June 2023 – Page 144 – news.buyenne.com

After well over a decade of pushing back against pirate site blocking applications, many European ISPs now see little value in putting up a fight.

Earlier confirmation from Europe’s highest court, that site-blocking injunctions are legal when they proportionately protect third-party rights, is one of the key reasons for not contesting blocking applications today. In the Netherlands, where ISPs have a strong tradition of resisting site blocking injunctions, a recent application for a dynamic, shape-shifting blockade prompted ISP KPN into action.

Movie Companies Want to Block Lookmovie and Flixtor

In common with similar groups everywhere, Dutch anti-piracy BREIN is a proponent of site-blocking as part of an overall anti-piracy toolkit. The problem BREIN faces is a growing tendency for pirate sites to shift to new domains or receive assistance from proxy and mirror sites, in response to static site-blocking measures targeting specific domains.

Hoping to reduce infringing access to pirate streaming sites Lookmovie and Flixtor, while reducing the potential for domain switching and proxy/mirror site countermeasures, BREIN took legal action at the Court of Rotterdam in April against ISP and fiber optic network provider, KPN.

When presenting its case for the blocking of Lookmovie, BREIN explained that the platform provides free access to movies and TV shows, including some with Dutch subtitles, without any permission from copyright holders.

As the traffic statistics for just one of its domains show, the site receives millions of visitors overall according to SimilarWeb data.

BREIN notes that users who prefer not to watch ads on Lookmovie can pay a fee to avoid them, either on the site’s main domain, 13 others it also operates, or via a network of proxy and mirror sites.

BREIN’s Request For a Dynamic Injunction

BREIN’s case against Flixtor is broadly the same, with the anti-piracy company noting that the site is readily accessible from any of 11 domains and an unknown number of proxy and mirror sites.

Countering Perpetual Domain and IP Changes

To counter the growing phenomena of sites switching to domains and IP addresses not specifically mentioned in injunctions, BREIN asked KPN to comply with the terms of a dynamic injunction. When sites deploy new IP addresses, new domains or use sub-domains, dynamic injunctions are usually able to cope.

BREIN believed that as long as any proxy or mirror sites were the same or virtually the same as the originals, KPN would be ordered to prevent its customers from accessing them in the same way it can be required to block the original sites. KPN begged to differ.

KPN’s Site-Blocking Objections

The District Court of Rotterdam’s judgment notes that KPN objected to BREIN’s site-blocking application on several grounds. The ISP took the position that blocking websites is not an effective response to infringement because the infringing websites themselves remain online. As a result, internet users are free to circumvent site-blocking measures using VPNs, for example.

The Court agreed that circumvention takes place but said that isn’t an obstacle when awarding a site-blocking injunction.

“Closing access to Lookmovie and Flixtor by blocking domain names, proxies and mirrors will prevent access to the protected works through those addresses. As BREIN also acknowledges, a blockade does not completely prevent unauthorized calls from protected works, as some internet users will find detours to access blocked websites,” the judgment reads.

“It cannot be ruled out that internet users bypass blockades via VPN connections, but it is plausible that a blockade of the websites will lead to these sites no longer being accessible, at least considerably more difficult to access, for the normal internet user, as a result of which carrying out infringement becomes seriously complicated.”

The Court further noted that since BREIN requested a dynamic injunction covering new IP addresses and domain names as they appear, these alternative routes of access will also be subjected to a permanent blockade. As a result, blocking can be considered sufficiently effective overall..

Are Dynamic Injunctions Overbroad?

KPN further argued that BREIN’s blocking request was too broad, with associated costs and the risk of over-blocking increasing over time as more proxies and mirror sites are added. The ISP also complained that injunctions should be time-limited but the Court wasn’t convinced.

“KPN has been blocking domain names, mirrors and proxies for several years now, and it has not been found that implementation has led to major problems. On the contrary, BREIN has made it clear that it always sends updated lists of new domains to be blocked by e-mail to KPN, after which KPN implements the blockades within a short period, sometimes within an hour,” the judgment notes.

The suggestion here is that blocking may have been automated by KPN and since detailed checks may not be carried out, any inconvenience is minimal. In any event, KPN’s historically speedy response to blocking also helped to satisfy the Court that BREIN’s request for a blocking response in five working days wasn’t unreasonable either.

Dynamic Injunction Granted

After considering the freedom to access information and KPN’s freedom to conduct a business, the Court found that BREIN’s application is compatible with these fundamental rights.

“BREIN’s claims to block and block KPN subscribers’ access to the (sub) domain names and IP addresses through which Lookmovie and Flixtor operate or will operate are therefore granted,” the judgment reads.

BREIN believes the Court made the right decision.

“The measures requested by BREIN are judged to be reasonable; KPN’s freedom of enterprise is not unreasonably restricted. The defense that the blocking of proxies and mirrors would be too broad is also rejected: KPN has been implementing blockades for several years now and this has not led to any implementation problems,” BREIN reports.

Injunction Implications Go Beyond KPN

In October 2021, BREIN and several ISPs – KPN included – entered into an agreement known as the ‘Covenant.’ Signatory ISPs promised that when a judgment is handed down against an ISP, requiring it to block websites following an adversarial process, the other ISPs would voluntarily comply with the same decision. As a result, blocking of Lookmovie and Flixtor will be deployed across the Netherlands.

Another useful side effect for BREIN is likely to involve Google. As previously reported, when Google is presented with a court order that requires an ISP to block pirate websites, Google recognizes the injunction by voluntarily deindexing the listed domains, resulting in their complete removal from search results, in the territory where the injunction is valid.

The District Court of Rotterdam’s judgment can be found here

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