by Hugh Stephens — 15 Apr 2019
In March the Trustworthy Accountability Group (TAG), “an advertising industry initiative to fight criminal activity in the digital advertising supply chain”, released an update in its campaign against ad-supported pirate websites, called Winning the Fight Against Ad-Supported Piracy. This updates an earlier study about which I wrote last year in a blog on “Tightening up Online Advertising will starve Pirate Websites of their Means of Support”. TAG has continued its work to make reputable companies aware of the brand risk from advertising on websites that promote pirated content. Fifty-eight brands and ad agencies have signed the TAG anti-piracy pledge to take steps to reduce ad supported piracy, including by working with companies that have received TAG’s “Certified Against Piracy” seal. The program was originally designed for anti-piracy vendors but has since been expanded to include paths to certification for ad agencies, advertisers and publishers. This “follow the money” approach aims to starve pirate websites of one of their main sources of funding, namely legitimate advertising inadvertently placed on their sites as a result of insufficient care taken by ad agencies and company marketing departments.
An essential tool in making this approach work is a certified list of websites to be avoided, in other words, an “Infringing Websites List” (IWL), or “blacklist”. Without a recognized IWL, it is difficult for advertisers or those placing their ads to know which websites to avoid. But a key question is how to construct a legal or administrative process so that the IWL is fair by providing a means for those blacklisted to rebut the allegations against them. This is necessary because even though in most cases it is pretty obvious which sites engage primarily in promotion of pirated content, as with any issue there are bound to be grey areas.
The US and EU publish the two most prominent “blacklists” as part of their respective efforts to name-and-shame piracy sites and the countries which host them, a process hopefully leading to corrective action and a broader improvement in IP protection and enforcement. For some years now the US Trade Representative’s Office (USTR) has published a “Notorious Online Markets” list. Its most recent report included almost 30 online sites based in countries that ranged from China to the Netherlands with many in-between. More recently the EU has developed its own list, the Counterfeit and Piracy Watch List, which lists a number of sites that host copyright infringing material. The list covers cyberlockers, stream-ripping websites, linking or referrer websites, peer-to-peer and BitTorrent indexing websites, unlicensed pay-per-download sites, websites for piracy apps, hosting providers and ad-networks that connect advertisers to pirate websites. Some of these sites are hosted in countries where you would expect them to be, such as Russia and Ukraine, but others are hosted in France, Germany, Switzerland, Canada and several in the US.
Probably the gold standard for operational IWLs (ones that lead to direct consequences for those named on the list) is one operated by the Police Intellectual Property Crime Unit (PIPCU) of the City of London Police. In existence since 2014, it is a partnership between the police and the UK advertising industry whereby rights holders identify and report infringing websites, providing evidence of infringement. The list is compiled by PIPCU, following nominations from amongst others the Federation Against Copyright Theft, the British Phonographic Industry, the International Federation of the Phonographic Industry, PRS for Music, the Publishers Association and the UK Interactive Entertainment Association. This coalition represents a broad cross-section of the advertising and copyright communities in the UK. The subsequent dissemination of the list is greatly assisted by the close support of the Internet Advertising Bureau of the UK (IAB/UK) in conjunction with a number of other industry associations; the Incorporated Society of British Advertisers, and the Institute of Practitioners in Advertising,
The “nominated” websites are evaluated by trained police officers and if a positive identification is made, the site is contacted (where possible) and offered the opportunity to change its mode of operations and start operating legally. If it refuses to do so, a variety of actions can be taken including contacting the domain registrar to seek suspension of the site, and disruption of advertising by placing the site on the IWL. The IAB/UK uses the list to encourage advertisers to build IWL listings into its advertising procurement policies.
One of the major issues for any of these lists is how a site gets placed on it, and whether it has any recourse to get removed. In the case of the City of London Police IWL, identification is made initially by industry, followed by a verification process undertaken by the police. This, however, is not a judicial process, but PIPCU nonetheless relies on legislation for their criteria (The Copyright, Designs and Patents Act, Section 107 (d).) Moreover, allegedly infringing websites that can be contacted are given the opportunity to change behaviour. Presumably, if a false identification is made, this can be dealt with by the police at the time of contact, avoiding an erroneous listing.
The USTR and EU blacklists are a bit different from operational IWLs. The compilation process is similar but there is no provision for rebuttal. (Since writing this I have been informed that this is not correct and that the USTR exercise has a rebuttal provision, referenced in the Federal Register). At the same time, it is worth noting that there are no direct consequences from being named, i.e., being put on either of the lists does not lead to any direct action. In the case of the EU list, the process to develop the list uses public inputs supplemented by a wide range of police, industry, diplomatic and risk assessment sources from member states. Despite this, the EU report makes it clear that “The Watch List is not an exhaustive list of the reported marketplaces and service providers and does not purport to make findings of legal violations”.
The USTR Notorious Markets List is compiled as part of the annual Special 301 process that solicits public comments through the Federal Register. According to USTR, “The list is not an exhaustive account of all physical and online markets worldwide in which IP infringement may take place. The list does not make findings of legal violations”, and it is based “predominantly on publicly available information”. It is abundantly clear that nominations to the list are based on public input because it is noted that some markets that were on the list in previous years may have been dropped because “no commentator nominated the market for continued inclusion on the list”.
Country-specific IWLs for advertising blocking purposes are increasingly employed in a number of jurisdictions, including France, Denmark, Taiwan, Hong Kong, Vietnam, and soon in India, where if the new e-Commerce policy comes into effect a government-mandated IWL will be instituted along with other measures such as site blocking. In Vietnam, the government has used the IWL created by the Vietnam Content Alliance to put pressure on advertisers to pull their ads from sites on the list, so this has become a joint industry-government effort. In Denmark, the list is based on judicial proceedings where Danish courts have found infringement, leading to 600 sites being placed on the list. In Hong Kong, where the IWL is an industry-initiated effort implemented by the Hong Kong Creative Industries Association (HKCIA), there is a clearly outlined process whereby allegedly infringing sites are identified, evidence is collected and reviewed, an appeal panel is provided for and action is taken only after this process has been completed. The HKCIA’s website outlines the process in some detail;
“The HKCIA has established the Review Committee and the Appeal Panel In order to maintain fairness and accuracy of the Scheme. Upon receiving recommendations from members to include websites to the database, the Review Committee ascertains whether the criteria are met. (Comment: presumably evidence that the site is primarily engaged in the distribution of pirated content). The Review Committee will thereafter contact Customs & Excise Department to confirm whether the websites are related to their investigations. Members of the Scheme will then prepare statements to the Review Committee to prove the infringement by the websites. The Review Committee will then notify operators of the websites and offer an opportunity for the operators to correct the situation. If a website fails to comply, then the Review Committee may choose to include the website to the IWL database. The operator can appeal to the Appeal Panel of the Scheme if he disagrees to include his website to the database.”
This strikes me as a pretty fair and balanced process, allowing for ample opportunity to correct any mistakes. Apparently over 100 websites are now on the list which advertisers and ad agencies can consult in order to avoid placing ads on sites associated with distribution of pirated content.
Other uses for the lists can include voluntary website blocking, which has recently been implemented by the London Grid for Learning (LGfL), a not-for-profit charitable trust that provides high-speed broadband connections to a network of schools in the Greater London area. In this case the charity uses the London Police’s IWL as a filter to keep pirated content, which often contains malware and undesirable advertising (as well as some mainstream advertising which still slips through the crack of the IWL system), away from the children using the LGfL’s internet network.
I can already hear the opponents of IWLs rolling out the “lack of due process” arguments, just as opponents of targeted piracy site blocking often claim that such measures will lead to censorship of the internet. The first counter to the “due process” argument is that the IWLs are used to implement voluntary measures. No one is requiring advertisers or ad agencies to shun sites on the blacklist; it is entirely their choice. In fact the creation of the IWLs provides the advertising world with a service that it can choose to use, or not. The fact that most reputable brands do not want to advertise on or support parasitic websites that thrive by stealing and distributing the content of others is what is driving the expansion of IWLs. This is simply an extension of the process that brands and advertising agencies use on a daily basis in determining where and where not to place their ads.
However, to close off the argument that the content industry plays the role of judge, jury and executioner in the IWL process, it is important both to engage government and law enforcement and to provide a redress mechanism. In 99.9% of the cases, the only response from the infringing sites will be evasion tactics, such as domain hopping or mirroring, e.g. setting up duplicate websites. (To combat these tactics, a market has developed for commercial services that have been established to help advertisers stay compliant and to avoid the pitfalls of inadvertently placing ads on pirate sites). Nonetheless, for the sake of credibility any system that results in commercial punishment of certain businesses because of reputational risk should have a system of verification and appeal. Both the City of London Police’s IWL and the system employed in Hong Kong seem to offer good examples and best practices that could be followed elsewhere. The Danish system of basing IWL listings on court decisions is another way to address this issue.
The ongoing fight against content theft and piracy is unrelenting. The bad guys are creative; and why not? The stakes are enormous. For the creative industries struggling to fight piracy and ensure a fair return on their investment in the creation of content, while at the same time protecting consumer interests by ensuring the continued vitality of the creative sector, there are many ways to attack the problem. New business models and distribution platforms are one effective method, but enforcement, interdiction, and starving the pirates of revenues complements this. Governments can and should play a greater role in requiring the blocking of offshore pirate sites by ISPs, and courts can more effectively deal with the whack-a-mole problem if there is effective legislation, but voluntary measures by industry can also be very effective if applied consistently. There is a good reason why the use of IWLs is spreading. The establishment of credible IWLs and their sustained use by brands and advertisers is an important tool in the anti-piracy toolbox. The creative industries need all the tools they can get.
© Hugh Stephens, 2019. All Rights Reserved.
This blog first appeared on Hugh Stephens' blog as Infringing Website Lists: Another Valuable Tool in the Anti-Piracy Toolbox.