MPAA Wants Regulators To Force ISPs To Block Sites 'At The Border'

from the to-stop-pirates,-sometimes-you've-got-to-break-a-few-internets dept

When SOPA died its inglorious death, the MPAA’s best shot at ISP-level site blocking died with it. But the MPAA is nothing if not stubborn and is still willing to wreak havoc on the internet in exchange for a slight dip in infringement.

According to a leaked document from the MPAA’s law firm [pdf link] and two public filings in support of the International Trade Commission (sent over by Charles Duan of Public Knowledge), the movie industry is hoping to use the agency’s new willingness to regulate digital transmissions like physical goods as a foundation for site blocking.

As we’ve discussed for years, the ITC has been an active player in helping US patent holders go after those they believe are infringing. Generally, this has taken the form of blocking imports of infringing physical goods — that the ITC deems as infringing (using different rules than the US court system). This has often allowed patent holders two separate bites at the apple — one in the courts, and one at the ITC. But a recent case saw the ITC shift its focus — and its purview — in response to some circuitous patent infringement. Russell Brandon at the Verge details the case that has led to the MPAA’s next attempt at site blocking.

The heart of the case is a company called ClearCorrect, which 3D prints clear plastic braces custom-designed for each patient’s teeth. Much of the technology involved in the process is already under patent, but ClearCorrect has gotten around those patents by farming out its intricate computer modeling to an office in Pakistan. That modeling violates a number of US patents — and if ClearCorrect were shipping back the resulting braces in a box, it would be a simple case: the goods would be contraband, to be stopped at the border. But instead, ClearCorrect is only transmitting digital models from Pakistan and printing out the braces in local offices in Texas. The only thing coming in from Pakistan is raw modeling data. So what’s a trade commission to do?

In October of 2014, the trade commission — blowing past legal precedent and established statutory limits — granted itself the power to treat the incoming digital models as physical goods… and stop them at the border.

In the sweeping and unprecedented decision below, the International Trade Commission found that its authority to regulate trade extends to pure “electronic transmission of digital data” untied to any physical medium. Generally, by statute, the Commission’s jurisdiction is limited to oversight of “importation . . . of articles.” However, the Commission expansively construed the term “articles” to potentially include anything “bought and sold in commerce,” thereby leading to its conclusion that digital data was an article of importation.

The MPAA, which has entered comments in favor of the ITC’s self-granted power expansion, wants to use the agency’s power over digital imports to block websites at the ISP level. The leaked Jenner & Block memo confirms this. The MPAA’s lawyers don’t consider it a slam dunk but they are cautiously hopeful that the ITC’s land grab will pay off.

As discussed in the 2012 ITC Memo, seeking a site-blocking order in the ITC would appear to offer a number of advantages over federal court litigation, at least at first blush. This now seems even more so given the ITC’s recent decision (albeit now on appeal) holding that electronic transmissions are “articles” within the meaning of Section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337. As also discussed in the 2012 ITC Memo, however, such an action would still involve several difficult questions of first impression, making the prospect of success in that forum uncertain.

While the ITC’s new aim — stopping infringing digital files at the “border” — would seem to be the ideal starting point, the memo points out that many technical limitations make this approach less than feasible. The “transit” ISPs — those that “ship in” data from other countries — can be handled more easily by other court orders than by ITC regulation. The ITC’s purview only covers inbound traffic, and technical limitations make this a weaker approach. For one, the lack of information on incoming packets means the blocks would only affect IP addresses. If a “pirate site” shares an IP address with another site, the block won’t work. And IP addresses could easily be shared to circumvent blocking at transit ISP level.

The memo also notes that the internet is designed to flow around obstructions. Applying blocks at the transit level would simply shift infringing loads to other pathways, nullifying the blocks altogether.

The law firm then addresses blocking outbound traffic to infringing sites at the ISP level. This would ignore the inbound traffic of “transit” ISPs and demand action be taken by US ISPs.

Even though site blocking by transit ISPs may be impractical in most (and likely all) cases, it may still be possible for the ITC to issue orders to the consumer-facing network access ISPs requiring them to cease and desist from providing their subscribers with access to the pirate site. To do so, however, the ITC would first have to find that the network access ISPs, by providing their subscribers with access to the pirate site, have themselves violated Section 337.

That’s the sales pitch for ISP-level site blocking. It somewhat ignores the new powers of the ITC and instead relies on convincing the agency that access to “pirate sites” — even as a “dumb pipe” — is a violation of Section 337. Definitions will need to be stretched and ISPs that allow their customers to roam the web freely will need to be painted as contributors to infringing activity.

Because it is the transit ISPs and not the network access ISPs that actually carry the infringing data across the border, we would need to persuade the ITC that the network access ISPs’ conduct is also tantamount to “importation into the United States” of copyright-infringing articles… For this reason, we may be able to develop a case that the network access ISPs, by virtue of the integral role that they play in the process of accessing and delivering infringing content from the foreign site to the end user, should be treated as an importer for purposes of Section 337.

If that doesn’t work, the next argument is to portray the ISPs as involved in the sale of counterfeit goods.

Even if we cannot persuade the ITC that network access ISPs are “importers” of the infringing articles, it can plausibly be argued that the network access ISPs are engaged in a post-importation “sale” of the infringing articles to their end-user subscribers, in violation of Section 337. See 19 U.S.C. §1337(a)(1)(B) (providing that “sale after importation into the United States” is an unlawful act). The difficult question presented here is whether an ISP, by providing network access in exchange for its subscribers’ payment, can be found to have engaged in the “sale” of the infringing articles as that term is used in Section 337.

The arguments don’t get any less ridiculous. There’s a pitch for ISPs to have participated in “unfair acts” by “forcing” (read: allowed customers to access sites the MPAA doesn’t like) the motion picture industry to “compete” against infringing copies of its own works. There’s even a small paragraph that pushes the notion of contributory infringement, although the law firm notes that this would be the longest shot of all. The likeliest approach appears to be the use of the ITC’s power to obtain cease-and-desist orders against ISPs, forbidding them from allowing access to “pirate” sites.

Public Knowledge’s brief [pdf link] in opposition to the ITC’s pending power shift points out that even though the statute itself is old (Tariff Act of 1930), its authors directly contemplated the difference between physical and more ethereal goods — and made it clear that the two shouldn’t be treated identically.

Evidence from the early 1900s indicates that Congress and others would have cleanly distinguished importation and telecommunication, vesting authority over each in distinct agencies. Treating the Commission as having authority over telecommunications data, then, conflicts with this distinction. To the extent that the Commission’s interpretation of “digital data” as an imported article encompasses such telecommunications data, this Court should reject that erroneous interpretation of the Commission’s purview.


There is substantial evidence that, around 1930, data transmissions were generally understood to be distinct from articles of commerce and international trade. This understanding influenced Congress, as reflected in its creation of separate and distinct agencies to oversee trade and telecommunications.

The distinction was highlighted by the Supreme Court as early as 1887, in considering one specific type of telecommunications data, namely telegrams:

Other commerce deals only with persons, or with visible and tangible things. But the telegraph transports nothing visible and tangible; it carries only ideas, wishes, orders, and intelligence. Other commerce requires the constant attention and supervision of the carrier for the safety of the persons and property carried. The message of the telegraph passes at once beyond the control of the sender, and reaches the office to which it is sent instantaneously. It is plain, from these essentially different characteristics, that the regulations suitable for one of these kinds of commerce would be entirely inapplicable to the other.

The brief also points out that, while the ITC is correct in noting that internet transmissions couldn’t possibly have been envisioned during the crafting of the 1930 Tariff Act, similar “articles” like telecommunications and radio signals had already been discussed by Congress, and each time, these were not allowed to fall under the same regulatory agency.

Putting the ITC in charge of digital transmissions will turn ISPs into ad hoc customs agents who need to inspect incoming packets and outgoing requests. Cloud services would also be negatively affected, as load balancing would need to be rebuilt from the ground up in order to accommodate the legal concerns now inherent in every transmission. The DMCA safe harbor would no longer exist, forcing ISPs to stay one step ahead of IP holders, building in anticipatory takedown response systems and choke points. The MPAA still wants site blocks and is still willing to break the internet to get them. Even the cautiousness displayed in the legal memo still glosses over the severe disruptions this use of the ITC’s new powers will cause.

The good news? The ITC’s “digital = physical” shift isn’t in effect yet. The case prompting this shift is still under appeal and no decision is expected until late 2015. Chances are, this decision will be appealed as well, likely landing it in front of the Supreme Court sometime in the next few years. The MPAA can’t move on its arguments until this is all decided. But it’s ready to move as soon as it can, and this isn’t its only plan of attack.

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Companies: clearconnect, mpaa

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Comments on “MPAA Wants Regulators To Force ISPs To Block Sites 'At The Border'”

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DannyB (profile) says:

Which way do they want it?

Do they want ISPs to micro-filter? That is, an ISP must understand every protocol, and micro-filter individual files, URLs, blog posts, etc?

This is infeasible for ISPs and places a legal liability upon them for something that someone else does.

Or do they want ISPs to do the easy thing and block an entire site, such as YouTube?

This is infeasible for every web site and places a legal liability upon them for something that someone else does.

Either way, what they always seem to want is for someone else to have the burden of, and legal liability of policing the internet for infringements of their content.

They already have a DMCA, which itself is an atrocity that never should have become law. Why can’t they use what they begged so hard to get? Police the internet and send DMCA takedown notices? They begged and pleaded for that. They said it wouldn’t be abused.

Now they want not only the moon, but the stars also? And we are to believe this won’t be abused — even if it were feasible.

It’s not surprising that a bunch who makes money off the back of artists, while depriving them of the rewards of their work through the magic of Hollywood Accounting, wants everyone else to do the job of protecting their content.

Anonymous Coward says:

Re: Which way do they want it?

What they want is their old broadcast radio/TV and movie theater set up back. Where consumers could do nothing except pick what channel to watch, and had to be sure they didn’t miss a show because there were no darn cassette tapes or VCRs, much less these newfangled DVRs to record things. No stupid VHS, much less DVDs or god forbid Blu-rays. If people wanted to see a movie, they had to flock to the theaters while the movie was still playing.

In short, the MPAA and the RIAA want it to be the 1950s or 1960s again, where they could have absolute control over distribution because there was no practical means of the average person recording anything. This new scary internet era where people expect to watch what they want to watch, when they want to watch it, and record it or purchase it and change formats as they see fit is something they do not want. People no longer have to prioritize tv shows, or movies, or songs on the radio over anything else. The “consumers” are now accustomed to dictating everything about their entertainment.

It’s like the MPAA and RIAA were accustomed to serving people whatever the cafeteria happened to be doling out, but now people are going to the grocery store and picking and making their own meals instead. The MPAA and RIAA think that’s nice and all, but they really just want people to be stuck accepting whatever meal the cafeteria happens to be serving again.

John Fenderson (profile) says:

Re: Re: Which way do they want it?

Your entire comment is excellent, but I wanted to focus on this:

“People no longer have to prioritize tv shows, or movies, or songs on the radio over anything else.”

Television in particular has been very forthright about their strong desire to go back to the old days. They publicly and unabashedly bemoan the loss of “appointment TV” (they use the term as if it were a good thing, despite it sounding like a bad thing to most TV watchers, I suspect) and have been trying to work out how to get it back.

Anonymous Coward says:

Re: Re: Which way do they want it?

In addition, the current state of technology means there’s more independent and amateur content available online, which also competes to some degree with their “professional” content. Also, professional artists would have less ability to self-produce and self-publish, so Radiohead and Trent Reznor wouldn’t be able to produce an album without a studio holding their hands and handling the distribution. And there wouldn’t be as many professional tools at the hands of amateurs. People playing around in Blender or After Effects or other creative programs might not spend as much time buying video games to play or movies to watch or albums to listen to if they’re busy creating their own works. And they can just upload to YouTube and gain a following instead of having to beg one of the entertainment gatekeepers for permission to enter.

Rich Kulawiec (profile) says:

So just break the Internet, and all will be well

This argument demonstrates a stunning lack of clue about how the Internet actually works. A full dissection will have to wait, but the TL;DR version is there is no border.

Networks have seamlessly crossed international boundaries for decades, often with disregard for the short-sighted politicians seeking to stop them from doing so. (Remember kremvax, anyone?) The transnational nature of the Internet is so deeply embedded in its implementation that changing that would require ripping it out completely and starting over. (Attempts to do — see “China” — have not been entirely successful, to say the least.)

One might as well enact regulations to stop the free flow of air molecules from foreign countries.

wallow-T says:

Re: So just break the Internet, and all will be well

The view of the MPAA and other copyright holders would be that they have been granted certain rights by law – law which predates the Internet by a long time.

If current construction of the Internet does not protect those rights, then the Internet as now constituted cannot exist.

Anonymous Coward says:

Re: So just break the Internet, and all will be well


But to play devil’s advocate for a moment: from a certain point of view, the Internet does have borders, but they’re not national borders. They’re the borders between Autonomous Systems. It doesn’t help their argument, since there are many Autonomous Systems that span several countries (big backbones, multinational sites like Google or Microsoft, and many others). And these “borders” aren’t designed to stop anything: they’re merely the exchange point for routing information (through the Border Gateway Protocol).

Rich Kulawiec (profile) says:

Re: Re: So just break the Internet, and all will be well

You’re absolutely correct. These are “borders” in a network topology sense, and BGP concerns itself with making routing decisions concerning them. You’re also absolutely correct that many AS span multiple countries, so while in some limited cases it’s possible say things like “ASN 12345 exists entirely within the borders of Elbonia”, in the general case that’s not true — and even if it’s true today, it might not be true tomorrow.

DannyB (profile) says:

Re: So just break the Internet, and all will be well

Too late to break the internet. That genie won’t go back into the can of worms.

Too bad dinosaurs don’t see an opportunity in the most fantastic distribution medium in the entire history of the human race.

The MPAA and RIAA are like the priests trying to stop the printing press.

John Fenderson (profile) says:

Re: Re: So just break the Internet, and all will be well

“Too late to break the internet. That genie won’t go back into the can of worms.”

I wish I shared that perspective. Breaking the internet might be politically infeasible, but it is certainly technically feasible (and not really even that hard) — particularly if you’re the US or a major telecom.

Ed Allen (profile) says:

Re: Give yourself power!

Since “digital” is just bits and a photo can be transformed into bits.

Is the ITC saying that they can censor photos and text as well ?

How will they know if that prime number I got from Spain is a GIF rather than a class assignment ?

So the ITC is only supposed to believe Hollywood. Hollywood is supposed to pass judgment on Japaneze and Indian movies too ?

Hollywood plans to approve all BBC stories to assure that US citizens do not learn about torrent sites from a news story ?

That sounds to me like much more work than they have been willing to sign up for in the past.

The danger is that this Supreme Court might actually rule that censorship in the name of commerce trumps the First Amendment.

Anonymous Coward says:

Land Grabs

The MPAA’s lawyers don’t consider it a slam dunk but they are cautiously hopeful that the ITC’s land grab will pay off.

Japan releases video making fresh territorial claims to Korea’s Dokdo Island”, Arirang, Jan 1, 2015

This is a video released by the Japanese government titled ‘Islands, once the home of Mechi’, or sea lions. The author of a book with the same title teaches elementary school students that Korea’s easternmost islets of Dokdo — Takeshima as it’s known in Japan — was the habitat of sea lions where Japanese fisherman used to catch fish. . . .

Anonymous Coward says:

I am so tired of hearing these organizations whine, cry, pout, and act like a baby, all on behalf of their parents the entertainment companies. For many years now, I’ve been on boycott and at this point I see no reason to change that. I simply don’t want my money supporting actions like these.

I absolutely love the idea that kids today don’t much care a lot about TV, and their older brethren don’t care that much for cable. That’s their future we’re talking about, staring them in the face. Couldn’t happen to more deserving folk.

Anonymous Coward says:

Re: Re:

I absolutely love the idea that kids today don’t much care a lot about TV, and their older brethren don’t care that much for cable. That’s their future we’re talking about, staring them in the face.

Why else are they trying to destroy the Internet, they know that piracy is not the problem, but rather the competition that the Internet enables. They hate Google because it allows people to find the competition that is an alternative to their content.

DannyB (profile) says:

Re: Re: Re:

No. I think they can’t see that far ahead. They actually believe that piracy is the problem.

These are dinosaurs we are talking about.

They could not even understand that Napster did not distribute any content. They thought that licensing was the conversation to have with a party that doesn’t distribute any content, nor controls what content is distributed. They could have had the most fantastic distribution mechanism in history, in its infancy. Instead, lacking vision, they made the futile mistake of trying to destroy it.

John Fenderson (profile) says:

Re: Re: Re: Re:

“They actually believe that piracy is the problem.”

The high level executives of the movies studios know for a fact that piracy isn’t a problem. They have publicly stated as much. They know that the loss of their monopoly on distribution is the actual threat to them. Lower-level executives and ordinary employees might believe that piracy is the problem.

Anonymous Coward says:

So two wrongs do make a right, if you are attempting to sodomize the American public while not even having the common courtesy to give them a reach around. What the hell, the pharmaceutical companies do this already, why shouldn’t the entertainment industry get their welfare cut too. Looks like we are going to have do drag them both kicking and screaming into the 21st century. Like the government they are in the business of serving the people, and if they continue on their present path we will all be mad as hell, and we won’t take it anymore. You can have your tea, but I want coffee.

Pragmatic says:

Re: Re:

You obviously haven’t been keeping up with the news: those freedoms are being eroded.

“Americans are asking: Why do they hate us?
They hate our hypocrisy: our imposition of our own religious values on others, our restrictions on freedom of speech, our restrictions on freedom to vote and assemble and disagree with each other.”


If we stopped pretending we were the best and actually TRIED to be the best by insisting on and enforcing those freedoms, then “they” would have a reason to be jealous of us. As it is, we’re not much better than the dictatorships we routinely decry. You’ll be saying there’s a free market next; don’t get me started.

Anonymous Coward says:

Opportunities for havok

There are so many cases where US based lobbyists or gov’t groups have pushed their agenda to stop piracy only to see their efforts fail or get turned back against them. Just think of the possibilities this new effort will provide for hackers, terrorist groups or a precocious toddler with an old Amiga to inflict damage on US based websites, businesses and gov’t organizations.

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