Site blocking—aka disabling access to copyright infringing websites and services—continues to gain wider acceptance as a useful tool in the fight against online content piracy. Several recent developments provide a good indication of the increasing acceptance of site blocking orders as a tool to dissuade users from accessing copyright infringing online streaming content. The first is a ruling in early May by the District Court for the Southern District of New York that a issued site blocking order applicable to “all US ISPs”, requiring them to block access to three pirate streaming services that were infringing the copyright of several Israeli film and TV distribution services in the United States (The order was subsequently withdrawn at the request of the plaintiff but nonetheless marks a first in the US). A second is the issuance of the first dynamic site blocking injunction in Canada. And finally, there is the inclusion of measures referencing site blocking in the impending Australia-UK Free Trade Agreement, currently pending ratification, a first for a trade agreement.
The injunctions issued by the New York District court are unremarkable, except for the fact that the orders were applied to all ISPs operating in the United States. As reported by Torrent Freak, despite the failure to pass the Stop Online Piracy Act (SOPA) a decade ago, “a US court has demonstrated that the ability to block sites has been available all along”. The plaintiffs, three Israeli based companies affiliated with cinema investor Moshe Edery, sought statutory damages for copyright infringement and an injunction to prevent future infringement. The targets of the action, Israel-tv.com, Israel.tv and Sdarot.tv, did not contest the proceedings, as is normal in most streaming piracy cases. Torrent Freak reports that the court issued injunction enjoined the defendants from infringing the plaintiffs’ rights, including by streaming, distributing, or otherwise making any of their copyrighted works available to the public. They were also banned from operating their websites from existing domains or any other they might use in the future. But in what is a break-through the court also ordered that;
“all ISPs…and any other ISPs providing services in the United States shall block access to the Website at any domain address known today (including but not limited to those set forth in Exhibit A hereto) or to be used in the future by the Defendants (“Newly-Detected Websites”) by any technological means available on the ISPs’ systems.”
The ruling provided not only for permanent injunctions compelling all US based ISPs to implement site blocking on the three named services, but it also included a “dynamic” element whereby the order applied to any new websites used by the defendants to evade the order.
Injunctive relief in the form of site blocking has been available in the US through the DMCA’s Section 512 (j) for a number of years in cases of copyright infringement but has been seldom used. SOPA, (and its Senate equivalent, the Protect IP Act—PIPA) if passed, would have permitted rights-holders to seek an injunction requiring ISPs to block the domain names of foreign infringing sites. The legislation was attacked by groups, many of them misinformed and egged on by the tech sector, claiming that site blocking legislation would amount to censorship, would make the internet unworkable, and would be in violation of the free speech First Amendment of the US Constitution. The fact that a number of countries, led by Australia and the UK but including over 40 other states, have successfully implemented site blocking measures, has led for renewed calls in the US for a review of SOPA. Now a US District court has simply exercised its inherent jurisdiction to provide injunctive relief while targeting the order to all ISPs across the US. One wonders why it didn’t happen before. Perhaps no plaintiffs ever sought such an order. Given the precedent, one would expect that one or more ISPs would appeal the ruling. No ISP has done so but there has been legal pushback from Cloudflare and Google allowing big-tech friendly groups like the EFF (Electronic Frontier Foundation) and the CCIA (Computer and Communications Industry Association) to request permission to file amicus briefs opposing the order.
A similar scenario took place in Canada. When the Federal Court issued its first site blocking order back in 2019 (unopposed by any the major ISPs), a small wholesale-based provider, TekSavvy, stepped forward to carry the burden of the appeal, allowing the “usual suspects” such as Silicon Valley-funded groups like the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC) at the University of Ottawa, to pile in with intervenor briefs. It was not clear to me initially why TekSavvy decided to appeal or who funded it, but in the end they lost. (Andy Kaplan-Myrth, TekSavvy’s VP for Regulatory Affairs, subsequently contacted me to clarify that the appeal was self-funded by the company on the basis that they disagree with site blocking in principle, given their role as an ISP). The appeal was dismissed last year by the Federal Court of Appeal. Subsequently several broadcasters of live hockey, a big attraction for Canadians, applied for the country’s first dynamic site blocking injunctions to protect their hockey broadcast rights. Dynamic injunctions have been successfully used in Britain to interrupt pirate feeds of English Premier League football (soccer) broadcasts. In May, the Federal Court granted Canada’s first dynamic blocking order (an order permitting the listing of blocked sites to be updated without needing to go back to the court for additional orders when pirate operators take actions to bypass the blocks). The order, requested by Rogers Media and other companies, is a major breakthrough for Canada.
In the case of the New York site blocking injunction, there was a strange development in which the plaintiffs, having secured the order, subsequently requested that it be suspended. The motivation is unclear. Did someone lobby the plaintiffs (United King Film Distribution, DBS Satellite Services, and Hot Communications) to withdraw the order, fearing that an appeal against the injunction might be dismissed? Were the plaintiffs given some sort of assurances that the pirate feeds would be “dealt with” by ISPs without the need for a court order? Or maybe some content interests were concerned that the appeal would be upheld and set a negative precedent for future site blocking orders in the US? The plaintiffs might have been persuaded that they could achieve their ends through other means, such as working with domain name registrars. Who knows? It is very strange. And now there is an appeal of the order, even though suspended, although not from an ISP but from intermediaries (Cloudflare and Google). Had the order been upheld and implemented, the US would have joined the growing international consensus allowing selective use of site blocking, adjudicated by courts or administrative tribunals, as an important tool in fighting growing online streaming piracy. Even if this order is not reinstated, it will likely encourage others in the US to seek site blocking injunctions in future as a remedy against online piracy. That is no doubt why EFF and CCIA are seeking to intervene.
Moving on to yet another major development on site blocking, for the first time a site blocking commitment will be included in a bilateral trade agreement, giving it the force of international law. Once again, the sharp eyes of the writers at Torrent Freak highlighted the inclusion of Article 15.89 in the Australia-UK Trade Agreement, signed in December 2021. It is currently undergoing the ratification process in both countries. The Agreement is part of the post-Brexit push by the UK government to secure overseas markets for UK goods and services by reaching trade agreements with its major trading partners. Other examples are Britain’s application to join the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP), a UK-New Zealand Trade Agreement and a Trade Continuity Agreement (TCA) with Canada to replace disciplines covering trade with Britain when it was part of the EU. In March of this year Canada and the UK formally launched negotiations toward a new bilateral agreement that both sides hope will be concluded within a year to replace the transitional TCA.
In the case of the UK-Australia Agreement, the Intellectual Property chapter included the following measures under Article 15.89;
1. Each Party shall provide that its civil judicial authorities have the authority to grant an injunction against an ISP within its territory, ordering the ISP to take action to block access to a specific online location, in cases where:
(a) that online location is located outside the territory of that Party; and (b) the services of the ISP are used by a third party to infringe copyright or related rights in the territory of that Party.
2. For greater certainty, nothing in this Article precludes a Party from providing that its judicial authorities may grant an injunction to take action to block access to online locations used to infringe intellectual property rights in circumstances other than those specified in paragraph 1.”
Both countries already routinely use site blocking orders at the request of rights-holders to discourage users from accessing infringing content from offshore streaming sites but the inclusion of this measure in a bilateral trade agreement is a first, encouraged by the UK-based Alliance for Intellectual Property. In a submission to the UK government as part of consultations leading to the Australia-UK Agreement, the Alliance proposed inclusion of site blocking along with several other copyright-related measures. Since both countries have a well-established track record of successfully implementing site blocking injunctive orders, the trade agreement commitment creates no new legal requirements. However, it is significant from the perspective of raising the profile and international acceptability of site-blocking as an anti-piracy measure.
Would such a measure be included within a future Canada-UK agreement for example? It is possible since the courts of both countries have already issued site blocking orders. However, the UK-New Zealand Trade Agreement, concluded just a couple of months after the UK-Australia Agreement, contains no such measure. This may be explained by the lack of any legal precedent at the moment for the issuance of site blocking orders in New Zealand. Would a future UK-US Agreement (if one is ever negotiated) contain such a measure? Again, it is possible depending on the degree to which acceptance of site blocking takes hold in the United States. The New York District Court ruling discussed above may the first concrete sign of broader acceptance of site blocking as a remedy in the US, although a couple of years ago the US Copyright Office studied the issue, without coming to a definitive conclusion. Instead, it basically recommended “more study”.
Nonetheless, there is clearly progress on the site-blocking front, both through the Canadian and US courts and via the medium of trade negotiations. I am convinced that in the end, it will become an uncontroversial measure that will help—but by no means fully resolve—the ongoing challenge of combatting content piracy in the digital age.
© Hugh Stephens, 2022. All Rights Reserved.
This blog post has been updated in the 4th paragraph (related to Canada) to include feedback from TekSavvy as to their motivations for appealing the GoldTV Federal Court ruling, and the source of funding for that appeal.