The MPAA's Secret Plan To Reinterpret The DMCA Into A Vast Censorship Machine That Breaks The Core Workings Of The Internet
from the how-very-nice-of-them dept
Yes, all the attention these days about the Sony hack is on the decision to not release The Interview, but it still seems like the big story to come out of the hack is the sneaky plans of the MPAA in its bizarre infatuation with attacking the internet. We've already covered the MPAA's questionably cozy relationship with state Attorneys General (to the point of both funding an investigation into Google and writing documents for those AGs to send in their names), as well as the continued focus on site blocking, despite an admission that the MPAA and the studios still don't have the slightest clue about the technology implications of site blocking.Last week, TorrentFreak noted the various options that were under discussion by the MPAA for blocking sites, and now The Verge has published more information, including the analysis by MPAA's favorite hatchetmen lawyers at Jenner & Block about how site blocking might work in practice [pdf] by breaking DNS.
For years, actual technology experts have explained why DNS blocking is a really bad idea, but the MPAA just can't let it go apparently. It's just, this time, it's looking for ways to do it by twisting existing laws, rather than by getting a new SOPA-like law passed.
To understand the plan, you have to first understand the DMCA section 512, which is known as the safe harbor section, but which includes a few different sections, with different rules applying to different types of services. 512(a) is about "transitory digital network communications" and basically grants very broad liability protection for a network provider who isn't storing anything -- but just providing the network. There are good reasons for this, obviously. Making a network provider liable for traffic going over the network would be a disaster for the internet on a variety of levels.
The MPAA lawyers appear to recognize this (though they make some arguments for getting around it, which we'll get to in a follow-up post), but they argue that a specific narrow attack via DMCA might be used to force ISPs to break the basic internet by disabling entries in their own DNS databases. The trick here is twisting a different part of the DMCA, 512(d), which is for "information location tools." Normally, this is what's used against search engines like Google or social media links like those found on Twitter. But the MPAA argues that since ISPs offer DNS service, that DNS service is also an "information location tool" and... ta da... that's how the MPAA can break DNS. The MPAA admits that there's an easy workaround for end-users -- using third-party DNS providers like OpenDNS or Google's DNS service -- but many users won't do that. And the MPAA would likely go after those guys as well.
At the same time, even this narrow limitation on ISPs’ immunity could have the salutary effect of requiring ISPs to respond to takedown notices by disabling DNS lookups of pirate sites through the ISPs’ own DNS servers, which is not currently a general practice. Importantly, the argument for such a requirement need not turn on the Communications Act, but can instead be based on the DMCA itself, which expressly limits ISPs’ immunity to each “separate and distinct” function that ISPs provide. See 17 U.S.C. § 512(n). A reasonable argument can be made that DNS functionality is an “information location tool” as contemplated by DMCA Section 512(d) and, therefore, that ISPs are required, as a condition of the safe harbor, to cease connecting users to known infringing material through their own DNS servers. Should this argument hold – and we believe that it has a reasonable prospect of success – copyright owners could effectively require ISPs to implement a modest (albeit easily circumvented) form of DNS-based site blocking on the basis of only a takedown notice rather than litigation.In short, since DMCA takedown notices apply to "information location tools," but not to "transitory network communications," the MPAA would like to argue that just the DNS lookup functionality is an information location tool -- and can thus be censored with just a takedown notice. This is both really slimy (though brilliant in its nefariousness) and insanely dangerous for the internet and free speech. We see so many bogus DMCA takedowns of basic content today, and here the MPAA is looking to effectively, and sneakily expand that to whole sites by misrepresenting the law (badly).
DNS is not an "information location tool" in the sense of a search engine. It's the core underpinning of how much of the internet works. At no point in the 16 years the DMCA has been around has anyone made an argument that the DNS system was covered by the "information location tools" definition. Because that's clearly not what it was written to cover. The MPAA's lawyers (in this "confidential" memo) appear to recognize that this argument doesn't fully make sense because of that, but they seem to think it's worth a go:
To be sure, the argument is not guaranteed to succeed, as unlike a “pointer” or “hyperlink text,” DNS provides a user’s browser with specific information (IP routing information) that the user has requested by other means (alphanumeric internet addresses), as opposed to providing the user with an active interface allowing the user to request information online, as they might from a clickable page of search results. But at least in the literal sense, DNS appears to fit within the list of Section 512(d) functions and a reasonable argument can be made that DNS is more like a “directory” than the provision of “routing” and should be treated accordingly under the statute as a Section 512(d) function rather than a Section 512(a) function.Pushing this argument would raise many of the problems found with the original DNS-breaking proposal in PIPA/SOPA. It would raise even more serious questions about the First Amendment and prior restraint. Effectively, it would be moving the definition of "information location tool" down the stack, such that rather than requiring the removal of access to the specific infringing content, it would require removal of access to an entire site based on a single accusation of infringement. Someone uploaded an infringing video to YouTube? Under this interpretation, the MPAA can force Verizon to make YouTube disappear from the internet for all users relying on Verizon's DNS. The censorship implications are massive here, especially with no court proceeding at all. This wouldn't require anything in court -- just a single takedown notice, of which copyright holders send millions. Rather than sending all those notices to Google and getting them delisted from search, copyright holders could turn the firehose towards Verizon, AT&T and Comcast, and basically take down half the internet on their say so alone. Yes, sites could counternotice, but ISPs would have 10 business days in which they can keep sites off their DNS entirely.
The results would be insane.
And that doesn't even touch on the technical havoc this would wreak. As we've noted earlier, the MPAA admits it's not clear on the technical implications of this plan, but let's just point back to Paul Vixie's discussion of how SOPA/PIPA would break the internet by mucking with the core DNS functionality, no matter how it was implemented.
What this goes back to is the core purpose of DNS, which is merely to translate a URL into a numeric equivalent to connect. It's not an information location tool for helping people "find" information -- it's just the basic plumbing of how the internet works. It's how basically all pieces of the internet expect to work. If you put in a URL here, then DNS returns the proper IP addresses to follow through there. Breaking that, effectively fracturing the internet, and creating a patchwork of different DNS systems would create a huge list of problems not easily fixed.
And, yet, because the MPAA can't figure out how to adapt to the times, it appears to be willing to give it a shot. Because, hey, it's better than innovating.
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Filed Under: copyright, dmca, dns, emails, information location tools, sony hack
Companies: jenner & block, mpaa
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Technical nit
I understand what you intended, but this is inaccurate. DNS translates names to addresses (IPv4 or IPv6, depending on the record type requested). URLs may, but are not required to, use a name to indicate the server portion of the URL. (They can also use a bare IPv4/IPv6 address, which is handy when your DNS server is broken, but you know the address of the resource you want to use.) DNS can be used with non-URLs, and this is how most older protocols work. The existence of protocol://host/$protocol-specific-data is popular for clarifying how the name should be used, but purpose-specific programs generally just take a bare name, resolve it in DNS, and assume it speaks their purpose-specific protocol.
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Re: Technical nit
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Re: Technical nit
The MPAA is (predictably) viewing this in terms of the web, NOT in terms of the Internet. That's probably because in their zeal to break the web, they either don't know or don't care about breaking other Internet functions. These have repercussions far beyond what's discussed here: for example, if a DMCA complaint about YouTube requires Verizon to forge DNS failure responses for DNS queries related to youtube.com for everyone on Verizon's network, then that will break email for any sender whose mail server uses Verizon's DNS. Same for AT&T and Comcast and Charter and all the rest...which means that nobody on those networks (modulo those uses 3rd-party DNS servers) will be able to send YouTube a DMCA complaint.
And that's just the beginning. All kinds of services rely on DNS in all kinds of obvious and subtle ways -- which is one reason why there's a dns-operations mailing list whose members are concerned with the ordinary breakage and weirdness involved in a system of this scale and scope. And those folks have enough to do without dealing with intentional disruptions triggered by the same people who file DMCA notices against their own content.
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Just...
My God. I really and truly hope that the whateverAAs are just incredibly blind or stupid and they just see this as a way to take down content they don't like, rather than an actual attempt to create an anti-Youtube/everything they don't like button. Of course, other people will abuse it anyway and smite from the face of the internet entire sites that disagree with them.
This is an all-out attack on the internet and will be dealt with accordingly. If they so much as joke about it within a 30 mile radius of Congress, Anonymous will probably DDoS them into oblivion, and unleash a crapstorm of fake takedowns for their websites if it passes.
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Re:
Where loopholes don't exist, they simply write legislation with loopholes built in, and hand that legislation to the government along with a campaign donation, and the legislator tries to get it passed without knowing the loophole (if they're even aware that the loopholes exist.)
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That's exactly what happened when the RIAA put invasive copy protection on music. Their sales plummeted and piracy increased until they backtracked.
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Techdirt
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Hmmm, strange, I was there yesterday. Let me try my bookmarks (sound of clicking)
404 Not Found
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..Wait, silly me, I have a hard time thinking as evil as the MPAA finds so easy. They could definitely require any type of message they wanted to come up (by pointing the domain at a different server), but I doubt it would be as mundane as 404. I'm sure it would be more like:
JUST THE FACT THAT YOU'RE TRYING TO GO TO THIS ADDRESS MEANS YOU'RE A CRIMINAL!!! THE POLICE HAVE BEEN NOTIFIED. PUT YOUR HANDS IN THE AIR AND WALK OUT THE FRONT DOOR.
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Meh
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Re:
Also, it will not have been established that the sites the MPAA designates are actually law-breaking. They're just accused of being law-breaking, but history shows us that the MPAA often accuses innocent sites.
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Re: Re:
Please show me where it says the MPAA will now be in charge of, and singlehandedly capable of, disappearing websites. Go ahead, I'll wait.
And lol @ "break the internet".
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Re: Re: Re:
https://www.techdirt.com/articles/20141217/17533629473/mpaas-secret-plan-to-reinterpret-dmca-in to-vast-censorship-machine-that-breaks-core-workings-internet.shtml#c170
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By the time they actually are "in charge", it'll be too late to point it out.
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You'd have to be pretty much obtuse or a cocksucker to not see this, but then again, you sound like the person who'd claim that search engines give him hives.
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Re: Re: Re: Re: Re: Re:
https://www.techdirt.com/articles/20131118/02152325272/warner-bros-admits-to-issuing-bogus-ta kedowns-gloats-to-court-how-theres-nothing-anyone-can-do-about-that.shtml
The main problem with many of the bogus DMCA takedowns in the past is that they result in content being taken down without a trial (or they are an attempt to take content down without a trial). After all the DMCA, which resulted in this mess, was pushed for by the MPAA/RIAA. Don't think these results were accidental, they knew very well that the DMCA would encourage service providers to shoot first and ask questions later.
SOPA was an attempt to make it easier for IP extremists to take down content without a trial.
Also from the OP
"Effectively, it would be moving the definition of "information location tool" down the stack, such that rather than requiring the removal of access to the specific infringing content, it would require removal of access to an entire site based on a single accusation of infringement"
What the MPAA wants to be able to do is effectively remove content before there is a trial and to force content producers and providers to then go through a bureaucratic process to reinstate the content. This will effectively break the Internet the way it stands and make user and independently generated content much more difficult to distribute which is exactly what they want.
In fact the current legal system encourages exactly this, intentionally. The penalties for filing bogus takedown requests are minimal compared to infringement penalties. The exact reverse should be true, IP holders are in a much better position to know if they have the privileges over a piece of content than service providers. The current situation encourages service providers to take down content before the possibility of a trial or before going through the process of ensuring that the content is legitimate, to shoot first and ask questions later, in fear that they could face unreasonable penalties if they don't. That's what content ID does and that's what Youtube often gives certain entities the privilege of doing. The law encourages this. The current situation is proof that this is what the MPAA wants. and they want to extend their ability to take down content without a trial and to force content creators and providers to go through a cumbersome process to get that content back up if it's legal.
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Re:
But you'd be behind that plan. You copyright fanboys have very, very strange fetishes.
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And hey, they won't have to fear getting hacked if they stop using computers! Win win!
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Haha! We can finally get rid of:
- youtube.com
- google.com
- mpaa.org
...Wait a minute...
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IETF/ICANN/INTERNET_AT_LARGE: Yo dog, we heard you like sending DMCA notices using DNS info, so we sent a DMCA notice using DNS info...
MPAA: You're mean. Why?
IETF/ICANN/INTERNET_AT_LARGE: DNS is our bailiwick. Now kindly Respect Ma Authoritah (You've heard of authoritative DNS servers, right?)
(And they all lived happily ever after?)
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The end effect is that instead of having one "phone book" to look up IP addresses in, there will be several, each with different listings.
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We were warned...
The worst part is, the MPAA itself hasn't learned its lesson. The recent events of the Interview have let them known what it's like to get censored. The hypocrites only care about censorship if it bites into their bottom lines. Well, they better reconsider their Internet censorship plan unless they want a consumer revolt like never before. After all, Gawker Media was tarnished for less than this.
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Re: We were warned...
Most people are still funding them. Where do you think they get all the money that use to pay their attorneys and their tech people and to line the pockets of their pet politicians?
I'm not. I'm doing my part to starve the beast. (And, no, I'm not pirating either: nearly all of Hollywood's output is shit and not worth my time.) I just need a couple hundred million more to do what I'm doing, and maybe we'll have a shot at cutting their revenue significantly. Don't go to the movies. Don't buy movies. Don't rent movies. Don't stream movies. Don't buy movie-related merchandise. Don't do anything that provides them with revenue.
Screw petitions. Forget protests. The heck with online blackouts. These are people whose ONLY value in life is money, so if you want to change their behavior, you'll need to force it by impacting their bottom line. Everything else is just wishful thinking.
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If they're angling for another shot at OpenDNS, maybe their previous apologies and concessions could be used against them?
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Scumbags.
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Get rid of DMCA
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Re: Get rid of DMCA
We need to get rid of the root cause: copyright.
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Re: Re: Get rid of DMCA
The cause of the current issue is the ever-expanding definition of a limited time. It could go more than 160 years if you publish at 20, live to be 90, and then your estate has a 90-year term after your death.
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Idea vs Execution
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Re: Re: Get rid of DMCA
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Re: Re: Re: Get rid of DMCA
Yeah, real, evidence based reform is not going to happen anytime soon.
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Re: Re: Re: Re: Get rid of DMCA
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the main culprit
https://en.wikipedia.org/wiki/Chris_Dodd
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all your stuff are "belong" to no one
Property tax = zero personal property
be shocked
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Re: all your stuff are "belong" to no one
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Nuclear option
Oops, that person was selling stolen goods in the middle of New York City and now people can't get into the city? Well, don't blame us for nuking the bridges- that one guy should have thought about this before he stole those items.
Isn't this what might happen to YouTube if the MPAA gets their way and their lawyers decide to file complaints with Verizon instead of YouTube? Who cares if there are 999,999,999 videos that don't infringe.
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You should do the same.
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