What if you woke up one day to discover that a website you use almost every day seemingly no longer exists? Instead, when you enter the website’s URL, you see a splash page informing you that the site has been blocked in the U.S. pursuant to a federal court order. Or maybe you just get a 404 error. Unfortunately, if site-blocking legislation like the recently-introduced Foreign Anti-Digital Piracy Act (FADPA) is passed, this scenario could become a reality.
Site-blocking legislation like the FADPA bill is Big Content’s latest attempt to secure the power to take down entire websites that a rightsholder claims are “dedicated to infringement.” Big Content has waged a decades-long war against platforms and technologies that provide independent creators and audiences an alternative to their control. These groups have consistently portrayed technological innovations as “dedicated to infringement,” and their war on “piracy” often includes a war on consumers, creators, and even their own long term economic interests.
This fight goes back at least as far as the player piano, but if we start in the late 20th Century we see the recording industry fret that “home taping is killing music.” (Punk band the Dead Kennedys tried to help.) Motion Picture Association honcho Jack Valenti famously said the VCR was like a serial killer stalking the movie industry—and by 2001 that killer was making MPAA members over 10 billion dollars annually in VHS sales and rental income. In 2012, they claimed that YouTube had engaged in “brazen” and “massive” copyright infringement, yet the creator economy is now worth over $250 billion thanks to platforms like YouTube. The content industries have a pretty mixed track record when it comes to judging whether a technology or a platform is “dedicated to infringement.”
Siteblocking proposals wouldn’t just empower the big studios and trade associations to fracture the internet; anyone who owns a copyright (which means everyone) can petition a court for a blocking order under proposals like FADPA. And in a one-sided proceeding, where the owner of the site isn’t there to defend themselves, judges won’t be fully equipped to evaluate the facts and come to a fair conclusion. A troll who finds a credulous judge will be empowered to zap websites at will.
The effort to normalize siteblocking is part of a long-running effort to discredit the idea of a free and open internet and replace it once and for all with locked-down, fractured systems controlled by governments and corporations. While FADPA is the latest site-blocking legislation to be introduced in the U.S., it follows a long line of similar proposals that have faced broad, cross-industry opposition due to their significant flaws. For example, 13 years ago, members of Re:Create joined a multi-sector campaign to educate lawmakers on the catastrophic impacts that site-blocking legislation, like the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA), would have on Americans’ access to the internet and information ecosystem. Lawmakers rightly rejected those bills over concerns about free speech and innovation. Yet, a decade later, they seem to be falling into the entertainment industry’s trap once again with similar legislation.
Site-blocking measures for copyright enforcement are being tried in countries such as the U.K., Canada, Australia, Austria, and Israel, but their presence abroad doesn’t prove that siteblocking is ready for prime time in the United States. The U.S. has a deep, constitutional commitment to free expression that doesn’t exist in other countries, and as Re:Create member Public Knowledge points out, “blocking orders are incredibly powerful weapons, ripe for abuse.” Siteblocking proponents argue that foreign siteblocking regimes allegedly “haven’t broken the internet,” but these claims are unsubstantiated and premature. For one thing, overblocking has been reported in countries that are experimenting with siteblocking, and as technology experts from the ISP Cloudflare have explained, site-blocking errors and abuse are certain to be much more widely experienced than public reports reflect because users typically don’t know how or why sites become inaccessible and they rarely report a website’s disappearance. It is far too soon and too simplistic to conclude that foreign siteblocking experiments have demonstrated that site-blocking is harmless. The U.S. should not make the mistake other countries have by enacting legislation pushed by one side of a policy debate that would inevitably censor lawful content and restrict free speech.
Access to a free and open internet that is home to a variety of independent sources of information and creativity is essential for fostering a well-informed and innovative society. Site-blocking legislation threatens to stifle the growth of creative industries and would undermine the foundation of the internet as we know it today. Re:Create urges lawmakers to carefully consider the overblocking and censorship implications at stake and reject proposed site-blocking legislation, like FADPA, and support every American’s right to a free and open internet.