ISP blocking and filtering: on the shallow justification in case law regarding effectiveness of measures

Arno R. Lodder, Puck Polter

Abstract


Despite the outdated copyright framework, there is still little effort to beat threats by exploring online opportunities (cf. Netflix and Spotify). In the ongoing battle to close the ‘electronic colander’ an interesting recurring question is how to evaluate the effects of measures used to combat online piracy. At least traditional enforcement strategies do not seem to reach the desired effects in the modern age because technology offers plenty means for circumvention.

Over the years injunction claims have been granted, though not in all cases. Different arguments have been used before the courts for both accepting and rejecting these claims. Our aim is to identify ‘how much effectiveness’ is needed to come to the conclusion that a measure is sufficiently effective. This paper elaborates on the concept of effectiveness using different theories and analysing case law.

Keywords: ISP blocking; copyright; online piracy; injunctions; effectiveness


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