MPAA Knows It Doesn't Understand SOPA-Style Site Blocking, But Has Decided It's The Answer

from the really,-guys? dept

While I still think the biggest story to come out of the Sony hacks is the fact that the MPAA had a plan to fund investigations of Google by public officials to get negotiating leverage over the company, a lot of other interesting tidbits have been revealed as well, including the fact that the MPAA still really, really believes in the idea of site blocking. It has listed it as a “high priority” item that was discussed in a recent anti-piracy strategy meeting bringing together the top lawyers from most of the major Hollywood studios:

As the TorrentFreak article above notes, the MPAA laid out a four prong approach to force site-blocking on the US. The Verge recently posted an MPAA email that described at least some of the strategy as well:

We have traditionally thought of site blocking in the US as a DMCA 512(j) issue. In some ways, that is too narrow and we plan to expand our scope of inquiry on two levels. First, DMCA 512(j), by its terms, necessarily creates an adversarial relationship with the target ISP (and more generally with the ISP community). We have been exploring theories under the All Writs Acts, which, unlike DMCA 512(j), would allow us to obtain court orders requiring site blocking without first having to sue and prove the target ISPs are liable for copyright infringement. This may open up avenues for cooperative arrangements with ISPs. Second, we start from the premise that site blocking is a means to an end (the end being effective measures by ISPs to prevent infringement through notorious pirate sites). There may be other equally effective measures ISPs can take, and that they might be more willing to take voluntarily. Our intention is to work with our own retained experts and Comcast (and MPAA?s Technology group) to identify and study these other possibilities, as well as US site blocking technical issues.

The MPAA is right that 512(j) is likely a dead end. In fact, a legal analysis done by the MPAA’s lawyers at Jenner & Block (the MPAA’s preferred legal hatchet men) details why. The “All Writs Act” approach is nutty, and would lead to significant push back from a variety of parties (we just recently noted that the DOJ has been trying to use the All Writs Act to get companies to help decrypt encrypted phones). There would undoubtedly be a big legal fight over any such attempt. Other plans, like using the ITC or the Communications Act would also run into problems.

In fact, The Verge also just published some internal legal analysis from Jenner & Block explaining why the ITC route is really risky and unlikely to work, whether targeting transit ISPs (Level3, Cogent, etc…) or access ISPs (Verizon, Comcast, AT&T, etc…). Amusingly, the “alternative” to SOPA that was pushed out by some anti-SOPA folks in Congress actually would have made the ITC route more feasible, but the MPAA was among its loudest critics. And yet now suddenly it’s exploring the ITC path? Ha!

Either way, the most insane part of all of this is the fact that, nearly three years after SOPA, the MPAA more or less admits in an email that it hasn’t really analyzed the technological impact of site blocking (which was a key component of SOPA) and feels like maybe it should get on it. From the email sent by MPAA General Counsel Steven Fabrizio:

Technical Analyses. Very little systematic work has been completed to understand the technical issues related to site blocking in the US and/or alternative measures IPSs might adopt. We will identify and retain a consulting technical expert to work with us to study these issues. In this context, we will explore which options might lead ISPs to cooperate with us.

Talk about putting the anti-piracy cart before the internet horse…

Meanwhile, the MPAA — recognizing the shit storm created by SOPA — has made sure that all of its site blocking efforts are to remain as quiet as possible (oops):

Be cautious about communications on site-blocking?continue building a record of success where possible, but avoid over-communicating and drawing negative attention…. Where site-blocking is actively under consideration, make available research (1) that site-blocking works and (2) that it does not break the Internet (lack of “side effects”). [Do this] in closed-door meetings with policymakers and stakeholders, [but] not necessarily publicized to a wider audience.

Yes, make sure people think site blocking “works” even though the MPAA doesn’t have the requisite technical knowledge to understand it. So, in the interest of open source research, I’m going to help the MPAA out a bit and explain to them why site blocking is stupid and massively counterproductive. I mean, they could just look at what’s happened in the past few weeks since The Pirate Bay went down, leading tons of other sites to pop up and (as reported in Variety — normally a keen source of spinning in favor of the studios) the actual impact on infringement online was basically nil.

But, let’s take this a step further. Let’s say… for example, that the MPAA succeeded in having certain “evil” sites blocked. Thankfully, at about the same time as these meetings were going on, the MPAA also gave Congress a list of the sites it considered “notorious.” Let’s take one — how about — and do a basic Google Search showing what results would come up if Goliath Google were forced not to link to the site (which is slightly different from site blocking, but the MPAA is also talking about similar efforts to get full domains “removed” from Google as an alternative to site blocking — and the end results would be pretty much the same thing). Take a look:

If you can’t see it, it’s basically a bunch of links to pages listing out where you can go instead of that particular site. In short, site blocking is stupid. It won’t actually cut down on any infringing activity, and it’s easily gotten around, whether by VPNs or just by doing a rather basic search. Now, of course, the MPAA and its friends would likely still blame Google for this state of affairs, but I’m curious how the MPAA contends that Google should return results on such a site if it’s been blocked or removed from search? How could it possibly also block out links to sites that list alternatives? Or is part of the plan to expand the censorship all the way down the pile so that any site that even mentions sites that the MPAA declares “notorious” also need to be blocked? Because if that’s the case, they’re going to run into a pretty massive First Amendment question before long.

The problem — as always — is that the MPAA still thinks that the public is stupid, and that if they can successfully “block” sites that people will stop looking for alternatives. The reality is that the way to get people to stop looking for unauthorized alternatives is to make better authorized alternatives — but that’s clearly still not a priority for the MPAA. And that’s a real shame.

And none of this even touches on the problems with false positives (something that’s already happened a bunch) or how site blocking might seriously screw up certain security setups, like DNSSEC (something the MPAA was clearly warned about during the SOPA fight, but which it still seems to deny is a real problem). In fact, during a recent secret “Site Blocking” meeting by the MPAA, it still appears to mock the idea that site blocking would break the internet by messing up DNSSEC. That’s because the MPAA still doesn’t seem to fundamentally understand the issues at play. If they actually talked to some real engineers at ISPs, maybe they’d learn that this whole infatuation is misguided and won’t work.

In short, the MPAA sees site blocking as a priority because it doesn’t understand the first thing about site blocking and why it would fail — and that’s speaking legally, technically and using just basic common sense. So why is the MPAA so focused on that, rather than actually innovating and adapting? This is what happens when you put a bunch of litigators, rather than innovators, in charge.

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Comments on “MPAA Knows It Doesn't Understand SOPA-Style Site Blocking, But Has Decided It's The Answer”

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jameshogg says:

You know what’s really revealing? The MPAA must surely be aware of the question of VPNs. It must have crossed their minds. Someone within must have surely raised the issue if their serious intention is to limit the piracy of creative goods.

Surely, they should be saying things like “this is how we are going to counter VPN re-routing, X, Y, Z…” but they don’t. They never say things like that.

Either they don’t know about VPNs, which is not possible, or they know about VPNs and are unwilling to say anything about them since they know that they can’t really be stopped.

jupiterkansas (profile) says:

Re: Re:

Seems to me they’ve decided that trying to stop people from pirating is futile (as proven by the music recording industry) and it’s better to stop websites from offering pirated material (which they haven’t realized is also futile, but is easier to legislate against).

But as anyone that’s used Netflix can tell you, the easiest and quickest way to end piracy is just putting your damned movies on Netflix and making it available all over the planet.

John Fenderson (profile) says:

Re: Re: Re:

“it’s better to stop websites from offering pirated material”

I don’t think this is accurate. Given their fixation of lockers and bittorrent, I think they’ve decided it’s better to stop entire websites and services that could conceivably host pirated material. I don’t think they care very much whether or not any pirated material is actually on those sites.

That One Guy (profile) says:

Re: Re: Re: Re:

Given their fixation of lockers and bittorrent, I think they’ve decided it’s better to stop entire websites and services that could conceivably host competing material. I don’t think they care very much whether or not any pirated material is actually on those sites.

I think you may be looking at it wrong. They don’t care if a site is used for piracy, so much as whether or not it can be used to compete with them. If an artist can offer their works via file lockers and torrents, then they have no need to sign away all their rights to a label. And if everyone has a level playing field, they can’t pick winners and losers.

‘Piracy’ has always been a red herring, a nice boogie-man they can pull out, but given all their efforts so far to combat it have been laughably ineffective, either they are, one an all, morons, or they have other objectives. Now, you can argue that one or two of them might be technologically clueless, but all of them? I don’t buy it.

If their real objection to piracy was the profits angle, they could destroy piracy practically overnight, as numerous studies and services have shown that if you make entertainment available at a reasonable price and method, people will buy, even when the free of piracy is an alternative.

They fact that they do not do this, and in fact throw massive amounts of money on the same failed tactics, suggests that profits are not the real goal, but just a handy excuse.

John Fenderson (profile) says:

Re: Re: Re:2 Re:

“They don’t care if a site is used for piracy, so much as whether or not it can be used to compete with them.”

Exactly so. They don’t actually care much about this sort of piracy because they are fully aware that it doesn’t really hurt them that much. What they care about is that they’re losing their monopoly on the means of distribution. That can hurt them critically.

Anonymous Coward says:

“If they actually talked to some real engineers at ISPs, maybe they’d learn that this whole infatuation is misguided and won’t work.”

I don’t think that will work. They’ll speak with some expert engineers who will tell them it won’t work. Then they’ll speak with some engineers who will tell them it won’t work. Then they’ll keep going until they speak with some “engineer” who will tell them it will work. They will then tout said “engineer” to the world as an expert network engineer, and proof that their idea is perfectly feasible.

Anonymous Coward says:

Re: Re:

This reminds of Mr. Blandings Builds HIs Dream House:

The house has charm, hasn’t it, Mr. Apollonio? Any small changes would have to conform to the character of the countryside. And still be functional. What is your professional opinion?

– Tear it down.

– Tear it down?

If your sills were shot and your timbers was okay, I’d say fix her up.

If your timbers were shot and sills was okay, I’d say fix her up.

But your sills are shot and your timbers are shot. I’ll show you.

Take a look at the way what she leans. Here.

It has to be level. So I say, don’t throw good money after bad. Tear it down. Good day.

– Thanks a lot.

– That’s okay.

And I’ll send my bill to your office.

Bill Cole and his experts.

Never mind, darling. We’ll get our own experts.

And so they got their own experts.

– Mr. Simpson said:

– Tear it down.

– On the other hand, Mr. Murphy said:

– Tear it down.

That’s how our friend Mr. Simms came into it. He said it was possible to fix up the old place. But why not build a new house, same size? It certainly wouldn’t cost any more.

“Why not look at a floor plan?”

Here we are. Something like this:

Anonymous Coward says:

Re: Re:

Who put the MPAA in charge of the internet?

Your elected officials in Washington based on the clearly sought after advice of the paid for lobbyists. Same in UK, Aus, Sweden, etc.

Bigger question: Who lets officials in any country still think they are in charge of the internet?

15+ years now this has been going on. Is this officially the longest running soap-opera yet? Been fun too watch, whilst the rest of us do our own thing.

Anonymous Coward says:

Answering the probably rhetorical

So why is the MPAA so focused on that, rather than actually innovating and adapting?

Their preferred anti-copying approach involves making other parties responsible for all the hard work. As a temporary measure, the MPAA/RIAA take on the responsibility for sending DMCA takedowns, but they have shown that they can automate that very cheaply (at the price of ridiculous and often hilarious inaccuracy). Long term, they want to make it the responsibility of ISPs, search engines, etc. to identify the content, as well as prevent access to it. If they were successful with this (ignoring the numerous technical reasons why it can’t work), then they can keep using the old business model at no extra cost to the MPAA/RIAA and its members. The huge extra cost it imposes on everyone else is considered acceptable collateral damage, because their simplistic projections say that it won’t hurt their sales.

Innovating and adapting requires effort, thought, and likely changes to their business model that may involve charging less money for a given unit of sale (i.e. cheaper DVDs, lower per-seat license fees). They ignore whether the lower per-unit price will result in a sufficient volume increase to be ultimately more profitable (and such a shift isn’t guaranteed).

Anonymous Coward says:

Re: Re: Answering the probably rhetorical

That might be easy to do if it weren’t for that pesky fair use, which allows copyrighted material to be lawfully used.

No, it’s still hard. As Techdirt has explained repeatedly, there are several aspects of legitimate usage that make large scale automation of copyright enforcement hard:

# Fair use / fair dealing
# Statutory exemptions
# Licensed usage, which may not post a machine-readable confirmation that the usage is licensed
# Licensed usage of a protected clip as part of a larger work copyright by someone else (e.g. the debacle with the awards show getting zapped showing Doctor Who clips)
# Unlicensed usage that posts a machine-readable false claim that the usage is licensed
# General hosting which may not provide a way to post a machine-readable confirmation (e.g. how do I safely upload a YouTube video that has a copyrighted song in it, if I have explicit permission from the copyright holder to have that song audible in the video?)
# General hosting carrying a work uploaded by a member of the public, but with the general consent of the copyright holder (e.g. studio releases a teaser for a new movie and wants everyone to watch/share the teaser, but still wants the movie, including non-teaser snippets of it, protected)
# Public domain works
# For audio, the difficulty distinguishing short snippets of protected works from similar sounding unprotected works
# For audio, and sometimes video, the difficulty caused when a copyright-protected work is present in the background of a work that is otherwise lawful to share (e.g. a radio played a copyrighted song too loudly near an otherwise licensed Youtube recording). ContentID is infamous for trashing the entire upload because the uploader didn’t edit out the copyrighted content, even when the content is Fair Use or such poor quality that no one would use the video as a way of getting unlicensed access to the work.

DB (profile) says:

I noticed that ‘unlicensed broadcast of studio content’ was listed as a low priority.

They consider commercial redistribution as a low priority? That’s the single thing on the chart that is clearly a copyright violation.

Presumably it’s a low priority exactly because everyone knows that the copying is illegal. Stopping that copying doesn’t extend their reach. They can deal with it later, after they have grabbed new powers. In the meantime they can use those losses as proof that they are being harmed.

Anonymous Coward says:

Re: Re:

I think it’s because it’s not their (only) intent to stop infringement. They want to prevent independents from being able to succeed without them. Which is what their main focus is. It’s what they have done through govt established broadcasting and cableco monopolies and it’s what they have done by preventing restaurants and other venues from hosting independent performers without paying various collection societies an expensive fee or else face an expensive lawsuit due to the possibility that someone might infringe. Their efforts are mostly aimed and stopping independents from independently succeeding without them. and, for the most part (outside the Internet) it has mostly worked. They see the Internet as competition and, as such, they want to crush/control it.

Anonymous Coward says:

“[Do this] in closed-door meetings with policymakers and stakeholders”

Because the general public doesn’t constitute valid stakeholders since we don’t offer politicians various back door dealing favors. Everything should be done behind closed doors because this isn’t really a democracy and we shouldn’t allow the public to participate in the legislative process.

This should be noted as evidence that IP laws are not democratically passed laws and the MPAA has no interest in democracy and ensuring the laws they want are democratically passed.

Anonymous Coward says:

Re: Re: Re:

There are free VPNs out there like Hola Unblocker and FrootVPN. And as for Tor, people will use it anyways if they really need to, esp. if they download unlicensed material from bittorrent because they can just use Tor to surf to KickAssTorrrents, The Old Pirate Bay, etc. and then download with without Tor since, due to the way bittorrent, Tor provides no protection to bittorrent users. That basically what people are doing when they use the Pirate Browser.

PaulT (profile) says:

Re: Re: Re:

VPNs cost too much? I pay $5 Canadian per month for mine, and that’s only because I’m willing to pay for higher reliability compared to the free ones…

As for Tor, yes it’s true that that specific implementation of the idea was too slow for streaming, but technologies always improve. Failure to take that into account places you in the same category as the morons who claimed in the late 90s that video streaming would never take off because the majority of people at that time had a dial up connection…

Anonymous Coward says:

and people still think that control of the internet by the entertainment industries isn’t the overall aim! if it was not the case, why would these industries want to have the say on whether a site can/should be blocked? there is still nothing illegal in the torrent protocol and still nothing illegal in torrent files, yet complete websites are blocked, particularly in the UK, because those industries say there are infringing files on them! there is no attempt to get the specific files removed because it is much easier for the courts to do what they can for the industries by blocking the whole site! Cameron is so intent on doing whatever he can to help the industries, he lied even worse than usual, worse than any politician normally does by claiming the sites to be blocked were showing kiddie porn and trying to get kids involved with adults. check the sites and see how many of them are doing this. 99% are file sharing sites which Cameron blocked purely to please the industries! he didn’t think the industries would keep on and on for more blocks, more laws, more trials and more sentences! he probably didn’t care! but by his actions he has removed any and all credibility the UK had over freedom and privacy because it always condemned countries that did the exact things it now does!

Anonymous Coward says:

why is it that the entertainment industries are allowed to keep doing basically the same thing, ie very little, to discourage people from downloading by putting up their own, legal sites that really cater for the customers wants but just leave things as they are, purposefully to be able to get people arrested, tried, bankrupted and jailed instead. surely this is entrapment, isn’t it?
if my house was burgled and i was asked if i had locked the doors and said no, i’d be told ‘tough luck then’! neither the police or the insurance companies would help out at all. when it’s these bone idle bastards in the entertainment industries, doing absolutely nothing to cater for customers and complaining about having their files burgled, governments and law makers run round like headless chickens, falling over each other to do as much to help them out as possible! cant be right!!

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