When video and broadcast companies take on their pirate site competitors, it’s only natural that once they have their day in court, steps are taken to ensure that the sites don’t just to come back online.
While even hermetic injunctions can’t work miracles, they make it easier to disrupt a pirate site’s activities to the point that it’s not worth continuing. On the other hand, an injunction that is too broad can also disrupt the activity of third-party services, although they have little to do with the infringement or any reasonable way of foreseeing it.
Big injunction, big technical problems
This is exactly what happened when several Israel-based video companies won three lawsuits and injunctions to shut down three streaming/IPTV platforms. The injunctions granted sweeping powers, from blocking residential ISPs to almost any other action the plaintiffs saw fit to keep the sites offline.
Almost immediately, this led to friction with third-party service providers, and it only got worse when an affected Cloudflare was threatened with contempt of court for non-compliance. CDN fought back with support from Google and EFF, which brought the parties back to the negotiating table.
Filings in the case last week suggested an acceptance by the plaintiffs that the injunction cannot be enforced in its current form. The parties promised to work on a new injunction to address both parties’ concerns and as a result, a new proposal is now awaiting court approval.
The original injunction undergoes surgery
The permanent injunction issued against the pirate IPTV platform Israel.tv began conventionally by permanently preventing its operators (and anyone acting in concert or with them) from doing anything in the future that violates the rights of complainants.
However, by also stating that the same is true for third-party services that may come into contact with defendants’ operations, now or at any time in the future, plaintiffs began to rub shoulders with companies like Cloudflare, who rejects any idea that they are ‘acting in concert’ with hackers. As a result, the proposed amended injunction appears much less threatening.
The first change comes with the removal of enforcement powers against “third parties providing services used in connection with defendants’ transactions”. And where the injunction originally referred to those “Operating and/or hosting Defendants’ infringing website”, it now reads “Operating Defendants’ infringing website”.
But this is only the beginning.
Major ISPs no longer required to block pirate sites
Before Cloudflare got involved, the obviously broad first part of the injunction was an obligation for every ISP in the United States to block the three IPTV services, not only in their current domains, but also in all those they could use in the future. All blocked domains were also to be redirected to an anti-piracy landing page, as a deterrent message.
The entire section setting out the requirements and conditions for such blocking has now been completely deleted from the proposed amended injunction. No ISP blocking in any form is requested, but the removals go far beyond that.
The original also ordered all third parties “used in connection” with pirate sites not to do so now or in the future. These third parties included ISPs, hosting providers, CDNs, DNS and VPN providers, domain name entities, advertising partners, search engines, payment processors, banks, credit card companies, and many more. This section has also been removed.
Dealing with new domains
The initial injunction not only gave the plaintiffs broad powers to act against the pirate sites’ existing domains, but also against any new domains registered by the defendants to replace those already seized. In common with other aspects of the order, including those granting authority over companies like Cloudflare, there was a complete lack of judicial oversight.
The plaintiffs believed that they could issue an order, without supporting evidence, and that third parties had to comply. In the proposed amended injunction, this is not the case. Where plaintiffs identify “newly detected areas”, they will be required to notify the court and seek permission to further modify the injunction. When granted, this order will need to be served on registries and registrars.
Previously, the injunction required domain companies to make domains inactive within seven days and set them to redirect to the video companies’ anti-piracy page. This requirement has also been removed while a new section explains that if a registry or registrar wishes to object to a deactivation order, they are permitted to do so, without being held in contempt of court.
Continuing the theme that action can be taken against domains facilitating piracy, but only when the court has knowledge and control of it, the proposed amended injunction details an updated list of specific domains, including the following:
israel.tv, israeli.tv, israeltv.com, israel-tv.xyz, israeltv.to, t2m.is.isr, t2m.ac, isr.dev and zira.to. New additions include israeltv.se, israeltv.nu, israeltv.su, isratv.ru, israeltv.am, israeltv.la, israeltv.bz, israeltv.hk, israetv.eu, israeltv.is and sini.la.
Interestingly, the proposed injunction also prohibits operators of israel.tv (and related domains) from using specific apps listed on Google Play that facilitate access to infringing content belonging to the plaintiffs. Hackers are also blocked from accessing a Facebook (“TvFromIsrael”) account and various other messaging channels previously used to provide customer support and new domain information.
Entire section dedicated to Cloudflare
With the contempt of court issue behind them, Cloudflare and the plaintiffs appear to have settled their differences. An entire section of the injunction dedicated to Cloudflare implies that the CDN company is indeed ready to help video companies but that they will have to comply with certain standards.
Before even contacting Cloudflare, they will first need to make “reasonable and good faith efforts to identify and obtain redress for identified domains from hosting providers and domain name registries and registrars”.
If complainants still require Cloudflare’s assistance, Cloudflare will comply with claims against the domain names listed in this and future injunctions by preventing access to the following:
Intercommunication security services, content delivery network (CDN) services, video streaming services and authoritative DNS services, DNS, CDN, streaming services and all related services
An additional note states that plaintiffs acknowledge that Cloudflare’s compliance “will not necessarily prevent defendants from providing users with access to defendants’ infringing services.”
Given the agreement on terms, the amended injunction will likely be signed by the court in the coming days. Service providers around the world will breathe a sigh of relief as rights holders have a template for similar cases in the future.
The proposed amended injunction documents can be found here (1,2,3,4,5 pdf)
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