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Adapting Advertising Infrastructure for Content Regulation: WIPO’s BRIP Blacklist

In the name of “brand safety,” advertisers these days are working hard to better control where their ads appear online. Programmatic advertising with real-time bidding automates the process of online ad buying and ad placement to such an extent that the entire process takes place in the time it takes a web page to load. The process is highly efficient, but a significant downside is that ads sometimes appear alongside controversial content with which an advertiser would rather not be associated. Online pornography is the classic example, but other strains of extreme content—e.g., hate speech, conspiracism, and incitement-to-terrorism—have more recently come into focus for advertisers as threats to brand reputation.

Advertisers’ anxiety over reputational harms associated with programmatic advertising peaked in 2017 with an event known in the industry as “Adpocalypse.” Adpocalypse was an advertiser boycott of YouTube that took place over the course of several months in response to the discovery that major-brand ads were running alongside a particular blatantly racist video. Brands participating in the boycott included Coca-Cola, Dr. Pepper, and Johnson & Johnson. YouTube reacted quickly by demonetizing channels it classified as not “family friendly”—a sudden move that panicked many channel owners who rely on monetization to make a living.

Long before Adpocalypse and the industry’s current focus on brand safety, corporate copyright and trademark holders leveraged the machinery of programmatic advertising to control online content. They adopted what has come to be called the “follow the money” approach to anti-piracy and anti-counterfeiting enforcement. Initial efforts focused not on advertisers themselves but on the gatekeepers of online advertising—the major ad networks. Trade associations for rightholders successfully lobbied the US government to pressure ad networks to enter into a voluntary agreement to stop placing ads on sites identified by rightholders as “pirate sites.” (I have written at length about that agreement—here—and about a related agreement involving payment processors—here.) The behavioral theory underlying the “follow the money” approach is straightforward: an effective way to control infringing content (or any other disfavored content online) is to make it unprofitable for the people who make it available.

The latest initiative in rightholders’ “follow the money” campaign takes advantage of post-Adpocalyptic corporate anxiety and targets advertisers themselves. The initiative is a global website blacklist sponsored and administered by the World Intellectual Property Organization (WIPO), an arm of the United Nations whose mission is (ostensibly) “the development of a balanced and effective international IP system.” Such blacklists exist already for domestic use in the UK, France, and elsewhere; however, their geographic limitation is a source of vexation for rightholders seeking wider enforcement. A global list maintained by an international, quasi-governmental organization like WIPO expands that reach.

WIPO has dubbed its new blacklist project the Building Respect for Intellectual Property Database (BRIP Database). It is the product of a two-year planning process intended to create “an online platform to coordinate the sharing of information about copyright-infringing websites with the advertising sector.” The paragraphs that follow summarize key aspects of the program.

Who has access to the BRIP Database?

The secure website is accessible to advertisers, specifically, “[a]pproved actors in the advertising sector (brand owners, advertising agencies and their technical service providers).” “Authorized Users” can download the list and use it to block ad placements on all included third-party websites. To become an Authorized User, an approved actor must enter into a contract (“User Agreement”) with WIPO. WIPO has not made the User Agreement publicly available.

Can members of the public find out who is in the BRIP Database?

No, they can’t. “Access to the portal will be limited to advertisers and advertising intermediaries who are accepted by WIPO, following a check on their bona fides.” Others need not apply.

Who can add websites to the BRIP Database?

“Agencies which gather infringing site data” are considered “Authorized Contributors” to the BRIP Database. To participate in the program, such agencies are required to enter into Letters of Understanding (LoUs) with WIPO. WIPO has not made its LoUs publicly available.

Authorized Contributors may have an official investigative role, but they often act more as a pass-through for trade associations’ allegations of bad behavior. An example of the pass-through approach to officially identifying “pirate sites” is the United States Trade Representative’s annual list of “notorious online markets,” which is largely if not wholly populated in reliance on submissions by rightholders and their trade associations.

Which websites are included in the BRIP Database?

A website can be included in the BRIP Database without any neutral adjudication that the site is dedicated to copyright infringement. WIPO’s description of the project repeatedly refers to “pirate sites” and “websites which deliberately facilitate copyright infringement;” however, WIPO explicitly disclaims “any assertion…that a particular site has, as a matter of law, infringed copyright.” Instead, it cautiously refers to included sites as “sites of concern.”

WIPO defines a “site of concern” as “an online location which is reasonably suspected by an Authorized Contributor of deliberately infringing or facilitating the infringement of copyright and related rights, whether in its country of establishment or elsewhere.” Authorized Contributors are thus the sole arbiters of whether a site qualifies for inclusion, and the evidentiary standard—reasonable suspicion—is less than probable cause. WIPO assures us, for what it's worth, that national lists maintained by Authorized Contributors are “invariably” limited to “flagrant facilitators of copyright infringement.”

What if a website operator believes their website has been wrongfully included?

WIPO provides no process by means of which a website operator can contest inclusion in the BRIP Database. It describes its role in the maintenance of the database and the dissemination of its contents as purely ministerial. Public agencies from member states are responsible for adopting their own criteria for inclusion and for maintaining the accuracy of their lists. Whatever rights a website operator has (or lacks) for contesting inclusion are determined at the national level.

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