A French court ordered upstream internet intermediaries like Google and Cloudflare to actively block access to prominent pirating and illegal streaming sites at the request of sports rights holders. But Google is pushing back against this judgment, and its reasoning is surprisingly sound.
The landmark decision places direct responsibility on upstream internet providers rather than on illegal streaming services, which are notoriously difficult to bring to justice in a local court, especially when they exploit loopholes in international law or employ backup domains and servers that go online when their main platforms are blocked.
To effectively block access to these sites, which operate across multiple domains, servers, and web addresses, Google would have to use a combination of DNS filtering and IP- and VPN-blocking, but these catch-all approaches are guaranteed to impact law-abiding users and web hosts as well. To analogize, it’s a bit like trying to catch a minnow with a giant trawling net. At the end of the day, you may have all the minnows in the sea, but you’re also going to harm the dolphins, whales, and other fish species.
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Worse still, savvy internet pirates have multiple ways to circumvent these actions, meaning the minnows might still escape while the larger fish (ordinary internet users) get caught up in the filtering.
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Google said as much in their submission to the EU court:
“Blocking DNS resolvers, IPs, VPNs, is ineffective, as it does not remove content at all and is easily circumvented by using alternative DNS resolvers. It is disproportionate, catching lawful services, raising extra-territoriality concerns and blocking entire domains. Similarly, blocking IP addresses neither removes the content nor achieves proportionate outcomes, as many lawful services may be using the same IP address.”
Google’s report goes on to cite real-world harms caused by these blanket bans, including inadvertently blocking Google Drive access and restricting access to websites such as Amnesty International, the ACLU, UNICEF, UNHCR, the Australian Senate, and Stanford Law Review.
The Electronic Frontier Foundation has echoed Google’s criticisms, arguing that the EU’s attempts to legislate the internet “keep EU users locked up behind big tech’s gates.” The EFF also took a strong stand against the automated filtering mandates argued for in Article 13 of the EU Copyright Directive.
It’s also looking like these concerns are coming to the United States, as a House IP Subcommittee met on June 30 to discuss exactly the kind of upstream content bans enforced by the EU. California Representative Darrell Issa has already pledged to introduce exactly such a bill.
Not coincidentally, these legislative efforts are ramping up right as illegal streaming and downloading experiences a resurgence in popularity (a “Piracy Renaissance,” according to one publication), perhaps not in spite of a massive spike in online streaming platforms but because of these platforms and their ongoing efforts to raise prices, introduce advertising, and fragment their content offerings.
Expect this debate to heat up as more and more tech companies are pulled into the argument, and as the interests of internet giants like Google are pitted against the copyright claims of giant media broadcasters.