from the that's-not-how-any-of-this-works dept
Almost exactly a decade ago, a few months after the US Congress rejected the site blocking setup of the SOPA copyright bill, which would enable copyright holders to force ISPs to block access entirely to websites deemed as being dedicated to “piracy,” we wrote a post about how it wasn’t even clear SOPA was needed when courts were willing to issue such blocking orders already. That was in a case around counterfeiting, where Louis Vuitton sought, and obtained, an order from a judge that demanded that domain registrars and ICANN effectively wipe certain website domains off the internet entirely.
Fast forward almost exactly a decade and TorrentFreak points us to a somewhat similar series of orders that demand that every ISP in the US block access entirely to three websites accused of infringement by a series of movie, TV, sports, and news content providers in Israel. The three orders are all embedded below, though they’re all basically the same — but they order non-party ISPs to block access to three domains that are accused of showing infringing streams: israel-tv.com, israel.tv, and sdarot.tv.
For all three of the websites, no defendants showed up in court (not too surprising, given that the cases were filed in the US). Without a defendant showing up, the court ruled for the plaintiffs in a default judgment — which is pretty typical. However, what is atypical, is that the judge then basically set the 1st Amendment on fire, and basically ordered a ton of non-parties to do things to stop enabling any access to these websites. It first issues a permanent injunction for anyone operating or working with those websites, but then issues an order for EVERY single ISP in the US to block access to these websites.
IT IS FURTHER ORDERED that all ISPs (including without limitation those set forth in Exhibit B hereto) and any other ISPs providing services in the United States shall block access to the Website at any domain address known today (including but not limited to those set forth in Exhibit A hereto) or to be used in the future by the Defendants (“Newly-Detected Websites”) by any technological means available on the ISPs’ systems. The domain addresses and any NewlyDetected Websites shall be channeled in such a way that users will be unable to connect and/or use the Website, and will be diverted by the ISPs’ DNS servers to a landing page operated and controlled by Plaintiffs (the “Landing Page”) which can be reached as follows:
Domain – zira-usa-11026.org
IP Address: 188.8.131.52 (Dedicated)
The Landing Page will include substantially the following information:
On April 26, 2022, in the case of United King Distributors, et al. v. Does 1-10, d/b/a Sdarot.tv (S.D.N.Y., Case No. 1:21-cv-11026 (KPF) (RWL)), the U.S. District Court for the Southern District of New York issued an Order to block all access to this website/ service due to copyright infringement
It’s unclear who created this particular landing page, but it does not exist, and at least it doesn’t include the silly badges with eagles on it.
The blocking order shows a very long list of ISPs, covering nine pages. For unclear reasons, the list shows not just the names of the ISPs, but also the estimated population covered, the number of states they cover, and their max speeds. As far as I can tell, the list appears to come from BroadbandNow’s “Internet Providers in the United States of America” list. This is the first page that comes up if you Google “list of US ISPs” and it also displays the exact same data sets in the exact same order. The list doesn’t match exactly, though, so it appears to be a subset of the larger list — though the court order says that it should be considered to apply to any US ISP.
And Judge Katherine Polk Failla doesn’t stop there. After ordering every ISP to block these websites, she also orders all third party service providers to cease doing business with these three websites. This includes an incredibly long list of possible service providers (notably a list that is even more in-depth than would have been required under SOPA — which, again, Congress rejected):
IT IS FURTHER ORDERED, that third parties providing services used in connection with Defendants’ operations — including, without limitation, ISPs, web hosting providers, CDN service providers, DNS service providers, VPN service providers, domain name purchasing service, domain names privacy service, back-end service providers, affiliate program providers, web designers, shippers, search-based online advertising services (such as through-paid inclusion, paid search results, sponsored search results, sponsored links, and Internet keyword advertising), any banks, savings and loan associations, merchant account providers, payment processors and providers, credit card associations, or other financial institutions, including without limitation, PayPal, and any other service provider which has provided services or in the future provides services to Defendants and/or the infringing Website (including without limitation those set forth in the list annexed and made Exhibit C annexed hereto) (each, a “Third Party Service Provider”) — having knowledge of this Order by service, actual notice or otherwise be and are hereby permanently enjoined from providing services to the Website (through any of the domain names set forth in Exhibit A hereto or at any Newly-Detected Websites) or to any Defendant in conjunction with any of the acts set forth in subparagraphs (A)(1) to (A)(6) above;
And, as if that was not enough, she also orders domain registrars effectively kill those domains as well and hand them over to the plaintiffs:
- That all domain names associated with the infringing Website, including without limitation those set forth in Exhibit A hereto, as well as any Newly-Detected Websites, be transferred to Plaintiffs’ ownership and control; and
- That in accordance with this Court’s inherent equitable powers and its power to coerce compliance with its lawful orders, and due to Defendants’ on-going operation of their counterfeiting activities, in the event Plaintiffs identifies any Newly-Detected Website registered or operated by any Defendant and used in conjunction with the streaming any of Plaintiffs’ Works, including such Websites utilizing domain names containing any of Plaintiffs’ service mark or marks confusingly similar thereto, Plaintiffs shall have the ongoing authority to serve this Order on the domain name registries and/or the individual registrars holding and/or listing one or more of such the domain names associated with the Newly-Detected Websites; and
- That the domain name registries and/or the individual registrars holding and/or listing one or more of the domain names associated with the Newly-Detected Websites, within seven (7) days of service of a copy of this Order, shall temporarily disable any domain names associated with the Newly-Detected Websites, make them inactive, and channel them in such a way that users will be unable to connect and/or use the Website, and will be diverted to the Landing Page (as defined in Paragraph B, above); and
- That after thirty (30) business days following the service of this Order, the registries and/or the individual registrars shall provide Plaintiffs with all contact information for the Newly-Detected Websites; shall transfer any domain names associated with the Newly-Detected Websites to the ownership and control of Plaintiffs, through the registrar of Plaintiffs’ choosing, unless the Defendant has filed with the Court and served upon Plaintiffs’ counsel a request that such Newly-Detected Websites be exempted from this Order or unless Plaintiffs requests that such domain names associated with the NewlyDetected Websites be released rather than transferred;
Again, this is way, way beyond what even SOPA would have allowed. But Congress didn’t do it — and for good reason. This ruling has some really significant 1st Amendment issues. Ordering the complete takedown of a website like this is the equivalent of shutting down a magazine — ordering that the landlord evict the publisher, that the printing presses be destroyed, that the postal service refuse to send copies of the magazine, that the local waste management company refuse to pick up the garbage, etc. etc. An order like that would obviously have tremendous 1st Amendment problems as an attack on speech, even if you recognize that some of the content was infringing.
Of course, given that the websites chose not to show up in US court, it seems unlikely that they will challenge the order. It is possible that some ISPs might push back on it, not because they want to support piracy, but because of the extraordinarily problematic general precedent of allowing a judge to order such an extreme internet kill order. Allowing these kinds of orders to survive creates tremendous instability for the internet, and hopefully some ISPs will push back.
Filed Under: blocking orders, cdn, copyright, dns, israel, new york, registrars, site blocking, sopa, website blocking
Companies: dbs satellite services, hot communication, screen il, united king film distribution