In recent years, the European Commission has proposed and adopted various legislative changes to help combat online piracy.
The Copyright Directive and the Digital Services Act both envisioned tighter copyright takedown rules for online service providers.
Many rightsholder groups felt that the new rules were insufficient to target live streaming piracy, sports content in particular. They wanted more incentives for online service providers to act faster and more diligently, as suspensions are useless after a live broadcast ends.
The EU Commission heard these calls and published a targeted recommendation ‘on combating online piracy of sports and other live events’, encouraging member states to introduce measures to facilitate prompt takedowns of live streams. At the same time, service providers and rightsholders were encouraged to collaborate, to tackle the challenge together.
Over two years later, the European Commission recently launched a call for evidence, asking stakeholders to share their views on the recommendation. Based on its assessment, the Commission will evaluate whether further EU-level measures are needed to tackle the issue.
MPA: Site Blocking is Key
Last week, the Motion Picture Association (MPA) submitted its comments on the effectiveness of the 2023 recommendation. Representing prominent movie industry players including Netflix, Disney, and Warner Bros. Discovery, it has a significant stake in the matter.
Overall, the MPA is positive about the EU legal framework, noting that it provides valuable tools such as site blocking injunctions. However, implementation of these measures across EU member states is inconsistent and in some countries, cumbersome or completely absent.
Site blocking measures have been available under EU law for more than two decades, but not all EU countries implemented them correctly, MPA says, mentioning Germany, Poland, and Bulgaria as examples.
“Despite the Commission’s Recommendation, Europe is missing effective and appropriate implementation of these provisions across all Member States. Germany has not correctly implemented Article 8(3) InfoSoc nor Article 11 IPRED, whereas Poland and Bulgaria have not implemented these provisions at all,” MPA writes.
In Germany, for example, copyright holders must take steps to identify the operator of piracy sites before they can request blocking measures. In some cases, this requires pursuing legal action against hosting companies.
This is a barrier that makes site blocking unnecessarily complicated or costly, MPA says. That’s counterproductive in an environment where pirate sites and services are quick to adapt their strategies.
“Swift action is needed to limit the dissemination and damage of copyright infringement,” MPA stresses.
Automated Real-Time Blocking
Automated solutions already exist in some countries. The MPA is particularly interested in site blocking schemes that allow rightsholders to automatically add new piracy domains in realtime.
This is especially important for live broadcasts, including sports events, as these have a small blocking window. The MPA says that these broadcasts require dynamic siteblocking and fast-track legal procedures in order to be protected.
“MPA is therefore supportive of automated effective siteblocking mechanisms that can be updated in realtime with appropriate safeguards to address emerging infringing streams. In Italy, Greece, Portugal and Brazil automated dynamic systems are available to rightsholders allowing effective real-time blocks.”
Automated blocking measures also help to combat circumvention. Pirate site operators are generally quick to circumvent blocking measures with new domain names. Their users can typically find new pirate sites though search engines and social media.
“When a pirate service is blocked, pirate infringing operators register and activate a new domain—often with a similar name—allowing users to regain access, therefore circumventing the initial blocking order,” MPA writes.
CDNs, VPNs and other Intermediaries
Collaboration between Internet providers and copyright holders is essential to implement effective blocking mechanisms, MPA says. However, other intermediaries should also be brought into the fold.
MPA suggests a more active role for reverse proxy providers, content delivery networks (CDNs) hosting providers, VPNs and search engines. These were also highlighted in the EU Commission’s 2023 recommendation.
The group notes that cooperation with CDNs (e.g. Cloudflare) is key to properly enforcing dynamic blocking.
“Intermediaries such as CDNs also have the technical capability to implement targeted blocking at the infrastructure level, which can be a highly effective complement to traditional siteblocking, especially where operators rely on CDN services to deliver pirated content at scale.”
“Their engagement tends to be necessary to make targeted and technically feasible siteblocking possible. Failing to involve these actors undermines the effectiveness of dynamic injunctions, as pirates increasingly rely on them to obscure their infrastructure and evade enforcement.”
Identifying Pirates
In addition to helping on the blocking side, MPA also sees a role for these intermediaries when it comes to identifying pirate site operators. To achieve this, rightsholders should be able to use “Right of Information” requests to swiftly identify potential targets.
These information requests should be made available under EU law and, just as importantly, the EU should expand Know Your Business Customer (KYBC) requirements to online intermediaries. At the moment, KYBC rules only apply to online marketplaces.
“To effectively allow the identification of the source and repeated misuse of their services, intermediaries need to ensure that they obtain accurate and complete customer information,” MPA writes, adding that KYBC requirements are an “ideal tool” with “minimal burdens” for the intermediaries involved.
All in all, the MPA believes that Europe is largely on the right track with its anti-piracy efforts and policies, but with the suggested improvements, ideally formalized in legislation, the process can be further improved.
Rightsholders United
The MPA is not the only stakeholder making these types of demands. A wide variety of other rightsholder organizations, representing various sectors of the creative industries, echoed the call for more robust anti-piracy measures with legislative backing across the European Union.
For example, MFE-MEDIAFOREUROPE, which controls major broadcasters like Mediaset, stressed that hosting providers, CDN providers, and payment services need to take more decisive action.
Meanwhile, DAZN described the DSA as a missed opportunity to specifically target entities like VPN providers, dedicated server hosts, and CDN services that play a role in facilitating online piracy. Both DAZN and MFE joined the MPA in calling for KYBC obligations to be extended to more intermediaries.
Ultimately, these submissions paint a picture of rightsholders acknowledging the EU’s efforts, while highlighting a clear need for further, stronger action at the EU level. The European Commission will typically take its time to evaluate this feedback, while also keeping an eye on those that are more critical of recent anti-piracy efforts.
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A copy of the Motion Picture Association submission in response the EU Commission’s assessment of the May 2023 Commission Recommendation to combating online piracy of sports and other live events is available here (pdf).
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