Hugh Stephens, Distinguished Fellow, Asia Pacific Foundation of Canada, Vice Chair, Canadian Committee on Pacific Economic Cooperation (PECC)
A pirate site is blocked through a court order yet like a chameleon it changes its colour (and IP address or URL) and is back up again tomorrow under a different guise. This is the reality that rights-holders have to face repeatedly in dealing with slippery pirate operators. But relief is coming.
In an important new development in India, the Delhi High Court recently issued a decision that allows rights-holders to seek “dynamic injunctions” against Indian ISPs. This requires them to block access to the spin-off “mirror” websites that typically appear as a result of the blocking of a primary offshore site that is providing copyright infringing content. Dynamic injunctions avoid the classic “whack-a-mole” problem where no sooner has a court issued an injunction against a specified website, than a clone hosted in some other unreachable jurisdiction pops up providing the same pirated content. Sometimes users seeking the original “free” content are even redirected to the mirror site. The Washington DC-based Information Technology and Innovation Foundation (ITIF) has prepared a detailed report of the Indian decision and its impact on India’s important film industry, focussing particularly on the dynamic injunction aspect. According to the ITIF;
“Just as website blocking is a pragmatic reflection of a country’s efforts to use injunction orders to get local ISPs to block access to piracy websites hosted overseas (and outside its jurisdiction), dynamic injunctions reflect the fact these same operators can subvert a court’s decisions by shifting targeted piracy operations to alternative websites. The goal of using dynamic injunctions as part of a website blocking system is not just to combat online piracy, but also to change consumers’ behavior by raising the cost—in terms of time and willingness to find alternatives sites and circumvention tools—to make the legal sources of content more appealing.”
The intellectual property website IP Kat has also covered the case and notes that;
The judgement marks a significant advancement in curbing the menace of online piracy. It introduces certain novel ways of tackling the problem (such as) grant(ing) the power to the plaintiffs, with the approval of the Joint Registrar, to update the list of blocked websites by adding the names of mirror/redirect/alphanumeric websites.
IP Kat continues by saying;
This is a very practical solution, as one of the most apparent difficulties in tackling online piracy is the ability of pirated websites to produce mirror websites within seconds. As the power to update the list of blocked websites is now available without extensive procedures required for a new application, this will make blocking mirror websites easier and more effective. This is the most important aspect of the judgment as it substantially reduces the resources required for blocking every mirror infringing website.
The Indian court decision builds on precedents in Australia, the UK and Singapore. In Australia, new legislation, the Copyright Amendment (Online Infringement) Act, 2018, came into force in December of last year. It does a couple of important things to tighten up Australia’s already quite effective site-blocking legislation, Section 115A of the Copyright Act, introduced in 2015. That legislation introduced measures to enable copyright owners to seek an injunction from the Federal Court to require ISPs (known as Carriage Service Providers in Australia) to block access to offshore pirate websites that have the primary purpose of infringing or facilitating the infringement of copyright. Since that time, Australian content owners and carriage providers worked out a modus vivendi that saw a nominal fee agreed upon for the blocking process, while the providers ceased to oppose the orders.
The amendments introduced last year carried this a step further by adding “primary effect” to “primary purpose”, by extending the provision to search engines and by allowing for more responsive orders to be issued by the Court. What does “more responsive orders” mean exactly?
One Australian legal website explains it thus;
“As noted in the explanatory memorandum to the Copyright Amendment (Online Infringement) Bill 2018, one of the limitations of the earlier legislation is that operators of online locations could attempt to avoid injunctions under section 115A by using another domain name, creating a new URL for the same content or obtaining a new IP address. To address this, the Act includes new provisions which allow the Court to make more responsive orders as part of an injunction application.”
In other words, the court will widen the application of the injunctions to capture mirror websites without the rights-holders having to go back to the court to initiate a new application each time the injunction is modified (subject to overall court oversight). This streamlining, as in India, is the key to effective disabling of pirate sites. Recently the Court also agreed to allow content providers to reduce the lead time required when it notifies ISPs of renewals of blocking orders.
Another element of the new 2018 legislation was to extend the application of the law to search engines, requiring them to de-index sites blocked by court order. Google fought long and hard against this measure, arguing that it was unnecessary. However, with the passage of the law (and the re-election of the government that enacted it), Google has undergone a sudden conversion (or is it a tactical shift?) to voluntarily get with the program. Better to do it voluntarily rather than be forced to do it by law seems to have been Google’s calculation.
The UK has also experimented successfully with flexible application of site blocking, particularly with regard to sports broadcasting, where rights-holders can seek court orders requiring ISPs to block pirated streaming feeds of games, like English Premier League soccer, in real-time. This requires a broad blocking order that will cover proxy and primary sites as well as servers streaming pirate content. ITIF has an excellent blogpost explaining exactly how this works technically.
Does this frustrate soccer fans who have tried to avoid paying their local content provider to watch the big game? Absolutely, and that is the point. It is very frustrating to see the screen go dark just as the winning goal is about to be scored. The same principle applies to dynamic site blocking injunctions. As the frustration level of users rises each time the proxy site they go to returns a “not found” result, the more likely they are to accept the inevitable solution—one that is the default in the offline world. Pay for the content that you consume.
While dynamic injunctions are a relatively new phenomenon, the principle of disabling access to offshore pirate websites is well established with more than 40 countries having implemented an administrative or legal process to enable this to happen. Most recently, the Parliamentary Committee holding hearings on the review of Copyright Act in Canada recommended that;
“the Government of Canada consider evaluating tools to provide injunctive relief in a court of law for deliberate online copyright infringement”.
As I commented in a blog posting on the Committee’s report, this is a positive step forward, albeit not as concrete as advocates of site blocking in Canada would have preferred. A broad coalition of content providers (and some ISPs) had earlier made a proposal that an administrative mechanism for piracy site blocking be established under the auspices of the Broadcasting and Telecommunications regulator, the CRTC. The CRTC however declined to accept the proposal, arguing that it did not have jurisdiction, and punted the issue to Parliament to deal with under Copyright Act review. Now the Committee reviewing the legislation has taken a position, recognizing that there is a problem that needs to be addressed:
“The Committee…agrees that there is value in clarifying within the Act that rights-holders can seek injunctions to deny services to persons demonstrably and egregiously engaged in online piracy, provided there are appropriate procedural checks in place.”
If such a process is established, it is unlikely to include dynamic injunctions, at least not initially, but the experience of other countries is that once a site blocking mechanism is in place, it will not only prove its worth, it will demonstrate that the various arguments deployed against it (e.g. it will undermine net neutrality, it will damage the functioning of the internet, it will be too expensive to implement, it will lead to unwarranted censorship etc.) are unfounded. As the use of site blocking becomes more routine, fine-tuning it to avoid the evasive tactics of the pirate content providers is the next step, which is why dynamic blocking injunctions are becoming more widely accepted.
Maybe one day, Canada (and the US for that matter) will catch up with India, Australia and others in the application of reasonable legal remedies to combat the tactics of distributors of pirated, infringing, unlicensed content. These offshore operators have long played a cat-and-mouse game with providers of legitimate content. It is now time for the cat to sharpen its claws.