Summary
Large-scale piracy websites violate the copyrights of American creators and threaten the continued growth of the creative industries. The 1998 Digital Millennium Copyright Act is ineffective in stopping this scourge, as its protections are limited to obsolete technologies and it does not apply to piracy websites based in foreign countries. Congress should protect the rights of American creators on the 21st-century internet by enacting site-blocking legislation. Many U.S. allies already have site-blocking laws. A decade of studies and data from the operation of these site-blocking laws have proven these laws work without chilling speech or “breaking the internet.” Site-blocking laws are a proven, effective mechanism in protecting copyrights and promoting legitimate online commercial services.
Key Takeaways
1. Piracy websites engage in rampant, global-scale theft of copyrighted movies, songs, and other works by American creators.
2. Site-blocking laws enacted by many U.S. allies have proven effective in protecting copyrights and promoting legitimate online commercial services.
3. Congress should enact site-blocking legislation to secure the rights of creators against large-scale piracy of the fruits of their productive labors.
The United States has long been a global leader in creative and cultural works. The U.S. creative industries export throughout the world American art, values, and way of life through movies, television shows, music, video games, books, and a plethora of other creative works. In 2021, this accounted for $230.5 billion in exports, exceeding by far the value of exports in many other sectors of the U.S. innovation economy, such as aerospace ($93.3 billion), agriculture ($131.8 billion), chemical manufacturing ($161.4 billion), and biopharmaceuticals ($92.5 billion).1
The creative industries are a major driver of economic growth and jobs, adding $1.8 trillion to the U.S. gross domestic product (GDP) and employing 9.6 million Americans in 2021.2
The immense productivity of the creative industries is due to the foresight of the Framers, who authorized Congress in the Constitution to secure to authors an “exclusive right” for a limited time to the fruits of their creative labors—a type of property right called a copyright.3
Along with other political and legal innovations wrought in the Founding Era, such as the security provided to free speech under the First Amendment, the creative industries flourished and eventually became the global economic powerhouse they are today. In the digital and mobile revolution, with easy, ubiquitous access to a myriad of different online platforms, Americans have more access than ever before to new (and even past) television shows, movies, and other creative works.
But the story does not end here with the classic, fairy-tale ending. The ease of creation, commercial distribution, and access of new artistic and cultural works has been accompanied by rampant, global-scale online theft of these creative works. Large-scale, commercial piracy websites engage in massive copyright infringement. In just the film and television sectors of the creative industries, there were more than 17 billion visits to piracy sites in the U.S. in 2018—more than any other country in the world (including China and Russia).4
This number is certainly higher today. This threatens to hamper the virtuous cycle in the creative industries of investment and commercial development of new creative products and services that results in economic growth and new jobs—the hallmark of American creative industries for two centuries.
It is time for Congress to update the copyright laws to the new technological capabilities of the internet in the third decade of the 21st century. Many democratic allies of the U.S., such as Australia, India, South Korea, the United Kingdom, and others, have enacted narrow, targeted “site-blocking” laws.5
These laws set forth procedures for their courts or agencies to block access to piracy websites for internet users residing within a country’s legal borders. Studies have shown that, when these laws are enacted, user traffic to piracy websites and platforms that have been blocked drops between 80 percent and 90 percent.6
Site-blocking orders have been issued in these countries for years without either cries from legitimate commercial operators of websites that they have been wrongly blocked or any evidence that blocking traffic to piracy websites has “broken the internet,” rhetoric pushed more than a decade ago by some internet companies like Google and by policy organizations and professors supported by these companies.7
To the contrary, where site-blocking laws exist, such as in Australia, South Korea, and the United Kingdom, they have properly protected creators’ property rights, as well as strengthened free markets by protecting legitimate digital services from unfair and illicit competition by piracy websites engaging in large-scale infringement.
Congress should enact site-blocking legislation to better secure the rights of American creators and companies against pirates who exploit the global reach of the internet to steal the fruits of their productive labors. This Legal Memorandum explains how and why it is long past time for the U.S. to join with its many democratic allies with market economies in securing these same fundamental property rights. First, it sets forth the first principles in both law and economics that should frame all policy and legal discussions about intellectual property rights like copyright. It details why the Framers authorized Congress in the Constitution to protect copyright, and how the protection of reliable and effective property rights in creative works has driven the thriving creative industries in the U.S. Second, it briefly explains how and why the U.S. has become an outlier in securing copyrights in the modern internet. Third, it explains what site blocking is and how it is implemented. Last, it responds to some criticisms that claim that site blocking poses a threat to free speech or violates due process.