The Facts About Judicial Blocking of Foreign Piracy Sites
Large-scale piracy operations that dwell in foreign markets beyond the reach of US law are a persistent and growing problem. For instance, the US Chamber Global Innovation Policy Center found that digital video piracy costs the US economy at least $29.2 billion a year and 230,000 jobs. Piracy also harms consumers, who are 30 times more likely to be exposed to phishing, malware, scams and spam on piracy sites than legitimate websites –and recent studies have found 80% of piracy sites serve malware-infected ads to their visitors and that 1 in 4 expose users to malicious content.
To combat this problem, 55 countries around the world have adopted safe, effective common-sense measures to stem the tide of illegal piracy and protect consumers, rightsholders, and distributors of copyrighted works. Unfortunately, the US market remains a large hole in this global quilt. It shows in the data: according to piracy analytics firm Dataprot, the United States is far and away the #1 piracy consumer in the world – accounting for over 17.3 billion visits to piracy sites in 2024 – far outpacing countries like China and Russia.
It appears that is about to change.
A bipartisan group of lawmakers is aiming to enact judicial blocking legislation this Congress. Rep. Zoe Lofgren (D-CA) – herself once a blocking skeptic – recently introduced the Foreign Anti-Digital Piracy Act to wide acclaim, including from the Copyright Alliance. And last week Rep. Darrell Issa (R-CA), Chairman of the House Judiciary Committee’s IP Subcommittee, held an important stakeholder roundtable (also attended by Rep. Lofgren) to inform his forthcoming legislation. What’s more, in his press release announcing he will retain the Senate Judiciary IP Subcommittee gavel, Senator Thom Tillis (R-NC) stated that a top priority is “ensuring that theft of IP via online piracy is not tolerated via both legislative and enforcement means.”
But all this positive momentum appears to be alarming some telecom companies whose networks are used to access foreign piracy websites. Take, for example, a recent blog post by former FCC Commissioner Michael O’Rielly. Generally, O’Rielly is no fan of stealing, recently thundering against the scourge of copper wire theft bedeviling telcos, calling on Congress to “federally criminalize [the] willfull[] or malicious[] injur[y] or destr[uction of] communications facilities operated or controlled by private companies.” But when it comes to digital theft, he takes an altogether different approach, instead criticizing Rep. Lofgren’s bill by regurgitating stale and demonstrably false criticisms of judicial blocking dating back to 2012.
The fact that critics of judicial blocking have nothing new to say speaks volumes about the bankruptcy of their arguments and should be a red flag for any lawmakers, staff, and stakeholders considering their views on internet policy. But it does provide us with a teachable moment which we gratefully accept. Going forward, we hope Mr. O’Rielly tries to participate in future stakeholder engagement sessions to update his understanding of the issues (and perhaps update his talking points), but to start, below, we set the record straight on some of his mistaken claims.
FACT: Judicial blocking is consistent with free speech
O’Rielly begins his blog with the inaccurate claim that judicial blocking is a form of censorship, saying the Lofgren bill “would deputize broadband companies to be Hollywood’s censorship police” and will “possibly shut[] down entire sites that could include legal content.”
Balderdash! “Mixed use” sites featuring protected speech and information including legal video programming are in no danger here, as explained by MPA’s General Counsel Karyn Temple in recent Congressional testimony. (If you want to see the sites at issue watch Ms. Temple’s testimony starting at 50:45. These aren’t close calls.) Every version of judicial blocking legislation under consideration only allows blocking orders to issue where there is detailed evidence that the target website is overwhelmingly dedicated to unlawful online piracy, proof that doesn’t and could not exist in the case of legitimate sites or sites with substantial non-infringing material or purpose.
Even more important, internet service providers (ISPs) are never asked to make determinations about any website’s legality. That determination is made by independent federal judges, in transparent court proceedings where all parties are afforded the full protections of due process – including the opportunity to present evidence and challenge any claim that a website is dedicated to online piracy.
Over a decade’s worth of experience in other countries using these tools has proven judicial blocking is no threat to free speech. Indeed, countries like the United Kingdom and Australia, where judicial blocking is routine, have received Freedom House’s highest internet freedom ranking. And Norway, Ireland, and Denmark, which also allow judicial blocking, are the top three nations on the Reporters without Borders 2023 World Press Freedom Rankings.
FACT: ISPs face no legal risk for complying with judicial blocking orders
O’Rielly asserts “[judicial blocking] puts broadband companies in a tenuous legal position” and would “expose such broadband companies to exorbitant liability for any hint of non-compliance or aggressive blocking.”
Wrong again. Judicial blocking proposals considered to date include clear immunity for actions ISPs take pursuant to court orders directing them to limit access to adjudicated piracy sites – and rightly so. ISPs are on the receiving end of judicial blocking orders not because they’re at fault for the underlying piracy, but because they’re best situated to protect US consumers and markets from foreign bad actors that typically ignore US court orders directing them to cease illegal activities.
And this statutory immunity is itself a “belt and suspenders” double-protection, since it is already well-understood in US law that compliance with court orders does not trigger liability. For example, when banks are directed by courts to freeze the assets of foreign criminals, those criminals can’t successfully sue the bank for doing what the courts ordered. Likely knowing this, O’Rielly doesn’t even attempt to explain how ISPs are somehow uniquely exposed here – and the explicit inclusion of immunity in a judicial blocking law should doubly assure nervous landline lawyers that they will likewise be held harmless.
What’s more, if our word isn’t good enough then perhaps Mr. Issa is more persuasive, saying in a recent interview:
“Look, if you’re given an order by a judge, you can’t be sued for complying with it,” we’re being very specific in saying, “Yes, you absolutely cannot be,” so that the ISPs (internet services providers) and DNSes (domain name systems) and so on, those that are going to be asked — even the credit card companies potentially — would all have a level of explicit immunity if they were simply complying with a court order. And so this allows us to create a protection for the intellectual property, the copyright owners, but also a protection for those who are doing their best to comply.”
FACT: Judicial site blocking is highly effective
O’Rielly asserts judicial blocking doesn’t work, saying “[o]verall, site blocking is unlikely to work to any great degree. Big, medium and most small fish – or illegal sharers of American movies – will just quickly shift content to a non-blocked site.” He further asserts “virtual-private-networks, for example, can be deployed by individuals to move and consume traffic without much limitation or detection. What will Hollywood do when these orders are circumvented by a VPN or encrypted domain name resolution service?”
Here too, these assertions completely fall apart under the barest scrutiny. Peer-reviewed studies have found that where these orders are used at a suitable scale, traffic to blocked piracy websites is reduced by 80-90% percent while use of legitimate digital services goes up. And while some users may seek to evade blocks by utilizing VPNs, the vast majority of internet users don’t. Again, Rep. Issa explains this well, observing:
“One of the things we heard today that I think is extremely important is that the technology may not always give you a complete solution. In other words, we may restrict and reduce piracy. We may not completely eliminate it, but that’s not the goal. What we want to do is make it hard enough and expensive enough that it no longer becomes so profitable to these foreign bad actors.”
Makes sense to us. In other words, Chairman Issa is saying that we have to introduce enough friction into the system to deter foreign criminals from engaging in schemes that are incredibly easy to set up and wildly lucrative – with little or no attendant legal risk for the criminals in their home jurisdictions.
FACT: Judicial site blocking is entirely consistent with net neutrality
In perhaps the most confusing passage of his piece, longtime net neutrality opponent O’Rielly complains that site blocking “doesn’t square well” with net neutrality “no blocking” rules. This has to be the biggest eye-roller from a former FCC Commissioner who well knows that net neutrality’s “no blocking” principle applies only to legal content. Even if net neutrality regulations remained in place, which they don’t after recent court rulings, they would allow judicial blocking of online piracy sites. As Davis Wright Tremaine’s bulletin to clients summarizing the FCC’s net neutrality regime clearly states “the order calls out copyright infringements and child sexual abuse materials as examples of illegal content that providers may block” – a feature of every net neutrality scheme ever considered in the US.
Judicial blocking is a safe, effective tool that has been widely deployed around the world to great effect, with no concurrent threats to free speech, access to legal content or a well-functioning internet. And while healthy debate is welcome – critics of judicial blocking are not entitled to their own facts. Reps. Issa and Lofgren and their Senate colleagues are to be commended for their efforts to enact this vital policy into law – and the Copyright Alliance stands ready to work with them and all good-faith stakeholders on this important issue.
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