Web-blocking proposed by magistrate judge in American copyright case

[Len]

A web-blocking injunction is on the cards in a copyright infringement case Stateside, which is notable because to date web-blocks have not been available to copyright owners in the US, and early proposals to introduce such blockades proved very controversial indeed.

While the American movie industry has been quietly trying to get web-blocking back on the agenda in the US in recent years, the case which could result in a web-block being ordered involves a website that illegally distributes academic papers.

The American Chemical Society sued Sci-Hub – sometimes dubbed the “Pirate Bay of science” – earlier this year. The latter was accused of copyright infringement for making available online copies of the former’s academic papers without licence.

As often happens with piracy cases, the pirates chose not to defend themselves, so last month the ACS requested a default judgement in its favour. And, considering that request, last week magistrate judge John Anderson in the District Court for the Eastern District of Virginia recommended a ruling in favour of the ACS on all counts.

Magistrates in the US district courts assist the more senior judges, and in civil proceedings can produce reports and recommendations on the cases that come before them. Those recommendations are then reviewed by a district court judge who makes the final decision. In this case that decision is in the hands of judge Leonie Brinkema.

It’s the proposed web-blocking that makes this an interesting case. In addition to recommending nearly $5 million in statutory damages, Anderson writes in his report that “internet search engines, web hosting and internet service providers, domain name registrars, and domain name registries” should all “cease facilitating access to any or all domain names and websites through which Sci-Hub engages in unlawful access to, use, reproduction, and distribution of ACS’s trademarks or copyrighted works”.

Web-blocking – where internet service providers are forced to block their users from accessing specific websites – has become a preferred anti-piracy tactic of the music and movie industries in those countries where it is available. In some countries, the UK included, there are now a plethora of web-blocks in place on copyright grounds.

In some places, anti-piracy web-blocks were enabled by specific new copyright laws, while in other jurisdictions it was decided that judges already had web-blocking powers under existing rules. New web-block laws were proposed in the US in 2011/12, but there was a big backlash from the tech sector – including Wikipedia basically going offline for a day – and in the end the proposals were completely dropped in Washington.

The seizing of domain names used by piracy sites – also proposed by Anderson in this case – has occurred before in the US. Indeed, Sci-Hub lost its sci-hub.org domain during separate legal action against the site by science publisher Elsevier. Though piracy sites are usually adept at domain name jumping, and with many people accessing such sites via search engines, it doesn’t matter so much if domain names change.

Of course web-blocking isn’t a fool-proof anti-piracy solution either, given it’s usually relatively easy to circumvent the blockades with a quick Google search.

The role of the search engines in web-blocking has been much talked about, and many copyright owners reckon the Googles of the world should do more to ensure sites subject to web-blocking – and web pages related to those sites – do not appear in their search results. Interestingly Anderson includes search engines in his list of facilitators who should be obliged to stop users from accessing the Sci-Hub website.

Web firms generally don’t like being forced into policing piracy on their networks, and internet service providers usually hit out at web-blocking when it is first being proposed in any one country. Though most net firms subsequently fall in line, with some even becoming advocates of the anti-piracy method. As previously reported, a representative of Bell Canada recently suggested the government there set up a web-block agency to speed up the process.

It remains to be seen if Brinkema backs her magistrate judge’s proposals. If she does, other copyright owners might be tempted to test the water by seeking web-block injunctions of their own through the American courts.