Disabling user access to offshore copyright-infringing websites (aka “site blocking”) is becoming an established practice in the UK (and in a number of other jurisdictions including Europe, Australia and elsewhere) where rights-holders can go to court, or use administrative means, to obtain an order requiring major ISPs to block access to specified offshore websites whose main purpose is to host and promote access to pirated content. After initial resistance, in countries where site blocking has become routinized ISPs generally do not oppose the orders and have accepted their responsibility to comply with them. Now, in the UK, this is being taken a step further. An article in TorrentFreak reports that a not-for-profit ISP, run by a charitable trust which supplies broadband to thousands of schools in London, will voluntarily block access to large numbers of pirate sites. The domains to be blocked will be drawn from the “Infringing Website List” maintained by London Police’s Intellectual Property Crime Unit.
According to its website, the London Grid for Learning, (LGfL) is a not for profit “Charitable Trust” whose objectives are to “Save Schools Money, Keep Children Safe, Tackle Inequality, Energise Teaching and Learning, and Enhance Wellbeing” by providing “safe, high-speed broadband, managed network services and premium learning resources” to the schools within its network. Laudable objectives all. In keeping with its mandate, LGfL is extremely concerned with child safety online and is a member of groups such as the Internet Watch Foundation that combats exploitation of children online. By broadening its scrutiny to include pirate content sites that could be accessed by the children within its network, LGfL is exercising responsible risk management. Pirate sites have been repeatedly shown by studies to be prime sources of malware, including nefarious programs known as “RATS” (Random Access Trojans), that can enslave a computer.
Industry statistics point out that 33% of computers globally are infected with some form of malware. In his blog “Malware Suggests Search Plays a Major Role in Piracy”, copyright blogger David Newhoff states that a consumer, often a teenager, has a 30% chance of being infected with malware if they visit a site hosting infringing “free” material. Studies in the US, , Canada, India and elsewhere have documented the high risk of downloading malware from pirate sites, plus the high probability that such sites will be supported by advertisements for goods or services related to gambling, adult dating and pornography, among other products not suitable for marketing to children. Online piracy puts kids (and adults) at risk.
TorrentFreak quotes LGfL as saying:
“LGfL DigiSafe is committed to partnering with relevant stakeholders in order to achieve our mission of saving schools money and keeping children safe…By working with City of London police to block its List of Infringing Websites to our community of over two million students we not only prevent children accessing inappropriate material but also provide reassurance to senior leaders that this illegal activity cannot be committed on the school site, meaning headteachers do not need to fear liability for copyright infringements.”
This is a model of responsibility that could be replicated elsewhere.
In Canada, far from being in a position where community networks such as university or municipal wifi services willingly take pro-active measures to protect users from the perils of accessing pirate websites, there has been denial and opposition. The proposal for blocking offshore piracy websites put forth by a broad coalition of content producers and distributors, the FairPlay Canada alliance, was rejected by the broadcast and telecommunications regulator, the Canadian Radio-television and Telecommunications Commission (CRTC), on the basis that the Commission did not have the authority to require ISPs to block pirated content, (although it admitted that “there is evidence that copyright piracy results in harm to the Canadian broadcasting system and to the economy in general”).
Opponents to the FairPlay proposal argued, variously, that (a) that there is really no online streaming piracy problem in Canada to address; (b) even if there was, site blocking is ineffective in dealing with it because bad actors can always find a loophole; (c) although it is ineffective, selected site blocking will interfere with freedom of speech on the internet, and, (d) despite the fact that site blocking is already being implemented for other purposes, such as blocking child pornography, implementing it for anti-piracy purposes will “break the internet”. As I have written elsewhere, site blocking does not have to be 100% watertight to be effective, but it has to be comprehensive and where it covers most pirate sites, studies have shown a high rate of effectiveness in deterring access to pirate websites even among sophisticated users. As for the “breaking the internet” argument, this was very effectively refuted in a paper released by the Information Technology and Innovation Foundation (ITIF) in Washington, DC, “How Website Blocking is Effectively Curbing Digital Piracy without ‘Breaking the Internet’”.
By the same token, the freedom of expression argument equally does not hold water. Firstly, if site blocking is as ineffective as its critics claim, then presumably it will therefore have no impact on what content can be accessed on the internet, so there is an internal inconsistency in the argument against it. The reality, however, is that responsible, legally-sanctioned limits on speech and access to content are an inherent part of our legal system, both offline and online. Freedom of expression is not a licence to infringe the rights of others, defamation being a good example.
When the CRTC declined to exercise its jurisdiction over site blocking, the issue was punted to Parliament to deal with as part of the Copyright Act review process. Maybe in time Canada, like many other countries, will eventually establish a process to block offshore infringing websites, probably through the courts. There is nothing, however, to stop other service providers from voluntarily restricting access now. Services such as the free wifi that is provided in malls, stores, coffee shops, airports, community hotspots, colleges and universities and other private and public venues where the service is subject to acceptance of terms and conditions by the user can and do impose restrictions. Restrictions on accessing copyright infringing content, similar to the actions taken by the London Grid for Learning (LGfL), could also be imposed by these providers.
When a user clicks “Accept” to the terms of service at one of these venues, they are accepting a number of conditions of use, including not engaging in illegal behaviour, to use the service responsibly, not to harm minors, not to use the service in a way that infringes the rights of others, etc. The provider also adds a long list of disclaimers, all of which the user has to accept if they want to use the service. I have included one set of typical terms of service from a large well-known company, as an example. Providers of these services have no obligation to provide internet access for casual users; it is a service to customers or citizens. Just as a wifi service provided in-store by a private provider might default to that company’s online sales website when the consumer is in the store searching for products, the filter could be extended to prevent access to websites selling counterfeit versions of the same products. That is not normally done, but it is worthy of consideration. Colleges and universities could likewise voluntarily prevent students from using on-campus internet services to browse, stream or download copyright infringing materials and community hot-spots provided by municipalities could do the same. Generally such providers do not so restrict their users, but there is no reason why they could not do so if that was made explicit in their terms of service, and it is more than feasible to do so. Web content filters for localized wifi internet services are commercially available at low prices. As one ad for such services notes;
“A web filter allows managed service providers to provide their clients with a safe, secure, and sanitized Internet service. Public WiFi hotspot operators can restrict access to website content of a non-family friendly nature to protect minors and prevent users from viewing obscene or extreme website content in public.”
Non-family friendly content is one type of material that providers often filter out. Pirate websites could well be added to these filters given the socially undesirable nature of the content they often offer in terms of ads and malware, not to mention the positive example that is set by reinforcing the message that piracy is theft.
The example of LGfL is a positive one, and is a sign that in addition to initiatives to require ISPs to block infringing content, there is plenty of scope for responsible voluntary action. The time has come for this to be given broader consideration and application.
© Hugh Stephens, 2019. All Rights Reserved.