In an ideal world, it would not be necessary to block websites in order to combat piracy. But we do not live in an ideal world. We live in a world in which enormous amounts of content—from books and software to movies and music—is being distributed illegally. As a result, content creators and owners are being deprived of their rights and of the revenue that would flow from legitimate consumption of that content.

In this real world, site blocking may be both a legitimate and a necessary means of reducing piracy and protecting the rights and interests of rightsholders.

Of course, site blocking may not be perfectly effective, given that pirates will “domain hop” (moving their content from one website/IP address to another). As such, it may become a game of whack-a-mole. However, relative to other enforcement options, such as issuing millions of takedown notices, it is likely a much simpler, easier and more cost-effective strategy.

And site blocking could be abused or misapplied, just as any other legal remedy can be abused or misapplied. It is a fair concern to keep in mind with any enforcement program, and it is important to ensure that there are protections against such abuse and misapplication.

Thus, a Canadian coalition of telecom operators and rightsholders, called FairPlay Canada, have proposed a non-litigation alternative solution to piracy that employs site blocking but is designed to avoid the problems that critics have attributed to other private ordering solutions.

The FairPlay Proposal

FairPlay has sent a proposal to the CRTC (the Canadian telecom regulator) asking that it develop a process by which it can adjudicate disputes over web sites that are “blatantly, overwhelmingly, or structurally engaged in piracy.”  The proposal asks for the creation of an Independent Piracy Review Agency (“IPRA”) that would hear complaints of widespread piracy, perform investigations, and ultimately issue a report to the CRTC with a recommendation either to block or not to block sites in question. The CRTC would retain ultimate authority regarding whether to add an offending site to a list of known pirates. Once on that list, a pirate site would have its domain blocked by ISPs.

The upside seems fairly obvious: it would be a more cost-effective and efficient process for investigating allegations of piracy and removing offenders. The current regime is cumbersome and enormously costly, and the evidence suggests that site blocking is highly effective.

Under Canadian law—the so-called “Notice and Notice” regime—rightsholders send notices to ISPs, who in turn forward those notices to their own users. Once those notices have been sent, rightsholders can then move before a court to require ISPs to expose the identities of users that upload infringing content. In just one relatively large case, it was estimated that the cost of complying with these requests was 8.25M CAD.

The failure of the American equivalent of the “Notice and Notice” regime provides evidence supporting the FairPlay proposal. The graduated response system was set up in 2012 as a means of sending a series of escalating warnings to users who downloaded illegal content, much as the “Notice and Notice” regime does. But the American program has since been discontinued because it did not effectively target the real source of piracy: repeat offenders who share a large amount of material.

This, on the other hand, demonstrates one of the greatest points commending the FairPlay proposal. The focus of enforcement shifts away from casually infringing users and directly onto the  operators of sites that engage in widespread infringement. Therefore, one of the criticisms of Canada’s current “notice and notice” regime — that the notice passthrough system is misused to send abusive settlement demands — is completely bypassed.

And whichever side of the notice regime bears the burden of paying the associated research costs under “Notice and Notice”—whether ISPs eat them as a cost of doing business, or rightsholders pay ISPs for their work—the net effect is a deadweight loss. Therefore, whatever can be done to reduce these costs, while also complying with Canada’s other commitments to protecting its citizens’ property interests and civil rights, is going to be a net benefit to Canadian society.

Of course it won’t be all upside — no policy, private or public, ever is. IP and property generally represent a set of tradeoffs intended to net the greatest social welfare gains. As Richard Epstein has observed

No one can defend any system of property rights, whether for tangible or intangible objects, on the naïve view that it produces all gain and no pain. Every system of property rights necessarily creates some winners and some losers. Recognize property rights in land, and the law makes trespassers out of people who were once free to roam. We choose to bear these costs not because we believe in the divine rights of private property. Rather, we bear them because we make the strong empirical judgment that any loss of liberty is more than offset by the gains from manufacturing, agriculture and commerce that exclusive property rights foster. These gains, moreover, are not confined to some lucky few who first get to occupy land. No, the private holdings in various assets create the markets that use voluntary exchange to spread these gains across the entire population. Our defense of IP takes the same lines because the inconveniences it generates are fully justified by the greater prosperity and well-being for the population at large.

So too is the justification — and tempering principle — behind any measure meant to enforce copyrights. The relevant question when thinking about a particular enforcement regime is not whether some harms may occur because some harm will always occur. The proper questions are: (1) Does the measure to be implemented stand a chance of better giving effect to the property rights we have agreed to protect and (2) when harms do occur, is there a sufficiently open and accessible process available whereby affected parties (and interested third parties) can rightly criticize and improve the system.

On both accounts the FairPlay proposal appears to hit the mark.

FairPlay’s proposal can reduce piracy while respecting users’ rights

Although I am generally skeptical of calls for state intervention, this case seems to present a real opportunity for the CRTC to do some good. If Canada adopts this proposal it is is establishing a reasonable and effective remedy to address violations of individuals’ property, the ownership of which is considered broadly legitimate.

And, as a public institution subject to input from many different stakeholder groups — FairPlay describes the stakeholders  as comprised of “ISPs, rightsholders, consumer advocacy and citizen groups” — the CRTC can theoretically provide a fairly open process. This is distinct from, for example, the Donuts trusted notifier program that some criticized (in my view, mistakenly) as potentially leading to an unaccountable, private ordering of the DNS.

FairPlay’s proposal outlines its plan to provide affected parties with due process protections:

The system proposed seeks to maximize transparency and incorporates extensive safeguards and checks and balances, including notice and an opportunity for the website, ISPs, and other interested parties to review any application submitted to and provide evidence and argument and participate in a hearing before the IPRA; review of all IPRA decisions in a transparent Commission process; the potential for further review of all Commission decisions through the established review and vary procedure; and oversight of the entire system by the Federal Court of Appeal, including potential appeals on questions of law or jurisdiction including constitutional questions, and the right to seek judicial review of the process and merits of the decision.

In terms of its efficacy, according to even the critics of the FairPlay proposal, site blocking provides a measurably positive reduction on piracy. In its formal response to critics, FairPlay Canada noted that one of the studies the critics relied upon actually showed that previous blocks of the PirateBay domains had reduced piracy by nearly 25%:

The Poort study shows that when a single illegal peer-to-peer piracy site (The Pirate Bay) was blocked, between 8% and 9.3% of consumers who were engaged in illegal downloading (from any site, not just The Pirate Bay) at the time the block was implemented reported that they stopped their illegal downloading entirely.  A further 14.5% to 15.3% reported that they reduced their illegal downloading. This shows the power of the regime the coalition is proposing.

The proposal stands to reduce the costs of combating piracy, as well. As noted above, the costs of litigating a large case can reach well into the millions just to initiate proceedings. In its reply comments, FairPlay Canada noted the costs for even run-of-the-mill suits essentially price enforcement of copyrights out of the reach of smaller rightsholders:

[T]he existing process can be inefficient and inaccessible for rightsholders. In response to this argument raised by interveners and to ensure the Commission benefits from a complete record on the point, the coalition engaged IP and technology law firm Hayes eLaw to explain the process that would likely have to be followed to potentially obtain such an order under existing legal rules…. [T]he process involves first completing litigation against each egregious piracy site, and could take up to 765 days and cost up to $338,000 to address a single site.

Moreover, these cost estimates assume that the really bad pirates can even be served with process — which is untrue for many infringers. Unlike physical distributors of counterfeit material (e.g. CDs and DVDs), online pirates do not need to operate within Canada to affect Canadian artists — which leaves a remedy like site blocking as one of the only viable enforcement mechanisms.

Don’t we want to reduce piracy?

More generally, much of the criticism of this proposal is hard to understand. Piracy is clearly a large problem to any observer who even casually peruses the lumen database. Even defenders of the status quo  are forced to acknowledge that “the notice and takedown provisions have been used by rightsholders countless—but likely billions—of times” — a reality that shows that efforts to control piracy to date have been insufficient.

So why not try this experiment? Why not try using a neutral multistakeholder body to see if rightsholders, ISPs, and application providers can create an online environment both free from massive, obviously infringing piracy, and also free for individuals to express themselves and service providers to operate?

In its response comments, the FairPlay coalition noted that some objectors have “insisted that the Commission should reject the proposal… because it might lead… the Commission to use a similar mechanism to address other forms of illegal content online.”

This is the same weak argument that is easily deployable against any form of collective action at all. Of course the state can be used for bad ends — anyone with even a superficial knowledge of history knows this  — but that surely can’t be an indictment against lawmaking as a whole. If allowing a form of prohibition for category A is appropriate, but the same kind of prohibition is inappropriate for category B, then either we assume lawmakers are capable of differentiating between category A and category B, or else we believe that prohibition itself is per se inappropriate. If site blocking is wrong in every circumstance, the objectors need to convincingly  make that case (which, to date, they have not).

Regardless of these criticisms, it seems unlikely that such a public process could be easily subverted for mass censorship. And any incipient censorship should be readily apparent and addressable in the IPRA process. Further, at least twenty-five countries have been experimenting with site blocking for IP infringement in different ways, and, at least so far, there haven’t been widespread allegations of massive censorship.

Maybe there is a perfect way to control piracy and protect user rights at the same time. But until we discover the perfect, I’m all for trying the good. The FairPlay coalition has a good idea, and I look forward to seeing how it progresses in Canada.