A key element of enforcement action is to be able to identify individuals and entities responsible for infringing activity but currently that can prove to be a problem. In many instances, domain companies, hosts and other providers that enable pirate sites to stay online do no conduct due diligence when platforms sign up for service. As a result, putting real-world names to their operators is problematic.
Tighten Legislation To Defeat “Bad Actors”
As reported last summer, representatives from Europol, the MPA and similar groups bemoaned the “increasingly cross-border dimension of piracy” while championing a verified “Know Your Business Customer” (KYBC) as a practical way to tackle pirate operators.
“This type of approach would allow us to combat anonymity on the web, now a constant of those who work illegally to exploit and earn through the unauthorized use of audiovisual works, through the verification of the information provided in the context of the purchase of services such as hosting, domains, storage etc,” anti-piracy group FAPAV said.
Last September, a large group of anti-piracy organizations and copyright holders including the MPA, BREIN, BPI, IFPI, and Rights Alliance, increased pressure on the European Commission by demanding stricter online identity checks as part of the planned Digital Services Act.
Specifically, they called for measures to support Article 5 of the e-Commerce Directive which requires businesses to identify themselves but is frequently ignored.
Dedicated Portal To Lobby For KYBC
Upping the pressure on the European Commission to tackle the problem, dozens of entities representing the rights of the entertainment, publishing, broadcasting, advertising, pharmaceutical, cosmetics and electronics industries now have their own dedicated KYBC lobbying portal.
Yesterday the companies and groups published an open letter with demands that the EC expands its current plans that thus far only impose KYBC obligations on online marketplaces under the Digital Services Act.
“With regard to KYBC obligations, we welcome the inclusion of a provision ensuring the traceability of traders in Article 22. We acknowledge that this represents a step forward. However, the Commission’s proposed Article 22 only introduces KYBC obligations in the context of online marketplaces,” they write.
“Such a limited approach is a missed opportunity to address the broad range of illegal content and counterfeit, unsafe, non-compliant and substandard products online.”
While the signatories also include companies such as Heinken and Philips, the overwhelming majority are players in the entertainment industries. The MPA, BREIN, IFPI, BPI, Rights Alliance, FAPAV (which operates the portal), TTVK, IVF, VAP, plus the BBC and Sky, are all calling for the same thing – a tightening of rules that would make it much harder for pirate sites and services to operate with impunity by ignoring Article 5.
“A business cannot go online without a domain name, without being hosted, or without advertisement or payment services. These intermediary services, having a direct relationship with the business, are therefore best placed to make sure that only businesses that are willing to comply with the law have access to their services,” their letter reads.
“This does not mean monitoring their business customers’ behavior, but merely asking them to identify themselves and applying simple due diligence checks on the basis of publicly available data. Should the information provided prove to be manifestly wrong, or the intermediary be notified that the business customer isn’t who it claims to be, the intermediary should stop providing services until the business customer remedies the situation.”
The companies behind the letter have a clear bias towards protecting unlicensed content from being distributed online. However, they also claim that an enhanced KYBC regime will help to protect consumers too by hindering not only ‘pirate’ operators but also those involved in scam websites, counterfeit medicines, sexual abuse materials, and malware.
“These illegal activities can cause serious harm to EU citizens’ physical, psychological and financial wellbeing. In some cases, especially during the COVID-19 pandemic, they can even pose a threat to life. All of these operators and all intermediary service providers enabling them to operate should be subject to KYBC provisions,” they note.
According to the signatories, the Digital Services Act presents an opportunity for the European Commission to address these and related issues that are currently underserved in the e-Commerce Directive, including by requiring customer verification that will allow intermediaries to determine who they should be doing business with.
“We therefore urge [the European Commission] to ensure that all intermediaries – not just online marketplaces – know who their business customers really are,” they conclude.
In a supporting statement published by BREIN, the anti-piracy group says that without the ability to identify the operators of commercial-scale infringing platforms, it is too easy for them to switch to another host after being taken online.
“It is therefore necessary that the hosting and upstream provider verify the identity of their business customers and also require that of contracting parties who (re) sell their services,” BREIN writes.
The anti-piracy group adds that it is currently taking legal action against a number of Dutch hosting companies to compel them to hand over crucial evidence associated with pirate services. One of those companies is Worldstream, which previously offered services to the now-defunct pirate CDN Moonwalk.
Having previously been known for having a number of pirate services on its books, including various IPTV providers, Worldstream now appears to be working with the authorities. Earlier this month, 275 participants, including representatives from law enforcement in 43 different countries, discussed how piracy could be tackled across borders in an INTERPOL and Audio-Visual Anti-Piracy Alliance hosted webinar.
Among them was Worldstream Chief Legal Operations Officer Wouter van Zwieten, who reportedly explained how the private sector is able to contribute to enforcement activity through training, intelligence sharing, analytical support, and support for operations.
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