Internet service providers may be persuaded to back new laws in the US that would make web-blocking available as an anti-piracy tactic in the country for the first time. However, the ISPs seemingly want something in return: “immunity” from liability for past and future piracy. And it’s not clear if copyright owners, and especially music companies, would view that as a fair exchange.
Talks about introducing web-blocking in the US are currently happening behind closed doors, but we got a glimpse of what is being discussed during a recent hearing in US Congress.
According to Torrentfreak, Democratic Senator Chris Coons said during a session of the Senate Subcommittee On Intellectual Property, “It finally feels like we’re making some real progress here on site blocking after years”. However, he revealed, “One of the key roadblocks to getting a final deal is whether ISPs should benefit from immunity, both prospectively and retrospectively”.
Little information was provided about what that means, but it could be that the ISPs want an end to the lawsuits that seek to hold them liable for their customers’ copyright infringement. Many of those lawsuits have been pursued by the major record companies in relation to music piracy, and they have often resulted in the labels being awarded mega-damages.
Although both cases are still subject to appeal, Grande Communications was initially ordered to pay $47 million in damages and Cox Communications a neat billion dollars. So you can see why ISPs would be interested in a web-blocking deal that might bring an end to all that litigation.
Web-blocking has become an anti-piracy tactic of choice for the music and movie industries in many countries around the world. Under these systems, courts or government agencies issue orders obliging ISPs and other internet companies to block their customers from accessing specific piracy websites, usually in response to complaints from copyright owners.
ISPs often oppose web-blocking when it is first introduced in any one country, but then usually quietly comply when a steady stream of web-blocking orders start to be issued.
However, attempts to change US copyright law to allow web-blocking in 2011 and 2012 caused such a big backlash from the tech sector, the proposals were quickly dropped and have never been seriously discussed again in Washington. Until recently that is.
The movie industry in particular has been proactively lobbying for web-blocking in the US for a few years now. The Motion Picture Association argues that the doom and gloom predictions made by the tech sector in 2011 and 2012 - mainly that otherwise legit websites that inadvertently facilitate a little copyright infringement would get blocked too - have proven to be false in all the countries where web-blocking is now commonplace.
As a result of those lobbying efforts, new web-blocking proposals have now been introduced into Congress, with the movie industry expressing optimism that this time they’ll become law.
However, the tech sector remains powerful in Washington, so that’s much more likely to happen if a deal can be done to ensure ISP support for the proposals.
After Coons mentioned that internet companies were looking for “immunity” as part of any deal around web-blocking at the recent Congress session, a representative for the MPA, Karyn Temple, was asked to comment on that proposal.
She seemed to assume that the ISPs wanted “immunity” from any legal liabilities that might arise from actually implementing the web-blocks. She noted that it is unlikely there would be any such liabilities, providing the web-blocks were ordered by a court or government agency, and therefore she wasn’t sure why the immunity requirement was even necessary.
Which is a good point, except, as Torrentfreak points out, “the ISPs may have another interest in retrospective immunity when it comes to piracy liability”. Which is to say, immunity from lawsuits seeking to hold them liable for their users’ infringement on the basis they don’t do enough to stop piracy on their networks, mainly by failing to disconnect customers who are known repeat infringers.
If that is what the ISPs are demanding, it will be interesting to see if the copyright owners are willing to give up the option of filing those lawsuits - and winning the mega-bucks damages that can result from such legal action - in return for being able to access web-blocking injunctions in the US.
Especially as web-blocking, while a popular anti-piracy tactic, is no panacea - it’s no secret that it is relatively easy for people to circumvent the web-blocks by using a VPN or alternative DNS resolver.
Also, would “retrospective” immunity just mean no new lawsuits relating to past infringement, or could it also force some sort of settlement in relation to the lawsuits that have already been filed?
Given it’s the music companies that have been most prolific in filing piracy lawsuits against the ISPs, and the movie industry that is pushing hardest for web-blocks in the US, such a move could divide the different strands of the entertainment business. Even though the ultimate anti-piracy objectives of the music and movie companies are the same.
With most of these conversations currently happening behind closed doors, it’s hard to predict exactly what the outcome of all this will be. However, as the formal web-blocking proposals in Congress progress, more of the debate will have to happen in public.