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Several outlets are reporting that the Motion Picture Association of America’s policy efforts have, over the past years, continued, post-SOPA (Stop Online Piracy Act), to focus on different theories of site blocking. With Congress wary of passing new legislation that could lead to private online censorship, the movie industry is apparently shopping around for other forums in which to press its site-blocking agenda.
Site blocking, and in particular DNS-based blocking, you may remember, was the mechanism behind the justly-maligned SOPA proposal of recent memory, which did little to actually stop infringement, while jeopardizing online stability and security.
The thing is, you can take a site down today with an injunction against it. You just have to go through the trouble of suing the site and winning. Despite the DMCA safe harbors, you can also get an injunction against an ISP or an online service to stop linking to a site—if you can show that the ISP was actually working with, inducing, or contributing to the bad acts of the infringers.
But that takes additional time and effort, so MPAA hired outside counsel to investigate a few possibilities for short-cutting this procedure, to see if they could get injunctions against service providers despite those providers not actually doing anything wrong. Other novel tactics they considered:
The International Trade Commission
The ITC is a group within the U.S. government that basically acts as a separate court system. We most often run into it in the patent context—regardless of how your patent suit might be doing in the normal court system, you can bring a complaint at the ITC that someone is infringing your patent. If you win there, the ITC issues an order that prevents the infringer from importing the infringing goods.
But as we’ve noticed recently, the MPAA is exploring the idea of using the ITC to stop data from moving across national borders. It weighed in on a recent case involving the transfer of data involved in a patented technology. Clearly, the movie industry wants to see if it can use this same odd little process to block international transmissions of data that it thinks are infringing its copyrights.
The new documents confirm this, including another legal memo exploring just this possibility, concluding that it “offer[s] a number of advantages over federal court litigation.”
Apart from federal and administrative litigation, the movie industry also appears to have been holding a variety of meetings with service providers to try to reach private agreements that would enable site blocking. One such meeting sought to bring together Sony, DHS, Google, Eli Lilly, the National Center for Missing and Exploited Children, and possibly Rosetta Stone. Eli Lilly and other pharmaceutical companies were early proponents of SOPA; Rosetta Stone has engaged in prolonged litigation over competitors using its name as keywords for ad placement, as well as binding the use of its products with restrictive licenses. The inclusion of NCMEC is interesting; the fact that service providers quite naturally cooperate with the authorities in trying to stop child porn is frequently used by the entertainment industry as an example of the sort of treatment their products should also receive.
Another meeting among studio executives that focused on site blocking apparently included an invitation to an engineer from Comcast. Comcast’s inclusion in this group is notable, if unsurprising—as the merged NBC/Universal/Comcast entity is both one of the largest ISPs in the country and a major media company, it has less of an interest than your average ISP in making sure its customers’ access to online sources of media isn’t blocked. It’s not clear to me from the documents whether that engineer was invited, or what they might have said, but it’s not hard to imagine that Comcast is more likely to get pulled in before others.
State Attorneys General
Finally, one of the most remarked-upon aspects of the MPAA’s tactics involve its lobbying of and intimate involvement with state attorneys general, in particular the Attorney General of Mississippi. As detailed in today’s New York Times, the MPAA has lobbied state officials to send a series of letters to Google demanding that it take action on linking to sites it believes are infringing. At least one of these letters appears to have been drafted by a law firm hired by MPAA. Other documents suggest a close link between this lobbying and a 79-page subpoena sent from the Mississippi Attorney General, demanding, among many other things, information on how Google’s algorithms rank sites after they’ve received takedown notices for URLs under those domains.
Not finding a receptive audience in Congress, it seems that MPAA has moved to the state level. This is a similar move to what worked in the 80s and 90s, when, failing to pass anti-circumvention laws in Congress, the rightsholders shifted forums to the international level. This is the same sort of policy laundering, only going more local, instead of global, to shift forums.
What’s the Deal With Site Blocking?
What’s particularly alarming about these revelations is the confirmation that the movie industry is still focused largely upon this broad tactic of targeting intermediaries to go after infringing material, despite questions about its efficacy and potential collateral damage. Furthermore, they suggest a “with us or against us” mentality that doesn’t lend itself well to cooperation—at least in public.
Site blocking has, at best, a mixed record in terms of its effect on infringement. When that is measured against the harm to Internet security and stability site blocking can cause, most people (like an angry grassroots) to turn against it. But it seems that MPAA is pressing forward, even in the face of an admitted, continuing lack of understanding as to what the risks were and are. This reckless determination doesn’t increase confidence in the wisdom of that strategy.
The particular methods explored above also suggest that the major objective is to reduce the time and cost of enforcement actions by moving them to faster, cheaper, or more private arenas. Speed is of the essence, and they’re willing to trade due process, accuracy, and security for it.
The public’s unwillingness to take that tradeoff from the rightsholders is what led to SOPA being such a controversy in the first place. Time will tell if any lessons have been learned from that example.
Image credit: Wikimedia Commons user The Ramtzi