MPA Shares Pirate Site Blocking ‘Best Practices’ at WIPO Meeting

MPA Senior Executive Vice President Karyn Temple will share the movie industry group's site blocking 'best practices' at a WIPO meeting. The insights arrive just few days after a new site blocking bill was introduced in the United States. Not surprisingly, the MPA's 'best practices' for site blocking largely align with proposed legislative amendments.

U.S. Rep. Zoe Lofgren introduced a new site blocking bill in the House last week, titled: Foreign Anti-Digital Piracy Act (FADPA).

Should the proposal become law, FADPA would enable rightsholders to restrict access to verified pirate sites, run by foreign operators. Site blocking orders would apply to both Internet providers and public DNS resolvers.

The introduction of a new site blocking bill was only a matter of time. But time it took. FADPA comes more than thirteen years after the previous SOPA bill was shut down. Since then, a lot has changed.

Instead of a relative novelty, site blocking is commonplace nowadays. The MPA claims that over 50 countries have adopted the practice although as recently as last summer, the industry group’s estimate was around 40. With no similar measures in place, the U.S. is lagging behind, but the same can’t be said about American influence.

As highlighted this weekend, movie industry group MPA has been a driving force behind global blocking efforts. The main goal has always been to protect the copyrights of its members, but the experience can also be used to bring site blocking ‘home’.

MPA’s Site Blocking Presentation at WIPO

The MPA has been closely involved in U.S. site blocking discussions for years and, shortly after FADPA was announced to the public last week, MPA Senior Executive Vice President Karyn Temple will discuss site blocking at the World Intellectual Property Organisation (WIPO).

This week, WIPO’s Advisory Committee on Enforcement holds its sixteenth session in Geneva, Switzerland, where Temple will share the MPA’s views on the efficacy of no-fault injunctions. This type of injunction would become available in the United States under FADPA.

A preparatory document, released early, highlights that site blocking measures, if done right, can be an effective tool to reduce traffic to pirate websites and increase the use of legitimate services in some cases.

“Countries must therefore continue to develop strong and effective enforcement frameworks to address online piracy, including the use of no-fault injunctions to block access to illegal piracy services,” Temple notes.

Site Blocking Best Practices

Besides illustrating the need and power of site blocking, aided by academic research, the presentation also provides an overview of site blocking “best practices”. Not coincidentally, many of these are covered by the FADPA bill.

Drawing from its vast experience around the world, MPA lists five pillars on which effective blocking schemes should be built.

1. Precise Targeting and Proportionality

The recommendation to ensure ‘precise’ targeting can be interpreted in two ways. The MPA notes that blocking measures should only focus on websites that are primarily dedicated to sharing pirated content. Sensible safeguards are required to prevent errors.

To achieve this, MPA advocates for the use of automated solutions which make sure that blocking measures remain strictly targeted. For example, by lifting blockades when sites change locations.

At the same time, however, these automated tools can also block new ‘pirate’ locations if these become available.

2. Balancing Fundamental Rights

The MPA’s second recommendation aims to stay ahead of critics. Specifically, it addresses the concern that blocking measures can impact freedom of expression and other fundamental rights.

“Site blocking orders can potentially affect several fundamental rights, such as Internet users’ freedom of information and expression and online intermediaries’ freedom to conduct a business,” Temple’s contribution reads.

To address the freedom of expression concern, site blocking should focus solely on structurally infringing services. These are the known pirate sites and services that have no significant legitimate use.

Potential issues concerning the freedom to conduct business can be addressed by allowing ISPs and other providers to freely choose the blocking methods they prefer.

3. Transparency

To keep the public informed and rightsholders accountable, blocking injunctions should be openly accessible. This includes the use of dedicated landing pages that explain who issued the order and on whose behalf.

According to the MPA, it is of “paramount importance that site blocking injunctions are rendered in the most transparent way possible.” Transparency is mentioned in the FADPA bill, albeit with some room to maneuver.

4. Dynamic Blockades

Pirates typically find ways to circumvent blocking orders. By switching to new IP addresses and domain names, for example. Therefore, blocking orders should be dynamic, so they can be swiftly updated.

FADPA allows rightsholders to go back to court to request amendments to existing blocking injunctions. This is not completely dynamic, as court oversight is needed, but it’s not completely static either.

Ideally, MPA would like to have effective dynamic site blocking tools. These are particularly important for live broadcasts, including sports, where a timely response is essential.

5. Safeguards and Automated Tools

That dynamic live blocking can go horribly wrong has repeatedly been shown in Italy, where the “Piracy Shield” system blocked access to legitimate sites and services.

MPA had no part in the Italian system, and is aware of its drawbacks, but believes that automated systems can be effective if they are set up correctly.

“In particular, automated communication systems have been put in place between rightsholders and ISPs that allow the first ones to swiftly communicate the updated online locations that should be blocked, subject to a dynamic court order or under the supervision of competent authorities.”

If all best practices are followed, including transparency, precision, and proper safeguards, automated tools can work, MPA’s recommendation stresses.

Blocking Collaboration

All in all, it is clear that the MPA sees site blocking as a powerful tool that, despite criticism, can be rolled out without trampling on the rights of the public at large.

The recommendations and best practices also show that MPA is mindful of opposition. While their suggestions won’t convince staunch blocking opponents, lawmakers may be more open to this approach.

In any case, MPA hopes to get ISPs and other service providers on the site blocking train. This doesn’t only apply to DNS resolvers, which are covered by FADPA, but also CDN providers.

How harmless the resulting measures will be ultimately depends on how they are implemented. These ‘best practices’, as well as the draft of the FADPA bill, are just an outline. The true effect will hinge on the technical implementation.