After more than two years of incalculable losses following Russia’s full-blown invasion in 2022, Ukraine continues to defy the odds as it fights for the right to exist as an independent state.

With no obvious end in sight and politics in the United States undermining offensive capability, Ukrainian gains are being reversed in several front line regions, a situation predicted to further deteriorate later this year.

Yet for a country being consumed by war, Ukraine is still taking time to plan for a future in the EU. In that respect, matters related to intellectual property require the closest attention.

Ukraine Pushes Ahead With Copyright Reforms

After progress was reported in 2023 , Ukraine’s Ministry of Economy issued an order dated February 1, 2024, titled: “On Approval of the Procedure for Formation and Maintenance of the National List of Websites Raising Concerns Regarding the Observance of Intellectual Property Rights.”

On March 11, 2024, the Ministry of Justice registered order 357/41702 and on March 21, 2024, it was adopted by the Ministry of Economy.

This will see Ukraine become a full participant in the World Intellectual Property Organization’s WIPO ALERT program , which operates around a centrally-maintained database of piracy platforms nominated by rightsholders in participating countries.

Ukraine Sees Future in Europe, WIPO Invests in Russia

Sites and services listed on WIPO ALERT should in theory find it much more difficult to fund their activities through advertising revenue. Ukraine views its participation in the program as a positive step in its bid for closer ties with the EU.

“Despite the challenges of a full-scale war, we are making every effort to protect copyright and related rights on the Internet for Ukrainian and foreign intellectual property rights holders,” says Yuliia Svyrydenko, First Deputy Prime Minister of Ukraine and Minister of Economy.

“Ukraine has become one of the first countries in the world to comprehensively implement a relevant mechanism based on a secure online platform where authorized member states of the World Intellectual Property Organization can upload information about websites and applications that infringe copyright from the point of view of national norms. This is also a confident step towards Ukraine’s European integration.”

Yet despite its invasion of Ukraine and threats to Western intellectual property, WIPO continues to operate an office in Moscow and provide funding for projects in Russia.

That drew a fiery response from Ukraine last summer, which criticized the allocation of significant funds to a country “which blatantly violates WIPO principles and its statutory obligations” and does not “deserve the privilege to host a WIPO Office.”

Ukraine is the 15th country to join the WIPO ALERT program, following recent additions Uzbekistan and the Philippines. Currently just seven countries allow searching of their databases . They include Italy, Russia, Spain, Peru, Ecuador, Lithuania and Greece.

From: TF , for the latest news on copyright battles, piracy and more.

Ever since Italian authorities announced their intent to introduce an even more aggressive anti-piracy blocking system than the one already in place, controversy has rarely been far behind.

Recent reports of avoidable overblocking, a reluctance to admit that the Piracy Shield system is fallible, and new reports that telecoms regulator AGCOM is now rejecting complaints from wrongfully blocked Cloudflare customers, are just some of the ingredients in a volatile mix that has always threatened to boil over.

Piracy Shield: Source Code Leaked Online

In what could develop into the biggest crisis yet for the Piracy Shield system and those who operate it, nine repositories of source code, internal documentation, and other related data, claiming to be the various components of the Piracy Shield system, appear to have leaked online.

An announcement in Italian and English, posted on GitHub a few hours ago, criticizes AGCOM and SP Tech Legal, the law firm-linked developer behind Piracy Shield, for creating a “tool of censorship disguised as a solution to piracy.”

The main ‘fuckpiracyshield’ repository on GitHub was created by a user of the same name; they appear to have joined the site for the purposes of leaking the code online and, after signing up at 15:55 on Tuesday, by 16:50 they were gone. Aside from the leaked material, a message was left behind.

“This is not the way to stop piracy. This is a gateway to censorship,” the bio message reads.

Content Allegedly Leaked

The apparently leaked collection spans nine repositories; they are named and described as follows:

frontend (The frontend of Piracy Shield), data (Guides for the ISPs and reporters that use Piracy Shield), variations (Some code that was probably used for testing for Piracy Shield?), service (Services and main logic of the Piracy Shield API), data-storage (Storage and filesystem management for the Piracy Shield API), data-model (Data models of objects used by the Piracy Shield code), component (Components needed by other Piracy Shield packages), api (This is the API for Piracy Shield)

For those unfamiliar with Python or no interest in code, period, the ‘data’ repository probably offers the most interesting information. It contains what appears to be up-to-date operations manuals for Piracy Shield, with the ‘ISP TECHNICAL MANUAL – PIRACY SHIELD’ described as v2.4.1, current on February 2nd when Piracy Shield made its full debut.

All documents are named and presented in Italian and the titles suggest that there are two versions of two distinct manuals: ‘Piracy Shield Manual’ and ‘Piracy Shield Error Codes’. One version seems to be directed at those reporting domains and IP addresses for blocking and the other toward the ISPs expected to carry out the blocking.

Unusual Feature of the Leak

When browsing the source code and attempting to work out its purpose, on some repositories something immediately stands out. With no assumptions as to who the name refers, a contributor to the Piracy Shield project appears to be someone called Daniele Maglie. Their name appears time and again throughout the code, which in itself isn’t especially unusual.

However, when looking more closely at the leaker’s bio, which includes an image of AGCOM’s president apparently deep in thought, leaving the mouse pointer in place for a moment produces a piece of popup text, as highlighted in the image below.

What the text means, if indeed it means anything at all, will be just one of the questions being asked in the days to come. In the meantime, AGCOM has yet another blocking target to contend with, although a DMCA notice will be much more effective.

From: TF , for the latest news on copyright battles, piracy and more.

After initially denying that Italy’s new Piracy Shield anti-piracy platform had been responsible for any over-blocking, last week telecoms regulator AGCOM conceded that an IP address belonging to Cloudflare had been blocked in error .

While that might be considered progress of sorts, the incident was downplayed as minor on the basis it was rectified a few hours later. No consolation for the many Cloudflare customers affected, of course, but that particular problem isn’t going away. Cloudflare is encouraging its customers to file complaints to draw attention to the perils of widespread blocking measures.

Yet despite calls for more transparency, not to mention an obvious need, AGCOM is still not reporting the IP addresses subjected to blocking, instead preferring to report the volume of IP addresses blocked instead. While the latter is not unimportant information, only the former can shine light on cases where IP addresses are blocked in error. Or when IP addresses are blocked despite the legal provision that prohibits blocking when IPs are not exclusively used for piracy.

New Third-Party Service Imposes Transparency

Official providers of all types of content have understood for some time that if they don’t meet demand, someone else will do it for them. After calls for transparency appeared to fall on deaf ears, transparency has been imposed on the Piracy Shield system thanks to a new, unofficial third-party system: Piracy Shield Search .

The most important feature of the service is the ability to enter an IP address or a fully qualified domain name (FQDN) to find out whether they’re on the Piracy Shield system.

The image below consists of an original blocking order (translated from Italian) issued in response to a blocking application by Sky Italia. To protect Sky’s broadcasting rights for FIM MotoGP World Championship and the Motul FIM Superbike World Championship, the domain http://live.vitocatozzo.eu was added to the Piracy Shield system.

The response from Piracy Shield Search added by us directly underneath the relevant section in the application confirms that the domain was indeed placed on the blocklist. The response also provides the time the rightsholder or its representative added the ticket to the system, which acts as the instruction for ISPs to go ahead and start blocking.

Rightsholder Tickets and Top AS By IP Address

The Piracy Shield Search system shows data relating to currently active blocking, not the total number of requests made or IP addresses/domains blocked to date.

In the image below we can see that 662 rightsholder tickets are currently live, and together they target 2,849 IPv4 IP addresses, zero IPv6 IP addresses, and 6,601 fully qualified domain names. The panel on the right shows the top AS (autonomous systems) ranked by the total number of IP addresses allocated to the AS that are currently subject to blocking.

The ticket panel on the left shows that the system deployed in Italy operates similarly to the blocking system operated in the UK.

Much is made in the media about the requirement to block IP addresses and domains within 30 minutes, possibly to imply that blocking takes place mostly during live matches. However, the two items at the top of the list show that IP addresses and domains are typically added in bulk, long after matches finish or, alternatively, long before they actually start.

Tickets Reveal More Blocking Blunders

The people behind Piracy Shield Search have decided to partially redact IP addresses requested for blocking in rightsholder tickets. Since the search facility on the front page responds to requests for specific IP addresses, there’s no need to expose the IP addresses in full here.

However, since the names of the hosts are displayed in full, it’s possible to determine whether the IP addresses that appear on the left are likely to be operated by CDN companies. More importantly, there may also be enough information to determine whether multiple services potentially share the IP address.

In a post to X, developer and researcher Matteo Contrini confirms what many people had suspected; Cloudflare isn’t the only major CDN provider whose IP addresses have ended up on the Piracy Shield system.

“The platform #PiracyShield is blocking 15 Akamai IP addresses! Not only Cloudflare but also the largest CDN in the world…,” Contrini notes.

The data suggests that transparency is a double-edged sword. Without transparency, there’s no scrutiny, and no specific fuel for criticism. When transparency exists, whether voluntarily or by imposition, scrutiny ensures that criticism can be backed up by data provided by the system itself.

What transparency offers that opacity never does, however, is a powerful incentive to do better. Whether the addition of these IP addresses is due to blunder after uncorrected blunder isn’t clear, but the alternative is unquestionably much worse.

From: TF , for the latest news on copyright battles, piracy and more.

Pirate site blocking is one of the entertainment industry’s favorite enforcement tools. In recent years, it’s become a common practice in many countries around the world.

In the Netherlands, it took over a decade for the first order to be approved. After detours through the Supreme Court and the EU Court of Justice, the final order was issued in 2020, targeting The Pirate Bay .

With all the legal paperwork in order, the doors were open to more blocking requests, especially after rightsholders and local ISPs signed a covenant to streamline the process. If a court orders one company to block pirate sites, by agreement the other ISPs will follow suit.

After the initial Pirate Bay blockade, a follow-up order targeted YTS, EZTV and other torrent sites in 2022. Last year, Lookmovie and Flixtor were singled out in yet another case, despite a challenge to the ‘dynamic’ nature of these orders, which allows new domains to be added continuously.

Blocking Shadow Libraries

All blocking requests were submitted by local anti-piracy group BREIN , which acts on behalf of rightsholders. These include the major Hollywood studios but BREIN’s purview is much broader. Last week, it obtained the latest blocking order, this time on behalf of the publishing industry.

Issued by the Rotterdam District Court, the order requires a local Internet provider to block two well-known shadow libraries; “Anna’s Archive” and “Library Genesis” (LibGen).

News of this new court order was shared by BREIN which notes that both sites were found to make copyright infringing works available on a large scale. At the time of writing, a published copy is not available but, based on the covenant, all large Internet providers are expected to implement the blockades.

“These types of illegal shadow libraries are very harmful. The only ones who benefit are the anonymous owners of these illegal services. Authors and publishers see no return on their efforts and investments,” BREIN comments.

“Copyright holders deserve an honest living. There are numerous legal ways to obtain ebooks. If desired, this can also be done very cheaply; through the library for example.”

Dynamic Order

The Rotterdam court issued a so-called ‘dynamic’ blocking order, meaning that rightsholders can update the targeted domains and IP addresses if the sites switch to new ones in the future. This also applies to mirrors and increases the blockades’ effectiveness, as there is no need to return to court.

Previously, Internet provider KPN challenged these ‘dynamic’ orders, suggesting that they are too broad. The court rejected this argument, however, noting that the process hasn’t led to any major problems thus far.

BREIN further reports that Google is voluntarily offering a helping hand. As reported in detail previously , the search engine removes blocked domains from its local search results after being notified about an ISP blocking order.

“The effectiveness of the blocking measure is increased because Google cooperates in combating these infringements and, at the request of BREIN, completely removes all references to websites that are blocked by order of the Dutch court from the search results,” BREIN writes.

Elephant in the Room

The blockade of the two shadow libraries is a key victory for BREIN; Anna’s Archive and LibGen are the largest sites of their kind along with a similar platform, Z-Library. Interestingly, however, the latter is not part of this blocking order.

Z-Library is the target of an ongoing criminal investigation by the U.S. Government, an enforcement effort in which BREIN also played a role . It is not clear why the site isn’t part of the blocking request, however.

This ‘omission’ is notable considering the anti-piracy group’s earlier stance. After Z-Library’s initial shutdown, BREIN explicitly warned that it would obtain a court order to block Z-Library if it came back online.

Instead of going after Z-Library, BREIN’s latest blocking request targets two other shadow libraries. BREIN must have its reasons not to include Z-Library in this legal effort but the group didn’t immediately respond to our request for clarification.

Update: After publication BREIN explained that it focused on these two domains as they are seen as more popular than Z-Library. Z-Library is targeted by the U.S. but BREIN is planning to request a blockade in the future if the site stays online.

From: TF , for the latest news on copyright battles, piracy and more.

Pirate sites are frustrating rightsholders across all continent and many of them see website blocking as the solution.

In Ecuador, blocking measures are not new. Five years ago, the country’s National Intellectual Property Service was the first to order local Internet providers to block several domains of sports streaming site “Rojadirecta”.

These blockades were issued following a complaint from the local football league LigaPro . How effective the measure was is unknown, but the piracy problem didn’t disappear. On the contrary, pirate streaming services only appeared to gain more traction.

LigaPro Boss Celebrates Site Blocking Win

In recent months, LigaPro’s boss Miguel Angel Loor repeatedly drew attention to the ongoing problems. In common with his counterpart in Spain, Loor is determined to make progress on the anti-piracy front and, a few days ago, he reported a notable victory.

“HISTORICAL. For the first time in the history of Ecuador, LigaPro achieves an URGENT ACT that orders the imminent blocking of websites used for unauthorized broadcasting of [LigaPro] matches,” Loor writes .

The recent order targets 22 sports streaming domains, including sinfutboltv.com, librefutboltv.com, futbollibre.com, intergoles.co and jokerlivestream.co. The associated IP-addresses, many of which are shared Cloudflare addresses, are also listed. Blocking these outright can lead to trouble though, as we’ve seen in Italy .

Site blocking isn’t an entirely new concept in Ecuador, but this is the first time that the football league has obtained a court order of this kind. And it’s not going to be the last either, as LigaPro and its partners are determined to keep up the pressure.

“This fight has just begun and we are going to act with the full weight of the law to protect the most popular sport in Ecuador, from which thousands of families live,” Loor says.

Target: MagisTV

In recent weeks, the football league has taken a stand against various piracy services. In addition to the now-blocked sites, it singled out one major target that has yet to be addressed: pirate IPTV service MagisTV.

MagisTV is a popular IPTV service in Latin America, well-known for providing access to premium content for a small subscription fee. The platform has previously been branded a notorious piracy market by Hollywood’s MPA, who suggests that its operators are in China.

“MagisTV has become not just a distributor of infringing content, but also a brand: resellers can purchase credits from magistv.net for MagisTV-branded IPTV services, which they then resell in the form of monthly, quarterly, or yearly
subscriptions,” MPA wrote last October .

In addition to being featured by resellers, these brands typically rely on word-of-mouth promotion by their users. However, last month, a whole new audience was reached when MagisTV became the poster child of a new anti-piracy campaign.

Anti-Piracy Push Backfires?

Earlier this month, the BARCELONA S.C’s football team posed in front of a banner urging fans to ‘say no to MagisTV’, hoping to make an impact.

The plan on display here is that once fans learned about this illegal operation, they would stop using it. In reality, it also served as indirect promotion, making people aware of a ‘cheap’ piracy service they’d never previously heard of.

It’s hard to say what the net effect of the campaign was, but in response to LigaPro’s latest site-blocking announcement on X, several people replied with screenshots of their MagisTV setup.

“Thank you for the recommendation to use MagisTv, excellent service,” said one.

This example shows that simply telling people to stop using a service isn’t always the best strategy, and may even backfire. Nevertheless, Loor and his colleagues are determined to push on, promising a radical fight against pirate sites and services.

“The fight against piracy by the authorities against those who distribute or buy illegal content is going to be radical. Step by step we are going to go against all these Magis TV and other IPTV or signals that provide our content illegally,” Loor said earlier this month.

From: TF , for the latest news on copyright battles, piracy and more.

In a little over a week’s time, Italy’s Piracy Shield system will have been fully operational for two whole months.

Claims that IPTV piracy would be eliminated almost overnight helped to convince lawmakers that without Piracy Shield and the legislation that underpins it, Italian football could die.

In reality, the system was never capable of eliminating piracy and football in Italy was never on life support; the big question now is whether it’s performing close to predictions, or even having any effect at all.

Two Months of Dynamic Blocking

During a hearing Wednesday to review Piracy Shield’s performance after almost eight weeks in the trenches, AGCOM President Giacomo Lasorella provided data to show participation in the Piracy Shield platform, specifically the number of entities that filed applications and received accreditation.

Lasorella revealed that 314 requests have been received to date, including five relating to the main users of the platform; broadcasters DAZN, Sky (Comcast) and RTI (Mediaset Group), Serie A, and Serie B. The remaining 309 applications were received from the ISPs required by law to implement blocking instructions issued by Piracy Shield.

In its first full month of operations, the platform handled blocking instructions related to 11 precautionary measures, all of them issued to protect live sports: football from Serie A and Serie B, UEFA Champions League, UEFA Europa League, and UEFA Europa Conference League, plus Formula 1, MotoGP, Eurocup Basketball, ATP and WTA tennis.

“In total from February 2 to March 3, 3,127 fully qualified domain names and 2,176 IP addresses were blocked,” Lasorella said, noting that figures are available to show IPs blocked each day.

“Obviously these blocks mainly appear when there are sporting events; they are definitely encouraging results which we say testify to the incisiveness of AGCOM’s action.”

The Measure of Success

Whether the nature of AGCOM’s reporting will change as blocking matures is unknown, but in common with other countries, success in Italy is expressed through the use of blocking data; essentially the number of IP addresses and domains blocked. That’s not entirely unexpected but as a measure of success, it’s almost completely meaningless.

The true measure of success isn’t the number of IP addresses blocked or domains rendered inaccessible, but the rate at which new customers sign up and/or remain loyal to legal broadcasting services.

The broadcasters, DAZN and Sky, for example, will already have the data for February, most likely accurate to a single subscriber. Without sight of that all-important data, AGCOM could block the entire internet and those figures would still mean nothing. The unlikely prospect of actually blocking the entire internet took a step closer in February, however.

AGCOM Addresses Over-Blocking Allegations

Following a blunder mid-February that saw an IP address belonging to Zenlayer CDN blocked in error , someone with accreditation to input IP addresses on behalf of rightsholders added one belonging to Cloudflare, with predictably disastrous results .

Those who expected an explanation or perhaps an apology, received something else entirely. During a TV appearance helpfully facilitated by TG24, a channel operated by key Piracy Shield user Sky, AGCOM’s commissioner stated categorically that there had been no blunders. Reports published by journalists at Wired and DDaY were described as “absolutely false” and the whole debacle found itself dismissed as “fake news”.

During the hearing Wednesday, AGCOM’s president conceded that there had indeed been some “critical operational issues” and even went on to explain what had happened.

“The problems we encountered essentially concern the need to discriminate the legal contents from the illicit ones that exist on the same platform. That is, there are platforms where there are legitimate sites and illicit sites together, and the law prescribes that the sites must be uniquely dedicated to, let’s say, the illicit contents.”

Pirates Using Devious Methods? Impossible, surely

The issue of shared IP addresses and the likelihood of overblocking was repeatedly raised by tech experts in the run-up to the new legislation being passed last year. Assurances that blocking ‘dual use’ IP addresses would be explicitly forbidden in the text, which would be strictly adhered to, eventually led to a prediction that was only 50% accurate.

According to Lasorella, however, this is a trap being laid by pirates.

“Subjects addicted to piracy are increasingly using so-called Content Delivery Networks, CDNs. Content Delivery Networks by their nature may not be uniquely intended for activities therefore licit and illicit appear together,” Lasorella said.

“On the same IP address used for the violation of copyright can exist a perhaps fictitious domain that spreads legitimate content and this evidently prevents this address from being obscured.”

Or in Cloudflare’s case last month, evidently not.

Lasorella confirmed that one of the accredited reporters uploaded a ticket to the Piracy Shield platform which contained a Cloudflare IP address. Since legitimate and illegitimate sites shared the same IP, all found themselves blocked. AGCOM’s president said everything was sorted out “in a couple of hours” but from online reports, a minimum of four hours seems closer to events on the ground.

Potential Showdown With Cloudflare, Google

While describing events of that Saturday a few weeks ago, Lasorella mentioned that a Cloudflare IP address had been blocked and then took the opportunity to state that Cloudflare is “always more involved in these proceedings” due to its provision of DNS and VPN services “that actually facilitate online copyright violations.”

Google also received a mention; the company seems prepared to work with AGCOM to deindex pirate sites that appear in reports uploaded to Piracy Shield, but at the moment has not “considered being accredited” to the platform.

“Google has confirmed its intention not to intervene on its DNS through a local block,” Lasorella said.

It’s a little early to predict how this situation will play out but after blocking Cloudflare last month, following repeated warnings, even from Cloudflare itself , AGCOM has a side order of “we told you so” to contend with. That’s in advance of a starter being prepared right now.

In an email sent out to all customers affected by the erroneous blocking last month, Cloudflare is now encouraging users to file an official complaint with AGCOM. The stated aim is to “expand government awareness” of the collateral damage caused by IP blocking in the hope that will prevent overblocking in the future.

AGCOM already seems fully aware of the risks but, as a completely impartial regulator, must also weigh the interests of football against the interests of everyone else. Its response to these letters may prove informative.

Blocking of [website redacted] via the Piracy Shield Platform

On Saturday, February 24, 2024, a Cloudflare IP address was blocked in Italy through the Italian government’s Piracy Shield system. As a result of this action, Internet users in Italy were unable to access tens of thousands of websites. Although the block was removed within hours because of the number of innocent sites affected, we have identified your website as one that appears to have been temporarily blocked.

The Italian Media Regulator (Autorità per le Garanzie nelle Comunicazioni, AGCOM) provides interested parties, including the managers of websites and pages, the right to lodge a complaint about blocks implemented through the Piracy Shield Program. Cloudflare believes it is important to document the collateral damage caused by IP blocking in order to expand government awareness of the risks of the practice and hopefully prevent future overblocking. If you would like to submit a complaint, you can submit your own complaint to tavoloantipirateria@agcom.it and agcom@cert.agcom.it, as laid out on the AGCOM website.

To assist you, we have prepared the below template email, in both English and Italian, that may be used to submit your complaint to AGCOM:

Template email to AGCOM:

Re: Blocking of [website] via the Piracy Shield platform

We write to file a complaint regarding the blocking action ordered by the Autorità per le Garanzie nelle Comunicazioni (AGCOM) of IP address 188.114.97.7 on Saturday, February 24, which rendered our website [redacted] inaccessible to Internet users in Italy. While we understand that the blocking order under AGCOM’s Piracy Shield was intended to prevent copyright infringement, our website does not infringe copyright and has never been accused of copyright infringement.

We formally complain about this action and request that AGCOM take immediate steps to prevent any future blocking of our website and other innocent websites.

Re: Provvedimenti di blocco Piracy Shield / blocco del sito [website redacted]

Scriviamo per presentare un reclamo in merito al blocco ordinato dall’Autorità per le Garanzie nelle Comunicazioni, sabato 24 febbraio 2024, dell’indirizzo IP 188.114.97.7 24, che ha reso il nostro sito web [redacted] inaccessibile agli utenti Internet in Italia. Pur comprendendo che l’ordine di blocco previsto da “Piracy Shield” di AGCOM era finalizzato a prevenire la violazione del diritto d’autore, segnaliamo che il nostro sito web non viola il diritto d’autore e non è mai stato accusato di simili illeciti.

Ci doliamo formalmente di questa iniziativa e chiediamo che AGCOM voglia prendere provvedimenti immediati per prevenire qualsiasi futuro blocco del nostro sito e di altri siti web conformi alla legge.

From: TF , for the latest news on copyright battles, piracy and more.

Most anti-piracy tools and mechanisms, whether dedicated online platforms or legislation crafted to achieve a particular goal, have issues that affect their performance.

No matter how tough, legislation could be of date when finally implemented, or reveal itself to be unwieldy in practice, too costly, or simply ineffective. Technical solutions may face compliance and regulatory issues, while pirate adversaries remain light on their feet by ignoring them all.

One key to success for rightsholders is to exploit pirates where they’re most vulnerable, i.e anywhere where they’re reliant on services operated by businesses that already comply with the law and are more likely to take action.

The European Commission’s Recommendation (Toolbox) published on Tuesday, focuses on just that by providing guidance on enforcement, suggesting priority actions, and encouraging use of existing anti-counterfeit/anti-piracy tools.

Cooperation, Coordination and Information Sharing

The Commission says a key aim of the Toolbox is to promote and facilitate effective cooperation between rightsholders, providers of intermediary services, and competent authorities, by promoting good practice and use of appropriate tools and new technologies.

The headline focus is anti-counterfeiting but within the text the EC notes that “most guiding principles, good practices and tools” developed under the recommendation can also be relevant when tackling pirated content online. In particular, voluntary actions taken by online intermediaries, “enhanced cooperation among competent national authorities,” and the sharing of information and data.

Cooperation and increased information sharing are essential and should be further promoted, at all levels, in accordance with Union law, the protection of personal data and the freedom to conduct business under Article 16 of the Charter of Fundamental Rights of the European Union (‘ the Charter ’). Good practices should be identified, and recommended to all actors, including e-commerce marketplaces, transport and logistic service providers, payment services providers, social media providers, providers of domain name services, etc. Secondly, further cooperation and information sharing should be encouraged. This relates to all competent authorities, including market surveillance authorities that currently may not have competences for IP-infringing activities, and promoting further the use of dedicated tools such as the IP Enforcement Portal (‘IPEP’)…

Payment Services, Social Media Platforms

The EC highlights payment services as an area where more can be done. On one hand, these companies are central to rightsholders’ activities. On the other, they can also be used to support IP-infringing activities. The EC says that to prevent misuse of their services for IP-infringing activities, payment services should be encouraged to implement the following good practices:

(a) to clearly state in their terms and conditions, as a ground for suspension or termination of their contract with sellers, any finding, including by the competent authority, of the use of their payment services for IP-infringing activities;
(b) to set up notification mechanisms allowing rightsholders using their payment services to notify any IP-infringing activity;
(c) where technically and economically feasible, to have an information system in place to enable the identification of operators engaging in IP-infringing activities, across different payment services, when one payment service provider has terminated its services with such operators on the grounds of IP-infringing activities;
(d) to exchange information with other payment service providers on trends regarding IP-infringing activities and to put in place specific measures against repeated misuse of their services, particularly where there has been a finding by a competent authority that their services have been used for IP-infringing activities.

Social media providers should similarly prevent misuse of their services, including by having systems in place to identify and take action against those misusing their services for IP-infringing activities.

Domain Name Registries/Registrars

The Commission’s Recommendation naturally assumes that where the law compels intermediaries or service providers to take action, that should be the standard minimum response. However, when entities are asked to go above and beyond, which appears to underpin almost every proposal in the Toolbox, service providers find themselves “encouraged to implement” various measures.

In respect of domain names, Directive (EU) 2022/2555 obliges “TLD name registries and entities providing domain name registration services” to “collect and guarantee the integrity and availability of domain name registration data.” EU Member States should further require these entities to “respond without undue delay” to requests for the disclosure of registration data following requests from “legitimate access seekers.”

Legitimate access seekers include those considered competent under EU or national law for the prevention, investigation, detection, or prosecution of criminal offenses. However, the definition can also encompass anyone with a legitimate reason to access the information, which includes rightsholders and their agents.

When access to domain name registration data that is personal data is sought, TLD-name registries and entities providing domain name registration services established in the EU and/or offering services in the EU are encouraged to recognize as legitimate access seekers any natural or legal persons who make a request for a right to information pursuant to Directive 2004/48/EC .

Member States are further encouraged to share intelligence and data on emerging piracy trends, including lists of websites that have been held by competent authorities to have carried out IP-infringing activities, the tactics and behaviors of alleged infringers, and to explore news ways to share information on those who “repeatedly engage in IP-infringing activities.”

Dynamic Injunctions, Unmasking Petty Infringers

Several EU Member States already have mechanisms in place that allow rightsholders to obtain injunctions against infringers and intermediaries, but the Commission would like to see more.

Specifically, Member States are encouraged to provide for the possibility of dynamic injunctions that can be applied to IP-infringing activities that are similar to those already identified, but are yet to be identified, such as the use of mirror sites.

The Commission also encourages Member States to ensure that petty infringers can’t escape simply because their activities are not commercial in scale or even commercial at all.

“Member States are encouraged to provide for the possibility for the competent judicial authorities to order disclosure of the relevant information to effectively fight IP infringements which are not on a commercial scale, in response to a justified and proportionate request of the claimant in proceedings,” the Commission writes.

“For these purposes, the relevant information could consist of the same information which may be requested in accordance with Article 8(2) of Directive 2004/48/EC , including the email address, telephone number and IP addresses relating to alleged infringers or participants to alleged infringing activities.”

The European Commission’s Recommendation (Toolbox) can be found here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

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