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
    That One Guy (profile), 19 Dec 2014 @ 12:00am

    Re: Re: Re: Re: Re: Re:

    Here's Comcast admitting that DNS redirects are incompatible with DNSSEC, and in fact can look identical to malicious attacks:

    'When we launched the Domain Helper service, we also set in motion its eventual shutdown due to our plans to launch DNSSEC. Domain Helper has been turned off since DNS response modification tactics, including DNS redirect services, are technically incompatible with DNSSEC and/or create conditions that can be indistinguishable from malicious modifications of DNS traffic (including DNS cache poisoning attacks). Since we want to ensure our customers have the most secure Internet experience, and that if they detect any DNSSEC breakage or error messages that they know to be concerned (rather than not knowing if the breakage/error was "official" and caused by our redirect service or "unofficial" and caused by an attacker), our priority has been placed on DNSSEC deployment -- now automatically protecting our customers...'

    Here's a muckup of the DNS system that led to people in two countries having their internet traffic screwed over in the same way that the poor saps in China have to deal with.

    Here's an example showing how utterly useless DNS blocking is to 'combat piracy'.

    Here's a DNS provider noting how bad of an idea introducing DNS blocking would be, based upon how it's been used in other countries(Of particular note: China).

    Now, you may say that's hyperbole, that it would only be used for going after the worst of the worst pirate sites, at which point I'll get to marvel at your naivety, before pointing to the rest of human history, which makes clear the point: If it can be used for something, it will be. I'm sure people in the US never thought that the NSA would ever end up spying on them, yet they are, because they can. Likewise in the UK, where anti-terrorist laws have been used against reporters. DNS blocking may start only targeting 'pirate' sites, but if implemented, it will expand to be used against other sites.

    And finally here's a paper written by a handful of people who know the underpinnings of the internet much better than some lawyers for the *AA's and the foolish politicians they have on their side, talking about what a bad idea DNS blocking is.

    'Two likely situations ways can be identified in which DNS filtering could lead to non-targeted and perfectly innocent domains being filtered. The likelihood of such collateral damage means that mandatory DNS filtering could have far more than the desired effects, affecting the stability of large portions of the DNS.

    First, it is common for different services offered by a domain to themselves have names in some other domain, so that example.com's DNS service might be provided by isp.net and its e-mail service might be provided by asp.info. This means that variation in the meaning or accessibility of asp.info or isp.net could indirectly but quite powerfully affect the usefulness of example.com. If a legitimate site points to a filtered domain for its authoritative DNS server, lookups from filtering nameservers for the legitimate domain will also fail. These dependencies are unpredictable and fluid, and extremely difficult to enumerate. When evaluating a targeted domain, it will not be apparent what other domains might point to it in their DNS records.

    In addition, one IP address may support multiple domain names and websites; this practice is called 'virtual hosting' and is very common. Under PROTECT IP, implementation choices are (properly) left up to DNS server operators, but unintended consequences will inevitably result. If an operator or filters the DNS traffic to and from one IP address or host, it will bring down all of the websites supported by that IP number or host. The bottom line is that the filtering of one domain name or hostname can pull down unrelated sites down across the globe.

    Second, some domain names use 'subdomains' to identify specific customers. For example, blogspot.com uses subdomains to support its thousands of users; blogspot.com may have customers named Larry and Sergey whose blog services are at larry.blogspot.com and sergey.blogspot.com. If Larry is an e-criminal and the subject of an action under PROTECT IP, it is possible that blogspot.com could be filtered, in which case Sergey would also be affected, although he may well have had no knowledge of Larry's misdealings. This type of collateral damage was demonstrated vividly by the ICE seizure of mooo.com, in which over 84,000 subdomains were mistakenly filtered.

    However, all of this is going down the wrong path. I'm not the one demanding the power to shut down a site by accusing it of hosting infringing files, the *AA's are. As such, I'm not the one who needs to provide backing evidence.

    So, show me the evidence that such sites cause measurable harm, harm great enough to justify taking them completely offline despite the legitimate uses of them, on little more than accusation of guilt. Show me the measurable harm that makes their losses greater than the silenced speech, or the ability for someone to share their own files, that would result from a site being taken down.

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