In mid-January, the EU is hoping to finalize the EU Copyright Directive, including Article 13, which will effectively create mandatory copyright filters for many internet websites (while, laughably, insisting it creates no such burden -- but leaving no other option for most sites). One of the key arguments being made by supporters of Article 13 is that it's crazy to think that this law will be used to block legitimate content. This is pretty silly, considering how frequently we write about bogus DMCA takedowns. As if trying to prove just how bad they are at properly classifying infringing content, the EU recently released its "Counterfeit and Piracy Watch List", which is a sort of EU version of the USTR's "notorious markets" list. That list has been widely mocked for basically declaring any site that Hollywood doesn't like "notorious", even if no court has ever ruled that it's breaking the law.
It would appear that the EU list has the same sort of problem. For example among the sites listed in the EU report is Cloudflare, a platform used by tons of internet companies (including Techdirt) as a CDN or to protect against DoS attacks (among other things). Cloudflare is simply a tool -- like a phone line -- that tons of internet companies use. If some of them are doing things that are against the law, that should be on those sites, not Cloudflare. Unfortunately, the EU doesn't seem to care.
CloudFlare is a US based company, which provides hosting service combined with other services, including CDN services and distributed domain name server (DNS) services. According to the creative industries (film, music, book publishers, etc.) and other organisations, CloudFlare 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 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 services.
This is, again, kinda like saying "40% of illegal bookmakers use AT&T to provide phone service, and thus we should all blame AT&T." Except, that's not how it works. Lots of sites use Cloudflare, because Cloudflare is good at what it does. It's providing infrastructure. Also, the EU gets it wrong in claiming that Cloudflare provides "hosting service(s)." Cloudflare is a pass-through service. It is not hosting the content of the websites it works with.
Including Cloudflare on a list of dangerous pirate sites suggests that whoever put together such a list (EU regulators) or whoever suggested its inclusion ("film, music, book publishers, etc.") haven't the slightest clue what they're talking about.
And it gets worse. Torrentfreak later notes that a few of the "pirate sites" listed in the EU's report no longer host any infringing content, and have actually changed hands entirely to someone who is pointing them to legitimate sources of purchasing/subscribing to content. As Torrentfreak correctly notes, some of these sites used to mostly be repositories of links to infringing content, but most stopped a while ago, including some that stopped well before this report was put together.
Now, some may argue that it doesn't matter -- since those domains used to be used for infringement, that's all that matters. That, however, seems incredibly silly. The fact that a few of those links are now driving people to legitimate, licensed sources, certainly shows why blocking such links or sites entirely is a truly silly idea. Those sites can be better purposed in a way that actually adds value and provides traffic to licensed content providers.
But, really, if we go back to the questions around Article 13, it should lead us to question what is going to happen here when the rules state that sites could face massive fines for allowing any infringing content through when even the EU itself -- the folks creating this regulation -- can't seem to do a very good job of accurately naming "infringing" sites. How is it that all of these internet companies, which will face the burden of Article 13, be expected to accurately figure this stuff out when the regulators themselves are so confused?