Shipwrecking online pirates: we can’t wait for a change in the wind, we need to adjust their sails to force a change of course

In December 2020 in Britain alone, 5.8 million viewers admitted to streaming illegally, up from 3.1 million in June the same year¹. Since consumers of content made available illegally often cite accessibility as one of the reasons, content owners and their authorised distributors would have hoped that by shifting their business models and delivering greater accessibility over recent years, the attraction of unlicenced pirate streaming services would be reduced. Sadly, the opposite has happened. Traditional cinema releases being streamed directly to consumers on services such as Disney+ (often simultaneously with or just days after it hits the big screen) makes accessing high quality content for a modest fee much easier but this doesn’t seem to have had a negative impact on the consumption of such content via unauthorised sources. A prime example being Eternals, which was the most torrented film of the week less than a fortnight after being made available direct to consumers on Disney+!²

Perhaps one of the reasons for this is that some consumers are looking for a one-stop-shop compilation at a cost lower than subscriptions to multiple authorised platforms, each with different catalogues of ‘exclusive’ and/or original content. Some illegal services are sophisticated and give the impression of a professional licensed service duping their customers into believing they are buying access to a legitimate service. Even for those customers who knowingly use an illegal pirate service to get their movie fix or to binge watch the latest Netflix exclusive, there seems to be no stigma. Some have even been known to openly brag to a certain copyright lawyer about the IPTV service they use and how little it costs them. Whatever the reason, it seems that the issue of pirated entertainment content being made available online, whether it be movies, music, games, or the latest binge-worthy TV series, is clearly not one that is going away any time soon.

As a result, rights-holders need to be more strategic and proactive in their efforts to protect their interests across the UK, EU and beyond. One legal tool which has been getting some attention in the media recently is what is known as the website blocking order. A blocking order is a type of injunction granted by the High Court which requires internet service providers (ISPs) to block users of their broadband services from accessing not just websites but also apps and other online streaming services which are making available protected content and infringing the applicant(s)’ copyright. The power to grant such orders is derived from s97A of the Copyright, Designs and Patents Act 1988 (CDPA) and the courts’ inherent jurisdiction and has become increasingly popular in the UK.

NB: It is worth noting at this point that an applicant must remember that s97A requires the ISP to have ‘actual knowledge’ of the infringing sites so they must be given notice prior to the application being made.

Just before the High Court closed for the Christmas break, a group of major content owners and members of the Alliance for Creativity and Entertainment (ACE) successfully obtained an Order requiring the top 7 ISPs in the UK to block 15 websites.³ Said targeted websites were “indexing and aggregating links to unauthorised copies of [motion picture and television] content hosted on third party locations” and by doing so were unquestionably communicating copyrighted works to the public, contrary to s20 CDPA, and authorising infringing acts of copying. The High Court was content to order the block on the websites targeting UK consumers on the basis that the websites were infringing copyright even though the sites did not host the services but aggregated and indexed links to content hosted elsewhere.

Nintendo have managed to take this one step further in the gaming sphere by obtaining a blocking order targeting websites which were advertising, distributing and selling the tools for committing copyright infringement. The devices being sold to consumers enabled them to circumvent Nintendo’s built-in technological protection measures and play unauthorised games on their ‘Switch’ devices.

Interestingly, Google also very recently appears to have shifted its position in relation to blocking pirate site domains from its search results ⁴. Following a request from anti-piracy group, BREIN in the Netherlands, Google has voluntarily (i.e. without requiring a court injunction) blocked several Pirate Bay domains entirely from its search results. It is understood that there are some in the UK requesting similar action so watch this space.

These types of orders have developed alongside technological advances, meaning that ‘dynamic’ blocking orders have become commonplace. Essentially, a dynamic blocking order is not limited to the specific URLs or IP addresses of the target website(s) identified in the order but extend to fundamentally the same websites which can re-appear at a different domain and/or with a different name etc. This greater flexibility in application enables multiple and replacement websites to be blocked swiftly without the need for anyone to return to court. Indeed, having obtained the first order of this nature in the Republic of Ireland in 2019, the Premier League has successfully renewed the blocking order two years in a row to protect successive football seasons. It shows that when such applications are appropriately targeted and monitored, regularly being renewed and extended where necessary, they can be an effective tool which not only stops or dissuades casual consumers of illegal content but also causes real disruption to the operators of the targeted sites or services.

Blocking orders however clearly impose obligations upon innocent intermediaries and so the courts will not grant them lightly, without consideration of what other remedies may be available to the content owner. An applicant must show that the order sought is reasonable, proportionate and necessary to prevent damage. As a result, if a rights holder is able to identify those responsible for operating the infringing service, it is generally thought that direct action against the wrongdoer will be more appropriate and have a more significant impact than imposing a blocking order on an innocent intermediary such as an ISP.

There are also durable benefits to a direct attack on the infringer where that is possible; by acting directly against those ultimately responsible for running the infringing service, it is more likely to be taken down in its entirety. This is not only multi-jurisdictional in effect, since all consumers worldwide are prevented from accessing the service, but by targeting individuals, there is a greater deterrent; it dissuades consumers from using illegitimate services because they are unreliable and it dissuades other potential infringers because they know there is a risk of facing legal consequences, particularly if such action is appropriately communicated as part of the wider strategy. All that ought also shift the dial on the issue of stigma touched on above.

Any effective strategy to combat the issue of the widespread availability of pirated content requires a combination of quasi-technical and legal measures. This can often include blocking orders targeting certain prolific and troublesome infringing services but may also include the following:

• applying for disclosure orders to require intermediaries to provide information to assist with the identification of infringers (known as Norwich Pharmacal orders);

• seeking civil injunctions against said infringers to get the services taken down as well as obtaining orders for the payment of damages and legal costs;

• for the most serious/prolific offenders, working with law enforcement agencies to facilitate criminal investigations, police raids and public prosecutions; and/or

• in appropriate cases, pursuing private criminal prosecutions in the name of the rights holder.

Ultimately, the aim and motivation for rights holders, in equal measure, is to persuade infringers to cease and to dissuade potential infringers from setting up/engaging with pirated content whilst also educating consumers of the illegal and unreliable nature of such services. We describe this as moving the dial on infringing services from ‘low risk - high return’ to ‘high risk - low return’; the best way to achieve this is by using a carefully and strategically planned combination of some or all of these technical and legal tools.

¹ Lockdown and chill: How streaming won 2020 (dvh1deh6tagwk.cloudfront.net)

² Top 10 Most Pirated Movies of The Week – 01/24/2022 * TorrentFreak

³ Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Netflix Studios, LLC, Paramount Pictures Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc. v British Telecommunications PLC, EE Limited, Plusnet PLC, Sky UK Limited, Talktalk Telecom Limited, Virgin Media Limited [2021] EWHC 3438 (Ch)