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Chapter 5
While ISP blocking activities have been fairly limited in the United States to date, blocking and
filtering has been widely attempted and, in some cases, court ordered in various European countries.
76 In both the United States and Europe, many critics of the blocking/filtering approach
contend that serial infringers understand the technology being employed and can easily evade
these measures. 77 Further, many critics contend that filtering/blocking measures often end up
preventing access to legal, non-infringing content. 78 It bears noting that blocking measures were
debated in the U.S. Congress prior to the January 2012 Internet Blackouts that nominally protested
the inclusion of DNS blocking mechanisms. 79
(4) Hybrid Approaches (Educational Initiatives)
Given the widespread nature of online piracy and the inherent weakness of individual approaches
to combating such unlawful conduct, the focus in both the United States and other international
jurisdictions has turned to the creation and implementation of hybrid enforcement programs. These
programs typically consist of a number of steps, whereby an Internet user is first provided with a
series of alerts if they access or share infringing content. The intent is to educate Internet users
about what constitutes copyright infringement and how it negatively impacts others and the
economy.
The main example in the United States is the recently-launched U.S. Copyright Alert System 80 (also
called a “Stepped Enforcement Approach”). This program was launched in early March 2013 to
help consumers understand illegal distribution through peer-to-peer (“P2P”) networks and educate
them about unlawful content sources. It is the result of voluntary cross-industry cooperation
between the 5 major U.S. Internet access providers (e.g. Comcast, Verizon) and the music/film/TV
content creator industry (e.g. RIAA, MPAA, IFTA, A2IM). 81 It represents a mutual recognition that
such cooperation is necessary “to prevent, detect, and deter Online Infringement.” 82 The Copyright
Alert System sets up a framework for an enhanced education, notice, and enforcement program
which entails a multi-step process 83 of progressive alerts to ISP subscribers whose IP addresses are
discovered to be engaged in infringing activities on P2P networks and mitigation measures for
repeat infringers, with a clear focus on educating users and changing consumer behavior.
It also gives ISP providers a range of mitigation measures (e.g. temporary reduction in Internet
speed, temporary restriction of Internet access, etc.) and a high degree of flexibility and autonomy
in selecting mitigation measures. 84
2. Voluntary Best Practices in the U.S.
While Internet intermediaries 85 are not required by law to take the initiative to uncover instances of
infringement or counterfeiting, or to decrease the use of their services by infringers, several have
developed sets of “best practices” to decrease the prevalence of this conduct using their services.
a) Payment Processors
Because of low barriers to entry, ease of operations, decreased risk of identification and criminal
prosecution, and limited effectiveness of civil IP enforcement, the Internet provides PFWs a targetrich
environment for profiteering from illegal sales and distribution of copyrighted and trademarked
goods. 86 PFWs that sell counterfeit products or offer subscriptions to access infringing
content (on a streaming or downloading basis) rely on legitimate payment processors to conduct
their illegal sales transactions. These credible payment processors lend an air of legitimacy to
PFWs and may dupe unsuspecting consumers into purchasing counterfeit goods or paying for
access to pirated content while costing the U.S. billions in lost revenue. 87
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