Site Blocking and Incentive-Compatible Solutions to Illicit Online Activity
Executive Summary
Online file sharing has been a double-edged sword for the creative arts, enabling unprecedented access to content even as it has also introduced significant challenges for copyright enforcement. Napster revolutionized peer-to-peer file sharing, but courts ruled that its centralized servers facilitated copyright infringement. In its place came decentralized networks like Kazaa and BitTorrent, which complicated enforcement efforts and enabled users to evade liability. Meanwhile, The Pirate Bay continues to operate outside reach of U.S. authorities, navigating legal and diplomatic hurdles that persist despite intermittent crackdowns.
These developments highlight the limitations of traditional enforcement strategies, such as the notice-and-takedown provisions introduced by the Digital Millennium Copyright Act (DMCA). Such reactive provisions have proven ineffective in combatting mass reuploads and decentralized platforms domiciled in foreign jurisdictions. The “whack-a-mole” nature of enforcement underscores the need for a more sustainable approach.
Legal streaming services like Netflix and Spotify offer a market-based alternative to the pirates, providing consumers with accessible and affordable content and significantly reducing the incentives to seek illegal alternatives. These platforms demonstrate the power of addressing consumer demand directly, fostering a more cooperative environment between rightsholders and legitimate providers. Alas, a significant amount of piracy persists.
Evidence shows that well-crafted site-blocking regimes can dramatically reduce the amount of pirated content consumed. Implemented in more than 50 countries,[1] mechanisms to block offending domain-name systems (DNS) or internet-protocol (IP) addresses or to filter troublesome uniform-resource-locator (URL) addresses have reduced piracy by up to 80% when they are paired with complementary measures like search-engine delisting. Challenges remain, however, as tech-savvy users can circumvent these blocks through virtual private networks (VPNs) and alternative DNS providers.
Viewed through a law & economics lens, site blocking can represent a socially efficient solution, if implemented with sufficient legal-liability protections for intermediaries. Cost sharing among intermediaries—such as internet service providers (ISPs), content delivery networks (CDN), search engines, and rightsholders—can align incentives, making it a more cost-effective way to reduce piracy while preserving market efficiencies. Toward this end, appropriately narrow and transparent implementation of no-fault site-blocking frameworks can effectively deter piracy while minimizing the risk of overreach.
Crucially, such site-blocking orders should operate on a no-fault basis, so that intermediaries like ISPs and CDNs are not held responsible for the underlying infringement. Instead, intermediaries’ roles should be limited to technical compliance with clearly defined judicial directives, ensuring minimal disruption and cost. Moreover, any new site-blocking regime should also immunize intermediaries from legal suit with respect to how they comply—i.e., the regime should introduce no new liability, and instead represent an absolute liability shield so long as the intermediary makes some effort to comply with a court order.
Rather than viewing intermediaries as bearing new burdens, no-fault site blocking represents a pragmatic recognition that addressing large-scale copyright infringement requires coordinated action across the digital ecosystem. Just as property owners, security companies, and law enforcement all play roles in preventing theft, effective copyright protection benefits from contributions by different stakeholders according to their capabilities. This approach acknowledges that, while rightsholders bear primary responsibility for protecting their content, the technical architecture of the internet means that intermediaries are often well-positioned to implement certain protective measures efficiently.
The ongoing interplay among innovation, law, and market forces suggests that effective copyright enforcement requires a nuanced approach that aligns incentives and embraces technological progress. The limitations of traditional U.S. enforcement, when contrasted with the global success of site blocking, suggest the need for reform in the United States. Adopting incentive-compatible site-blocking laws, inspired by models from abroad, could address enforcement gaps while respecting constitutional rights. Such measures would balance enforcement with the protection of free expression; foster better coordination among stakeholders; and create a sustainable framework to address piracy in the digital age.
I. Introduction
The advent of the commercial internet brought about unprecedented opportunities for the dissemination of information and culture. It also, however, contributed significant new challenges to the legal frameworks designed to protect intellectual property. The history of illegal online file sharing is a testament to the ongoing dance between technological innovation and the law’s attempts to keep pace.
The consequences have been extensive. Recent estimates suggest that, in the United States alone, there are more than 26 billion illicit viewings of U.S.-produced movies and 127 billion illicit viewings of U.S.-produced television episodes each year, costing U.S. rightsholders between $30 and $70 billion annually.[2] This digital upheaval set the stage for the emergence of groundbreaking peer-to-peer platforms like Napster, which not only revolutionized how content was consumed but also magnified the tension between technological advancement and copyright enforcement.
A. The Peer-to-Peer File Sharing Revolution
In 1999, Shawn Fanning and Sean Parker unveiled Napster, a peer-to-peer (P2P) file-sharing service that fundamentally changed how users could access music.[3] Napster’s technology allowed users to share MP3 files directly, bypassing traditional distribution channels. The simplicity and efficiency of Napster’s platform led to a rapid surge in users eager to explore this new frontier of free music access.[4]
But when people obtained an MP3 via Napster, copyright holders were not compensated.[5] If left unchecked, such illicit file sharing would have a devastating impact on copyright holders’ revenues, thereby undermining artists’ incentives to produce new music.[6] The ensuing legal battle culminated in a 2001 decision by the 9th U.S. Circuit Court of Appeals upholding the copyright holders’ claim that Napster’s centralized servers were facilitating theft.[7] As a result, Napster was forced to shut down.
B. Beyond Section 512
A central question in Napster was the applicability of the Digital Millennium Copyright Act (DMCA), particularly the law’s Section 512. The text of that section provides a “safe harbor” protecting service providers from liability for their users’ actions, provided they met certain conditions, such as promptly removing infringing content upon notification.[8] Napster’s centralized indexing system meant it could exercise control over the shared content, which the courts interpreted as disqualifying it from safe-harbor protections. This legal interpretation set a precedent for how P2P services would be treated under the DMCA.
1. Gnutella, Kazaa, and the shift to decentralization
Napster’s shutdown did not quash the public’s appetite for digital content. Instead, it spurred the development of more sophisticated P2P networks like Gnutella and Kazaa. These platforms embraced decentralization, eliminating centralized servers and making it more challenging for legal authorities to target a single point of failure. Kazaa, in particular, became a global phenomenon, as it enabled users to share not just music, but also videos and software. The platform’s decentralized nature complicated the application of Section 512, as there was no central authority controlling the network.
Without the ability to issue notice-and-takedown requests to network operators, the entertainment industry shifted its strategy, focusing on litigation against individual users and the developers of the P2P software.[9] These approaches, however, often spurred public-relations backlashes, as well as questions about the proportionality of such legal actions.[10]
2. The BitTorrent protocol and international jurisdictional challenges
In 2001, Bram Cohen introduced the BitTorrent protocol, which revolutionized file sharing by allowing users to download pieces of a file from multiple sources simultaneously.[11] This innovation significantly increased download speeds for large files, such as movies and software. Websites like The Pirate Bay—founded in Sweden in 2003—became central hubs for torrent files linked to copyrighted content.[12] The Pirate Bay’s operators were unabashed in their defiance of copyright laws, arguing for the “free exchange” of information—with the focus on “free.”
The international nature of BitTorrent sites posed and continues to pose significant challenges for enforcement. The Pirate Bay, domiciled outside the U.S., was beyond the immediate reach of American legal authorities. Attempts to apply U.S. copyright law extraterritorially were met with legal and diplomatic hurdles. Even when Swedish authorities took action—such as the 2006 raid on The Pirate Bay’s servers and the 2009 conviction of its founders—the site proved resilient, reappearing through mirror sites and shifting domain names.[13]
3. Cyberlockers and the Megaupload shutdown
As P2P networks faced increased scrutiny, file sharing evolved once again with the rise of cyberlockers such as Megaupload, founded by Kim Dotcom in 2005.[14] These services allowed users to upload files to centralized servers and share links for direct downloads, blending legitimate uses with widespread piracy. The U.S. Justice Department’s (DOJ) shutdown of Megaupload in 2012 and the arrest of Kim Dotcom in New Zealand marked a significant escalation in enforcement efforts, including international cooperation.[15]
C. Streaming: Licit and Illicit
The development of streaming services was an important part of the response to the threat of illegal file sharing. Initially limited to the delivery of relatively low-quality music, increases in bandwidth, improved compression, and other innovations (such as content-delivery networks, which have reduced latency) have made streaming a highly effective way to consume media content of all kinds.[16] These innovations dramatically reduced both the average and marginal cost to distribute digital content, enabling economies of scale that have benefitted both providers and consumers.
Perhaps most importantly, legal streaming services significantly reduce transaction costs associated with accessing content. Consumers no longer need to purchase individual songs or movies; instead, they pay a subscription fee for access to extensive libraries. By enabling consumers to access a wide array of content for a relatively low monthly subscription fee, streaming services also reduced the incentive for consumers to seek out illegal content. This has enhanced overall market efficiency and consumer welfare.
Legal streaming services also protect consumers from the significant security risks associated with illegal content sources. Users of peer-to-peer networks and illicit streaming sites frequently encounter malware, phishing schemes, and other cybersecurity threats that can compromise personal data, damage devices, and lead to identity theft or financial fraud.[17] These hidden costs introduce substantial additional transaction costs for users of pirated content, further strengthening the value proposition of legitimate streaming platforms that provide safe, reliable access without exposing consumers to these dangers.
Streaming platforms have also introduced innovative business models, including free streaming services supported by artists seeking to promote their content.[18] Other content streamers offer “freemium” services, where basic services are free with advertisements, and premium services are available via subscription. Finally, other steaming services utilize a tiered subscription model, which may include a lower-priced tier partly supported by advertising. Competition in this space creates incentives to continually improve service quality and content offerings, which benefits consumers. By offering products at differentiated price points, these services have further reduced the incentives for consumers to seek out illegal content.
From a legal perspective, the development of these services hinges on the negotiation and enforcement of intellectual-property (IP) rights. Music-streaming services like Spotify and video-streaming services like Netflix operate under licensing agreements with content creators and rightsholders, ensuring that creators are compensated. This arrangement aligns with the economic incentive structures intended by IP laws—to encourage creativity by granting exclusive rights that can be economically exploited. The rise of streaming services demonstrates how improving convenience, and accessibility enables content distribution to defeat piracy by drawing consumers to legitimate content.[19]
One way that copyright owners maximize revenue is by licensing content on a geographical basis, thereby benefitting from geographical price differentiation due to differences in willingness to pay between markets. Paradoxically, however, geographical limits on content licensing have contributed to the emergence and proliferation of illegal streaming services. Websites and platforms like Putlocker, Popcorn Time, and unauthorized IPTV services provide access to copyrighted content without proper licensing.
Illegal streaming undermines the economic incentives for content creation by depriving rightsholders of revenue. This loss can lead to reduced investment in new content, harming both creators and consumers in the long run. Additionally, it creates unfair competition for legal providers, who incur the costs of licensing and compliance.
D. Incentive-Compatible Regulation
Traditional approaches to digital regulation in the copyright space have relied primarily on prohibitory measures and punitive enforcement mechanisms—regulatory “sticks” designed to deter illegal behavior.[20] For the most severe infringing conduct, there are criminal sanctions that target online criminals.[21] These criminal frameworks are supplemented by civil liability regimes that enable rightsholders to pursue damages against infringers or allow regulators to impose fines on illegal operators.[22]
The predominance of these measures reflects an enforcement-first mindset that may overlook opportunities for more efficient and effective solutions.[23] As is evidenced in the case of illicit file sharing, these traditional enforcement approaches face significant limitations. Jurisdictional constraints present the primary challenge, as illegal operators deliberately locate in jurisdictions with weak enforcement regimes.[24] Even when jurisdiction can be established, sophisticated actors regularly develop new methods to evade blocking and monitoring efforts, creating a perpetual technological arms race between regulators and illegal operators.[25] The resource-intensive nature of investigating and prosecuting illegal operators, combined with the anonymous nature of many digital transactions, further complicates enforcement efforts.[26]
Market dynamics pose additional challenges to prohibition-focused approaches. Pure prohibition does not address the underlying consumer demand that drives illegal markets, while rigid regulatory frameworks often struggle to keep pace with rapidly evolving digital technologies.[27] Perhaps most significantly, the compliance costs that legitimate operators face can create pricing and convenience advantages for illegal alternatives, inadvertently strengthening the competitive position of illegal operators.[28]
These enforcement challenges contribute to several regulatory inefficiencies. The heavy reliance on enforcement diverts public resources from other potential approaches, often with diminishing returns beyond a certain point of effort.[29] Multiple enforcement agencies and jurisdictions frequently struggle to coordinate effectively, while success metrics can focus on enforcement actions, rather than actual market outcomes.
Stringent prohibitions may also inadvertently segment markets, making illegal alternatives more attractive to certain consumer segments.[30] Compliance requirements can impede legitimate operators from developing new products or services, while driving activity underground may expose consumers to greater risks from unregulated illegal operators.[31] Over time, the limited success of prohibition efforts can gradually erode public and institutional support for enforcement.
These limitations suggest the need to complement traditional enforcement with strategies that leverage market forces and address consumer incentives. Such approaches would create conditions under which legitimate operators can effectively compete with illegal alternatives, while also providing businesses with the tools and frameworks to protect their interests. The optimal regulatory framework would balance enforcement efforts with other approaches, based on their relative effectiveness. These “carrot” approaches recognize that sustainable regulation in digital markets requires ensuring legitimate businesses can effectively compete against illegal operators.[32]
Market-based regulatory strategies can complement enforcement efforts in several crucial ways. First, they acknowledge the reality that consumer choice in digital markets is heavily influenced by convenience, price, and accessibility.[33] When regulatory frameworks inadvertently disadvantage legitimate businesses along these dimensions, they may unintentionally drive consumers toward illegal alternatives, regardless of enforcement efforts.[34]
A market-oriented regulatory approach also recognizes the importance of private ordering. Rather than relying solely on government enforcement, this framework empowers legitimate businesses to protect their interests through market mechanisms and technological tools.[35] The potential effectiveness of content-delivery networks in preventing certain forms of piracy, for instance, illustrates how private-sector innovation can complement traditional enforcement approaches.[36]
The effectiveness of such “carrot” approaches depends on careful attention to market dynamics and consumer behavior. Regulatory interventions must be designed with a sophisticated understanding of how they will affect competitive conditions in digital markets. This requires moving beyond simple prohibitions to consider how regulatory frameworks influence the relative attractiveness of legal and illegal options. In broad terms, such incentive-compatible regulation can take two forms: purely market-based solutions and techno-legal solutions.
1. Market solutions and market-compatible solutions
To the extent that illicit streaming services exist due to unmet demand in jurisdictions where copyright holders have not licensed content to a legal streaming service, the solution may seem relatively straightforward: provide licenses that are less geographically limited.[37] Unfortunately, this assumes away not only copyright holders’ incentives to maximize revenue through differential pricing but also the complex and highly varied nature of copyright law across jurisdictions. While it could certainly make sense to encourage the development of broader geographical licenses, they are unlikely to produce a panacea any time soon.
Another option is to enforce copyright law against illegal streaming services. This, however, presents challenges similar to those discussed in relation to P2P services. The global and decentralized nature of the internet allows these services to operate across jurisdictions that lack stringent IP enforcement. Unlike downloads, streaming usually does not leave users with a copy of the file, thus creating ambiguities in the applicability of existing laws in some jurisdictions. Even where feasible, legal actions are reactive, costly and typically of limited effectiveness, due to the ease with which these services can rebrand or relocate.
In response, rightsholders and governments have explored technological measures—such as digital rights management (DRM) and network-level interventions such as site blocking. These measures are, however, subject to criticism regarding their effectiveness, potential overreach, and unintended consequences on internet freedom and privacy. This paper seeks to propose a measured approach that would properly align incentives, acknowledging the potential advantages of interventions like site blocking while emphasizing the importance of ensuring that such interventions do not over-reach.
E. Summary
From a law & economics perspective, the development of legal streaming services represents a market adaptation to consumer demand facilitated by technological innovation and supported by the frameworks of intellectual-property law. These services enhance welfare by reducing transaction costs and providing value through legal access to content. Conversely, illegal streaming services highlight the challenges creators face in an age when perfect digital copies can be distributed from jurisdictions where they are not easily protected.
Addressing the issue of illegal streaming requires a multifaceted approach, which this brief seeks to explore in more detail. The next section begins with a discussion of techno-legal solutions, including the implementation of site-blocking regimes, designed to disrupt access to illicit streaming platforms. The brief will then evaluate market-driven strategies, emphasizing the role of legal streaming services in reducing consumer demand for pirated content. By combining technological enforcement mechanisms with incentive-compatible regulations, policymakers can craft a comprehensive framework that mitigates the harms of piracy, while fostering innovation and protecting fundamental rights.
II. Stopping the Illegal Streamers: From Notice-and-Takedown to Site Blocking
Nearly three decades after the passage of DMCA, online piracy of copyrighted works still causes immense losses to creators. As noted in the introduction, U.S. consumers watch tens of billions of illegal video streams each year, valued upward of $30 billion.[38] The traditional notice-and-takedown approach embodied in Section 512 of the DMCA seems incapable of addressing this scale of infringement. Faced with similar threats, many other countries have instead adopted website blocking as an enforcement tool.
This section considers ways that the law might be improved domestically and internationally to address the threat of illegal streaming services. It begins with a deeper dive into the status quo, looking in particular at the role played by Section 512 of the DMCA. This is followed by a description of site blocking and its application and effect in other jurisdictions.
A. Section 512 of the DMCA
Section 512 has been central in shaping the legal landscape of online content sharing in the United States. As noted above, it provides ISPs with immunity from copyright-infringement claims so long as they comply with the law’s specific requirements, such as implementing a notice-and-takedown system. The provision has proven to be both a shield for legitimate platforms and a sword wielded against infringing sites. For platforms like YouTube, Facebook, and X.com, compliance with Section 512 has been critical in managing user-generated content while avoiding liability. These platforms have therefore invested heavily in systems to detect and remove infringing material.
But whether by design or by court interpretation, Section 512’s notice-and-takedown requirement is reactive and often fails to prevent rapid reuploads of infringing content. Enacted in 1998, the DMCA was designed for an internet dominated by static web pages and slow, centralized file-sharing systems. It has struggled to address the rise of decentralized piracy networks, illegal streaming platforms, and automated content-reupload tools.
Moreover, for sites domiciled outside the United States, Section 512 offers little leverage. Without U.S. jurisdiction, foreign sites have little incentive to comply with DMCA takedown notices, rendering the provision ineffective in those contexts. This has led rightsholders and governments to explore alternative strategies, such as site blocking.
B. Site Blocking
“Site blocking” refers to the practice of imposing technological restrictions on access to websites and apps that exclusively or predominantly host infringing content. It represents a shift in legal strategy from trying to remove individual instances of infringing content to prevent users from accessing sites dedicated to infringement. This approach recognizes that the “whack-a-mole” problem of endless takedown notices cannot effectively combat determined bad actors who simply repost content or shift to new domains. Unlike static takedown notices, dynamic site blocking offers a more agile approach, capable of evolving with the tactics of infringers.
As we discuss below, of particular interest is “no-fault” site blocking. Such regimes rely on judicial orders compelling intermediaries to disable access to infringing websites without attributing liability to the intermediaries themselves and, crucially, with important immunities provided to intermediaries who comply. To effectuate site blocking, rightsholders must demonstrate clear infringement as a predominant function of a site, after which intermediaries can implement technical blocks at minimal cost.
More than 50 countries—including Denmark, Finland, France, India, and the United Kingdom—have enacted site-blocking provisions that direct ISPs to disable access to websites that predominantly promote copyright infringement.[39] The following sections examine how different blocking mechanisms create and rely upon aligned incentives among various stakeholders; the evidence from international implementations; and considerations for potential adoption in the U.S. legal framework.
1. Mechanisms
Site blocking’s effectiveness depends heavily on both the technical mechanisms employed and how those mechanisms align various stakeholders’ incentives. Differing blocking approaches create distinct costs, benefits, and circumvention risks that affect both implementation decisions and stakeholder cooperation.
DNS blocking represents the most widely implemented form of site blocking, due to its relatively low cost and straightforward implementation. When a court orders DNS blocking, ISPs must configure their DNS servers to stop resolving the domain names of infringing websites to their corresponding IP addresses.[40] For example, if a user attempts to visit “illegalcontent.com,” the ISP’s DNS server will refuse to translate that domain name into the numerical IP address that would allow the user’s browser to connect to the website.
The key advantage of DNS blocking is its low implementation cost for ISPs, requiring only simple modifications to existing DNS infrastructure. DNS blocking can, however, be circumvented relatively easily by users who switch to alternative DNS providers or use VPNs.[41] Despite this limitation, DNS blocking remains effective at reducing casual piracy.[42] IP blocking operates in a similar manner by preventing users from connecting to specific IP addresses associated with infringing websites.
URL blocking and deep packet inspection (DPI) represent more sophisticated approaches to site blocking. URL blocking operates at a granular level by examining the specific web addresses that users attempt to access, allowing targeted blocking of individual pages, while leaving legitimate content accessible.[43] DPI goes further by examining the actual content of internet traffic, enabling highly precise blocking based on the material being transmitted.[44] Both methods require ISPs to make substantial infrastructure investments, with DPI being particularly expensive due to the need for specialized equipment. The precision these methods offers does, however, offer better incentives for compliance from both ISPs and legitimate web platforms by minimizing collateral damage to innocent content. On the other hand, DPI raises additional privacy concerns that must be balanced against its effectiveness.
Combining multiple blocking mechanisms produces the strongest results. For example, where site blocking has been combined with search-engine delisting, traffic to piracy sites dropped by 1.5 times more than with ISP-level blocking alone.[45] This suggests that a layered approach that aligns incentives across multiple stakeholders—ISPs, search engines, and hosting providers—is most effective at sustainably reducing piracy.
The choice of blocking mechanism fundamentally shapes the incentives for compliance and enforcement. Less expensive mechanisms like DNS blocking face minimal resistance from ISPs, but require frequent updates as infringers adapt. More sophisticated approaches like URL blocking and DPI create stronger incentives for careful targeting by rightsholders but face greater opposition from ISPs, who have expressed concerns about implementation costs, as well as from civil-rights advocates concerned with privacy and freedom of expression.
A growing number of courts worldwide have adopted “dynamic” site-blocking approaches that allow for rapid adaptation of blocking orders using different techniques without requiring entirely new legal proceedings. These dynamic injunctions enable “the prompt addition of new domain names, IP addresses, and/or URLs to an existing site-blocking order – and without filing a new lawsuit or appearing again before a court.”[46] This approach recognizes the reality that pirate sites frequently shift domains and IP addresses to evade enforcement.
For example, in Singapore’s influential Disney Enterprises v. M1 Limited decision, the High Court approved dynamic injunctions after noting how infringing online locations had already changed domain names and established mirror sites, concluding that “without a continuing obligation to block additional domain names, URLs and/or IP addresses upon being informed of such sites, it is unlikely that there would be effective disabling of access.”[47] Similar precedents have been established in the UK and, very recently, in Canada.[48]
Courts have generally left technical implementation details to ISPs, while establishing clear procedural frameworks—such as requiring written notice identifying new domains to be blocked, allowing ISPs opportunities to object, and mandating good-faith declarations that new sites are actually providing access to previously blocked content.[49] This balanced approach enables rapid response to evasion attempts while maintaining appropriate oversight and safeguards.
2. Implementation
The development of site-blocking regimes across jurisdictions demonstrates both the growing acceptance of this enforcement tool and the emergence of increasingly sophisticated frameworks for its implementation. As of 2024, more than 35 jurisdictions had implemented site blocking through either judicial or administrative mechanisms.[50]
The European Union laid much of the groundwork for modern site blocking through Article 8(3) of the 2001 Information Society Directive (InfoSoc Directive), which required member states to ensure rightsholders can obtain injunctions against intermediaries whose services are used for infringement.[51]
The UK incorporated the InfoSoc Directive requirement in a 2003 amendment to the Copyright, Designs and Patents Act.[52] In the 2012 case Twentieth Century Fox v. British Telecommunications, the High Court compelled British Telecommunications (BT), one of the UK’s largest ISPs, to block access to Newzbin2, a site infamous for distributing pirated movies and television shows.[53] This was followed in 2013 by Football Association Premier League Ltd v. British Sky Broadcasting Ltd., which required the six primary UK ISPs to block streaming sites offering unauthorized access to live sports.[54] Together, these cases have effectively imposed dynamic site blocking on all UK ISPs, meaning that rightsholders are not required “to return to court for an order in respect of every single IP address or URL” used by an infringing party.[55]
In Germany, courts initially developed site-blocking jurisprudence without specific statutory authorization, relying instead on German civil law’s secondary-liability doctrine.[56] Germany’s site-blocking system, managed by the Clearing House for Copyright on the Internet (CUII), subsequently developed a carefully structured legislative approach to combat online harms through industry cooperation, subject to the purview of a federal regulator.[57] Rather than rely on court-ordered blocks, the CUII facilitates a partnership between rightsholders and ISPs, streamlining the blocking process while maintaining checks and balances.[58]
In the German system, a three-tiered structure—comprising a steering committee, an administrative office, and a review committee—seeks to ensure accountability and consistency.[59] Every blocking recommendation undergoes a thorough review process and requires unanimous approval by the review committee and compliance verification by the Federal Network Agency (BNetzA).[60] This model combines speed with procedural safeguards. It also includes deliberate delays to prevent domain recycling, ensuring previously infringing domains are not prematurely unblocked.[61] While the system appears to be effective, it is one that is very much rooted in Germany’s constitutional framework and may not be readily transposed to common-law or even other civil-law systems.
Australia has developed one of the most comprehensive statutory frameworks for site blocking. The country’s Copyright Act empowers courts to require ISPs to take “reasonable steps” to disable access to online locations whose primary purpose or effect is infringing copyright.[62] The Australian system has evolved significantly since its 2015 implementation, with a 2018 amendment explicitly allowing for dynamic blocking orders.[63]
India has developed a dynamic site-blocking regime through both legislative frameworks and judicial decisions. The Delhi High Court has been particularly active in crafting site-blocking jurisprudence, as evidenced in cases like UTV Software Communication Ltd. v. 1337X.TO. Indian courts have established a qualitative multifactor analysis to determine whether a given site is a “rogue website” that should be subject to blocking orders.[64] Indian courts have ordered ISPs to block pirate websites to protect new releases of Indian films, with the Delhi High Court routinely granting blocking orders against dozens of websites. For example, in 2019 alone, the Delhi High Court ordered the blocking of 30 torrent sites.[65]
3. Effectiveness
Empirical evaluations of the international experience with site blocking suggests that it can be effective. Studies show that court-ordered site blocking can reduce traffic to piracy sites by 70% on average, and by as much as 80-90% in some jurisdictions.[66] In Denmark, DNS blocking orders led to an average 44% decrease in Danish IP traffic to piracy sites.[67] When combined with search-engine delisting, the Motion Picture Association reports that site blocking results in a “1.5 times larger traffic decline” compared to ISP-level blocking alone.[68]
The effectiveness of site blocking, however, varies significantly across countries, due to a combination of legal frameworks, technological capabilities, and the level of cooperation among stakeholders. In jurisdictions where site blocking has been more successful, several factors stand out. They are often countries with clear and comprehensive legislative frameworks that empower courts or regulatory agencies to issue site-blocking orders with minimal procedural delays. For instance, dynamic injunctions in countries like the UK and Australia allow for rapid updates to blocking orders, enabling rightsholders and ISPs to respond effectively to infringing sites’ evasion tactics.
Also, effective site-blocking regimes often rely on a collaborative approach among governments, rightsholders, and intermediaries like ISPs and search engines. Germany’s CUII exemplifies this approach, with its structured partnership ensuring accountability and swift implementation of blocking measures, while maintaining safeguards against overreach.
Effective technological infrastructure and strong enforcement capacity are also crucial to the success of site-blocking efforts. For example, using layered enforcement strategies—such as integrating DNS blocking, URL filtering, CDN blocks, and search-engine delisting—likely yields more substantial reductions in piracy, as the combination of these techniques significantly raises the difficulty of circumvention. Conversely, fragmented legal frameworks, inadequate technological capabilities, or poor coordination among stakeholders all likely create enforcement gaps that are easily exploited by infringers.
It also matters how site-blocking technologies are implemented, as overly broad blocking regimes may infringe users’ rights. These variations underscore the need to align the legal, technological, and collaborative elements effectively. Drawing insights from these experiences can help policymakers to craft a balanced framework that effectively reduces piracy while promoting innovation and safeguarding user rights.
C. The Law & Economics of Site Blocking
Viewed through the lens of law & economics, the introduction of site-blocking injunctions and other intermediary obligations can be understood as reallocating property rights (in the loose sense of “entitlements”) away from infringers and toward copyright owners—ultimately by changing which party (or parties) must bear the cost of preventing or remedying copyright infringement.
1. Coase, social costs, and the allocation of rights
The Nobel laureate economist Ronald Coase noted that, where property rights are well-defined and transaction costs are zero, parties will bargain to an efficient outcome, regardless of how rights are initially allocated.[69] But as Coase also noted (indeed, it was the main point of his article), in the real world, transaction costs are never zero and are often significant. In the case of copyrighted material, transactions costs would include the cost and difficulty of identifying infringers, the costs of negotiating with potential infringers, and the costs of enforcing any legal agreement. As a result, the initial allocation of rights and the mechanisms available for enforcement are highly material.
One way to view the massive scale of online digital piracy is as a nonconsensual transfer to infringing users of a significant proportion of the de-facto rights to content. In other words, infringers enjoy the benefit (use of copyrighted material) without bearing the associated costs (royalties or permission). This is due to a combination of factors.
The first is high enforcement costs, where copyright owners have to police individual infringers (or individual pirate sites) directly, which is extremely costly and logistically cumbersome. The problem of diffuse infringers is a second factor, where infringers are numerous and often anonymous or scattered across various jurisdictions. Finally, the limited leverage over intermediaries like ISPs, search engines, and web hosts—as well as the high costs of case-by-case litigation—make it difficult for content owners to enforce their rights. Intermediaries typically remove content upon notice (e.g., DMCA takedowns in the United States), but there is no broad obligation proactively and dynamically to block infringing sites.
2. Removing legal friction through no-fault injunctions
No-fault site-blocking injunctions offer a solution to this problem by creating a framework that removes the friction that placing liability on intermediaries would otherwise introduce. Under this approach, upon receiving a court order, intermediaries would take steps to prevent their users from accessing infringing content. These no-fault injunctions fundamentally differ from traditional liability-based models, as they:
- Leverage efficient implementation capabilities: Intermediaries can often implement blocking measures at the lowest total social cost.[70] Because intermediaries have the technical infrastructure to block access to infringing sites or remove them from search results and other relevant lists (such as DNS), they can help reduce infringement with greater efficiency than if each copyright owner had to pursue individual end-users through separate legal actions.
- Restore rightsholder control without creating new liability: This framework effectively places the right to exclude back in the copyright owners’ hands without making intermediaries liable for the infringing content itself. When a court determines that content is infringing, rightsholders gain a practical enforcement mechanism through the intermediaries, who serve as technical facilitators rather than liable parties.
- Create technical barriers for infringers: Under the current system, infringers can harm copyright holders with little practical consequence. Site blocking raises the technical hurdles infringers must overcome, as they need to invest in circumvention tools and find ways to operate despite being blocked by ISPs and delisted by search engines.
Further, under no-fault injunction frameworks, intermediaries’ technical compliance costs are minimal, often limited to standard network management (e.g., DNS or IP filtering). Jurisdictions like Australia have explicitly required rightsholders to cover reasonable implementation costs, alleviating ISPs from bearing disproportionate expenses. Additionally, because these injunctions narrowly target clearly infringing sites, ISPs incur negligible operational burdens and retain legal certainty.
In short, no-fault injunctions serve as a form of incentive-compatible regulation that better aligns stakeholders’ interests and activities without imposing new proactive policing responsibilities on intermediaries. They leverage intermediaries’ existing capabilities efficiently, thus reducing piracy without imposing significant new costs. Unlike liability-based approaches that create adversarial relationships, no-fault injunctions provide intermediaries with legal clarity and immunity, while furnishing rightsholders with effective enforcement tools.
3. Risks from overly broad liability rules
As noted, site blocking can be a useful tool to realign incentives and, in the right circumstances, facilitate efficient enforcement through those parties best positioned to implement technical measures, without requiring them to bear legal responsibility for the underlying infringement. But site blocking does also have the potential to result in harmful consequences. These can include high private costs, if intermediaries are held liable for infringing content and feel obliged to use costly and invasive technologies to identify and block such content; and high social costs, if site blocking is applied too broadly and impinges the sharing of noninfringing material. The latter would have a chilling effect on the creation of such material, perversely harming some of the creators the law is intended to benefit.
The challenge lies in properly calibrating the rules—in particular, through the use of no-fault injunctions that obviate many of these concerns—so as to preserve the incentives to create and share legitimate content. Based on the international experience, successful site-blocking frameworks must carefully define the circumstances warranting such orders; establish clear procedural requirements that make compliance straightforward for intermediaries; and provide transparency around the blocking process.
D. US Legal Framework and Reform Proposals
The international experience with site blocking suggests that the United States has an opportunity to implement incentive-compatible regulation that could reshape online copyright enforcement. As noted, the current U.S. framework fails to create proper incentives for cooperation between rightsholders and intermediaries. But for the status quo to change, it is first important to understand the barriers to such change.
1. Constitutional and procedural barriers
Section 512 of the DMCA offers a useful historical parallel for understanding the limitations of static regulatory frameworks in addressing rapidly evolving technological challenges. Section 512(j) appears to provide explicit statutory authority for site blocking, requiring service providers to “take reasonable steps specified in the order to block access, to a specific, identified, online location outside the United States.”[71] This tool has, however, largely gone unused. This gap reveals not just a legal anomaly, but a missed opportunity to align various stakeholders’ incentives in the fight against online piracy.
Why hasn’t § 512(j) been used more effectively? One reason may be that Section 512(j) requires bringing direct legal action against ISPs, necessitating a full lawsuit to determine liability for providing access to infringing content. This makes the tool fundamentally unscalable—the time, expense, and adversarial nature of litigation required to achieve even a single site block would be immense, ultimately rendering the provision impractical for addressing widespread piracy in a timely manner.
Another reason for the hesitation to pursue site blocking may stem from limitations imposed by Federal Rule of Civil Procedure 65(d)(2), which restricts preliminary injunctions to parties “in active concert” with defendants.[72] This procedural hurdle exemplifies how poorly designed regulations can impede the development of least-cost-avoider solutions.
2. Carefully crafted legislation
The experience of other jurisdictions suggests that constitutional concerns about site blocking can be addressed through careful attention to incentive structures. When blocking frameworks properly identify bad actors through clear criteria, and provide streamlined procedures for legitimate sites to challenge mistakes, they create aligned incentives that protect both intellectual property and free expression. Critically, the overwhelming experience with site blocking around the world is that it has produced little if any evidence that legitimate discourse or access to legal information has been interrupted by site-blocking measures.[73]
Reform proposals for the U.S. system should focus on creating proper incentives for all stakeholders. Such proposals could explicitly embrace no-fault injunctions modeled after international best practices, clearly delineating that intermediaries bear no additional liability beyond complying with narrowly tailored court orders. Statutory clarity on cost allocation and ISP responsibilities could ensure these measures are both effective and constitutionally sound. This would mean providing ISPs with flexibility in implementing blocking measures, while ensuring rightsholders have efficient mechanisms to identify and target truly bad actors. Drawing from successful frameworks in the UK, Germany, and Australia, reforms should establish clear criteria to identify appropriate blocking targets while maintaining procedural safeguards that give all parties confidence in the system’s fairness and effectiveness.
The framework should particularly emphasize dynamic blocking authority, which creates ongoing incentives for cooperation between rightsholders and intermediaries to address evolving evasion tactics. By allowing efficient modification of orders while maintaining appropriate oversight, dynamic blocking aligns the interests of courts, rightsholders, and intermediaries in maintaining effective enforcement over time.
Rep. Zoe Lofgren’s (D-Calif.) Foreign Anti-Digital Piracy Act (FADPA)[74] offers a legislative framework that exemplifies the principles of no-fault site blocking. The bill creates a balanced approach that respects the interests of all stakeholders, while targeting foreign piracy sites. FADPA would establish a judicial process whereby, after a court has issued an initial order, copyright owners could move for an additional order directing service providers to “take reasonable and technically feasible measures” to prevent users from accessing infringing foreign websites.[75]
Crucially, the bill contains important safeguards before such orders can be granted. Courts first have to determine that implementation would not interfere with access to noninfringing content, would not significantly burden service providers, and would not disservice the public interest.[76] Further, ISPs could be reimbursed for reasonable compliance costs (excluding items like capital expenditures).[77]
FADPA’s cornerstone is its robust immunity provisions for intermediaries. Section 8 explicitly shields compliant intermediaries from liability for any injuries alleged by foreign websites or their users resulting from good-faith implementation of blocking orders.[78] This immunity extends even if a website is later determined to have been incorrectly identified.[79] The bill also preserves existing Section 512(a) safe-harbor protections, ensuring that intermediaries don’t lose their current liability shields when implementing blocking orders.[80] Moreover, as long as intermediaries undertake minimal good-faith compliance when implementing an order, courts and rightsholders would not be able to require extensive levels of compliance, and rightsholders would not be able to pursue any direct litigation.[81]
Crucially, FADPA-style legislation should explicitly provide that an intermediary’s compliance with blocking orders cannot be used as evidence of technical capability in other proceedings. This protection would prevent the perverse outcome where cooperation with court orders becomes evidence against intermediaries in subsequent litigation. The framework should establish that blocking compliance represents a discrete judicial remedy, not an admission of broader monitoring capabilities or duties.
By providing strong liability protections, while still enabling effective enforcement against bad actors, FADPA creates a framework where intermediaries’ normal operation work in concert with the needs of rightsholders without fear of unexpected legal exposure. The bill’s emphasis on reasonable and technically feasible measures[82] acknowledges the practical limitations of blocking technologies, while still empowering courts to order effective action against piracy sites.
Some critics have raised concerns that site-blocking legislation like FADPA could lead to increased liability for intermediaries.[83] Such criticisms appear to miss the bill’s rather robust statutory immunity, which ensures that intermediaries face no additional civil or criminal exposure from complying with court-ordered blocking measures. These critics may be conflating compliance-based actions (fully protected under these frameworks) with entirely separate forms of secondary liability, such as inducement liability articulated in cases like Columbia Pictures v. Fung,[84] which leaves the door open for secondary liability under the DMCA. Inducement liability specifically addresses active promotion or intentional encouragement of infringement—conduct that is distinctly different from merely implementing technical measures ordered by a court.[85]
But the critics do have a point that’s worth bearing in mind: the immunity framework must be truly comprehensive to address the unique litigation environment in the United States. The success of site blocking in other jurisdictions provides valuable insights, but any U.S. implementation must account for the distinctive features of American legal practice. The robust plaintiffs’ bar and expansive discovery processes that characterize U.S. litigation create risks that do not exist in other systems.
For example, intermediaries face potential exposure not just from direct copyright claims, but from secondary-liability theories, class actions, and state-law claims that foreign frameworks may not address. Consequently, the immunity framework must be truly comprehensive to address this unique litigation environment. Intermediaries should, for example, be protected from negligence claims based on how they chose to implement blocking orders, provided they made good-faith efforts to comply. Without these broader protections, the adversarial nature of U.S. litigation could deter intermediary cooperation even under a no-fault framework. This is not a weakness of the American system, but rather a recognition that effective policy must be tailored to the legal environment in which it will operate.
Ultimately, regardless of the bill, reforming the U.S. approach to site blocking presents an opportunity to demonstrate how incentive-compatible regulation can effectively address online piracy, while respecting both constitutional rights and practical market realities. The success of such measures in comparable legal systems suggests that, with proper attention to incentive structures, the United States could implement an effective regime that encourages meaningful cooperation among all stakeholders in the digital ecosystem. A phased approach with clear guidelines, oversight, and a commitment to iterative improvement can bridge enforcement gaps without sacrificing fundamental freedoms.
By crafting site-blocking legislation in such a way that it encourages cooperation among stakeholders and supports legitimate markets without unduly impeding free speech, policymakers can align enforcement with broader regulatory goals.
3. Rightsholders responsibilities
Critically, effective site blocking cannot be a wholesale substitute for rightsholders’ own anti-piracy efforts. Courts should require evidence that rightsholders have invested reasonable resources in direct enforcement and technical-protection measures before granting site-blocking orders. This might include demonstrating attempts at licensing negotiations, implementation of digital-rights management where appropriate, and pursuit of direct action against clear bad actors. Site blocking works best as part of a comprehensive strategy, not as a first resort that shifts enforcement costs to intermediaries, while rightsholders remain passive.
III. Conclusions
The co-evolution of file-sharing technologies and legal responses highlight the complex interplay between innovation, law, and economics. On one hand, technological advancements have empowered consumers and challenged traditional business models. On the other, they have threatened content creators and distributors’ revenue streams, prompting such actors to take legal actions to protect their economic interests.
In the United States, Section 512 of the DMCA has been the dominant tool used to balance the interests of creators and others in the internet ecosystem, but its limitations have become increasingly evident—both domestically and in the global context. The challenges posed by infringers domiciled in jurisdictions with weak copyright protection suggest that, while international cooperation is necessary, it is likely to be insufficient.
International experience further suggests that a well-crafted site-blocking regime for other intermediaries, such as search engines, can be an effective incentive-compatible tool to reduce the social costs associated with online copyright infringement. In the current geopolitical environment, a specific focus on improved domestic mechanisms to block infringing content may represent the most constructive way forward.
This analysis focuses primarily on ISP-level blocking, but comprehensive copyright protection in the digital age requires engagement across the broader internet-infrastructure ecosystem. Future policy development should consider the roles of content delivery networks (CDNs), hosting providers, and domain registrars in supporting both legitimate content distribution and piracy operations. While ISP-level blocking represents an important first step—one that builds on existing international experience—policymakers should view it as part of a longer-term strategy that may eventually encompass other infrastructure providers as appropriate frameworks develop.
Ultimately, adopting no-fault site-blocking injunctions in the United States would represent a promising and balanced solution to online piracy. If properly implemented, these injunctions can significantly reduce infringement, provide certainty for rightsholders and intermediaries, and avoid imposing undue new liabilities or enforcement burdens on intermediaries.
It is, however, essential from both a constitutional and pragmatic perspective that such an approach is compatible with incentives, strikes the right balance toward content creators’ rights, fosters technological innovation, and protects freedom of speech, while prohibiting—as far as feasible—access to infringing content.
[1] See Contribution of Karyn A. Temple, Sharing Experiences and Best Practices on Site Blocking/No-Fault Injunctions (World Intellectual Property Organization Advisory Committee on Enforcement, WIPO/ACE/17/14, 17th Sess., Jan. 30, 2025), available at https://www.wipo.int/edocs/mdocs/enforcement/en/wipo_ace_17/wipo_ace_17_14_prov.pdf.
[2] See Kristian Stout & Geoffrey A. Manne, A Roadmap to Reform Section 512 of the Copyright Act, Int’l Ctr. L. & Econ. (Oct. 13, 2022), at 7, https://laweconcenter.org/resources/a-roadmap-to-reform-section-512-of-the-copyright-act.
[3] See Tom Lamont, Napster: The Day the Music Was Set Free, The Guardian (Feb. 23, 2013), https://www.theguardian.com/music/2013/feb/24/napster-music-free-file-sharing.
[4] See Stephen Dowling, Napster Turns 20: How It Changed the Music Industry (May 31, 2019), https://www.bbc.com/culture/article/20190531-napster-turns-20-how-it-changed-the-music-industry.
[5] See Gimme Some Music: The Place of Napster in Copyright History, Cowan Liebowitz Latman (Nov. 2000), https://www.cll.com/newsroom-publications-Gimme_Some_Music_The_Place_of_Napster_in_Copyright_History.
[6] See Norbert J. Michel, The Impact of Digital File Sharing on the Music Industry: An Empirical Analysis, 6(1) Berkeley Elec. Press, Art. 18 (2006), available at https://www.riaa.com/wp-content/uploads/2004/01/art-the-impact-of-digital-file-sharing-on-the-music-industry-michel-2006.pdf.
[7] A&M Records Inc. v. Napster Inc., 239 F.3d 1004 (9th Cir. 2001).
[8] 17 U.S.C. § 512.
[9] See Jerome H. Reichman et al., A Reverse Notice and Takedown Regime to Enable Public Interest Uses of Technically Protected Copyrighted Works, 22 Berkeley Tech. L. J. 981 (2007), available at https://btlj.org/data/articles2015/vol22/22_3_S/22-berkeley-tech-l-j-0981-1060.pdf; Michael P. Murtagh, The FCC, the DMCA, and Why Takedown Notices are Not Enough, 61(1) Hastings L. J. 259 (2009), https://repository.uclawsf.edu/cgi/viewcontent.cgi?article=3761&context=hastings_law_journal.
[10] See Ryan T. Holt, The Effects of Recording Industry Lawsuits on the Market for Recorded Music, 1(1) Vand. Undergraduate Rsch. J. (2005), https://vurj.vanderbilt.edu/index.php/vurj/article/view/2713/1148.
[11] See Jahn Arne Johnsen et al., Peer-to-Peer Networking with BitTorrent, UCLA Comput. Sci. (2005), available at https://web.cs.ucla.edu/classes/cs217/05BitTorrent.pdf.
[12] Alex Hern, European Court of Justice Rules Pirate Bay Is Infringing Copyright, The Guardian (Jun. 15, 2017), https://www.theguardian.com/technology/2017/jun/15/pirate-bay-european-court-of-justice-rules-infringing-copyright-torrent-sites.
[13] See Vlad Savov, The Pirate Bay Resurfaces at a New Domain Following Seizure, The Verge (Dec. 10, 2013), https://www.theverge.com/2013/12/10/5195374/the-pirate-bay-resurfaces-on-new-domain; Eliot Van Buskirk, The Pirate Bay: Copied, Shared, and Resurrected, Wired (Aug. 20, 2009), https://www.wired.com/2009/08/the-pirate-bay-copied-shared-and-resurrected.
[14] See Ali v. Mirsaidi, Mega, Digital Storage Lockers, and the DMCA: Will Innovation Be Stifled by Fears of Piracy?, Duke U. Sch. of L. (2014), https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1263&context=dltr.
[15] Id.
[16] Less than two decades ago, one of the authors was told by the CEO of a large media conglomerate that it would “never” be possible to livestream content, due to inadequate speed and server capacity.
[17] See, e.g., Luke Bouma, Microsoft Uncovers Massive Malware Campaign Targeting Nearly One Million Devices via Pirated Streaming Sites, Cord Cutters News (Mar. 10, 2025), https://cordcuttersnews.com/microsoft-uncovers-massive-malware-campaign-targeting-nearly-one-million-devices-via-pirated-streaming-sites; Luke Noonan, The Cyber Security Risks of Online Streaming, MetaCompliance MetaBlog (2025), https://www.metacompliance.com/blog/cyber-security-awareness/cyber-risks-of-online-streaming; Digital Piracy, INTERPOL (2025), https://www.interpol.int/en/Crimes/Illicit-goods/Shop-safely/Digital-piracy.
[18] About RadioAirplay, Jango, https://www.jango.com/faq (last visited Jun. 26, 2025).
[19] Joel Waldfogel, How Digitization has Created a Golden Age of Music, Movies, Books, and Television, 31(3) J. of Econ. Persp. 195 (2017), https://pubs.aeaweb.org/doi/pdfplus/10.1257/jep.31.3.195.
[20] See Pierre-Hugues Verdier, Transnational Enforcement Leadership and the World Police Paradox, 64 Va. J. Int’l L. 239, 257 (2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4755507.
[21] See Cybercrime: An Overview of the Federal Computer Fraud and Abuse Statute and Related Federal Criminal Laws, Cong. Rsch. Serv. (Oct. 15, 2014), available at https://crsreports.congress.gov/product/pdf/RL/97-1025; Internet Gambling: An Overview of Federal Criminal Law, Cong. Rsch. Serv. (Jan. 24, 2012); Cyber Harassment Laws and AI-Generated Images Like Deepfakes, Nat’l Sec. L. Firm, https://www.nationalsecuritylawfirm.com/cyber-harassment-laws-and-ai-generated-images-like-deepfakes (last visited Jun. 26, 2025); Protecting Lawful Streaming Act of 2020, USPTO, https://www.uspto.gov/ip-policy/enforcement-policy/protecting-lawful-streaming-act-2020 (last visited Jun. 26, 2025).
[22] See 17 U.S.C. § 411.
[23] These include widely prescribed “remedies” for net-neutrality violations when applying Title II common-carrier regulations to internet service providers (ISPs).
[24] Tomer Broude & Doron Teichman, Outsourcing and Insourcing Crime: The Political Economy of Globalized Criminal Activity, 62 (3) Vand. L. Rev. 795 (2009), https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1465&context=vlr; Jack L. Goldsmith, Against Cyberanarchy, 65 (4) U. Chi. L. Rev. 1199 (1998), https://www.jstor.org/stable/1600262.
[25] See Derek E. Bambauer, Ghost in the Network, 162 (5) U. of Pa. L. Rev. 1011 (2014), https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9439&context=penn_law_review.
[26] Verdier, supra note 18 at 264, 66; Anupam Chander, The Electronic Silk Road: How the Web Binds the World in Commerce, Geo. U. L. Ctr. (2013), available at https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=3315&context=facpub.
[27] See Julie E. Cohen, Between Truth and Power: The Legal Constructions of Informational Capitalism, Oxford Acad. (Oct. 24, 2019), https://academic.oup.com/book/37371.
[28] Richard A. Posner & William M. Landes, Market Power in Antitrust Cases, 94 (5) U. Chi. L. Sch. (1980), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2551&context=journal_articles; see also Kristian Stout, Julian Morris, & Subiksha Ramakrishnan, Incentive-Compatible Solutions to Illicit Online Activity: Part 1 — Illegal Online Gambling, Intl. Ctr. for Law & Econ. (2025), https://laweconcenter.org/resources/incentive-compatible-solutions-to-illicit-online-activity-part-1-illegal-online-gambling.
[29] See Gary S. Becker, Crime and Punishment: An Economic Approach, 76 (2) J. Pol. Econ. 169 (1968), https://www.jstor.org/stable/1830482 (analyzing the tradeoffs entailed in differing legal approaches to deterring illegal behavior).
[30] See, e.g., the discussion at supra notes 19-20 and accompanying text (describing the difficulties of geography-based copyright enforcement).
[31] See, e.g., Stout, Morris, & Ramakrishnan, supra note 28 (Discussing the growth of illegal offshore gambling with respect to domestic tax policies).
[32] See David J. Teece, Profiting from Innovation in the Digital Economy: Standards, Complementary Assets, and Business Models in the Wireless World, 47 (8) Inst. Bus. Innovation 1367 (2017), https://escholarship.org/content/qt58h69717/qt58h69717_noSplash_259dfc0380dba7d7ee3405c2f4830014.pdf?t=pjak0z (David Teece describes the complex business environments needed to ensure that innovative businesses can thrive. This highlights the need for law and regulation to take seriously the idea that modern dynamic firms are not mere “widget” sellers but are part of highly complicated industries with dynamic cost structures. Even apparently marginal changes in a legal environment can have big effects on legitimate operators).
[33] See Hal R. Varian, Computer Mediated Transactions, 100 (2) Am. Econ. Rev. 1 (2010), https://www.jstor.org/stable/27804953 (noting how the “bits” strung together to form the internet constitute solutions to emergent demand based on user/consumer preferences).
[34] Friedrich Schneider, Shadow Economies and Corruption all Over the World: What do we Really Know?, IZA (Sep. 2006), available at https://docs.iza.org/dp2315.pdf.
[35] Robert P. Merges, Compulsory Licensing vs. the Three “Golden Oldies” Property Rights, Contracts, and Markets, Cato Inst. (2004), available at https://www.cato.org/sites/cato.org/files/pubs/pdf/pa508.pdf (discussing the development of market solutions and collective-rights organizations as obviating the need for crude legislative approaches to content distribution, such as compulsory licenses).
[36] See Chris Cooke, Cloudflare Must Block Piracy Site, German Court Confirms, CMU (Nov. 29, 2023), https://completemusicupdate.com/cloudflare-must-block-piracy-site-german-court-confirms; Leveraging CDNs to Combat Content Piracy in Music Streaming, CacheFly (Mar. 7, 2024), https://www.cachefly.com/news/leveraging-cdns-to-combat-content-piracy-in-music-streaming.
[37] Notably, this is not true in reality. Legal access to virtually all content is ubiquitous in the United States, but the nation remains the top piracy consumer in the world. See, e.g., Michael Kan, Internet Piracy Grows Amid Glut of Streaming Services, PCMag (Jan. 16, 2024), https://www.pcmag.com/news/internet-piracy-grows-amid-glut-of-streaming-services.
[38] Stout, supra note 1 at 7 (the actual losses related to these streams are difficult to calculate, as it is unlikely that those who choose to stream these videos would pay the full price—which, of course, is one of the reasons they stream illegally).
[39] See Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, art. 8 (3), 2001 O.J. (L 167) 10 (EC), https://eur-lex.europa.eu/eli/dir/2001/29/oj/eng; Ellen Marja Wesselingh, Website Blocking: Evolution or Revolution? 10 Years of Copyright Enforcement by Private Third Parties, The Hague U. Applied Sci. (2014), at 38-39, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2464969; Neil Turkewitz, Why the Canadian Supreme Court’s Equustek Decision Is a Good Thing for Freedom — Even on the Internet, Truth on the Mkt. (Jul. 8, 2017), https://truthonthemarket.com/2017/07/08/why-the-canadian-supreme-courts-equustek-decision-is-a-good-thing-for-freedom-even-on-the-internet.
[40] See What is DNS Filtering?, CloudFlare, https://www.cloudflare.com/learning/access-management/what-is-dns-filtering (last visited Jun. 26, 2025).
[41] Although, in practice, the overwhelming majority of users don’t employ VPNs to evade blocks. Brett Danaher, Jonathan Hersh, Michael D. Smith, & Rahul Telang, The Effect of Piracy Website Blocking on Consumer Behavior, 44 MIS Q. 631 (Jun. 2020), available at https://www.cmu.edu/entertainment-analytics/documents/effectiveness-of-anti-piracy-efforts/uk-blocking-misq.pdf.
[42] See, e.g., RettighedsAlliancen, Annual Report 2023 (2024), at 15, available at https://rettighedsalliancen.com/wp-content/uploads/2024/04/Annual-report-2023.pdf.
[43] See What is URL Filtering, Fortinet, https://www.fortinet.com/resources/cyberglossary/what-is-url-filtering (last visited Jun. 26, 2025).
[44] Andrada Coos, What is Deep Packet Inspection? How It Works and Why It Is Important, Endpoint Protector (Sep. 25, 2020), https://www.endpointprotector.com/blog/what-is-deep-packet-inspection-how-it-works-and-why-it-is-important.
[45] Charles H. Rivkin, Working Toward a Safer, Stronger Internet, Motion Picture Ass’n (Mar. 21, 2022), https://www.motionpictures.org/press/working-toward-a-safer-stronger-internet.
[46] Justin Hughes, Comparative Online Bad Guys, 38 Harv. J. L. & Tech. 1, 21 (2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4948487.
[47] Id. at 23.
[48] See High Court of Justice, [2011] EWHC 1981 (Ch), Twentieth Century Fox Film Corp. v. British Telecommunications PLC (Jul. 28, 2011), and more recently, Federal Court of Canada, Bell Media Inc. et al. v. John Doe et al. (Dec. 16, 2024).
[49] Hughes, supra note 43 at 41-42
[50] Hughes, supra note 43 at 10-11.
[51] Hughes, supra note 43 at 12; see also Giancarlo Frosio & Oleksandr Bulayenko, Website Blocking Injunctions in Flux: Static, Dynamic, and Live, 16 J. Of Intell. Prop. L. & Prac. 1127 (2021); EUIPO Study on Dynamic Blocking Injunctions, Eur. Union Intellectual Property Off. (2021), available at https://euipo.europa.eu/tunnel-web/secure/webdav/guest/document_library/observatory/documents/reports/2021_Dynamic_Blocking_Injuctions/2021_Study_on_Dynamic_Blocking_Injuctions_in_the_European_Union_FullR_en.pdf.
[52] Hughes, supra note 43 at 12-13.
[53] See Twentieth Century Fox Film Corp. v. British Telecommunications PLC, Leob & Leob LLP (Jul. 28, 2011), https://www.loeb.com/en/insights/publications/2011/08/twentieth-century-fox-film-corp-v-british-teleco__.
[54] See Landmark Decision: The Football Association Premier League Limited v British Sky Broadcasting Limited and Others [2013] EWHC 2058 (Ch), Squire Patton Boggs (Aug. 2013), available at https://www.squirepattonboggs.com/~/media/files/insights/publications/2013/08/landmark-decision-ithe-football-association-prem__/files/sportsipfocus/fileattachment/sportsipfocus.pdf.
[55] Mark Sweney, BT Ordered to Block Newzbin2 Filesharing Site Within 14 Days, The Guardian (Oct. 26, 2011), available at https://www.theguardian.com/technology/2011/oct/26/bt-block-newzbin2-filesharing-site.
[56] Hughes, supra note 42 at 15.
[57] See Jochen Homann, Online Copyright Clearance System Arranges Block of Streaming Site, Bnetza.de (Mar. 11, 2021), https://www.bundesnetzagentur.de/SharedDocs/Pressemitteilungen/EN/2021/20210311_Clearingstelle.html; Freedom on the Net 2023, Freedom H. (2023), https://freedomhouse.org/country/germany/freedom-net/2023; Mirjam Kaiser, Online Copyright Clearance System is Launched and Arranges Blocks of Streaming Site, IRIS Merlin (2021), https://merlin.obs.coe.int/article/9171.
[58] See Nigel Cory, A Decade After SOPA/PIPA, It’s Time to Revisit Website Blocking, Info. Tech. & Innovation Found. (2022), available at https://www2.itif.org/2022-revisiting-website-blocking.pdf.
[59] See Code of Conduct, Clearing Body for Copyright on the Internet (Jan. 18, 2021), available at https://cuii.info/fileadmin/files/CUII_CodeofConduct_23.pdf; Recommendation, Clearing Body for Copyright on the Internet, https://cuii.info/en/recommendations (last visited Jun. 26, 2025); Questions and Answers about the CUII, Clearing Body for Copyright on the Internet, https://cuii.info/faq (last visited Jun. 26, 2025).
[60] See Nathalia Sautchuk-Patricio, Content Blocking at the DNS Level in Germany, CircleID (Nov. 18, 2021), https://circleid.com/posts/20211108-content-blocking-at-the-dns-level-in-germany.
[61] See Matthew Rimmer, Australia’s Stop Online Piracy Act: Copyright Law, Site-Blocking, and Search Filters in an Age of Internet Censorship, 16 (1) Canberra L. Rev. (2019), available at https://classic.austlii.edu.au/au/journals/CanLawRw/2019/4.pdf; Nigel Cory, Adaptive Antipiracy Tools: An Update on Dynamic and Live Blocking Injunctions, Info. Tech. & Innovation Found. (Oct. 22, 2020), https://itif.org/publications/2020/10/22/adaptive-antipiracy-tools-update-dynamic-and-live-blocking-injunctions; Federal Court of Australia Orders First Site-Blocking Injunctions to Reduce Online Copyright Infringement, Jones Day (Jan. 27, 2017), https://www.jonesday.com/en/insights/2017/01/federal-court-of-australia-orders-first-site-blocking-injunctions-to-reduce-online-copyright-infringement; Lori Flekser, Site Blocking Laws in Australia, Content Café (2016), https://contentcafe.org.au/articles-stories-everything/site-blocking-laws-in-australia.
[62] See Australia Copyright Act 1968 (Cth), s115A, https://www5.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s115a.html; Malcolm Burrows, s115A Copyright Act- Infringement Outside Australia, Dundas Laws. (Jul. 9, 2020), https://www.dundaslawyers.com.au/s115a-copyright-act-infringement-outside-australia/; Copyright Amendment (Online Infringement) Act 2015 (Cth) (Austl.), https://www.legislation.gov.au/C2015A00080/latest/text.
[63] Australia Copyright Act 1968 (Cth) s 115A (2B) (a) (ii), https://www5.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s115a.html.
[64] UTV Software Commc’ns Ltd. v. 1337X.TO, ¶¶ 60-68, (2019), available at https://globalfreedomofexpression.columbia.edu/wp-content/uploads/2019/07/Utv_Software_Communication_Ltd._…_vs_1337X.To_And_Ors_on_10_April_2019-1.pdf.
[65] See Bhumika Khatri, Delhi HC Bans 30 Torrent Websites for Infringing Copyrights, Inc42Plus (Apr. 16, 2019), https://inc42.com/buzz/delhi-hc-bans-torrent-websites-infringing-copyrights.
[66]See Copyright Law in Foreign Jurisdictions Hearing Before the Senate Committee on the Judiciary Subcommittee on Intellectual Property, S. Comm. on the Judiciary (Mar. 10, 2020), available at https://www.judiciary.senate.gov/imo/media/doc/McCoy%20Responses%20to%20QFRs.pdf; Copyright Piracy: Assessment of National Legislative Approaches and Court Practices Regarding Online Copyright Piracy, Eurojust IPC Project (Dec. 2023), available at https://www.eurojust.europa.eu/sites/default/files/assets/eurojust-copyright-piracy-report.pdf.
[67] See Annual Report 2023: The Danish Rights Alliance, Rettigheds Alliancen (2023), at 15, available at https://rettighedsalliancen.com/wp-content/uploads/2024/04/Annual-report-2023.pdf.
[68] See Charles H. Rivkin, Working Towards a Safer, Stronger Internet, Motion Picture Ass’n (Mar. 21, 2022), https://www.motionpictures.org/press/working-toward-a-safer-stronger-internet.
[69] See Lana Friesen et al., Initially Contestable Property Rights and Coase: Evidence from the Lab, 120 J. Env’t Econ. & Mgmt. 1 (2023), https://www.sciencedirect.com/science/article/pii/S0095069623000608.
[70] See Guido Calabresi, The Cost of Accidents: A Legal and Economic Analysis (Yale Univ. Press, 1970); Paul Rosenzweig, Content Moderation and the Least Cost Avoider, Am. U. Wash. Coll. L. (2024), https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1127&context=research; Geoffrey A. Manne et al., Who Moderates the Moderators?: A Law & Economics Approach to Holding Online Platforms Accountable Without Destroying the Internet, Int’l Ctr. L. & Econ. (Nov. 9, 2021), available at https://laweconcenter.org/wp-content/uploads/2021/11/Manne-Stout-Sperry-Who-Moderates-the-Moderators-2021-11-09-DRAFT.pdf; Stout, supra note 1.
[71] See 17 U.S.C. § 512 (j).
[72] See, e.g., Maayan Perel, Enjoining Non-Liable Platforms, 34 Harv. J.L. & Tech. 1 (2020), at 31-32, available at https://jolt.law.harvard.edu/assets/articlePDFs/v34/1.-Perel.pdf.
[73] Adam Mossoff, Congress Should Protect the Rights of American Creators with Site- Blocking Legislation, Heritage Found. (Feb. 14, 2024), https://www.heritage.org/crime-and-justice/report/congress-should-protect-the-rights-american-creators-site-blocking.
[74] Foreign Anti-Digital Piracy Act, H.R. 791, 119th Cong. (2025), available at https://lofgren.house.gov/sites/evo-subsites/lofgren.house.gov/files/evo-media-document/1.29.25%20-%20Foreign%20Anti-Digital%20Piracy%20Act_Full%20Text_0.pdf.
[75] Id. at 6.
[76] Id. at 6-7.
[77] Id. at 11.
[78] Id. at 13.
[79] Id.
[80] Id. at 14.
[81] Id. at 12-14.
[82] Id. at 7.
[83] See, e.g., Michael O’Rielly, Hollywood’s Site Blocking Proposal: Time for a Reshoot, TMT and Me (Feb. 4, 2025), https://mporinc.blogspot.com/2025/02/hollywoods-site-blocking-proposal-time.html; Jeffrey Westling, Primer: Site Blocking and Online Piracy, Am. Action Forum Insight (Jul. 17, 2024), https://www.americanactionforum.org/insight/primer-site-blocking-and-online-piracy.
[84] Columbia Pictures Industries Inc. v. Fung, 710 F.3d 1020 (9th Cir. 2013).
[85] MGM Studios Inc. v. Grokster Ltd., 545 U.S. 913 (2005).