The Piracy Shield blocking controversy on the boil since February has shown that overblocking in Italy either doesn’t exist, is someone else’s fault, or was too brief to be considered important.
To that background, news this week that Italian telecoms regulator AGCOM has nullified one of its own piracy blocking orders is somewhat unexpected. The finer details reveal that the background to the original blocking order gives cause for concern for entirely different reasons than those that caused the retraction.
Tech Site Unblocked After Appeal to Regional Court
Giardiniblog.it describes itself as a tech information site. It’s been online for over 18 years and with around one million visits per month, most of them from inside Italy, it can consider itself a success.
This week, in a celebratory blog post, the site’s editorial staff “expressed great satisfaction” after a legal appeal filed at a regional court prompted AGCOM to cancel a site-blocking order that rendered Giardiniblog mostly inaccessible for over a month.
SimilarWeb data shows the drastic effect blocking had on the site’s traffic; built up over almost two decades but then over a third of visits wiped out in a matter of weeks.
Hoping to establish why a tech site had been treated no differently than the most egregious piracy portals, we pulled and translated every document AGCOM makes available to the public as part of the site-blocking process. Those records reveal a significantly lowered threshold for site-blocking measures than previously understood.
The Retraction Order
The relevant AGCOM ‘order of annulment’ is dated May 10, 2024, and, like most documents published by the regulator, it begins with a list of relevant laws dating back to 1941 before getting to the crux a page and a half later.
At that point it cites other documents, including a blocking application filed by the Federation for the Protection of Audiovisual and Multimedia Content (FAPAV), an anti-piracy group representing the members below.
The blocking application was filed on behalf of Vision Distribution S.p.A, the holder of “exploitation rights on a significant amount of audiovisual works.”
The claims against Giardiniblog, which would soon lead to its blocking throughout Italy, read as follows (translated from Italian);
The pages indicated in the petition advertise several streaming sites with content not authorized by the rights holders. Some of these sites have been repeatedly reported by FAPAV to AGCOM and blocked by the Authority. The same web pages often include directions on how to change DNS or use VPNs to obviate the blocking of some sites by Internet providers.
Most of the pages mentioned in the petition have already been reported to AGCOM in petition DDA/5427. Following the initiation of the relevant proceeding, we noted that the hyperlinks to the offending sites on the pages have been deactivated, but the indication of the updated domain of the various unauthorized streaming sites remains.
From the above, it seems fairly clear that Giardiniblog did not host any infringing content or link to any infringing content owned by the rightsholder in question. Instead, it appears to have provided links (which were removed before the blocking order was issued) to domain names that acted as alternative access points to sites whose domains had been blocked previously by AGCOM.
Pages Now Removed, Wayback Machine Still Intact
From the above, it seems reasonable to conclude that Giardiniblog linked to domain names that were not yet subject to blocking orders in Italy; if they had already been blocked, there would be no point in mentioning them. The site also appears to have provided information on how to change DNS settings or use VPNs to circumvent blocking.
A copy of a typical page is available on the Wayback Machine but, since they’re all quite long, the introduction to a page published in February can be found below.
In a notice published by AGCOM indicating the start of preliminary proceedings against Giardiniblog, the regulator notes the following:
“From the checks conducted, it appears that the petitioned site https://giardiniblog.it, advertises several streaming sites containing digital works that the petitioner claims are owned by its members and therefore disseminated in violation of the law.”
AGCOM further notes that the site offers instructions on how to “circumvent the DNS blocking access inhibition orders” previously issued in Italy.
“These elements lead management to believe that the facts themselves constitute a serious and massive violation,” the notice adds.
Foreign-Registered Domain and Servers
An investigation found that giardiniblog.it’s domain name is registered to OVH Groupe in France, while its servers are located at OVH in Saarbrucken, Germany. According to AGCOM, these elements and the “seriousness of the violation and its massive nature” meant that the Giardiniblog blocking application qualified for rapid processing.
The final blocking order (pdf), dated March 19, 2024, appears to be dynamic, meaning that any and all replacement domains deployed by Giardiniblog also faced blocking; in short, the end of an 18-year-old project.
As mentioned earlier, following an appeal to the Lazio regional court, this week AGCOM annulled its own order, a result for Giardiniblog but not necessarily as positive as it may sound. Anyone thinking that the withdrawal had anything to do with overreach in respect of the site not linking to copyright works, or simply providing unblocking instructions or listing domain names for informational purposes, are likely to be disappointed.
Canceled “Due to a Mere Clerical Error”
Before a site can be blocked under this process in Italy, hosting providers have to be notified. In this case, it appears that the petition was sent to OVH Groupe as the registrar of the domain and the assumed provider of hosting services.
However, due to a “mere clerical error” the notification was not sent to the company Starks srls, the “likely owner of the site subject of the proceeding http://giardiniblog.it and already addressee of two proceedings No. 1382/DDA/GDS and 1993/DDA/GDS concerning the same site.”
The documentation for the first proceeding (pdf) reveals a similar complaint. Filed by FAPAV on behalf of Wonder S.r.l, Warner Bros. Entertainment, Vision Distribution S.p.A, and Rai Cinema S.p.A, it contains similar allegations, i.e. linking to or “advertising” the existence of pirate sites while detailing how to circumvent blockades.
Site-Blocking is Only Ever a Tiny Step Away From Even More Blocking
While there is room for debate on all novel applications of copyright law, we’re unaware of any cases in the EU where a rightsholder has successfully argued a case for damages because someone generically linked to the main page of a website.
Mirror sites are summarily blocked in many countries but an exact copy of a website, likely to facilitate access to over 90% infringing material, seems a far cry from the information made available by Giardiniblog.
We’re also unaware of any copyright infringement cases built on an assertion that providing site-blocking circumvention advice amounts to a violation of a specific rightsholders’ rights.
That’s not to say that no cases exist, but we’re certainly unaware of any being mentioned when highly-targeted site-blocking measures, that will only ever be used against obviously-infringing pirate sites, have been presented to governments as a solution to piracy.
AGCOM’s order instructing Italian ISPs to unblock Giardiniblog can be found here (pdf)
