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The Piracy Website-Blocking Solution

Digital commercial piracy costs the United States economy at least $29.2 billion a year. That is, if commercial piracy websites paid for the content they’ve illicitly streamed, creators of music, movies, TV shows and other digital content would have earned about $30 billion more yearly.

At a recent hearing of the House Intellectual Property Subcommittee, site-blocking garnered bipartisan support. Subcommittee Chairman Darrell Issa (R-Calif.), Rep. Zoe Lofgren (D-Calif.) and other lawmakers agreed that as technology has changed since the Digital Millennium Copyright Act, there’s a great need for antipiracy measures.

The entertainment industry accounts for $230.5 billion in exports annually, Adam Mossoff writes in a Heritage Foundation report. "The creative industries are a major driver of economic growth and jobs, adding $1.8 trillion to the U.S. gross domestic product (GDP) and employing 9.6 million Americans in 2021.” This isn’t chump change.

"Copyright piracy, like a squatter in one’s home or a digital thief continually stealing money from one’s bank account or credit card, undermines a creator’s rights to liberty and property to live, work in a profession, and make a living," Mossoff says.

This form of copyright infringement on such a commercial scale is hardly a victimless crime. It’s missing from paychecks and tax revenue, and deprives writers, artists and creators working on the next creative endeavor.

Commercial-level, global piracy affects the livelihoods of millions of people. It steals from those holding U.S. jobs in film and TV, for instance. These range from studio executives to hairdressers, theater owners and all sorts of off-camera roles across the country.

Currently, under the 1998 Digital Millennium Copyright Act, it’s costly and time-consuming to fight piracy.

"We spend . . . hundreds and millions of dollars to develop notice and takedown systems to send millions of notices to various [user-generated content] sites. Individual artists and creators often don't have the ability and resources to do that, so it is a very difficult situation for individual creators, and that is something that has often been discussed with respect to the DMCA," said hearing witness Karyn Temple, senior counsel at the Motion Picture Association.

There’s hope, though. Some 34 nations are seeing effective, efficient results stopping digital piracy. These countries plus another 12 have enacted laws that enable website blocking.

The Information Technology and Innovation Foundation’s report on site-blocking says site-blocking countries include Germany, India, Australia, Sweden, Ireland, the Netherlands, Israel, Italy, Portugal and the United Kingdom, among others.

The way it works involves judicial process and oversight. Copyright owners obtain injunctions that ask Internet service providers to block access to piracy websites that mass-distribute copyright-infringing content.

Most of these laws block both the primary site and secondary sites that mirror the contents of the primary site; this is called dynamic blocking injunction. This approach ends the whack-a-mole multiple injunctions route. Some site-blocking laws go after streaming live events.

Over the past decade, European courts have developed a mature legal framework for site-blocking. ITIF finds its principles instructive: “Piracy sites such as The Pirate Bay make acts of communication to the public and thereby are liable for copyright infringement. . . . The Pirate Bay’s central role in facilitating piracy means it is not protected by the same legal provisions that protect websites for being held responsible for user-posted content (i.e., a legal safe harbor). . . . There was no doubt that The Pirate Bay’s activities were carried out with the purpose of obtaining a profit.”

To be clear: This illicit practice is big, illegal business involving thousands of websites worldwide. The players are big-time criminal enterprises. The sites provide illicit access to stolen commercial digital contents. There’s no censorship or viewpoint discrimination involved here; it’s all about stopping international criminals from making big money off of stolen goods.

These laws block some 18,000 illicit sites globally, and that’s just for movies. Many other blocked sites illegally provide music, video games and other intellectual property-protected content.

Research in several of the countries with site-blocking laws shows that this approach, especially dynamic and live blocking, effectively cuts off access to illegal streaming and downloads.

"The U.S. is now the outlier globally when it comes to site-blocking systems and the protection of the rights of creators in the digital fruits of their labors," with more than 40 countries using some form of site blocking, Mossoff says.

The studies also show that site-blocking changes consumer behavior. Australian studies give an excellent example.

ITIF reports: “Users will visit a piracy website if it is a top search result ahead of legal options, but if they only find legal options, then that is where they will go. This survey and the MPA study support the case for broad and consistent blocking of major piracy sites, and working with search engines to stop them from providing easy access to piracy sites.”

Thus, blocking access through court-issued injunctions and carried out through ISPs has proven to be a highly effective remedy against this form of copyright infringement on a commercial scale. And site-blocking doesn’t stifle free speech.

To date, there’s no U.S. site-blocking law. There needs to be.

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