already blocks websites, following a code of conduct that ISPs signed onto regarding how to manage requests to block websites on piracy grounds. Similar to the City of London’s Police Intellectual Property Crime Unit in the United Kingdom, Denmark recently approved the creation of a similar police unit to focus on intellectual property issues, including the potential to authorize the blocking of piracy websites.
France – France is considering developing and implementing a national blacklist to target streaming piracy. The list would be regularly updated so that ISPs, search engines, and advertising companies could block the most relevant sites. France is considering this list as its previous response to online piracy, known as Hadopi, only targeted users involved in peer-to-peer sharing of illegal content, which has been overtaken by the streaming of illegal content as the dominant form of digital piracy.
Germany – In a first for Germany, in February, 2018, a German court issued a provisional injunction that a German ISP (Vodafona Kabel) block access to illegal streaming website Kinox.to, one of Germany’s most popular websites (but based outside of Germany). Vodafona Kabel has appealed the decision.
Ireland – In January, 2018, an Irish court granted an injunction to block eight major piracy websites. The eight websites received a minimum estimated total of 6,334,215 visits from users in Ireland in October 2017 alone.
Japan – In March 2018, Japan’s Chief Cabinet Secretary, Kannoe Wei, reiterated Japan’s interest in allowing website blocking for online piracy, in large part to protect the country’s firms and workers in its culturally iconic manga and anime work. In recent comments about the issue of online piracy, Chief Cabinet Secretary Kannoe Wei said that [translation] “The damage is getting worse, we are considering the possibilities of all measures including site blocking.” This builds upon a prior announcement in 2015, when Japan set up an expert committee under the Intellectual Property Strategy within the cabinet secretary. There have been debates about whether Japanese law allows website blocking, but some have put forward the idea that it does allow it, in part, due to the fact that Japanese law already allows for the blocking of online child pornography.
Portugal – In 2015, Portugal set up a voluntary process in an agreement between ISPs, rightsholders, and the Ministry of Culture and the Association of Telecommunication Operators to block websites engaged in large-scale piracy. A May, 2017 report by INCOPRO showed that from September 2015 to October 2016 ,website blocking reduced traffic to targeted piracy websites by 69.7 percent.
Russia – In 2017, Russian telecoms regulator Rozcomnadzor ordered local ISPs to block 8,000 pirate websites, an four-fold increase over 2016. Russia allows rightsholders to block pirate sites and any mirror sites. Rozcomnadzor claims that the blocking of piracy websites contributed to the growth of cinema collections (based on a report from the Cinema Foundation), with the aggregate box office of national film distribution increasing by 10.9 percent, while attendance increased 11.4 percent.
Singapore – In May 2018, Singapore’s High Court ordered local ISPs to block 53 piracy websites, which were found to be flagrantly infringing intellectual property. These 53 piracy sites, comprising 154 unique web addresses, carried many of the latest movies and TV shows.
Spain – In February, 2018, a Spanish court ordered ISPs to block access to two major piracy websites (HDFull and Repelis). Later that month, Spain’s Civil Guard blocked 23 websites dealing in pirated movies, TV shows, music, and videogames. In 2016, Solarmovie.ph was the first piracy website to be blocked under Singapore’s amended Copyright Act, which allowed content owners to seek a High Court order to get ISPs to block piracy websites.
United Kingdom – Since 2011, the United Kingdom has blocked hundreds of websites. Recently, courts have adapted to the growing popularity of streaming in allowing “live blocking orders” for IP addresses used to illegally stream live sporting events (IP addresses must be "unblocked" at the end of the match). Another recent legal case set a precedent that allows trademark owners to apply for blocking injunctions for trademark infringement.
Worldwide -– According to a recent Motion Picture Association of America (MPAA) submission, at least 42 countries have either adopted and implemented, or are legally obligated to adopt, measures ensuring that ISPs block access to copyright-infringing websites. Some countries have had measures in place and used them for some time, others have the means to block websites but have not done so, while others are moving to enact website blocking. For example, in the European Union, at least 17 member states (including the United Kingdom, France, Belgium, the Netherlands, Germany, Denmark, Norway, Ireland, Sweden, Italy, Spain, Portugal, and Greece) have enacted website blocking, while others have relevant laws in place, but have not used them (such as Bulgaria, Croatia, Cyprus, the Czech Republic, Malta, Poland, and Romania). As of April 2018, it is estimated that over 1,800 websites and over 5,300 domains used by such sites have been blocked in the European Union (mainly in the United Kingdom, Denmark, Italy, and Portugal).
These developments show some clear policy points regarding the debate around website blocking.
First, as ITIF has long argued, website blocking can curb digital piracy without “breaking the Internet,” just as blocking child pornography does not “break the Internet.” The Internet continues to function normally in the many countries which are now using website blocking in the fight against digital piracy. Similarly, by incorporating legal checks and balances into their respective regimes to ensure that only sites egregiously engaged in copyright-infringement are blocked, many of these countries discredit other hysterical claims that opponents have made about website blocking affecting sites not engaged in large-scale piracy. Likewise, website blocking has not changed the economics of the Internet through the relatively minor costs of implementing website blocking (paid by the ISP and/or rightsholder).
Second, countries are using website blocking to target those websites involved in large-scale infringement of copyright-protected material, as shown by the fact that some of the most notorious infringing sites are now blocked in multiple countries. For example, since the first website blocking order went into place in May 2010, ThePirateBay has been blocked in 19 countries. Isohund is now blocked in 10 countries, with the first block coming in July 2013. KickAssTorrents is blocked in 11 countries, with the first in May 2012. However, the fact it has taken this long for this many countries to block websites clearly engaged in piracy reflects the growing, if sometimes plodding, growth of countries using website blocking to fight piracy over the last decade. All of these sites and others should be blocked in all 195 countries around the world.
Third, these examples show that countries are recognizing the need for dynamic orders as the operators of these piracy websites can quickly shift content from the primary website to new websites. The fact it took so long to block the leading piracy websites identified above highlights the progress that needs to be made to ensure that current leading piracy sites, and any mirror sites, are blocked quicker in the future so as to encourage the ongoing growth and use of legal providers of content available around the world.
In conclusion, the developments outlined above show that website blocking has been normalized as an online copyright-enforcement tool. A growing number of countries recognize that website blocking is a reasonable and effective tool to reduce the consumption of pirated material and to increase the consumption of legal content. Furthermore, the various approaches to website blocking and years of operations establish a range of precedents and lessons learnt that can be used by other countries that are considering enacting or revising their own regime. As such, it is time for all countries, including the United States, to adopt website blocking regimes.