The European Commission (EC) has compiled its first Counterfeit and Piracy Watch List, which names the websites and internet businesses that they most blame for infringements of intellectual property rights (IPR).
The Watch List reflects the results of stakeholder consultations. It presents examples of reported marketplaces or service providers whose operators or owners are allegedly resident outside the EU and which reportedly engage in, facilitate or benefit from counterfeiting and piracy. The aim is to encourage the operators and owners as well as the responsible local enforcement authorities and governments to take the necessary actions and measures to reduce the availability of IPR infringing goods or services on these markets. The Watch List also intends to raise consumer awareness concerning the environmental, product safety and other risks of purchasing from potentially problematic marketplaces. The Watch List focuses on online marketplaces as piracy and the distribution of counterfeits increasingly take place through the internet.
A variety of different outfits are mentioned in the report. There is a list of cyberlockers like Openload, whose cloud-based storage facilities are used by pirates to share copyrighted content. Popcorn Time is singled out as being a prominent and popular piracy app. It is no surprise that the report also covers torrent sites like The Pirate Bay. A more controversial choice is to list content delivery network Cloudflare because it “provides anonymity to the owners and operators of the websites that use its services, which is particularly useful also for the operators of pirate websites”. The report repeats the criticisms of Cloudflare made by many rightsholders:
According to the creative industries (film, music, book publishers, etc.) and other organisations, CloudFlare (sic) is used by approximately 40% of the pirate websites in the world. It operates as a front host between the user and the website’s back host, routing and filtering all content through its network of servers. Out of the top 500 infringing domains based on global Alexa rankings, 62% (311) are using CloudFlare’s (sic) services, according to stakeholders. A sample list of 6,337 infringing domain names presented by the film industry showed over 30% (2,119) using CloudFlare’s (sic) services.
The EC is not behaving responsibly by publishing assertions like these whilst relying so heavily on the words “according to”. Perhaps Cloudflare should be run differently, but a major global internet player that also provides important security services deserves more respect than obviously criminal enterprises like The Pirate Bay. It is hard to understand why the EC did not offer Cloudflare a proper right of reply. If the report writers had made the effort to contact Cloudflare’s management then they would at least have corrected the repeated error in writing their name!
This one-sided criticism of Cloudflare further suggests that the European Union’s policymakers have retreated into their own internet echo chamber. They have become enormously trusting of certain claims made by European stakeholders, when it should be obvious that a business which has a stake also has a motive to supply biased information. This also fits a pattern where the European Union is increasingly dismissive of the benefits of an open internet. The net result is that the EU has become more actively hostile to US-based internet innovators like Cloudflare.
Seen in this context, the timing of the release of this report suggests it is also part of a strategic war that powerful Europeans are waging on the kinds of internet businesses that Europe has failed to nurture. The report says it is focused on actors based outside of the European Union, as if all the world’s problems lie elsewhere. But were the founders of The Pirate Bay not Swedish?