While Everyone's Busy, Hollywood & Record Labels Suggest Congress Bring Back SOPA
from the guys,-give-it-a-fucking-rest dept
There are a million different things going on these days when it comes to preventing the powers that be from destroying the internet that we know and love. There are dozens of mostly bad ideas for regulating the internet here in the US, and of course, over in Europe, they’re doing their best to destroy everything with the poorly thought out GDPR, the new Copyright Directive and the upcoming Terrorist Regulation (more on that soon). With all of that keeping everyone trying to protect the internet busy, it appears that the MPAA and the RIAA have decided that now would be a good time to re-introduce SOPA. No joke.
Every year, the US government’s “IP Enforcement Coordinator” — or IP Czar — takes comments for its “Joint Strategic Plan for Intellectual Property,” which is supposed to lay out the federal government’s yearly plan for protecting Hollywood’s profits. As questionable as that is already, this year, the comment submissions seemed to go a bit further than usual. The RIAA’s submission, the MPAA’s submission and the (almost so extreme as to be a parody) Copyright Alliance’s submission all seemed to push a pretty consistent theme. Despite the incredible abundance of content creation happening these days, despite the myriad new ways to distribute, to build a fan base, to create new works and to make money from those works… these legacy gatekeepers all insist that the internet is truly a horrible attack on creativity and must be stopped.
And how to stop it? Well, how about widespread censorship in the form of outright site blocking. In short, these legacy gatekeepers want to bring back SOPA, the law that they tried to ram through seven years ago, only to be embarrassed when the internet stood up and said “no fucking way.”
Let’s start with the RIAA submission, which admits that, hey, the music business is pretty good these days, and almost all of that is because of innovations in technology that the RIAA fought at every freaking step (well, they don’t admit that last part), but, my god, there are still some people out there who don’t pay every single time they hear a song, and that must be stopped. And thus, they request changes to the law, including this:
With respect to website blocking, as one 2018 article states, ?[s]tudies show that blocking regimes that target these large scale piracy sites (not sites that accidentally host pirated material) are an effective tool in reducing piracy and increasing the consumption of legal content and services.? Given the increasing ease for rogue infringing actors to access U.S. audiences while keeping all of their infrastructure off-shore, such as through the use of non-U.S. cctlds for their domain and bullet proof ISPs to host their services, there is a pressing need for additional tools to deter and stop this type of piracy harming U.S. consumers and businesses. As website blocking has had a positive impact in other countries without significant unintended consequences, the U.S. should reconsider adding this to its anti-piracy tool box.
They also suggest making the DMCA even worse, killing off its safe harbors and ramping up the penalties, but let’s focus on the above paragraph. Because that is specifically a suggestion to bring back SOPA, whose main provisions were about site blocking. The idea that this is an “effective tool in reducing piracy” is laughable. Multiple studies (including our own have shown no evidence that greater enforcement reduces piracy over the long term (there is a short, but fleeting impact). Instead, focusing on innovation and providing good services is what decreases piracy. Second, the idea that site blocking is “without significant unintended consequences” is fucking laughable.
Let’s just remember that this is coming from the very same RIAA who supplied false claims of infringement concerning multiple websites, leading them to be seized and held for many years. In those cases, the RIAA told ICE that these blogs had been posting infringing music, and yet could never provide ICE with any evidence to support it. Of course, ICE still held onto those sites for nearly five years, just because. But the RIAA says there have been no unintended consequences?
Okay, how about the time that Australia, which has site blocking under law, tried to take down one site, but actually took down 250,000. Oops. Or when Homeland Security took down 84,000 sites. Do those “unintended consequences” not exist?
At this point, the RIAA cannot be seen as a credible voice on this particular issue.
How about the MPAA’s filing? Well, it’s more of the same. It notes, correctly, that we’re in the “golden age” of movies and TV — much of that being driven by technological developments that the MPAA (who, again, once called the VCR “the Boston Strangler”) fought at every turn. Then it says something that is laughable: “Respect for Copyright Drives Innovation and Competition.” Uh, what? That’s… not even close to true, in part because almost no one — least of all the MPAA — actually “respects” copyright.
But, when we get to the MPAA’s suggestions. It is not as blatant as the RIAA in directly calling for bringing back site blocking, but it does request that DHS and the DOJ get more aggressive about criminal procedures against foreign sites (a la Megaupload) to try to prevent piracy. Why Hollywood expects the federal government to use its law enforcement abilities to stop civil violations is left unsaid. And then, the MPAA demands that basically the entire internet ecosystem be shifted to stop any piracy from ever happening.
The IPEC could do much to promote greater collaboration aimed at reducing these harms by endorsing voluntary initiatives, as it has in the past. For example, more online intermediaries should adopt ?trusted notifier? programs, under which they accept referrals from the content community about entities using the intermediaries? services in the aid of piracy and, after doing their own due diligence, take remedial action. In particular:
Domain name registrars and registry operators should agree to keep WHOIS data public, to the extent permitted by law; to suspend the domain names of referred sites; to freeze the domain name so it becomes unavailable to others; and to disclose the true name and address of pirate site operators, prevent that operator from re-registering, and agree not to challenge third-party application of court orders regarding domain name suspension in cases by rightsholders against pirate sites.
Hosting providers should filter using automated content recognition technology; forward DMCA notices to users, terminate repeat infringers after receipt of a reasonable number of notices, and prevent re-registration by terminated users; implement download bandwidth or frequency limitations to prevent high volume traffic for particular files; agree not to challenge third party application of court orders regarding suspension of hosting services in cases by rightsholders against pirate sites; remove files expeditiously; and block referral traffic from known piracy sites.
Reverse proxy servers should disclose the true hosting location of pirate sites upon referral; terminate identified pirate sites, and prevent these sites from re-registering; and agree not to challenge third party application of court orders regarding suspension of reverse proxy services in cases by rightsholders against pirate sites.
ISPs should forward Digital Millennium Copyright Act notices to users; terminate repeat infringers after receipt of a reasonable number of notices and prevent re-registration by infringers; expeditiously comply with document subpoenas for user information; and block sites subject to court order in the applicable jurisdiction.
Social media should remove ads, links, and pages dedicated to the promotion of piracy devices and terminate repeat infringers.
Got that? Basically every other company in the world should be required to police the internet for the MPAA so that a few stray infringements don’t get through. Hilariously, the MPAA admits that some may be worried about the impact of such demands on free speech, but then proceeds to brush away such concerns as if combating infringement caused by the MPAA’s own unwillingness to adapt its business model… is the same as stopping cybersecurity attacks.
Some argue there is tension between curbing illegal activity online and free expression. The argument is made far too broadly. Combating unlawful conduct like identity theft, unauthorized distribution of entire copyrighted works, cyberattacks, and illicit sale of opioids is no more a threat to free expression on the internet than it is in the physical world. In fact, curbing illegal activity promotes free expression by creating a safer environment where individuals feel comfortable to communicate and engage in commerce, and to create and lawfully access content
It is truly awe-inspiring how the MPAA turns its own industry’s failures to adapt to innovation into a public crisis in which everyone else must change… while simultaneously raving about how it’s a “golden age” for its own industry.
And, finally, we come to the Copyright Alliance’s submission. This one focuses on supporting copyright trolling via a small claims copyright board, which is of questionable constitutionality, and which would clearly enable a massive increase in copyright shakedowns. But, then, of course, among the other suggestions there are a bunch focused on having intermediaries take down sites, including full site blocking:
?Over the last decade, at least 42 countries have either adopted and implemented, or are legally obligated to adopt and implement, measures to ensure that ISPs take steps to disable access to copyright infringing websites, including throughout the European Union, the United Kingdom, Australia, and South Korea.? Research shows such measures can have significant effect on shifting users toward legitimate services, with one study finding that ?blocking 52 sites in 2014 caused treated users to increase their usage of legal subscription sites by 10% and legal ad-supported streaming sites by 11.5%.? In addition to learning what remedies are effective, much can be learned from other countries in ensuring such remedies are proportionate and do not result in overblocking or other unwanted consequences.
Again, we have already shown how widely site blocking DOES lead to overblocking and unwanted consequences. Furthermore, the evidence that site blocking increases the use of legitimate services is laughable, and not supported by the data at all.
In short, here are the major copyright industry representatives, knowing that everyone’s busy off fighting other fires, making quiet inroads towards bringing back SOPA, despite the total clusterfuck it proved to be seven years ago. These guys will never stop in their quest to destroy the internet as we know it, and their push to turn the internet into a broadcast medium controlled by gatekeepers, rather than a communications medium for all of us.