HOLLYWOOD’S SITE BLOCKING PROPOSAL: TIME FOR A RESHOOT

American moviemakers are creative wizards, weaving storylines into various locations, actors’ dialogue, and more to produce works of pure magic. These masterminds captivate audiences and bring enormous levels of joy to viewers. When it comes to policymaking, however, these same creative geniuses can react to legitimate problems with overbearing or overreaching, almost piggish, if you will, proposals. So is the case with the latest movie industry’s (and other content creators) attempt to shift copyright enforcement and policing onto the backs of the broadband industry. Dubbed “site blocking,” adoption of such a policy would deputize broadband companies to be Hollywood's censorship police, as well as expose such broadband companies to exorbitant liability for any hint of non-compliance or aggressive blocking. This heavy-handed approach is the heart of a troubling and inadequate new bill by House Judiciary Committee Member Zoe Lofgren.

To set the stage, abuse of copyrighted works threatens movie financials, and the Internet has vastly eased the ability to share stolen works with the world. Movie studios and the holders of various rights use current law, particularly the Digital Millennium Copyright Act, which I know well from a previous career, to enforce digital rights against violators. Specifically, holders of protected rights can identify illegal posting and distribution to initiate “notice-and-takedown” procedures. This, in turn, requires broadband providers to remove the infringing content, with possible rebuttal challenges by alleged infringing parties.

Recognizing that the current procedures involve regular due diligence and actual effort, the movie industry wants to make it easier on itself to police its own rights, particularly against those perpetrators located overseas. Along came the idea of site blocking. Under this proposal, once a legal decision of illegal copyright activity has been issued in favor of the movie industry, broadband companies would be forced to completely block the respective IP addresses and domain names of offending foreign websites. By turning websites dark, presumably further abuse of copyrighted works wouldn’t occur and offenders would get the message.

Sounding simple on its face, site blocking comes with a host of problems, troubling side effects, and unintended consequences. Fundamentally, it puts broadband companies in a tenuous legal position of possibly shutting down entire sites that could include legal content. After all, the movie industry’s accusations won’t be infallible. We already know that notice-and-takedown often is over-inclusive, capturing legal content and innocent people. Who will foreign producers of legal content likely sue to shed the stigma of being blocked as well as to restart their livelihoods? Who will movie companies sue if they believe response times to their demands to block are too delayed or they object to how a blocking order was implemented? And who will pay these costs? American broadband companies and their users. Should policymakers trust movie companies’ pledges to only use this vast power against the most egregious copyright abusers? Does Speaker Johnson really want to reward Hollywood and promote more liberal lawsuits? We should hope not.

Other aspects of site blocking are equally lacking. For instance, the proposal would require that identified websites be blocked in their entirety, not just the offending content. That means non-offending content laying on the same website or offerings, what many Americans would consider legitimate speech and potentially protected by the First Amendment in some cases, would be blocked as well. Even the left-leaning Public Knowledge finds this out of bounds. Moreover, such unchecked corporate censorship by liberal Hollywood should deeply concern conservatives given the recent and extensive policy debates over Internet content moderation and censorship.

Similarly, just think how telecom regulators from states that have mistakenly been clouded by “net neutrality,” fresh off invalidation by the Federal courts, will take this. A “no blocking” net neutrality requirement doesn’t square well with the central thrust of a site blocking mandate.

Overall, site blocking is unlikely to work to any great degree. Big, medium and most small fish – or illegal sharers of American movies – will just quickly shift content to a non-blocked site. And there are examples from site blocking in European countries to prove the point: highly active producers of illegal content are rarely snagged. Likewise, for every legal restriction enacted, legitimate technology exists to foil its effectiveness and take users further away from a commercial marketplace. Today, virtual-private-networks, for example, can be deployed by individuals to move and consume traffic without much limitation or detection. What will Hollywood do when these orders are circumvented by a VPN or encrypted domain name resolution service?

Certainly, it’s been a difficult time for the movie industry from workforce strikes and California fires to the explosion of Internet usage and loss of audience to other interests. No one wants to see it collapse or face added pain from abuses to their craft. But requests for policymaker help in the form of new statutory protections must be within reason. That means addressing the natural problems with the site blocking proposal by recognizing the unfair and extreme liability exposure it would place on broadband companies and fixing the multitude of identifiable flaws. Protecting copyright is important, but it cannot be done with great pains to commerce — if both are to succeed.