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American web-blocking injunction unlikely to result in any web-blocking

By | Published on Monday 13 November 2017


The American courts may have just issued a landmark web-blocking injunction, but the organisation which secured that court order isn’t planning on using it to instigate any web-blocks any time soon. Well, not in the conventional sense. Or at least that’s what it says.

Quick recap. Web-blocking is a popular anti-piracy tactic within the music and movie industries in countries where such blockades are available. Internet service providers are ordered to block their customers from accessing websites that are deemed by the courts as primarily existing to encourage and facilitate copyright infringement.

However, while web-blocking is now available in a number of countries, that doesn’t include the US where Congress abandoned plans for bespoke web-block laws in 2012 amidst high profile opposition from the tech sector. But then, earlier this month, a US court issued an injunction as part of a dispute between the American Chemical Society and Sci-Hub, a website that enables the illegal sharing of academic papers.

That injunction stated that “any person or entity in active concert or participation with defendant Sci-Hub and with notice of the injunction, including any internet search engines, web hosting and internet service providers, domain name registrars, and domain name registries” should “cease facilitating access” to the scientific piracy site.

It certainly sounds like a web-block injunction. However, ACS has said that it only plans to enforce the court order against entities which have a direct connection with Sci-Hub, so that’s companies directly providing services to the piracy site, such as domain registries, server hosting companies and possibly providers like CloudFlare. For the time being at least ACS won’t be demanding that search engines delist Sci-Hub, nor that ISPs block their customers from accessing it.

Soon after the court ruled in its favour, ACS issued a statement that both welcomed the judgement but also played down its reach and therefore its landmark status. The organisation said: “The court order applies to Sci-Hub and technical service providers that have a relationship with Sci-Hub, which is consistent with longstanding legal precedent. ACS will now begin enforcement accordingly”.

Clarifying what it meant by that, ACS Director Glenn Ruskin told Torrentfreak last week: “The court’s affirmative ruling does not apply to search engines writ large, but only to those entities who have been in active concert or participation with Sci-Hub, such as websites that host ACS content stolen by Sci-Hub”.

So ACS won’t be using the injunction to force all the major ISPs in America to start blocking access to Sci-Hub? “That is correct, unless the internet service provider has been in active concert or participation with Sci-Hub”.

In which case, there’ll be no web-blocking any time soon, despite the recent ruling. Though other copyright owners might still choose to interpret the wording of the Sci-Hub injunction more widely, and wonder whether a precedent has still been set that web-blocking can be achieved under current American law.