Reframing the Debate Over Online Copyright Infringement

Pretty remarkable series of rulings from a federal district court this week (h/t TorrentFreak) in a string of copyright infringement cases against a trio of allegedly illegal streaming sites. In three nearly identical rulings (see here, here and here), the Federal District Court for the Southern District of New York ordered the sites to cease operating and to each pay the plaintiffs $7.65 million in statutory damages related to 51 copyrighted works.

The cases were all brought by companies affiliated with Moshe Edery, co-founder of Screen iL, an international streaming service aimed as Israeli ex-pats, and targeted the operators of, and None of the defendants showed up to contest the suits so the court’s rulings were entered as default judgments.

Imposing statutory damages in a default judgment in an infringement case is not unusual. But the court went well beyond the monetary damages and issued a permanent injunction ordering every ISP operating in the U.S., take specified steps to block the websites and the targeted URLs, as well as any other URLs that could be adopted by the defendants in the future:

IT IS FURTHER ORDERED that all ISPs…and any other ISPs providing services in the United
States shall block access to the Website at any domain address known today… or to be used in
the future by the Defendants (“Newly-Detected Websites”) by any technological
means available on the ISPs’ systems. The domain addresses and any Newly-
Detected Websites shall be channeled in such a way that users will be unable to
connect and/or use the Website, and will be diverted by the ISPs’ DNS servers
to a landing page operated and controlled by Plaintiffs

In other words, the court is requiring that all ISPs implement precisely the kind of “man-in-the-middle” DNS lookup interception that congress declined to enact a decade ago when the Stop Online Piracy Act (SOPA) went down in flames in the face of a coordinated pressure campaign.

While similar requirements have been imposed on ISPs in other jurisdictions, it’s a pretty sweeping remedy for a district court to impose through an uncontested default judgment.

The district court’s rulings could in principle be appealed. But given that the defendants didn’t show up for the initial contest it is unlikely they would now turn up to file an appeal. It would then fall to any ISP subject to the injunction to appeal the order if it objects–a potentially dicey and expensive proposition for a company that, after all, was not actually a party to the initial lawsuit.

As it happens, the court’s blocking order comes on the heels of the U.S. Copyright Office opening a formal proceeding to “[gather]… information on the development and use of standard technical measures for the protection of copyrighted works, as defined in section 512 of Title 17.” In other words: content filters.

The Office initiated the proceeding at the request of Sens. Thom Tillis (R-NC) and Patrick Leahy (D-VT) of the Senate Judiciary Committee, who are also the principal sponsors of the SMART Copyright Act, which would require online service providers to license and implement technical measures selected by the Copyright Office to prohibit the uploading of unauthorized copyrighted content to their platforms.

As with site-blocking policies in other jurisdictions, the filtering mandate would align U.S. law with that of the European Union, where so-called Copyright Directive currently being rolled out through the 27-country bloc requires online service providers to take preemptive action to prevent infringing content from appearing on their platforms.

It is possible, of course, that nothing may come of the SMART Act, especially in this election year when members have other priorities (although Tillis is not on the ballot this cycle and Leahy is retiring). But the legal and policy debate around where to place the burden for policing copyright infringement online has clearly shifted.

Rather than pitting rights owners against online service providers, as it has been in the U.S. since the enactment of the Digital Millennium Copyright Act, it is becoming a debate over whole-site blocking at the ISP level versus content blocking at the platform level.

For rights owners, either would represent progress.

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