Hollywood's Secret War On Net Neutrality Is A Key Part Of Its Plan Stop You From Accessing Websites It Doesn't Like

from the because-anti-piracy-is-more-important-than-the-internet dept

We already wrote about the MPAA's plan to break the internet by trying to twist a portion of the DMCA to force ISPs to remove DNS entries, making sites effectively disappear off the internet. However, one key element to this actually relies on an issue closely related to the net neutrality fight -- though understanding it involves going pretty deep into both copyright law and telecommunications law.

Historically, the MPAA has been against net neutrality for a long time. Back in 2007, during the original net neutrality fight, the MPAA weighed in with an FCC filing against net neutrality, arguing that it would interfere with filtering technologies that it wanted ISPs to start using. In 2009, as the second net neutrality battle ramped up, the MPAA sent a similar filing -- with some friends arguing that net neutrality is just another word for file sharing, and would lead to "rampant looting." Given all this, the 2010 open internet rules from the FCC included a special carveout for copyright content, arguing that the rules "do not apply" to copyright infringement.

We noted, earlier this year, how ridiculous it was that the MPAA was still on the wrong side of the net neutrality debate, seeing as how it would stifle a bunch of important new developments that have vastly improved things for filmmakers. But, it appears that the MPAA didn't get the message, at all. The only message it got was to be quieter about its opposition to net neutrality. In some of the leaked emails, it's noted that the MPAA's strategy on net neutrality is to be quiet and evasive about it:
On network neutrality: Most member companies supported, in principle, a narrow, low-profile MPAA filing focused on opposition to the regulation of content.
And, indeed, that's basically what happened. On September 15th, the MPAA filed a fairly short comment that mainly focused on making sure the new rules don't create some sort of compulsory licensing scheme for content (no actual rules under consideration would do that) and that they don't interfere with copyright law. Just a few weeks ago, it appears that the MPAA and a bunch of studio execs further met with the FCC to reiterate that there should be a copyright infringement loophole in any net neutrality rules:
the FCC should adopt its tentative conclusion to cary forward language in its previous network neutrality provisions making clear that the rules do not prevent content companies and ISPs from combating piracy...
That's all to be expected. But there's something much more nefarious going on, which came out in the leaked document [pdf] we discussed earlier about pretending that the DMCA requires DNS-level takedowns. We were a bit confused, initially, by TorrentFreak's recent mention of the MPAA exploring the use of the Communications Act, but the full leak of the document makes that much clearer.

It's not that the MPAA is looking to use the Communications Act against ISPs, but rather, the plan is to think about using the ISPs' own arguments against net neutrality as a wedge to force them into site blocking. To understand how this works, you have to go back nearly a decade to to the Supreme Court's ruling in the Brand X case (which, coincidentally, came out the same day as the Grokster ruling). This was the case in which the Supreme Court upheld the FCC's decision to say that cable internet providers could be classified under Title I as an "information service" rather than a "telecommunications service" (under Title II).

Obviously, that's the key fight that we're in today -- to see whether the FCC can go "reclassify" internet (for both cable and DSL) away from Title I and back to Title II. Here's why this matters in the copyright context: as we mentioned in our earlier post, "notice and takedown" provisions in the DMCA do not apply to "transitory digital network communications" under 512(a) of the DMCA. In plain language, this means that copyright holders can't send takedown notices or append liability to a network provider just because some infringing content traversed its network. That makes sense. Without that, networks would have to do deep packet inspection and try to spy on basically all traffic.

But... part of the reason why broadband companies won the Brand X case was by arguing that they're a lot more than just a network "telecommunications" service -- and that's because (they argued) they provide a lot more -- including DNS services. And, thus, the MPAA argues, under the Brand X ruling, broadband providers are effectively admitting that DNS services are not covered by the DMCA's 512(a) and thus may be covered by 512(d) ("information location tools") which are subject to notice and takedown rules. Here's the MPAA explanation:
ISPs successfully advocated before the FCC, and then at the U.S. Supreme Court..., that broadband service does not constitute a “telecommunications service” within the definition of 47 U.S.C. 153(53) because broadband ISPs offer functionalities such as email and DNS, which are not “telecommunications.”.....

Because ISPs offer an intertwined service package that includes both telecommunications and information services, the FCC held in Cable Modem Declaratory Ruling, and the Supreme Court affirmed in Brand X, that retail ISP service from a last-mile provider is not an “offering” of telecommunications to the public within the meaning of the “telecommunications service” definition, because the “offering” includes both telecommunications and information services blended into the same service.
From there, the MPAA notes that the definition of a "service provider" is very similar under both the Communications Act and the DMCA -- meaning that there's a "colorable" argument, that since broadband providers have convinced the FCC and the courts that they're not telecommunications services under the Communications Act it should also mean that they're not a "transitory digital network communications service provider" under the DMCA:
...both statutory definitions are essentially identical (and the legislative history shows an intent to make them identical), and, having successfully advocated for and obtained a holding from the FCC that they do not provide “telecommunications services” for purposes of the Communications Act, ISPs should not then be allowed to turn around and claim that they are “service providers” for purposes of the DMCA. One might further contend that any specific ISPs that litigated the Brand X case or its progeny should be estopped from taking a contrary position under the DMCA.
In short, because these ISPs got classified as information services rather than as telco services by the FCC (and the Supreme Court said that was okay), they can't then argue that they are telco services for the DMCA protections.

Given that, if the FCC were to reclassify broadband back under Title II, this leg of the MPAA's argument would essentially evaporate. Because it would confirm, absolutely, that broadband providers are telco service providers, and thus clearly protected by the DMCA under 512(a). Thus, for the whole "notice and takedown at the DNS level" plan to be most likely to succeed, the MPAA really needs broadband to remain classified under Title I, so that it can rely on the argument that DNS services are not part of being a telecommunications service, but rather should be classified as a "information location tool" subject to notice and takedown.

I recognize that this may be confusing to follow -- though I've tried to lay out the specifics from both copyright and telco law in a way that's clear. The short version of this is simply that a key part of the MPAA's "site blocking by DNS" plan, actually relies on the fact that broadband providers are not, currently, classified as telco services under Title II. If that changes, it takes away a big part of the MPAA's legal argument. Personally, I think the MPAA's argument, even if broadband is classified under Title I, is incredibly weak already, but having the FCC reclassify broadband providers back under Title II would make the MPAA's attempt to break the internet that much harder, even with the loophole language concerning copyright infringement.

And, of course, all this goes to show just how far former Senator, now MPAA boss, Chris Dodd has gone in selling his soul to Hollywood. Back when he was in Congress, he was a big supporter of net neutrality. Apparently, being principled doesn't pay as good.

Filed Under: copyright, dmca, dns, fcc, information service, net neutrality, open internet, telecommunications service, title ii
Companies: mpaa

Reader Comments

The First Word

Sometimes malice /is/ the reason

'Never attribute to malice, what can be explained by stupidity' may be true most of the time, but not this time.

It's not ignorance, it's greed and panic. "... kill it" is the response, but the first half, "We don't control this..." is the reason.

As you say, it's the greatest promotion and distribution medium ever, but when the source of your power and profits is promotion and distribution, and suddenly anyone can do that, well, of course they're going to try and destroy the competition.

It threatens the source of their power, their ability to dictate to everyone else what artists or movies will be successful, what song will be popular, and in so doing allows them to dictate the terms to the producers and musicians.

Take that away, set up a system where anyone can pitch their ideas, gather funding, and sell/make available their works, all without once talking to someone from a major label or studio, and being forced to hand over the rights to their creations, and suddenly the throne they've been sitting on for so many years starts getting more than a little wobbly, as they start to lose relevance. What need for a gatekeeper, if you can go directly to the fans/customers after all?

Now, they could change, maintaining their relevance, by shifting towards enablers, offering promotion and distribution on the creator's terms, working for the creator, rather than the other way around, but after having spent so long in charge, being the ones giving orders, rather than receiving them, such a shift is almost unthinkable to them.

And so they'll fight, and thrash about, doing everything they can to keep things the way they were in the 'good old days', and if that means hamstringing or outright destroying one of the greatest technological advances in history, then they'll see it as nothing more than 'acceptable loses'.
—That One Guy

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  1. icon
    S. T. Stone (profile), 18 Dec 2014 @ 9:47pm

    Re: Re:

    I don’t like to get vile and venomous with trolls. It doesn’t serve the purpose of presenting a cogent argument and paints me as something of an asshole. So I bite my tongue and try to be rational and calm and collected when people make posts like yours.

    Tonight, however, I’m afraid I’ve got some bad news: you caught me in a shitty mood.

    You want to rail against piracy? Fine, fuck it, see if I care. You won’t really get anywhere with it—seeing as how piracy can’t really be stopped in full—but that’s your decision and I’m not gonna stop you. But don’t you fucking dare put words in my mouth when I sure as fuck didn’t say them.

    I don’t condone copyright infringement, but I refuse to condemn non-commercial infringement. I understand why people infringe upon copyright; more than that, I understand how even an otherwise ‘innocent’ person can infringe by accident. Condemning non-commercial infringement won’t do shit to change people’s minds.

    But it might make me your ally, which is a probably far worse fate.

    You seem to advocate for the MPAA and RIAA and all their little multimedia tentacles getting the chance to run the Internet. The advocacy you (and those like you) carry out has one small flaw, though: people aren’t as dumb as you think.

    The people behind SOPA and PIPA tried to sneak it past everyone, but a broad campaign of education and activism brought down both bills. People can and will learn about subjects which will affect their lives; massive corporations trying to turn the Internet into a global television set is one of them.

    “Oh but you’re just upset because you can’t steal shows any more!”

    The fuck I am. I don’t pirate much of anything: I watch films and what little modern TV I consider worthwhile through DirecTV, I listen to legally-free music (as well as Spotify), I buy DVDs and Blu-rays on rare occasions, and read actual books. On the odd occasion where I do pirate something, I do my best to support the artist behind what I pirate in any way I can.

    This isn’t about fucking piracy. This is about the copyright maximalists trying to strangle the Internet’s very lifeline by essentially taking control of DNS. This is about those multimedia conglomerates trying to slowly change the Internet from an interactive communications network into a passive entertainment medium—and using the law, their bank accounts, and their assumptions about ordinary people to do it.

    I’m not about to let these motherfuckers destroy one of the greatest achievements in the history of humanity because they can’t fucking figure out a better business model. I will take a stand against them however I can—educating others, sharing articles such as this one, protesting—to make sure their goal is seen as the fevered pipe dream of lunatics and madmen.

    Go ahead, prop up another strawman. Tell me this is about ethics in copyright journalism or how I’m a copyright marxist or whatever. I’ll burn that motherfucker to the goddamn ground and tell you to build something better.

    Like an actual fucking argument.

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