Tech sector opposes proposed landmark web-block injunction in the US

[Len]

Perhaps unsurprisingly, the Computer And Communications Industry Association has hit out against a web-block injunction being proposed in an American copyright infringement case between the American Chemical Society and a website called Sci-Hub, which makes available academic papers without licence.

As previously reported, the ACS sued Sci-Hub – sometimes dubbed the “Pirate Bay of science” – earlier this year. 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 when responding to that request earlier this month, magistrate judge John Anderson recommended a ruling in favour of the ACS on all counts.

This would mean, in addition to damages, a court order forcing “internet search engines, web hosting and internet service providers, domain name registrars, and domain name registries” to “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”.

Basically, that constitutes a web-block injunction. Web-blocking – mainly involving internet service providers being forced to block access to copyright infringing websites – has become common place in some countries, including the UK. And while ISPs usually object to such injunctions at the outset, web-blocks generally become uncontroversial once they are under way, with some ISPs even advocating the anti-piracy tactic.

However, when web-blocking was proposed in US Congress back in 2011/2, it proved very controversial indeed, and said proposals were subsequently axed. Which is why you can expect push back from the tech sector against the proposed resolution in the ACS v Sci-Hub case.

Anderson’s recommendations will now go to a more senior judge, Leonie Brinkema, who will make the final ruling. And the tech sector-repping CCIA wants Brinkema to reject Anderson’s proposals regarding the obligations of search engines and ISPs.

According to Torrentfreak, the CCIA wrote in one of those amicus briefs last week: “[The] plaintiff is seeking – and the magistrate judge has recommended – a permanent injunction that would sweep in various neutral service providers, despite their having violated no laws and having no connection to this case”.

The ‘neutral service providers’ are the search engines and ISPs and such like. Reckons the CCIA: “Plaintiff has failed to make a showing that any such provider had a contract with these defendants or any direct contact with their activities – much less that all of the providers who would be swept up by the proposed injunction had such a connection”.

The CCIA then argues that American law prevents the court from issuing an injunction against these ‘neutral service providers’. “The Digital Millennium Copyright Act … puts bedrock limits on the injunctions that can be imposed on qualifying providers if they are named as defendants and are held liable as infringers”, it writes.

“Plaintiff here ignores that. What ACS seeks, in the posture of a permanent injunction against non-parties, goes beyond what Congress was willing to permit, even against service providers against whom an actual judgment of infringement has been entered. That request must be rejected.”

It now remains to be seen how Brinkema responds. And also whether any copyright groups stick in their own amicus briefs supporting Anderson’s recommendations before that final judgement is made.