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)
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.