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Keeping Copyright Site-Blocking At Bay: 2017 In Review

DEEPLINKS BLOG
December 27, 2017

Keeping Copyright Site-Blocking At Bay: 2017 In Review

In 2017, major entertainment companies continued their quest for power to edit the Internet by blocking entire websites for copyright enforcement—and we’ve continued to push back.

Website blocking is a particularly worrisome form of enforcement because it’s a blunt instrument, always likely to censor more speech than necessary. Co-opting the Internet’s domain name system (DNS) as a tool for website blocking also threatens the stability of the Internet by inviting ever more special interests and governments to use the system for censorship.

This year, we’ve kept pressure on ICANN, the nonprofit body that makes domain name policy, to keep copyright enforcement out of their governing documents. And we’ve called out domain name registry companies who bypassed ICANN policy to create (or propose) their own private copyright enforcement machines. Public Interest Registry (PIR), the organization that manages the .org and .ngo top-level domains, announced in February that it intended to create a system of private arbitrators who would hear complaints of copyright infringement on websites. The arbitrators would wield the power to take away a website’s domain name, and possibly transfer it to the party who complained of infringement. The Domain Name Association (DNA), an industry trade association, also endorsed the plan.

EFF pointed out that this plan was developed in secret, without input from Internet users, and that it would bypass many of the legal protections for website owners and users that U.S. courts have developed over the years. Within weeks, PIR and DNA shelved this plan, apparently for good.

Unfortunately, some domain registries continue to suspend domain names based on accusations from major motion picture distributors (whom they call “trusted notifiers”) in a process that also bypasses the courts. Along with giving special privileges to luxury brands and other major trademark holders, and to U.S. pharmaceutical interests, these policies erode public trust in the domain name system, a key piece of Internet infrastructure.

There are worrisome developments in the courts as well. Major movie studios, record labels, and print publishers have continued to ask U.S. courts for broad injunctions that could force many kinds of intermediaries—all of free speech’s weak links—to help block websites.  They do this by filing lawsuits against a website, typically located outside the U.S., accusing it of copyright infringement. When the website’s owners don’t appear in court, the copyright holder seeks a default injunction written broadly to cover intermediaries like DNS registrars and registries, search engines, and content delivery networks, who can then be compelled to block the website. Several courts have granted these broad orders, including one that targets Sci-Hub, a site that gives access to research papers.

That’s concerning because, like the aborted efforts by domain registries, using default injunctions to block websites bypasses the normal rules created by the courts and Congress that define the role of Internet intermediaries. We hope that Internet companies continue to defend their users against censorship creep by fighting back against these orders. In the coming year, we’ll weigh in to help the courts understand why the current rules are worth sticking to.

This article is part of our Year In Review series. Read other articles about the fight for digital rights in 2017.

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