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Big tech hits out at web-block case in the US – calls it SOPA by the back door

By | Published on Wednesday 12 August 2015


Remember that time Wikipedia went black – but then came back – having had SOPA rinsed out of town? Well, big tech in America has come together once again to speak out against the kind of proposed anti-piracy measures that motivated the Wiki blackout in 2012.

Google, Facebook, Twitter, Tumblr and Yahoo! are amongst those who have signed a so called amicus brief submitted to the New York court that is considering legal action filed by the Motion Picture Association Of America, in which the Hollywood studios are seeking an injunction forcing third parties to block, remove links and stop providing any services to the copyright infringing MovieTube websites.

As you may remember, the Stop Online Piracy Act, and it’s counterpart the Protect IP Act, were both proposed laws put before Congress in 2011 designed to combat online piracy. Key to the proposals was so called web-blocking, whereby the courts are empowered to issue orders forcing internet service providers to block access to copyright infringing websites.

Such web-blocking has since become a standard anti-piracy tactic in numerous other countries, especially in Europe, but both the basic concept and the specifics of SOPA and PIPA proved highly controversial when being considered in Washington. A day of high profile protests by big tech players, including the aforementioned Wikipedia blackout, basically killed the legislative proposals.

But, whereas in some countries web-blocking has been initiated by new laws, in some jurisdictions, including the UK, the content industries have successfully used existing copyright law to secure web-block injunctions.

In essence it’s a jurisdiction point. A court is already empowered to order a copyright infringing operation be shut down, but if said operation sits outside the jurisdiction of the court such an order has little sway. Forcing ISPs to block access to the offending site is a happy compromise (or it would be, if the blockades weren’t quite so easy for web users to circumvent).

Back in the US, movie industry trade group the MPAA has been busy investigating whether it too could secure a web-block injunction of sorts without any new laws needing to be passed. The MovieTube case is something of a test, and good set a bold precedent.

But Hollywood was never going to sneak this one through, and big tech has now sought to intervene, submitting a brief to the court despite not being an actual party to the litigation. They say that the injunction the MPAA requests is too wide-ranging, hinders the sometimes controversial safe harbours provided to tech companies in the Digital Millennium Copyright Act, and is basically SOPA by the back door.

The submission declares: “Plaintiffs now appear to be repackaging the excesses of SOPA into the All Writs Act. Indeed, the injunction proposed here would require the same online intermediaries targeted by SOPA to engage in the same kind of content and domain blocking that would have been required under SOPA had it been enacted”.

It would be wrong for the courts to provide copyright owners with powers Congress rejected just three years ago, it adds: “The court should not allow intellectual property rightsholders to obtain through the existing statutes the very sort of third-party blocking orders that failed to gain legislative approval”.

Web-blocking has proven controversial wherever specific laws have been introduced, most recently in Australia, with critics worrying that legitimate websites could face sanctions because of small-scale or inadvertent infringement.

Though in countries where web-blocking has become the norm, like the UK, targeted sites are clearly out right piracy operations, and the actual web-blocks issued have never actually caused much controversy. Indeed many European ISPs now seem to accept the blocks as routine, with a legal rep from Telefonica actually presenting web-blocks as a preferred anti-piracy method at a recent Music 4.5 event in London.

That said, as mentioned, just having ISPs block an infringing website is limited in its impact because it is so easy to circumvent the blockades. Rights owners would like to also force Google to stop listing blocked sites – and any proxies linking through to blocked sites – as part of the web-blocking process. But even in Europe moves in that direction are much more early days and could as yet prove controversial down the line. And one of the concerns about the MPAA’s proposals is that they could go further than just forcing ISPs into action.

Though, even if the New York courts don’t side with the MPAA on this one, the US government is likely to come under new pressure from the content industries over web-blocking in the coming years, as the web-blocks become the norm elsewhere.

America has a habit of stomping around the world ordering other governments to do more to protect intellectual property, but when it comes to web-blocking the US is getting behind. Even the Russian courts have just issued an injunction at the request of the Warner Bros movie studio to stop the unauthorised distribution of the recent ‘Entourage’ film, the first time a US company has directly utilised recently beefed up IP laws in Russia.

To that end, the American government would probably quite like it if the courts just set a nice precedent here that puts at least basic web-blocking in place without having to go through the messy process of a SOPA v2 debate on Capitol Hill. Though big tech isn’t going to let this court case pass through unnoticed.