Unveiled earlier this year by Rep. Zoe Lofgren and Rep. Darrell Issa respectively, the Foreign Anti-Digital Piracy Act (FADPA) and the American Copyright Protection Act (ACPA) have underlying differences but much in common.
Both bills would enable copyright holders to request site blocking orders against foreign pirate sites, with ISPs and DNS resolvers required to prevent U.S. internet users from accessing them.
Different Bills, Same Claimed Benefits
The claimed benefits of FADPA / ACPA are simple and 100% interchangeable, likewise the stated downsides of using foreign services instead of legitimate local platforms. Overseas pirate sites ‘steal’ legitimate content, and then offer free copies to Americans via the internet, undermining business models and disrupting the legitimate market, the background goes.
Pirate sites also stand accused of involvement in malware distribution, phishing, and other scams that recognize the relative wealth of Americans, and then use various means to deprive them of it.
All pirate sites are framed as fundamentally unsafe, with site blocking measures promoted as the complete opposite. Yet in the same way that pirate sites aren’t universally dangerous, site-blocking cannot be described as universally safe either. These absolutes unhelpfully provide no room for compromise, making it more likely that the battle for and against site blocking will take place on issues of safety.
Blocking Orders, Implemented Safely
The risk of innocent sites being accidentally or even deliberately blocked (it happens), and the potential effect that could have on freedom of expression, is one of the key issues cited by opponents of site-blocking. Organized by pro-site blocking groups Information Technology and Innovation Foundation (ITIF) and the Digital Citizens Alliance (DCA), a policy forum held late last month offered discussion on that very issue.
Drawing on the best international practices, the discussion will explore how blocking orders can be implemented safely and effectively to protect intellectual property and promote legal content without threatening free expression.
Representative Darrell Issa was the first keynote speaker to address the audience. Without mentioning SOPA by name, Issa accepted that mistakes had been made but after much work, now is the right time to regain lost ground.
“We tried many years ago with a piece of legislation that was thoughtful but not fully thought out, and it died a painful death. We have sought now for almost two years to make sure that when we would reintroduce a form of judicial site blocking as we call it, that we fixed those errors, and we believe we have,” he explained.
“Will it do everything? No. But will it dramatically reduce the profitability of those who steal from things as broadly as live broadcasts to the everyday copyrighted material?”
“Pirate sites are actually relatively few but in fact have enjoyed unfettered profits in the United States. Well, dozens of countries around the world have sought and successfully found ways to limit it,” the architect of ACPA explained.
America – A ‘Soft Target’ For Pirates
Clearly aware of the difficulties ahead, Issa recalled a previous life in another trade where deterrence couldn’t prevent theft, but it was good enough.
“When I was in the private sector I made among other things car security systems and I have a quip that I’ve told people for years. Absolutely, I never stopped the stealing of a single car; I simply got the thief to steal someone else’s car,” he said.
“The fact is we are a soft target and because we are a soft target, profiteers in foreign countries including Russia, China, and formerly in Ukraine – although they were mostly Russians operating from Ukraine and other countries – have widely profited because we’re the soft target.
“That is going to stop, but it’s going to stop in a very careful and measured way. Most importantly we are not looking to fix every time somebody in an automated way says ‘Oh we’ve got one here we’ve got one there.’ We’re not looking to go to the site where somebody, thinking it was harmless, puts something up on YouTube. The DMCA has a process for that – and it is burdensome and it is time-consuming. However, it is fair on balance and for now we will leave it completely untouched.”
Live Blocking, Straight Off the Bat
At this relatively early stage, plans may not play out in line with expectations, or even play out at all. That being said, Rep. Issa said that the plan is to go after “the pervasive and profitable pirate” using dynamic blocking and for sports broadcasts, live blocking, currently the most advanced type of blocking available. Rightsholders will have to go before a judge and engage in a process, but after that automation will ensure that blocking targets can’t simply reappear.
“[W]hat will be different is the continuous ability to go back in an automated way and know that when it’s the same, even if slightly disguised pirate, you will be able to shut them down in moments. That means no longer will live broadcasts, for example, only get the order to shut down after the soccer game is over. That’s going to be a thing of the past.”
Level of Support Still Unclear
ACPA is being introduced on a bipartisan basis and Rep. Issa believes that it’s going to be mostly well appreciated. Reading between the lines, it sounds like some big ISPs in the U.S. are fully committed while others are proving more difficult and may even be excluded early on.
“We have put safeguards in, although it’s not a pilot; it starts with the cooperation and support of some of the largest ISPs, but not all of them. I do believe that they are the exceptions and in many cases they’re carved out of the first stage of this.”
Informative Panel Discussions, But Not Without Concerns
Full details of those on the panel can be found down below but overall their contributions were both clear and informative. The presence of lawyers from the Premier League and Rogers Communications was a smart move due to the type of high-level ‘live’ blocking they’re involved in, together in Canada and individually elsewhere.
On several occasions it was suggested that the models in Canada and the UK are of the type that could prove suitable for the United States.
Most of the safeguards in place to prevent overblocking in Canada are effectively a secret so weren’t revealed in any detail. However, Rogers’ secret weapon was openly discussed; when a rightsholder is also an ISP, the position offers an unrivalled birds eye view.
“[A]s an ISP and as a television distributor, understand that our prerogative is to protect the media business,” said Kristina Milbourn, Rogers’ head of litigation.
“We know how to do that, we have technical expertise that enables us to block in a very meaningful way and a very surgical way, because we certainly don’t want to imperil the internet in Canada. Happily our internet still works, so nothing is broken, but we do have tremendous insights sitting on both sides of the fence.”
Which ISPs have that kind of visibility in the U.S. and what are the safeguards, if indeed any are required?
Claims of Problem Free Blocking Challenged
After directly responding to questions from the audience, the panel faced a challenge to the general claim that site blocking is completely safe. If there are any issues, the narrative goes, they barely move the needle so aren’t really important enough to discuss. The person in the audience quite strongly disagreed.
“[W]hen I hear presentations about blocking around the world, and how there are no problems and how it doesn’t cause any issues, that hasn’t really been the experience we’ve seen in a lot of countries,” said Zaid Zaid, Cloudflare’s Head of U.S. Public Policy.
“There are a lot of problems when websites or IP addresses are blocked, there are tons of unintended consequences, tons of unintended blocking, you know, that could impact mom and pop shops, that will impact websites and American consumers etc.,” Zaid said.
“So we think that the best way to deal with the issue is more collaboration rather than trying to force various players along the internet stack to have to block things, block websites, block IP addresses etc, and I sort of would like to hear, you know, what are some of the remedies, what are some of the things that we can work on together?”
This statement was the first real opportunity to discuss blocking safety with a person claiming first-hand experience. And while Zaid wasn’t ignored, his claim that problems are widespread – global even – received not a single challenge from anyone in the room.
That no one meaningfully engaged on the very topic advertised as the basis of the event seems a little odd. After three solid months of site blocking in Spain, that made global headlines due to the systematic blocking of Cloudflare and the associated collateral damage, examples of unsafe blocking have never been more plentiful. On a pro rata basis, overblocking discussion is arguably at an all-time low.
In addition to the two keynote speakers, panelists for the event were (left to right): ITIF Associate Director Rodrigo Balbontine, DCA Executive Director Tom Galvin, Michael D. Smith, Professor of Information Technology and Public Policy at Carnegie Mellon University, lawyer Kristina Milbourn, head of litigation at Rogers Communications in Canada, and Stefan Sergot, Director of Legal – Enforcement at the Premier League.
From: TF, for the latest news on copyright battles, piracy and more.
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