Blocking sites with no supervision whatsoever… what can possibly go wrong?

So… The implementation of a protocol to fight online piracy has led to the imposition of technical restrictions on the access to the website of Carbon Games in Portugal.

Indeed, a few weeks ago, any person, player or consumer who tried to access the website was prevented to do so by restrictions imposed by the Portuguese ISPs, namely Cabovisão, Meo, Nos and Vodafone. Any attempt to reach the site resulted in the following message “the site that you’re trying to reach was blocked due to an order from the Regulator Agency”.

Those who are neither Portuguese nor familiar with the case might fail to grasp the myriad of subjacent issues which are wrong with this statement.

Therefore let me explain.

Last year, a protocol was signed – more specifically a ‘memorandum of understanding’ – between the content industry representatives and telecom operators according to which the latter will be required to restrain the access – i.e. blocking – websites with copyright infringing content.

Among the involved parties one can outline IGAC (Inspeção Geral das Atividades Culturais – General Inspection of Cultural Activities), DGC (Direcção Geral do Consumidor – Directorate General of Consumer), APRITEL (Associação dos Operadores de Telecomunicações – Telecom Operators Association) and MAPINET (Movimento Cívico Anti-Pirataria na Internet – Civic Movement for Anti-Piracy on the Internet).

Following the long judicial process which ended with the Portuguese Intellectual Property Court giving ISPs Vodafone, MEO and NOS the order to block the access to the The Pirate Bay website, such entities felt that a faster and less-expensive site-blocking mechanism was required. One that would not require an individual judicial assessment of copyright infringements.

The abovementioned memorandum intends to frame the cooperation of the signatory parties regarding the protection of authors’ copyright rights, while intending to circumvent the limitation arising from the absence of any duty to monitor of ISPs in regards of the information they transmit or store, thus attributing to IGAC such monitoring obligation.

Thus, under these new incumbent responsibilities, IGAC ought to collect and analyse claims of infringements and to order ISPs to prevent the access to legally protected contents unlawfully made available online.

According to the memorandum, the infringement claims ought to demonstrate the lack of authorization of the copyright owner in regards of the works thus made available. In that regard, claims must also be accompanied by a document certifying that, following the request to remove infringing contents, no answer was obtained from the website administrator.

The specifics are as follows: websites which deal predominantly with making available works protected by copyright without the authorization of the rights’ holders will be denounced by the entities representing the rights owners and, once the claim is confirmed by the IGAC, telecom operators are notified to block the websites at stake. The denouncing claims are expected to be filed periodically (twice a month) through MAPINET and referring to a block of up to 50 allegedly infringing websites. However, it is possible to file individual claims in situations particularly detrimental to copyright owners.

In this context, websites containing more than 500 non-authorized works or distributing repositories containing at least two thirds of illegal copies are deemed to predominantly making available works protected by copyright without the authorization of the rights’ holders.

The protocol has been diligently implemented in practice since its signature as, as far as I am aware, up to 180 websites have been blocked under this procedure.

As the case regarding Carbon Games demonstrates, there are several flaws in this system.

To start with, it is important to clarify that Carbon Games is a US videogames developer and its website deals with games of which they are the original creators.

Secondly, this process is undertaken by several private entities and one public body, the IGAC. While it is expected that the interests of private entities will not forcefully coincide with the general interest of the public, one would at least risk hoping that IGAC, within its recently established obligations of analysing claims of infringements, would not rush such analysis.

While one would expect that the infringing nature of the activity of a website should be adequately assessed, it is evident that the system does not work properly, considering that Carbon Games legally produces videogames and, all considering, should have its interests protected by the implementation of the initiative.

Additionally, the fact that ISPs ought to be compensated for all the trouble that the implementation of this protocol may entail for them actually risks to disincentive the establishment of any internal assessment system regarding the legitimacy of the infringement claims raised.

Moreover, the requirement of 500 illegal works or two thirds of illegal copies seems absolutely discretionary. What is the expected outcome of this decision? That websites containing 499 illegal works will remain fully operational? And if this is really the criterion, then it makes the Carbon Games case all the more ludicrous.

One would expect that a website allegedly managing illegal content would have the chance to contra-argument and present its defence. Apparently, it is not the case. In fact, considering the communication of Carbon Games on its own website, it was not aware of any suspicion of infringement content, any administrative proceedings nor of any blocking order prior to the occurrence of the effective blocking. In fact, it seems that no mechanism has been put in place in order to appreciate the wrongful blocking of websites.

In the meantime, it has been admitted that the order of blockage was unduly given and, accordingly, all the providers of online services have been notified that the blocking should be annulled, thus enabling the proper functioning of the website.

I cannot help but wonder how such an error is even possible. Isn’t the list provided to IGAC supposed to be validated?

While the efficacy of such an agreement is questionable considering that it is quite easy to circumvent such technical restrictions implemented by the ISPs by simply altering DNS servers or by changing the website’s domain, the users not aware of this are actually prevented to access the content of blocked websites.

More gravely, it seems that having a website, disregarding the legal nature of its content, is sufficient to be exposed to such mistakes. And the economic consequences can be quite worrisome for the website considering that an unjustified blocking leads platforms to be deprived from the access of their customers for an undefined period of time. In fact, in the Carbon Games case, it took up to two months (!!) to correct the error.

From the reading of the protocol, I honestly fail to see how the owner of a website, facing an unfounded blocking order, is expected to react and speedily regain control of its full functioning. Of course there are proper judicial means such as filing for an injunction. Nevertheless, considering that all this implemented ‘administrative’ procedure disregards any judicial assessment, it seems counterproductive to only foresee such judicial intervention when it is needed to react to unfounded orders.

It is evident that creativity should be rewarded and incentivized through a great protection and enforcement of IP rights. However, it has been made evident that, without proper legal and judicial oversight, access to legitimate content can be unjustifiably restricted. And while the e-Commerce Directive already includes procedures for removing illegal content, considering this whole experience, this specific solution does not seem to be the right path.