A recently released study by Carnegie Mellon University (CMU) examines the effectiveness of internet site blocking to control copyright piracy in the UK, and comes to some interesting conclusions. The authors (Brett Danaher, Michael D. Smith and Rahul Telang from CMU’s School of Public Policy and Management) compared their latest work to earlier research they had done where Pirate Bay—but only Pirate Bay—had been blocked in the UK (in 2012). The earlier action led to little change in total piracy and no change in paid legal streaming, suggesting that the blocking of a single site, when many alternatives remain available, is ineffective. This time, they examined the consumer response when 53 piracy websites were blocked in the UK in November 2014. To quote from their abstract,

“We found that these blocks caused a 90% drop in visits to the blocked sites while causing no increase in usage of unblocked sites. This led to a 22% decrease in total piracy for all users affected by the blocks (or a 16% decrease across all users overall). We also found that these blocks caused a 6% increase in visits to paid legal streaming sites like Netflix and a 10% increase in videos viewed on legal ad-supported streaming sites like BBC and Channel 5.”

Building on the CMU research, the Information Technology and Innovation Foundation (ITIF), in a paper released this month has drilled down further and expanded on the study to look not only at the impressive results in the UK but also to extrapolate the UK example to the 24 other countries that maintain some form of internet site blocking against offshore copyright infringers. More important, the ITIF paper (by researcher Nigel Cory), How Website Blocking is Curbing Digital Piracy without “Breaking the Internet”, examines and rebuts the usual criticisms of site blocking, i.e. too costly (for ISPs) to implement, technically difficult with the potential to cause disruptions in the functioning of the internet, can be easily bypassed, opens the door to state-sanctioned interference with the free flow of information on the internet, etc. These are examples of the arguments dredged up during the SOPA debate in the US in 2011.

I’ll examine these objections in a moment, but first let’s see to what extent site blocking is effective in curtailing piracy. Apart from the impressive numbers cited in the CMU abstract regarding reduced piracy, as well as increased access to legitimate paid sites, the research shows that relatively few users circumvented the blocking and that blocking had the greatest impact on the heaviest consumers of pirated product—many of them tech-savvy users for whom a blocked site can sometimes be just a challenge to overcome. Cory’s paper points out that site blocking is not a silver bullet; rather it is but one weapon in the anti-piracy arsenal that includes making available a wider range of legitimate product at competitive prices (this is clearly happening today), seeking the cooperation of payment processors and others in the supply chain, providing ongoing education to consumers, and consistent enforcement. Despite the availability of various enforcement mechanisms, site blocking is effective because it removes the immediate temptation to infringe and creates a barrier that will usually deter the casual user. Admittedly the barrier can be overcome with time and effort, but with the increased presence of cost effective alternative legitimate services, defeating the barrier is not worth the effort for many people. It is like supplementing a “no trespassing” sign with a fence and a locked gate. You really have to want to get inside to go to the extra effort.

In terms of rebutting the main arguments against site blocking, the ITIF paper does a convincing job. The principal argument for implementing site blocking for copyright infringement, and for demonstrating that it does not “break the internet,” is the fact that it is already being done widely for a number of law enforcement purposes. Among these is global blockage on child pornography sites as sanctioned through INTERPOL, blockage of sites that promote terrorism, and blocking for other specified purposes such as racism and hate speech (Germany), online gambling (Singapore, Quebec), dissemination of malware and investment fraud (Australia), and so on. If site blocking can be used to enforce national laws against these illegal activities, why should it not be used to help curb illegal activity in the area of copyright infringement? There is nothing special about the digital environment that suspends the laws of gravity when something is done online. If it is illegal in the offline world, it is illegal in the online world, and using online measures to respond to illegal online activity, it seems to this observer, is reasonable and proportionate.

Ah, you say, but what about China and the Great Firewall? How can we criticize China if we allow site blocking ourselves for such things as copyright infringement? Ironically, infringement of copyright is not one of the criteria that China applies when blocking content. (Perhaps if the content in question was a pirated version of a speech on Tibetan independence by the Dalai Lama it would qualify!). It is important to differentiate between blocking the internet because a regime does not want certain information to reach its population, and limits on access for a limited specified purpose imposed pursuant to a transparent legal process. Despite the clear difference however, the issue of blocking access to copyright infringing content and blocking freedom of expression can become confused and highly politicized. This happened in Taiwan when its copyright agency tried to introduce site blocking legislation to guard against pirate websites based in China. As I mentioned in an earlier blog, there was a political reaction against the measure over concerns that it was the first step on the slippery slope toward the kind of political controls imposed in China. This was clearly not the case, but sometimes emotions prevail over logic.

It is important that democratic governments defend the freedom of the internet, but all freedom comes with some limitations. As long as limits are sanctioned by the courts for the purpose of enforcing specified laws enacted by democratically elected institutions, site blocking poses no threat to internet freedom. Crying wolf against the supposed erosion of freedom of expression on the internet is a popular way to oppose use of site blocking for copyright infringement, but it just does not hold water.

Other arguments advanced by critics of site blocking include cost and technical issues. There is a cost to ISPs to block sites, just as there is a cost to the content industry to allow all consumers open access to illegal and infringing sites located beyond the reach of domestic law. But costs are controllable, reasonable and are coming down as technology improves. If the costs are manageable and the technical issues surmountable for site blocking for one set of laws, it is not credible to argue that application of the same process to enforce another set of laws is not feasible. At the end of the day, it comes down to a decision as to whether intellectual property is going to be accorded the same degree of protection as other law enforcement issues in our society where site blocking has been invoked.

The CMU study of what happened in the UK has demonstrated pretty convincingly that site blocking can make a difference in controlling piracy and changing consumer behaviour, even amongst hard-core users of pirate websites. The ITIF paper makes an equally sound case that the arguments against site blocking are not convincing. If it works in the UK, Australia and the other twenty or so countries that use site blocking to combat offshore digital piracy, there is no reason why it can’t work elsewhere, as long as the countries implementing these measures have a transparent and independent judiciary that can sanction targeted blocking when justified for legal reasons.

As a measure to combat piracy, it has been shown to be both effective and manageable. Now we just need the will to do it more widely.

© Hugh Stephens, 2016. All Rights Reserved.