It seems as if I’ve been writing about site blocking (what I prefer to call “disabling access to offshore pirate content sites”, although this is a bit of a mouthful) forever, certainly since it was effectively pioneered by the UK, Australia and various EU countries a decade or more ago, followed later by Canada and others. The first blog post on the topic I wrote back in 2016 (“Blocking Offshore Pirate Websites: It Can be Both Effective and Manageable“) cited a study from Carnegie Mellon University that examined the effectiveness of internet site blocking to control copyright piracy in the UK. It showed that the measures caused a drop of 90% in visits to the blocked sites, leading to a 22% decrease in total piracy for all users affected by the blocks while increasing visits to paid legal streaming sites. Building on this research, the Information Technology and Innovation Foundation (ITIF), a Washington, DC, based industry think-tank, expanded on the study to extrapolate the UK example to the (then) 24 other countries that maintained some form of internet site blocking against offshore copyright infringers. Today more than 50 countries do so–but not the US. That may be about to change, and that change is long overdue.

The 2016 ITIF study (“How Website Blocking Is Curbing Digital Piracy Without “Breaking the Internet”) very effectively ran through and debunked the range of arguments that site blocking opponents put up to oppose instituting reasonable and transparent measures to protect copyrighted content on the internet, content being exploited by copyright infringing pirate offshore websites operating beyond the reach of domestic law. These objections included;

(1) too costly (for ISPs) to implement,
(2) technically difficult and might cause disruptions in the functioning of the internet
(3) can be easily bypassed,
(4) interferes with the free flow of information on the internet
(5) violates net neutrality…

And so on. All hogwash and horsefeathers.

A year later I was writing about site-blocking again, but in an Australian, EU and Asian context. (“Disabling Access to Large-Scale Pirate Sites (Site Blocking)—It Works!“). Australia was one of the pioneers of site blocking, bringing in its first legislation in 2015. At first there was the usual opposition from ISPs, but as the regime began to work and costs kept nominal, the results started to speak for themselves. The opposition dropped away and the legal process around obtaining site blocking orders became routinized. Several European countries were also experimenting with site blocking models, notably Portugal, Italy and France. In Asia, Singapore, India, Indonesia, Malaysia and Thailand brought in site blocking mechanisms, either through court orders or administrative tribunals.

In Canada, the courts were reluctant to wade into the issue absent explicit authority to do so. In response, a coalition of content owners put together a proposal for an administrative agency to adjudicate and administer a site blocking regime, called Fair Play Canada. Predictably, the “usual suspects”, such as TechDirt in the US and Canada’s own anti-copyright crusader Michael Geist, came out in opposition. I rebutted these arguments at the time, as did others (probably more effectively). Regrettably, the telecoms regulator, the CRTC, whose authority was required to enable Fair Play to set up an administrative tribunal, ducked the issue, claiming it did not have the authority under the Telecommunications Act to make such a decision. Michael Geist claimed that the absence of a court order was a fatal flaw. And then, voilà, something unusual happened. The Federal Court of Canada (FCC) decided to exercise its authority. The so-called “fatal flaw” of a lack of a court order was remedied.

In its groundbreaking GoldTV case, the Federal Court issued an order requiring all of Canada’s major ISPs to undertake domain name server (DNS) and IP address blocking against the defendants, GoldTV.biz and GoldTV.ca, who naturally, being offshore pirate sites, failed to appear. The order was unopposed by all the ISPs with one exception–Teksavvy, a small reseller of internet access. (The appeal was joined by CIPPIC, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic at the University of Ottawa, founded by Michael Geist). The appeal was dismissed, and the issuance of site blocking orders in Canada by the FCC has become as routinized as in Australia, the UK and elsewhere. The orders have proven effective as one tool amongst others to protect investment in content and fight online piracy, and have been expanded to include dynamic injunctions. Dynamic injunctions target the content rather than a specific Internet address, thus allowing the blocking order to shift to whatever address the pirated feed is coming from. So effective has the site blocking mechanism in Canada become that it was recently cited by the US based Digital Citizens Alliance as a model of what the US should adopt.

The US content industry has not been able to deploy the tool of site blocking ever since the PIPA/SOPA fiasco killed that option more than a decade ago. The “Stop Online Piracy Act” (SOPA) had wind in its sails and seemed likely to pass Congress without significant opposition until attacked by cyber-libertarians stoked up by Silicon Valley. The main argument to sow panic was the discredited argument that site blocking would “break the internet”. This has been shown time and again to be nonsense as highlighted in a fairly recent study released by ITIF, “A Decade After SOPA/PIPA, It’s Time to Revisit Website Blocking”. That was back in early 2022. Now something is finally happening in the US Congress.

At the end of January, Rep. Zoe Lofgren (D-CA) introduced the Foreign Anti Digital Piracy Act (FAPDA). Under this draft legislation, a blocking order would apply only to illegal content and would have to be issued by a US court, with due process and judicial oversight, supported by clear evidence of copyright infringement. Sounds reasonable to me, yet it has brought out the old arguments against it. (Lofgren herself opposed the original SOPA proposal but now believes the safeguards are adequate and the scope sufficiently targetted). One example of the opposition to FAPDA comes from Micheal O’Reilly, former FCC Commissioner, claiming that site blocking comes “with a host of problems”. ReCreate, “Innovators, Creators and Consumers United for Balanced Copyright” also opposes it.

“FADPA and similar ‘site-blocking’ proposals would give Big Content the internet killswitch it has sought for decades. Copyright is hotly contested and infamously easy to use as a cudgel against free speech online.”

More offbase hyperbole.

In response, the Copyright Alliance published a detailed blog post written by Kevin Madigan, SVP for Policy and Government Affairs. Labelled “The Facts About Judicial Blocking of Foreign Piracy Sites”, Madigan goes through and carefully rebuts with facts the misleading arguments put forward by O’Reilly. (I note the term “site blocking” has been replaced with “judicial blocking”, which I think is a sound idea as site blocking is a misleading term, playing into the hands of extreme “internet freedom” advocates).

The facts, as outlined by Madigan are:

• Judicial blocking is consistent with free speech
• ISPs face no legal risk for complying with judicial blocking orders
• Judicial site blocking is highly effective
• Judicial site blocking is entirely consistent with net neutrality

It is slightly amusing, but extremely frustrating, to see the necessity of having to rebut, yet again, the specious arguments put forward against a judicial blocking regime. The same tired old arguments were trotted out in Australia, Europe, and Canada to try to scare legislators and consumers, claiming that selective, judicially supervised and mandated blocking of access to illegal offshore websites would somehow violate free speech, lead to violations of privacy, would break the internet and be contrary to net neutrality–and would not work anyway. As Madigan puts it in his blog, this is “balderdash”.

Whether the term is hogwash, horsefeathers, balderdash or hyperbole (not to mention misinformation and disinformation), the opposition to judicial blocking of carefully selected offshore pirate websites is hard to understand—unless I guess you are a cyber-libertarian. But the internet is not a rule-of-law free zone. Illegal content, especially when hosted offshore beyond the reach of domestic courts, does not deserve special protection. The experience of countries around the world has shown that blocking access to offshore pirate sites works in terms of fighting piracy and encouraging take up of legitimate content, without breaking the internet or infringing on basic freedoms. It is time the US joined the club.