Adaptive Antipiracy Tools: An Update on Dynamic and Live Blocking Injunctions
Lest it never be said that criminals cannot be innovative. Case in point digital piracy, which evolves with changing technology, consumer preferences, and business models. But thankfully some countries are innovating as well, adapting their legal tools to keep up with ever adapting digital pirates. Unfortunately, others, including the United States, have been slower to do so, and have especially failed to block access to offshore online services that engage in the mass distribution of pirated content. This is problematic because effectively policing online piracy will be critical to protecting the interests of creators in the digital economy, as the quality and availability of unauthorized streams and other piracy services have markedly improved in recent years.
Fighting the latest evolution of piracy involves two new tools: live blocking and dynamic injunctions. Live blocking entails requiring Internet service providers (ISPs) to block users' access to servers hosting infringing streams of live events (used in Ireland and the United Kingdom). Dynamic injunctions allow rightsholders to require ISPs to block both primary domain name and IP address of piracy websites, but also any subsequent domains they shift to (used in Australia, India, Singapore, and the United Kingdom).
This post highlights recent developments in the use of these two tools.
Australia: Allows First Set of Dynamic Injunctions
In August 2019, the Federal Court in Sydney enacted Australia’s first dynamic injunction, targeting a list of 35 torrent, streaming, and related proxy sites. It was also the first time that a rightsholder had directly targeted proxy sites. A 2018 change in Australia’s copyright law allowed both dynamic injunctions and the targeting of sites that have a “primary effect” of facilitating access to infringing content (along with more-explicit and central piracy sites). Dynamic orders are only possible when ISPs don’t file an objection.
Denmark: Allows First Set of Dynamic Injunctions
Denmark is a pioneer in terms of website blocking for copyright enforcement. In 2006, Denmark was the first country in the world to allow website blocking for copyright enforcement. During 2019, Rights Alliance had 141 piracy sites blocked. This contributed to visits to pirate sites dropping by 40 percent in 2019 as compared to 2018.
In the latest development, in April 2019, the Court of Frederiksberg issued Denmark’s first dynamic blocking injunction in allowing LaLiga (the Spanish football league) to get local ISPs to block access to 10 sites that infringe its copyrights by showing live matches. Nine of the ten piracy sites listed in the complaint were ultimately deemed to be infringing (and generating revenue via advertising). The tenth, Spain-based RojaDirecta (also targeted in Mexico), requested more time to respond to LaLiga’s complaint, so the site will be dealt with at a later date. Rights Alliance (a local media trade association) would follow procedures set by the court in identifying and advising what new sites to add to the junction.
Ireland and the United Kingdom: Allows Several Dynamic and Live Injunctions
The Union of European Football Associations (UEFA)—the governing body for the 55 football associations in Europe—organizes a large number of well-known Europe-wide club competitions, including the UEFA Champions League, the UEFA Europa League, as well as well-known national team competitions and friendlies. Earnings from broadcast rights and other intellectual property are a critical source of revenue supporting the sport. In 2017, revenue from respective domestic broadcast arrangements accounted for 37 percent (or €7.5 billion) of the UEFA’s total revenue. So it’s not surprising that they’d seek to protect their intellectual property as best they can in countries across Europe.
On September 29, 2020, Ireland’s High Court granted a dynamic blocking injunction to UEFA’s EURO 2020 (taking place in 2021 due to the COVID-19 pandemic) and other matches taking place during the 2020/2021 football season. It’s the first injunction UEFA has sought and received in Ireland, but it follows a similar 2019 injunction for the English Premier League (which was extended in June 2020). These follow similar injunctions UEFA received in courts in England and Wales. As stated in UEFA’s case in Ireland, dynamic injunctions for sporting events are critical as “the real time nature of live sport means that the primary value of UEFA live match broadcasts is at the point in time when it is being broadcast.” Furthermore, that “by the end of the match, the streams will have served their purpose, so removal post-match would carry no or, at best, very limited benefit.”
The judgment in Ireland reiterates central facts about the use of website blocking for copyright enforcement that are worth repeating ad nauseum given they directly undermine many of the points opponents of website blocking continue to make: that ISP services are being used to infringe copyright (but the ISPs themselves are simply conduits); that dynamic orders prevent infringement—in that they at least make it more difficult or discourage it; that they do not impose unreasonable costs on ISPs; and that they don’t unnecessarily deprive Internet users of lawful access to content online. None of the five ISPs (the defendants) opposed UEFA’s case, while two—Sky Ireland and Sky Subscribers Services—supported it. The judge noted that his decision is consistent with the case law of the Court of Justice of the European Union (CJEU) and, in particular, with the judgment of that court in Spiegel Online v. Beck (2019), in that it strikes a fair balance between the respective rights and interests of rightsholders and of Internet users.
Beyond football, in 2018, Matchroom—one of the world’s leading boxing promoters—received a similar dynamic injunction in the United Kingdom. Matchroom wanted to protect upcoming major boxing matches involving British professional boxer Anthony Joshua, which are broadcast by Sky on a standard subscription or pay-per-view basis. Matchroom provided evidence that it lost a significant amount of revenue as a high number of illegal streams were made available for his prior fights. Matchroom’s dynamic injunction differs from those given to UEFA. Given that boxing matches are irregular, the judge allowed blocking orders to be used in the seven days prior to a match. Given there is no set schedule, the judge made the injunction for two years. Rightsholder needs to notify the ISPs at least four weeks in advance of a scheduled match.
India: Allows Dynamic and (Nearly-) Live Blocking Orders
Ever since its first dynamic injunction in April 2019, the Delhi High Court has become the focal point for rightsholders in India trying to better protect copyright online in India. The Court’s seminal 2019 case was based in many parts off ITIF’s report “How Website Blocking Is Curbing Digital Piracy Without ‘Breaking the Internet.’” However, it should be noted that in 2016 the Bombay High Court took a more cautious approach in only allowing rightsholders to seek blocking injunctions against specific URLs and not entire websites (unless they can demonstrate that the entire website contains infringing works). However, the Delhi High Court’s detailed, well-reasoned, and comprehensive approach accounts for these and many other concerns in creating a legal and administrative framework for dynamic injunctions. As part of this, the court expressly endorsed the proportionality principle enunciated by courts in the EU and the UK.
On July 27, 2020, the Delhi High Court granted Disney a dynamic injunction against 118 piracy sites. Also in July 2020, the court granted a dynamic injunction for Snapdeal in fighting trademark infringement, which is in itself an evolution in India in using dynamic injunctions for IP enforcement beyond copyright. As with prior cases, the court allowed the rightsholders to update the list of blocked websites by adding the names of mirror/redirect/alphanumeric websites which piracy operators setup after they realized their primary sites are blocked. This is the most important part of the judgement as it substantially reduces the resources required for blocking every mirror infringing website. Similar to courts in Ireland, England, Wales, and the European Union, the court consciously accounted for the rights of copyright holders in this way.
While India and the Delhi High Court have not yet allowed live blocking orders, they do allow the use of website blocking for sporting events, including pre-emptive “John Doe” cases targeting known infringers. This is important as online viewing of sports content, especially cricket, has grown rapidly in India due to increasing smartphone penetration and the falling cost of cell phone plans. The Indian Premier League (IPL)—the massively popular cricket series—in 2017 saw a 62 percent growth rate of digital viewers. While a substantial number of these viewers watched the IPL on legitimate online services such as Star India’s Hotstar mobile streaming app and Time Internet’s platform. Crickbuzz, many people resorted to unauthorized online streaming of live matches. For instance, at the end of the 2017 IPL season, it was discovered that more than 1,700 unique URLs were illegally broadcasting the IPL via 211 unique servers, 122 pirate streams, 51 hosting sites, and 23 infrastructure providers.
Yet, as the study “Online Piracy of Live Sports Telecasts in India” explains, the Indian government’s response to broadcast piracy is generally poor. However, the Delhi High Court has set useful precedents in blocking illegal steams of live events. Most recently, on September 23, 2020 the Delhi High Court granted Star India—the broadcasters of the IPL—a blocking injunction against the operators of a known piracy service. The services are based outside of India and only became active during cricket matches. This follows rulings in 2014 and 2016 whereby the court ordered the complete blocking of websites involved in illegal streams of cricket matches and football tournaments (such as the World Cup).
Mexico: Allows First Set of Dynamic Injunction
In February 2019, the Mexican Institute of Industrial Property (the patent and trademark administration authority of Mexico) implemented the country’s first dynamic preliminary injunction to the rightsholders of the Spanish football league “La Liga” to block the pirate website Rojadirecta. The order was only for the duration of the season and only on the days when matches were broadcast.
Spain: New Dynamic Injunctions
In February 2020, the Madrid Commercial Court granted Spanish broadcaster Telefónica Audiovisual Digital (which holds the rights to the national “La Liga” football competition) a dynamic blocking injunction to block a list of 44 known piracy sites, which can be updated to add new entries. The injunction is valid until May 25, 2022 (so will cover a total of three seasons).
Singapore: New Dynamic Injunctions
In July 2020, Singaporean courts granted a dynamic injunction to cover 15 flagrantly infringing online locations that included copyright protected content from the English Premier League, Discovery, BBC, La Liga, and TVB.
Alongside the courts in Australia, the European Union, India, and the United Kingdom, the evolution of Singapore’s dynamic injunction framework, and the court’s careful deliberations, provide useful jurisprudence for other countries weighing up the same issues related to website blocking. International jurisprudence has influenced Singapore in different ways. In the initial case, the Singapore High Court largely relied on the approach of English courts (in Twentieth Century Fox v. British Telecommunication and Cartier International v. British Sky Broadcasting). However, the Court expressly rejected the approach of the Federal Court of Australia (in Roadshow Films v. Telstra Corporation) where it refused to allow dynamic blocking with judicial scrutiny. Also, contrary to the “right balancing analysis” adopted by the Delhi High Court, the Singapore High Court in Disney Enterprises adopted a “means/ends analysis.”
Sweden: Allows First Set of Dynamic Injunctions
In December 2019, Sweden’s Patent and Market Court issued the first ever dynamic injunction. ISPs are required to “take reasonable steps” to block customers’ access to identified illegal file-sharing services, not only on the listed domain names and web addresses (subject to a separate traditional blocking injunction with immediate effect) but, for a period of three years, on domain names and websites “whose sole purpose is to provide access to said illegal file-sharing services.” On June 29, 2020, the court confirmed and elaborated upon this precedent-setting case in establishing the use of dynamic injunctions for copyright enforcement in Sweden.
This follows a long-running appeals process that concerns a 2018 case where rightsholders (Disney, Universal Studios, Warner Bros, and several others) asked for an injunction to block infamous piracy sites such as The Pirate Bay, Dreamfilm, Nyafilmer, Fmovies, and several other related proxies and mirror sites. Similar to the High Court of England and Wales, the court made rightsholders responsible for informing the ISP about which domain names and URLs to block (the prerequisite being that these have the main purpose of providing unlawful access to any of the services in question). The court gave the ISPs three weeks to enact new blocking lists. ISPs bear the cost for enacting the blocking orders. However, the fact that it took 16 years for Sweden to block the Pirate Bay—which was founded in Sweden in 2003—is indicative of how much more work is needed to reduce global digital piracy and how long it has taken website blocking to become accepted antipiracy tool.
Website Blocking as Best Practice: The Evolution and Spread
The development and spread of website blocking holds lessons for policymakers as it often happens along a similar path in going from idea to an established, adaptable tool.
While website blocking and dynamic and live injunctions are not widely available around the world, they are thankfully becoming more common as more countries recognize that they represent policy best practice for addressing offshore copyright enforcement on the Internet. Putting these policies along a spectrum of sophistication and effectiveness, countries tend to go through a substantive debate and policy push as they initially allow website blocking, often prolonged and made all the more difficult due to the hysterical and baseless criticisms opponents make about website blocking. These arguments have long since been proven wrong—over 40 countries allow website blocking without breaking the Internet. But this doesn’t stop opponents from repeating them (ad nauseum), but that is largely because their real objection is not “breaking the Internet” or limiting free speech, it’s intellectual property rights themselves. Thankfully, a growing number of governments and courts are seeing through the hyperbole (helped by the fact they can look at what a growing number of other countries are doing).
Once governments and/or courts examine the issue and establish a framework for website blocking, there’s often a period of learning and revision as governments, courts, rightsholders, ISPs, and other stakeholders work through the first injunctions. Sometimes the framework allowing website blocking is not clear or effectively administered, so injunctions are ad hoc, and the system is not particularly useful for rightsholders. However, policymakers in many countries want the framework to become a common and effective part of the toolbox that rightsholders use to protect their intellectual property.
In these countries, once stakeholders understand that the framework is settled and effective, it’s then a much easier step for them to work with governments and courts to consider dynamic injunctions given it simply reflects the adaptive nature of piracy. It’s a matter for the government and courts to adapt the framework to setup the responsibilities and processes to identify, communicate, enact, and oversee dynamic injunctions. Similarly, it’s a natural extension for governments to consider the use of live blocking given the temporal and adaptive nature of live event piracy. In this way, these latter two website blocking adaptations represent evolutionary steps as compared to the initial revolutionary step in first allowing website blocking.
A growing number of countries see blocking injunctions as an example of policy best practice in supporting creativity in digital content, whether it’s TV, film, books, or music. The problem of piracy only becomes more significant as the world views more and more live and on-demand content online. Similarly, more countries are recognizing that website blocking can be well suited to protecting live events. The increasingly ubiquitous nature of illegal streaming of live events hopefully means that it becomes as common as normal website blocking. Maybe we’ll get to a point where a country enacts dynamic and live website blocking frameworks from the start.
The United States has (disappointingly) failed to follow other major economies in adopting and adapting website blocking injunctions as part of broader antipiracy efforts. Thankfully, these policies and issues did get some consideration during the U.S. Senate Judiciary Committee’s Subcommittee on Intellectual Property’s recent investigation on “Copyright Law in Foreign Jurisdictions: How are other countries handling digital piracy?” In contrast, all forms of website blocking are likely to keep being adopted in Europe. Various legal precedents and model frameworks make it much easier for new countries to allow it. Indeed, this shows that there is at least one area of digital policy where the United States would be well advised to emulate Europe.
In conclusion, the developments outlined above show that not only has website blocking been normalized, but that it is evolving in many jurisdictions to adapt to modern digital piracy. Together, these frameworks and cases provide a growing body of work that together represents policy best practice for other countries, such as the United States, to (hopefully) eventually adopt.