Last week the International Anti-Counterfeiting Coalition (IACC) held their spring conference in San Diego, to share intelligence about the latest strategies for combatting “counterfeiting” (by which they mean trademark infringement) and “piracy” (by which they mean copyright infringement). EFF's Jeremy Malcolm attended as an invited panelist, giving us the opportunity to assert our views that anti-piracy campaigns should not infringe users' rights or damage the fabric of the global Internet. But perhaps more importantly, it also also afforded us a window into the mindset of the content and brand owners, law enforcement officials and lawyers behind these campaigns.
A very obvious take-away from the event was that big content remains in denial about the failure of the Stop Online Piracy Act (SOPA), convinced that its ultimate rejection by Congress was due to a tech industry misinformation campaign, rather than by widespread and legitimate public concern that mandatory Web blocking would spell the end of the free and open Internet as we know it.
The defeat of SOPA is rightfully regarded by Internet activists as one of their finest hours, and indeed, it is true that nobody has made any significant calls for new domestic legislation on the same topic since then. On the other hand, it was also clear that delegates at the IACC conference believe that death is not the end for of SOPA, and that they are working to reanimate its spirit from beyond the grave.
Stretching Existing Law
Although rightsholders may be reticent about asking for new laws to address piracy, they have no such compunctions about stretching existing law to provide them with similar powers. Since last year, word has has it that rightsholders are planning to test the authority of the International Trade Commission (ITC) under section 337 of the Tariff Act to order copyright-infringing websites to be blocked at the U.S. border. We don't believe that the ITC's authority extends that far, as blocking websites is not the same as intercepting a shipment of counterfeit handbags from China.
Another tactic, which we reported on last week, has been the use of existing provisions of U.S. law that allow pre-emptive injunctions against copyright infringement. In an unfortunate, and we believe wrong decision, the court awarded a sweeping injunction against all involved Internet intermediaries requiring them to suspend services to websites that facilitated the anticipated infringement of copyright in a live sporting event.
SOPA Lives Overseas
Rightsholders are taking a more direct approach overseas, where they continue to seek the replication of one of its core provisions—allowing ISPs to be ordered to block overseas websites—in local law. For example Australia's equivalent of SOPA, allowing orders to block sites that have a dominant purpose of infringing or facilitating the infringement of copyright, is being debated right now. U.S.-based and multinational rightsholder groups, including those who supported SOPA, are amongst those who have been heard in public consultations in support of this draconian censorship legislation.
European law is also being stretched to allow for SOPA-style blocking. European Directives have long allowed intermediaries to be ordered to take effective and proportionate measures to prevent a third party from using their services to infringe an intellectual property right (in Article 8(3) of Directive 2001/29/EC, and Articles 9 and 11 of Directive 2004/48/EC). According to a troublesome October 2014 High Court decision, this allows for SOPA-type orders that require ISPs to block websites selling counterfeit products.
SOPA on the Sly
A third tactic that rightsholders are using to reanimate the defeated provisions of SOPA, and that was much discussed at the IACC conference, is simply to pressure ISPs and other intermediaries to voluntarily block access and services to alleged piracy sites pursuant to their own terms of service.. Thus a recent report of the International Chamber of Commerce (ICC), that was presented at the conference, calls on Internet providers to:
Block subscriber access to internet sites or online services that a competent authority or court has found to be designed or operated with the clear intention of inducing or promoting infringement; or to be knowingly facilitating or enabling large-scale infringement without taking reasonable steps to prevent it.
ISPs are only one class of intermediary in the rightsholders' sights. As this interactive graphic explains, there are various other intermediaries in the chain between the publisher of content and the user, who can also be used to effectively block the content. These include, amongst others, the DNS provider of the website where the content is hosted, the web host and its upstream providers, any advertising network or payment processor that the site may use to support hosting costs, and search engines that index the site.
Delegates at the IACC conference promoted the success of “voluntary practices” and “brokered dialogues” with these various classes of intermediaries by which they had agreed to suspend or block services to sites allegedly offering pirated content, such as the “RogueBlock” guidelines for payment providers, the Trustworthy Ads Guidelines (TAG) for advertising networks, and the Center for Safe Internet Pharmacies (CSIP) guidelines for demoting overseas pharmacies from search results.
Rightsholders and their friends in Congress are also pressuring DNS providers to apply their rightsholder-friendly agreements with ICANN as the basis for deleting domains allegedly used by unauthorized websites. This is the coded message contained in a letter sent by the Senate's Judiciary Committee to the White House “IP Czar” Daniel Marti, earlier this month, which calls on Marti to pressure ICANN to enforce these agreements with registrars.
EFF does not defend the motives of websites that make unauthorized copies of movies, music,and software for profit. But because “voluntary” programs directed at these sites operate outside the rule of law, there is little to prevent these programs from being misused, wittingly or otherwise, to also take down websites that serve a legitimate public interest, such as Wikileaks—which has indeed suffered from DNS, web host, and payment intermediary blocks in the past.
We don't agree with much that our co-panelists at the IACC Conference said, but we do agree with one remark made by Michael Weatherley, former Intellectual Property Adviser to the U.K. Prime Minister, who observed that preferable to the heavy stick of copyright enforcement, is the use of education about copyright, and the promotion of lawful, affordable, and accessible online content services. SOPA failed for a reason, and it's time for rightsholders to finish mourning its demise and move on.