More than a year after its official debut in February 2024, Italy’s controversial Piracy Shield blocking system is yet to deliver on the key predictions justifying its launch.
Claims of piracy’s total elimination quickly evaporated, taking predictions of major economic benefits down with them. The pirate sites causing the issues are now rarely mentioned by the authorities. Instead, telecoms regulator AGCOM and major football rightsholders have sought to toughen up legislation, and through a current public consultation, amend copyright protection regulations.
Public Consultation
Proposals for new technical and operational changes were reported last month. Hampered by the veil of secrecy surrounding Piracy Shield and its operations, input from the public has little chance of being taken seriously. Fortunately, the most important issues won’t go unaddressed.
A submission dated April 3 by the Computer & Communications Industry Association (CCIA) is notable for the members it represents; global tech giants such as Amazon, Apple, Cloudflare, Google, and Meta, among others.
“Like many other operators in the digital sector – whether based in Italy, in other EU Member States, or outside of Europe, – we have been expressing serious concerns about Italy’s Piracy Shield, which AGCOM has chosen as a tool for issuing orders to block internet sites (i.e. within the very short time frame of 30 minutes),” CCIA’s submission reads.
“These requests are made by rightsholders without due process or possibility for recourse. Hence, we believe that the Piracy Shield poses significant risks to the principles of freedom of enterprise expression, as established by European and Italian law.”
Piracy Shield Risk Factors
The basic factors said to contribute to these risks are well known. The Piracy Shield system was developed by a company affiliated with football league Serie A, one of the few companies currently allowed to use it. The technical features of Piracy Shield have never been made public and participation in the technical committee was by invite only and few operators from the digital sector were invited.
Subsequent operational errors, including overblocking affecting Cloudflare and Google Drive, also feature in the submission, but the specifics can be found in the regulatory amendments proposed by CCIA.
(Note: Machine translations may lack nuance, original documents included below for reference)
Proposed Changes to Regulations
According to CCIA, Article 8, paragraph 3 of AGCOM’s draft, awards AGCOM the power to issue orders to remove content from servers hosted outside Italy (in other EU Member States), based on a reference to provisions in the Digital Services Act (DSA).
While the provision to which AGCOM refers is unknown, establishing the scope of AGCOM’s jurisdiction is important. To that end, CCIA calls on AGCOM to identify the provision “that you believe to establish this extra-territorial power.”
On the same theme, CCIA takes issue with paragraph 4 directly after.
The issue here begins with the assertion that AGCOM should be awarded powers to issue orders to remove content from servers hosted outside Italy. AGCOM currently has the authority to compel Italian ISPs to block access to servers, usually foreign, to prevent those servers being accessed by users in Italy.
Given the similar end result, CCIA notes that when it was previously envisaged that AGCOM should be awarded local blocking power, that was promoted “precisely with specific reference to the hypothesis of servers located beyond national borders, as a substitute for the direct order of removal.”
References to the Digital Services Act
That AGCOM intends to make use of provisions available under the EU’s Digital Services Act (DSA) is a complication, especially when the provisions aren’t made clear, as the ‘extra-territorial’ example above shows.
Further DSA-related issues quickly raise their heads too, specifically concerning Article 9, Orders to act against illegal content. The relevant sections below from the DSA (EU law) and AGCOM’s reference to that law, are followed by a comment from CCIA.
A second translation of CCIA’s comment (in yellow) reads as follows: “Provision should be made for compliance with the formal requirements for authority orders in Article 9 of the Digital Services Regulation, referred to in this same rule as the source of the information obligation.”
This statement may serve as a reminder that removal orders issued under Article 9 of the DSA impose a reporting obligation on intermediary recipients. However, for an order to be considered valid under Article 9, the issuer must ensure that takedown orders contain the following at minimum:
(i) the legal basis for the order under EU/national law (ii) a statement explaining why the information is illegal, (iii) information to identify the issuing authority, (iv) clear information enabling the intermediary to identify and locate the illegal content, (v) information about redress mechanisms available, (vi) details of the authority to receive information about the effect given to the orders.
Major Concerns Over Draft Regulations in Article 10
The real dispute takes place around Article 10, Precautionary proceedings for violations relating to audiovisual content broadcast. To appreciate the gulf between AGCOM’s stance and that of CCIA’s members, the first page of proposals tackle several fundamental issues that AGCOM has thus far refused to discuss.
Basics include the requirement that when AGCOM issues a blocking order, a timeframe of 30 mins to implement it safely isn’t realistic. Five days, on the other hand, is too short for those wrongfully blocked to file an appeal. Calls for improved transparency have also fallen on deaf ears, but the full list goes on…..and on.
CCIA concludes its submission with a request for a dedicated hearing but before that, the tech industry group urges AGCOM to reconsider its approach.
“We take the opportunity to encourage AGCOM to reconsider its blocking approach and instead focus its efforts on targeting the actual hosts and distributors of pirated content and on protecting content at the source,” CCIA’s submission adds.
“Network-level blocking does not remove content from the internet, can easily be circumvented and is ultimately ineffective in combating piracy, reducing infringing content, or deterring sophisticated piracy tactics.”
CCIA’s summary is available here (pdf), the full set of proposals here (docx, Italian)
From: TF, for the latest news on copyright battles, piracy and more.
Source : Tech Giants Propose “Critical” Piracy Shield Regulation Amendments
