Public Knowledge vs. Progress: The Debate on Website Blocking in the United States and Elsewhere

It's well known that the United States lags the European Union and many other countries in not having a national privacy law, but less known is that it also lags in supporting and protecting its content creators in allowing them to ask courts for injunctions for Internet Service Providers (ISPs) to block access to websites involved in the mass distribution of pirated content. In 2011, the Stop Online Piracy Act (SOPA), nearly made the United States a pioneer in supporting its digital economy via website blocking, but it failed to pass, in part, due to mass hysteria and fear mongering that it would, among other awful things, "break the Internet." In the decade since SOPA, Australia, the European Union, India, Singapore, the United Kingdom, and dozens of other countries have allowed website blocking to fight piracy and their experiences have proven these fears baseless, instead showing that website blocking is effective, necessary, and proportionate. Despite this, the same opponents of SOPA, like public advocates Public Knowledge, act as if nothing has changed. Evidence from around the world show just how wrong Public Knowledge is as Congress and other stakeholders engage in good faith efforts to (finally) catch the United States up to the rest of world on this critical area of tech policy.

Public Knowledge is ideologically opposed to intellectual property rights. Public Knowledge, and the other anti-intellectual property advocates were founded, in part, to oppose the role intellectual property plays in extending private rights over what they classify as public goods. Public Knowledge recently tried (again) to whip up hysteria around website blocking in response to the Motion Picture Association (MPA) Chairman and CEO Charles Rivkin's statement that they're working with Congress to enact a website blocking system in the United States. This is wholly unsurprising given MPA's long history of involvement in the debate about piracy. MPA only just testified on the issue in December 2023. Public Knowledge states that, "Nothing has changed since then [SOPA]-not the infrastructure of the internet that made this unworkable, not the lack of consultation with technologists, and not the back-room dealmaking-except for the brazenness of the industries seeking it." Public Knowledge could not be more wrong. While Public Knowledge's predictable opposition has not changed, everything that matters in this debate has changed.

Over the last decade, more than 40 countries, including leading democracies such as the United Kingdom, much of the European Union, Canada, Australia, India, Brazil, South Korea, and Israel have enacted website blocking regimes. Courts and administrative agencies in these countries have disabled access to more than 90,000 domains used by over 27,000 websites engaged in blatant piracy after affording full due process.

More and more countries enact website blocking as piracy remains a huge and growing threat to content creators, despite the widespread availability of legal options like Netflix, Disney+, and Amazon Video. MUSO (a piracy tracking firm) and Kearney (a consulting firm) recently reported that online piracy remains rampant, with over 141 billion video piracy visits globally in 2023, a 12 percent increase since 2019. The report ranks the United States and India as joint leaders in piracy with 11 percent of the global video piracy visits. However, the piracy rate in India has increased 80 percent year-on-year. In 2023, the International Federation of the Phonographic Industry "Engaging with Music 2023" report surveyed over 43,000 Internet users worldwide, finding that almost one in ten people (29 percent) admit to using illegal means to listen to or download music, especially in developing countries.

Website blocking is the global norm for fighting piracy as a growing body of academic research shows it's effective in pushing more people to consume legal content. Most recently, in 2024, academics from Chapman University and Carnegie Mellon University (CMU) conducted a study that used browsing data from Brazil and India to examine shifts in user behavior during three waves of website blocking in December 2019 and September 2020 in India, and July 2021 in Brazil. The study found that all three waves of blocking orders caused statistically and economically significant increases in usage of legal media sites. The results are consistent with CMU's prior study of website blocking in the United Kingdom (in 2015), which also showed that blocking piracy websites can lead to increases in legal consumption. Specifically, website blocking in India in 2019 and 2020 caused an 8.1 percent and 3.1 percent increase in legal consumption, and website blocking in Brazil in 2021 caused a 5.2 percent increase in legal consumption.

Public Knowledge and other opponents of website blocking continue to claim that website blocking would have all sorts of negative impacts, including on human rights and the functionality of the Internet. Yet, in the last decade courts around the world have considered the legal, human rights, and technical and operational concerns about website blocking, and in judgement after judgement, decided that website blocking is effective, proportionate, and does not undermine net neutrality, nor human rights. In "Website Blocking in Europe: Debated, Tested, Approved, and Defended," ITIF detailed the Court of Justice of the European Union's (CJEU, the highest court in the EU) landmark decision to approve website blocking in the EU, and in doing so, create a clear, balanced, and effective framework for courts to use when deciding whether to grant website blocking injunctions. More recently, Canada's Federal Court of Appeal released an 113 page order that, likewise, made clear that website blocking is an effective and balanced legal tool that does not undermine freedom of expression, nor net neutrality.

Key stakeholders involved in website blocking have also changed their position. MPA and Google are working together as part of various industry and government initiatives and legal frameworks to delist and demote piracy sites from search results. Policymakers focus on search engines as research shows demoting search results that link to piracy websites can shift user behavior toward legal consumption.

Google and other search engines are part of a growing number of voluntary agreements with the creative content sector and other stakeholders to ensure piracy sites are removed from results or "demoted" in that they do not feature on the first (or first few) search results pages.

For example, the United Kingdom led the way in linking its website blocking system with an agreement to get search engines to deindex blocked piracy sites. In 2017, the United Kingdom's Intellectual Property Office brokered a voluntary code of practice between representatives from the creative industries and leading search engines, including Google and Bing, to both remove links to infringing content from the first page of search results and make sure piracy search terms do not show up in autocomplete suggestions. At the heart of the code of practice is a process for testing whether search engines have met "targets for reducing the visibility of infringing content in search results." Google has passed at least four rounds of tests.

Australia also has its own voluntary agreement between rightsholders and search engines like Google to remove sites from its search index after rightsholders get court orders to block piracy sites. Google agreed to an updated mechanism to de-index mirrors and proxies as soon as they are reported. As former Communications Minister Mitch Fifield stated, the website blocking legislation helped change Google's behavior "in a positive way, so that hopefully there isn't the need to resort to the mechanisms the law provides" and that "This is the sort of voluntary and positive partnership we want to see between platforms and content creators." More recently, in 2022, Lithuania announced an agreement with Google to deindex piracy websites, including on a dynamic basis (so that piracy sites that shift to proxy sites are also deindexed).

Google also enacts its own deindexing measures to target piracy sites. Google reports that "demoted sites lose an average of 89 percent of their clicks from search." In addition to these efforts, Google has made it harder for sites to evade demotion by redirecting people to a new domain. Google also pursues 'preemptive' takedowns, where it blocks reported URLs before they are indexed by the search engine. In 2022, Google reported that more than 40 percent of the takedown requests submitted via its web form were for content that hadn't yet been indexed. Google's latest transparency report suggests this includes billions of URLs. In advance of major events, rightsholders are able to pre-notify Google of web pages that advertise they will illegally stream a live event in the future.

Public Knowledge opposes any chance for reasonable discussions on website blocking, even as the body of evidence overwhelms them. It wants to stop Congress from convening calm, reasonable, and technical discussions about what a U.S. website blocking system could learn from what other countries have done in designing the scope, immunity from liability, safeguards, and other legal issues for a U.S. law.

Congress and other stakeholders have proven that targeted, good faith discussions on how best to fight piracy are possible. In 2020, Congress convened a broad set of stakeholders-including from the content creator sector and those representing Internet users, technology companies, ISPs, and civil society-to work together to develop a fix for the streaming piracy loophole in U.S. copyright law in passing the Protecting Lawful Streaming Act (PLSA, streaming piracy used to be just a misdemeanor, while downloading was a felony). Unsurprisingly, Public Knowledge opposed the PLSA, stating : "As a general matter, we do not see the need for further criminal penalties for copyright infringement." PLSA made it a felony offense for those who, willfully and for commercial advantage or private financial gain, offer or provide to the public a digital service that illegally streams copyrighted material. On May 1, 2024, a former operator of an illicit Internet Protocol TV service became the first person to be convicted under the PLSA.

For years, Congress has been trying to find a way forward on website blocking. In 2023, the U.S. Patent and Trademark Office also held a series of roundtables on future anti-piracy efforts, including website blocking. Public Knowledge clearly isn't interested in moving on from SOPA and instead remains committed to fear and obstruction. Congress and other stakeholders would do well to ignore it as a relic of the past and instead focus on those stakeholders who want to engage on the substantial and growing body of evidence from around the world.

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