Studios To Urge Congress To Take Up Site-Blocking Legislation, More Than A Decade After Legendary Hollywood-Silicon Valley Showdown

Ted Johnson
·5 min read

UPDATED: A top executive with the Motion Picture Association plans to urge lawmakers on Wednesday to pursue legislation to combat piracy by court-mandated site blocking, something that major studios believe is needed to curb infringement originating outside of U.S. jurisdiction.

The MPA wants legislation that would enable content companies to seek court injunctive relief that would require internet service providers and other intermediaries to disable access to an infringing site.

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“We urge Congress to consider reasonable and tailored no-fault injunctive relief as one proven way to combat digital piracy and its negative impact on the creative industries and our economy as a whole,” Karyn A. Temple, the MPA’s senior executive vice president and global general counsel, said, according to her prepared remarks to a House subcommittee.

The anti-piracy measure may sound familiar: More than a decade ago, studios pushed for similar elements in House legislation known as the Stop Online Piracy Act, or SOPA, along with a companion Senate bill. The bills initially won bipartisan support until a backlash, fueled by Google and other major internet companies, led to an unprecedented online protest, including site blackouts and warnings that the law would curtail internet freedom. Lawmakers sidelined the legislation in the midst of the opposition, a moment that underscored the growing lobbying power of major tech companies.

Much has changed since then. Google, Meta and Amazon have only gotten bigger, as has their lobbying strength, but they also have been under scrutiny by the Justice Department and the Federal Trade Commission. Congressional lawmakers have railed against the power of big tech, albeit major privacy and antitrust legislation has failed to advance.

The MPA believes that the warnings against SOPA were overblown, and they are pointing to other countries that have implemented site blocking without “breaking the internet,” as one official put it. Countries such as the United Kingdom, Australia, Singapore and France enable courts to issue site blocking orders, as well as Spain, Denmark and France, Temple noted.

“Those countries that have implemented no-fault injunctions to disable access to structurally infringing websites have demonstrated through clear evidence and multiple years of data that this remedy is effective in reducing visits to blocked piracy sites and causes users to change their behavior and migrate to legal, paid VOD services,” Temple said in her written remarks.

Temple also spelled out how a no-fault regime works: Rather than suing a piracy site, many of which operate outside U.S. jurisdiction, a copyright holder seeks a court injunction directed at intermediaries, such as internet service providers, who could limit access to the infringing materials. ISPs, hosting providers, domain name system providers, content delivery networks, payment processors, social networks and search engines need to “take a much more active role in ensuring that their services are not used to facilitate these criminal organizations’ activities,” Temple said.

Temple said that intermediaries would not be subject to the orders because “they are engaged in wrongdoing, but only because they are in a position to mitigate the infringement.” They also would not be held liable or subject to damages to the copyright owner. Rights holders also would have to prove to the court that a site is “dedicated to infringing copyright.”

Temple also said that such injunctive relief should come with due process protections, including notification of the alleged piracy sites and the ability of intermediaries to oppose a court order. The court, she said, would consider the “potential burden on the intermediaries and whether disabling access to the site will have a negative impact on either party (including, e.g., the public’s interest in accessing non-infringing material.)”

A spokesperson for Google did not immediately return a request for comment. But Matthew Schruers, president of the Computer and Communications Industry Association, said in his written remarks that site blocking was a “blunt instrument of architectural regulation” and that it was “particularly inappropriate for policing subject matter like copyright.” He said that there was “a long history of site-blocking injunctions leading to overreach.”

“It is simply not possible to craft a uniquely American, speech-protecting site-blocking regime,” he said in his written remarks. “While other countries may have certain types of programs or vendors that promise network-level enforcement, that doesn’t mean that it is technically—or Constitutionally—possible to implement site-blocking without substantial collateral damage.”

The hearing is focused on digital copyright piracy and is before the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet.

No site blocking bill is on the table, and in the world of D.C. lobbying, the surest bet is that Congress will do nothing. In addition to privacy and antitrust legislation, lawmakers have yet to resolve a two-decade long battle over net neutrality, leaving it to a seesaw of FCC orders and rollback of orders, depending on the administration.

In the aftermath of SOPA, the MPA and other content groups retreated for a time from lobbying for major anti-piracy legislation and instead sought cooperative agreements with internet providers, payment processors and advertisers. The studios in 2020 did win a significant legislative victory when Congress, in a year-end funding bill, included a measure to make it a felony to operate a pirated streaming service. Google, meanwhile, once a major foe of entertainment industry lobbyists, was actually praised by MPA Chairman Charles Rivkin last year. He wrote that Google “has removed a substantial number of piracy-related domains from its search results in these countries to help effectively enforce court orders requiring ISPs to block access to piracy sites.”

Temple argued that in countries where site-blocking exists, there has been a “proper balance between protection of copyright from those who aim to profit off piracy, and respecting the rights of those affected by blocking orders, including accused infringers, intermediaries and the public at large.”

She cited a 2019 study from Carnegie Mellon showing that site blocking orders in countries like the UK, Australia, Portugal and South Korea reduced traffic to piracy domains, and also increased traffic to legitimate sources. The MPA provides funding to Carnegie Mellon’s Initiative for Digital Entertainment Analytics, but the author of the study said that the research “was conducted independently without
any oversight or editorial control.”

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