In April, a group of video distributors were granted permanent injunctions against the operators of three pirate services: Israel.tv, Israeli.tv, and Sdarot.tv. They had been rebroadcasting and streaming registered and unregistered works, individual seasons, episodes and sports events to consumers in the United States; which were authorized for distribution only within Israel.
On April 24th, a final judgment awarded statutory damages of $150,000 for each of the 51 registered programs, for a total of $7,650,000 – plus attorney’s fees and costs, for each. The cases are 1:21-cv-11024, -11025, and -11026 filed with the US District Court for the Southern District of New York.
But that was not the end of the story, which will be updated as it progresses.
SOPA and PIPA redux?
In addition to the fines, the judgments ordered that any third parties providing services used in connection with the defendant’s operations “… block access to the Website at any domain address known today…by any technological means available on the ISPs’ systems,” and that the blocks apply to any changes in the future. Exhibit C of the order identified 14 companies, including Google, Facebook, Cloudflare, Visa, Mastercard, Roku, Apple App Store, Amazon.com App Store, and others.
Plaintiffs ask the Court for a stay
On May 24, the plaintiffs reversed course and requested a stay of enforcement, saying that “it might not be necessary to enforce the Orders against the ISPs.”
A letter from the attorneys for the plaintiffs said that the “Plaintiffs are engaging diligently in efforts to enforce the Orders against the non-party registrars and registries set forth in Exhibit A and the service providers set forth in Exhibit C to each of the Orders. Plaintiffs hope that because of such efforts, Defendants’ streaming of pirated content that infringes upon Plaintiffs’ copyrights will be limited.”
Cloudflare caught trafficking
Attorneys for the plaintiff had submitted letters to Cloudflare during May advising them of failing to comply with the Court’s April 27 blocking order. On June 7, the plaintiffs submitted a Memorandum of Law in support of a motion for contempt against Cloudflare.
Cloudflare responded with a June 15 filing, declaring itself to be a ‘non-party’ to the matter and calling the Plaintiffs’ Motion “… a blatant attempt at a power grab.” Cloudflare said that it “does not, and cannot, control the endpoints of customers using these pass-through service sin particular, among other things, it cannot remove content from these customers’ websites;” finding the injunction “puzzling.” Further, Cloudflare said that “the Website has not used Cloudflare’s services since at least May 26, 2022. There is no further action Cloudflare can take: it cannot withdraw or decline to provide services that Israel.tv is not using.”
Google weighs in
On June 16, Google submitted a letter to “inform the Court that (it is) meeting and conferring with Plaintiffs’ counsel in advance of a potential motion to modify or dissolve the injunctions,” and “concurs with the concerns raised by Cloudflare.”
Google also wants to make sure that the case resolves with minimum impact to Google, saying that “Google is not in active concert or participation with the activities of the Defendants, and for that reason cannot properly be bound by an injunction in these cases. At the same time, however, Google does not want its services to be used to violate an injunction. Google is discussing with Plaintiffs what voluntary action Google is willing to take to assist in effectuating this Court’s remedies against the Defendants, while taking into account Google’s concerns regarding both the proper scope of injunctive relief in this matter and the parties against whom such relief may be granted.”
Also on June 16, CCITT (the Computer & Communications Industry Association) and EFF (The Electronic Frontier Foundation) filed a friend-of-the-court (amicus) brief in support of Cloudflare as a ‘non party,’ saying that they were troubled “by the possible consequences that a finding of contempt, and any enforcement of the underlying injunction against unaffiliated non-party online service providers, will have on the due process rights of those service providers, and on the free speech and due process rights of Internet users generally. …
“(Plaintiffs’) attempt to enforce it through contempt sanctions, run contrary to laws that protect the rights of non-parties. In the context of a copyright infringement suit against the operators of a website, proceedings against unaffiliated non-party service providers present a particular danger of blocking lawful and constitutionally protected speech, and of imposing unfair and unnecessary compliance burdens.”
Why it matters
US plaintiffs in cases such as these have been reluctant to pursue such universal site blocking because of two 2011 proposals to incorporate site blocking into US copyright law: the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA). These were highly controversial and ultimately abandoned.
That elevates these cases to be high-stakes matters. This story will be updated as it progresses.