Over 12 years in the making, the Foreign Anti-Digital Piracy Act was introduced by Rep. Zoe Lofgren (D-CA) late last month.
Carefully crafted to avoid the controversies of the failed SOPA bill in 2012, FADPA’s central aim is to provide a framework to facilitate mass site-blocking measures in the United States, targeting foreign pirate sites. Importantly, FADPA seeks legal amendments to shield subjected ISPs from liability.
After rightsholders in Italy and more recently France obtained injunctions against DNS resolvers operated by Cloudflare, Google, and OpenDNS, the FADPA bill seeks similar measures right from the start. DNS resolvers operated by companies with less than $100m in annual revenue are excluded, however.
FADPA Opposition?
The self-imposed restrictions on DNS resolvers cited in the FADPA bill, do not mean that the resulting measures are limited in scope. The so-called ‘dynamic’ injunctions envisioned by FADPA cannot exist within an inflexible legal framework, meaning that space for adjustment will become evident as the process moves forward.
The current climate may offer the best opportunity in years to push FADPA over the line. Google’s traditional opposition to blocking proposals is well known, but activity in more recent years suggests a non-front line position for the search giant, that’s if there’s any opposition at all.
The potential for a change in dynamics becomes more interesting on the back of news that FADPA will soon find itself joined by another bill with similar site-blocking aims. After waiting 12 years for a new bill to arrive, the prospect of weighing two bills against each other comes at a time when rightsholders are already showing signs of support for both.
Incoming: American Copyright Protection Act
Less specific in its title but just as focused as its FADPA rival in tackling foreign pirate sites, details of the American Copyright Protection Act emerged in The Ankler.
The publication introduces ACPA architect U.S. Rep. Darrell Issa (R) as “New Hollywood Friend.” Considering the congressman’s focus in ACPA is “judicial blocking” of foreign sites, this will further amplify the need for action.
During a roundtable meeting late January at the Millennium Biltmore in Los Angeles, key supporters of FADPA were in attendance to discuss ACPA and the threat posed by overseas pirate sites. Whether site blocking (‘judicial blocking’ in ACPA parlance) can effectively deal with surging levels of piracy will have been answered affirmatively by at least three of the companies in attendance.
As members of the MPA, a driving force behind many of the site blocking schemes operating in the world today, Amazon, Disney, and Paramount are proponents of site blocking by default. In practical terms, the United States represents the final frontier, or at least the last major site blocking hurdle.
Other Participants’ Positions Less Clear
Also in attendance during the off-the-record meeting were executives from Google and YouTube. Under common ownership, any official position on site-blocking measures hasn’t been raised in public for years. Traditionally an opponent of blocking, Google directly or indirectly played a key role in the failure of the Stop Online Piracy Act (SOPA) bill in 2012.
To a background of increased business scrutiny in both the United States and Europe, signs that Google may be less entrenched includes the deindexing of pirate sites from search results. Google only removes sites previously deemed infringing by competent courts, but no longer requires to be a named party itself. A copy of a court order and a list of sites is now enough for Google to take voluntary action, in Europe, Brazil, India, Australia and beyond.
YouTube’s position on foreign pirate sites and site-blocking in general, most likely aligns with that of Google. Given the staggering volume of traffic they account for worldwide, available for free at the point of consumption, describing pirate sites as competitors might not be too much of a stretch.
Of more interest is the presence of a major ISP at the meeting last month.
Verizon and Hundreds of Others
When FADPA was introduced in January, the MPA and affiliated groups voiced support for the bill in no uncertain terms. Yet without the support and cooperation of other key players, a coordinated site blocking program in the U.S. would never reach its full potential and may even struggle to get off the ground.
For reasons that are still unclear, to our knowledge no major ISPs in the United States have even acknowledged the existence of the bill, let alone stated their official positions.
Regardless of who put them in place, when site blocking schemes irritate or confuse the public, ISPs become the logical focus of consumer complaints. Attitudes to blocking in Europe have softened over time but in the United States, brand image risk could increase along with customer churn. Yet despite being responsible for the blocks, rightsholders remain distant throughout.
As far as we’re able to determine, Verizon was the sole telecoms company at the roundtable meeting, but its official position on site-blocking in this context is unknown. Like most major ISPs, Verizon may conclude that less piracy will have a positive effect on its own bottom line, mostly thanks to improved sales of Fios TV subscriptions.
Matter of Public Interest?
Who represents the interests of consumers and the wider public in these discussions is unknown. Ultimately they’ll have to deal with any consequences and also pick up the bill, so perhaps a little more transparency will be considered later in the year.
The Consumer Technology Association did participate in the roundtable. The trade group says it acts as “a voice that defends your business from harmful legislation”. To what degree that applies here may differ from member to member.
The group’s non-exhaustive member list below includes Amazon, Disney, Google, Verizon, and a few other familiar names, many of which are currently engaged in site-blocking in other parts of the world, either directly or through subsidiaries.
Netflix, Nvidia, Adobe, Dell, AMD, Discovery, Qualcomm Inc, Alphabet (Google LLC), DISH Network, Amazon, Facebook, Fox Corp, Apple, AT&T, General Motors, Best Buy, HP, Walmart, Comcast, IBM, Intel, Disney, JP Morgan
From: TF, for the latest news on copyright battles, piracy and more.
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