The MPAA's Secret Plan To Reinterpret The DMCA Into A Vast Censorship Machine That Breaks The Core Workings Of The Internet

from the how-very-nice-of-them dept

Yes, all the attention these days about the Sony hack is on the decision to not release The Interview, but it still seems like the big story to come out of the hack is the sneaky plans of the MPAA in its bizarre infatuation with attacking the internet. We’ve already covered the MPAA’s questionably cozy relationship with state Attorneys General (to the point of both funding an investigation into Google and writing documents for those AGs to send in their names), as well as the continued focus on site blocking, despite an admission that the MPAA and the studios still don’t have the slightest clue about the technology implications of site blocking.

Last week, TorrentFreak noted the various options that were under discussion by the MPAA for blocking sites, and now The Verge has published more information, including the analysis by MPAA’s favorite hatchetmen lawyers at Jenner & Block about how site blocking might work in practice [pdf] by breaking DNS.

For years, actual technology experts have explained why DNS blocking is a really bad idea, but the MPAA just can’t let it go apparently. It’s just, this time, it’s looking for ways to do it by twisting existing laws, rather than by getting a new SOPA-like law passed.

To understand the plan, you have to first understand the DMCA section 512, which is known as the safe harbor section, but which includes a few different sections, with different rules applying to different types of services. 512(a) is about “transitory digital network communications” and basically grants very broad liability protection for a network provider who isn’t storing anything — but just providing the network. There are good reasons for this, obviously. Making a network provider liable for traffic going over the network would be a disaster for the internet on a variety of levels.

The MPAA lawyers appear to recognize this (though they make some arguments for getting around it, which we’ll get to in a follow-up post), but they argue that a specific narrow attack via DMCA might be used to force ISPs to break the basic internet by disabling entries in their own DNS databases. The trick here is twisting a different part of the DMCA, 512(d), which is for “information location tools.” Normally, this is what’s used against search engines like Google or social media links like those found on Twitter. But the MPAA argues that since ISPs offer DNS service, that DNS service is also an “information location tool” and… ta da… that’s how the MPAA can break DNS. The MPAA admits that there’s an easy workaround for end-users — using third-party DNS providers like OpenDNS or Google’s DNS service — but many users won’t do that. And the MPAA would likely go after those guys as well.

At the same time, even this narrow limitation on ISPs? immunity could have the salutary effect of requiring ISPs to respond to takedown notices by disabling DNS lookups of pirate sites through the ISPs? own DNS servers, which is not currently a general practice. Importantly, the argument for such a requirement need not turn on the Communications Act, but can instead be based on the DMCA itself, which expressly limits ISPs? immunity to each ?separate and distinct? function that ISPs provide. See 17 U.S.C. § 512(n). A reasonable argument can be made that DNS functionality is an ?information location tool? as contemplated by DMCA Section 512(d) and, therefore, that ISPs are required, as a condition of the safe harbor, to cease connecting users to known infringing material through their own DNS servers. Should this argument hold ? and we believe that it has a reasonable prospect of success ? copyright owners could effectively require ISPs to implement a modest (albeit easily circumvented) form of DNS-based site blocking on the basis of only a takedown notice rather than litigation.

In short, since DMCA takedown notices apply to “information location tools,” but not to “transitory network communications,” the MPAA would like to argue that just the DNS lookup functionality is an information location tool — and can thus be censored with just a takedown notice. This is both really slimy (though brilliant in its nefariousness) and insanely dangerous for the internet and free speech. We see so many bogus DMCA takedowns of basic content today, and here the MPAA is looking to effectively, and sneakily expand that to whole sites by misrepresenting the law (badly).

DNS is not an “information location tool” in the sense of a search engine. It’s the core underpinning of how much of the internet works. At no point in the 16 years the DMCA has been around has anyone made an argument that the DNS system was covered by the “information location tools” definition. Because that’s clearly not what it was written to cover. The MPAA’s lawyers (in this “confidential” memo) appear to recognize that this argument doesn’t fully make sense because of that, but they seem to think it’s worth a go:

To be sure, the argument is not guaranteed to succeed, as unlike a ?pointer? or ?hyperlink text,? DNS provides a user?s browser with specific information (IP routing information) that the user has requested by other means (alphanumeric internet addresses), as opposed to providing the user with an active interface allowing the user to request information online, as they might from a clickable page of search results. But at least in the literal sense, DNS appears to fit within the list of Section 512(d) functions and a reasonable argument can be made that DNS is more like a ?directory? than the provision of ?routing? and should be treated accordingly under the statute as a Section 512(d) function rather than a Section 512(a) function.

Pushing this argument would raise many of the problems found with the original DNS-breaking proposal in PIPA/SOPA. It would raise even more serious questions about the First Amendment and prior restraint. Effectively, it would be moving the definition of “information location tool” down the stack, such that rather than requiring the removal of access to the specific infringing content, it would require removal of access to an entire site based on a single accusation of infringement. Someone uploaded an infringing video to YouTube? Under this interpretation, the MPAA can force Verizon to make YouTube disappear from the internet for all users relying on Verizon’s DNS. The censorship implications are massive here, especially with no court proceeding at all. This wouldn’t require anything in court — just a single takedown notice, of which copyright holders send millions. Rather than sending all those notices to Google and getting them delisted from search, copyright holders could turn the firehose towards Verizon, AT&T and Comcast, and basically take down half the internet on their say so alone. Yes, sites could counternotice, but ISPs would have 10 business days in which they can keep sites off their DNS entirely.

The results would be insane.

And that doesn’t even touch on the technical havoc this would wreak. As we’ve noted earlier, the MPAA admits it’s not clear on the technical implications of this plan, but let’s just point back to Paul Vixie’s discussion of how SOPA/PIPA would break the internet by mucking with the core DNS functionality, no matter how it was implemented.

What this goes back to is the core purpose of DNS, which is merely to translate a URL into a numeric equivalent to connect. It’s not an information location tool for helping people “find” information — it’s just the basic plumbing of how the internet works. It’s how basically all pieces of the internet expect to work. If you put in a URL here, then DNS returns the proper IP addresses to follow through there. Breaking that, effectively fracturing the internet, and creating a patchwork of different DNS systems would create a huge list of problems not easily fixed.

And, yet, because the MPAA can’t figure out how to adapt to the times, it appears to be willing to give it a shot. Because, hey, it’s better than innovating.

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Companies: jenner & block, mpaa

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Comments on “The MPAA's Secret Plan To Reinterpret The DMCA Into A Vast Censorship Machine That Breaks The Core Workings Of The Internet”

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56 Comments
Anonymous Coward says:

Technical nit

[Feel free to delete this comment after fixing the article, if you choose to fix the article.]

What this goes back to is the core purpose of DNS, which is merely to translate a URL into a numeric equivalent to connect.

I understand what you intended, but this is inaccurate. DNS translates names to addresses (IPv4 or IPv6, depending on the record type requested). URLs may, but are not required to, use a name to indicate the server portion of the URL. (They can also use a bare IPv4/IPv6 address, which is handy when your DNS server is broken, but you know the address of the resource you want to use.) DNS can be used with non-URLs, and this is how most older protocols work. The existence of protocol://host/$protocol-specific-data is popular for clarifying how the name should be used, but purpose-specific programs generally just take a bare name, resolve it in DNS, and assume it speaks their purpose-specific protocol.

Rich Kulawiec (profile) says:

Re: Technical nit

DNS does a lot more than that. It not only handles mapping names to IP addresses, it handles the reverse. It handles mail exchanger records. It handles name server records. It handles SOA (start of authority) records giving the provenance of DNS information, contact points, and caching/expiration timing. It handles mail source authorization. And so on.

The MPAA is (predictably) viewing this in terms of the web, NOT in terms of the Internet. That’s probably because in their zeal to break the web, they either don’t know or don’t care about breaking other Internet functions. These have repercussions far beyond what’s discussed here: for example, if a DMCA complaint about YouTube requires Verizon to forge DNS failure responses for DNS queries related to youtube.com for everyone on Verizon’s network, then that will break email for any sender whose mail server uses Verizon’s DNS. Same for AT&T and Comcast and Charter and all the rest…which means that nobody on those networks (modulo those uses 3rd-party DNS servers) will be able to send YouTube a DMCA complaint.

And that’s just the beginning. All kinds of services rely on DNS in all kinds of obvious and subtle ways — which is one reason why there’s a dns-operations mailing list whose members are concerned with the ordinary breakage and weirdness involved in a system of this scale and scope. And those folks have enough to do without dealing with intentional disruptions triggered by the same people who file DMCA notices against their own content.

Just Another Anonymous Troll says:

Just…
Just…
My God. I really and truly hope that the whateverAAs are just incredibly blind or stupid and they just see this as a way to take down content they don’t like, rather than an actual attempt to create an anti-Youtube/everything they don’t like button. Of course, other people will abuse it anyway and smite from the face of the internet entire sites that disagree with them.

This is an all-out attack on the internet and will be dealt with accordingly. If they so much as joke about it within a 30 mile radius of Congress, Anonymous will probably DDoS them into oblivion, and unleash a crapstorm of fake takedowns for their websites if it passes.

jupiterkansas (profile) says:

Re: Re:

You have to understand that the primary purpose of the MPAA is to sit around all day looking for legal loopholes that will give their members more power and money.

Where loopholes don’t exist, they simply write legislation with loopholes built in, and hand that legislation to the government along with a campaign donation, and the legislator tries to get it passed without knowing the loophole (if they’re even aware that the loopholes exist.)

Bill Dempsey (profile) says:

Re: Re: Re:

What the MPAA members don’t realize is that actions like this will kill their revenue streams. The backlash from this type of plan would be that avid movie collectors like me would simply stop buying movies in protest. They already lose more money buying congressmen, and paying law firms than they would ever gain by eliminating a few content downloads.

That’s exactly what happened when the RIAA put invasive copy protection on music. Their sales plummeted and piracy increased until they backtracked.

Tim A (profile) says:

Re: Re: Re: Techdirt

Browsers don’t give numerical errors. They only come from some sort of server that your browser would have had to be able to resolve to try and get to.

..Wait, silly me, I have a hard time thinking as evil as the MPAA finds so easy. They could definitely require any type of message they wanted to come up (by pointing the domain at a different server), but I doubt it would be as mundane as 404. I’m sure it would be more like:

JUST THE FACT THAT YOU’RE TRYING TO GO TO THIS ADDRESS MEANS YOU’RE A CRIMINAL!!! THE POLICE HAVE BEEN NOTIFIED. PUT YOUR HANDS IN THE AIR AND WALK OUT THE FRONT DOOR.

John Fenderson (profile) says:

Re: Re:

I know you’re just trolling, but their proposal wouldn’t have the effect of punishing only law-breaking websites. It would have the effect of breaking a lot of the completely law-abiding web, and a lot of the law-abiding non-web internet as well.

Also, it will not have been established that the sites the MPAA designates are actually law-breaking. They’re just accused of being law-breaking, but history shows us that the MPAA often accuses innocent sites.

Anonymous Coward says:

Re: Re: Re:4 Re:

Here is an example

https://www.techdirt.com/articles/20131118/02152325272/warner-bros-admits-to-issuing-bogus-takedowns-gloats-to-court-how-theres-nothing-anyone-can-do-about-that.shtml

The main problem with many of the bogus DMCA takedowns in the past is that they result in content being taken down without a trial (or they are an attempt to take content down without a trial). After all the DMCA, which resulted in this mess, was pushed for by the MPAA/RIAA. Don’t think these results were accidental, they knew very well that the DMCA would encourage service providers to shoot first and ask questions later.

SOPA was an attempt to make it easier for IP extremists to take down content without a trial.

Also from the OP
“Effectively, it would be moving the definition of “information location tool” down the stack, such that rather than requiring the removal of access to the specific infringing content, it would require removal of access to an entire site based on a single accusation of infringement”

What the MPAA wants to be able to do is effectively remove content before there is a trial and to force content producers and providers to then go through a bureaucratic process to reinstate the content. This will effectively break the Internet the way it stands and make user and independently generated content much more difficult to distribute which is exactly what they want.

In fact the current legal system encourages exactly this, intentionally. The penalties for filing bogus takedown requests are minimal compared to infringement penalties. The exact reverse should be true, IP holders are in a much better position to know if they have the privileges over a piece of content than service providers. The current situation encourages service providers to take down content before the possibility of a trial or before going through the process of ensuring that the content is legitimate, to shoot first and ask questions later, in fear that they could face unreasonable penalties if they don’t. That’s what content ID does and that’s what Youtube often gives certain entities the privilege of doing. The law encourages this. The current situation is proof that this is what the MPAA wants. and they want to extend their ability to take down content without a trial and to force content creators and providers to go through a cumbersome process to get that content back up if it’s legal.

Nom du Clavier says:

Re:

MPAA: Hey guys, neither our site nor our email appears to work. What gives?

IETF/ICANN/INTERNET_AT_LARGE: Yo dog, we heard you like sending DMCA notices using DNS info, so we sent a DMCA notice using DNS info…

MPAA: You’re mean. Why?

IETF/ICANN/INTERNET_AT_LARGE: DNS is our bailiwick. Now kindly Respect Ma Authoritah (You’ve heard of authoritative DNS servers, right?)

(And they all lived happily ever after?)

Anonymous Coward says:

what the MPAA and other entertainment industries are trying to achieve here is disgraceful! they are trying to hold back progression in almost every field imaginable and the future for EVERYONE! what is even worse than what they are doing, however, is that not only are they helping them to achieve their ends governments everywhere are helping in this holding back of progress in all things, simply because they are scared of an industry that, basically, isn’t the slightest bit of good to anyone other than itself, giving the heads out of this world wealth and power! and dont forget the corruption that goes with this and the fact that those industries are in the positions they are because of the run from copyright they had to do!! how anyone can back an industry that isn’t helping the planet, i dont know. for those it applies to, the governments and lawmakers, should be ashamed!!

Anonymous Coward says:

We were warned...

We were warned that they wouldn’t stop their fixation with censorship at all. We were warned to go on the offensive, but most people just went back to their breads and circuses instead of striking back. They thought one day of protest was enough, but unfortunately, it’s not. The same crony capitalists and stealth fascists are STILL in power. To make matters worse, most of those who opposed SOPA either never really opposed censorship, or worse have given in to the “loving” embrace of Hollywood (W3C, we’re looking at you).

The worst part is, the MPAA itself hasn’t learned its lesson. The recent events of the Interview have let them known what it’s like to get censored. The hypocrites only care about censorship if it bites into their bottom lines. Well, they better reconsider their Internet censorship plan unless they want a consumer revolt like never before. After all, Gawker Media was tarnished for less than this.

Rich Kulawiec (profile) says:

Re: We were warned...

“[…] but most people just went back to their breads and circuses instead of striking back.”

Most people are still funding them. Where do you think they get all the money that use to pay their attorneys and their tech people and to line the pockets of their pet politicians?

I’m not. I’m doing my part to starve the beast. (And, no, I’m not pirating either: nearly all of Hollywood’s output is shit and not worth my time.) I just need a couple hundred million more to do what I’m doing, and maybe we’ll have a shot at cutting their revenue significantly. Don’t go to the movies. Don’t buy movies. Don’t rent movies. Don’t stream movies. Don’t buy movie-related merchandise. Don’t do anything that provides them with revenue.

Screw petitions. Forget protests. The heck with online blackouts. These are people whose ONLY value in life is money, so if you want to change their behavior, you’ll need to force it by impacting their bottom line. Everything else is just wishful thinking.

Anonymous Coward says:

Anyone got a link to that article from years back when the **AAs hadn’t stretched third-party liability quite so far as they have now? I remember they randomly tried to sue OpenDNS for “facilitating infringement”, got laughed off (“Do you guys even know what DNS is?”), and slunk away with their tails between their legs.

If they’re angling for another shot at OpenDNS, maybe their previous apologies and concessions could be used against them?

Anonymous Coward says:

Re: Re: Get rid of DMCA

Copyright is hardly the cause. The purpose of copyright is to force works into the public domain. Initially, it was for a limited time, 14 years + a 14 year renewal. At that point, it was in the public domain.

The cause of the current issue is the ever-expanding definition of a limited time. It could go more than 160 years if you publish at 20, live to be 90, and then your estate has a 90-year term after your death.

That One Guy (profile) says:

Re: Re: Re: Get rid of DMCA

Well when you’ve got one side who honestly believes that they deserve eternal copyright, to hell with the original ‘deal’ of ‘limited time monopoly, followed by public ownership’, and who throw massive amounts of money into buying politicians to make this happen…

Yeah, real, evidence based reform is not going to happen anytime soon.

Anonymous Coward says:

the main culprit

Remember that the MPAA is headed by Christopher Dodd, or (former) Senator Chris Dodd. He was famously in the hip pocket of the big banks, and that is why his name is on the Dodd-Frank legislation. He knows how to get laws made, he knows many senators (both R and D) and who to get campaign money too – and he is all about the money for himself and his organization.

https://en.wikipedia.org/wiki/Chris_Dodd

John85851 (profile) says:

Nuclear option

If this were the real world, it would be like if someone was selling stolen goods and the MPAA nuked the entire neighborhood and all roads leading into the neighborhood.
Oops, that person was selling stolen goods in the middle of New York City and now people can’t get into the city? Well, don’t blame us for nuking the bridges- that one guy should have thought about this before he stole those items.

Isn’t this what might happen to YouTube if the MPAA gets their way and their lawyers decide to file complaints with Verizon instead of YouTube? Who cares if there are 999,999,999 videos that don’t infringe.

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