After Internet Companies Protest, MPAA Declares Victory And Walks Away From Attempt To Backdoor SOPA
from the nice-try... dept
The MPAA has been working on a number of tricks to find a SOPA through the backdoor in the last few months -- more on some of the many attempts coming soon -- but in one attempt, it's suddenly walking away. A few weeks ago, all of the major movie studios filed a lawsuit over the website MovieTube (actually a series of websites). While it may well be that MovieTube was involved in copyright infringement (and thus a lawsuit may be perfectly appropriate), the concerning part was that, as a part of the lawsuit, the studios were demanding a remedy that is not available by law: that anyone who provides any kind of service to MovieTube be forced to stop via a court injunction. This was the kind of tool that was a part of SOPA, which (you may recall) never became law. Among the requests in the lawsuit:That the Registries and/or Registrars be required to transfer the domain names associated with Defendants’ MovieTube Websites, or any subset of these domain names specified by Plaintiffs, to a registrar to be appointed by Plaintiffs to re-register the domain names in respective Plaintiffs’ names and under Plaintiffs’ respective ownership.A few days later, the good folks at EFF reminded everyone that SOPA did not pass, and this attempt to require a SOPA-level block is not actually what the law allows. Of course, as we noted soon after the SOPA fight, it appeared that some courts were pretending SOPA did pass, mainly in a variety of lawsuits involving counterfeit goods (rather than copyright infringement). And the movie studios rely on that in their more detailed argument in favor of this broad censorship order on third parties who aren't even a part of this case:
That content delivery networks and domain name server systems be required to cease providing services to the MovieTube Websites and/or domains identified with the MovieTube Websites and disable any access to caches they maintain for the MovieTube Websites and destroy any caches they maintain for the MovieTube Websites.
That third parties providing services used in connection with any of the MovieTube Websites and/or domain names for MovieTube Websites, including without limitation, web hosting providers, cloud services providers, digital advertising service providers, search-based online advertising services (such as through paid inclusion, paid search results, sponsored search results, sponsored links, and Internet keyword advertising), domain name registration privacy protection services, providers of social media services (e.g., Facebook and Twitter), and user generated and online content services (e.g., YouTube, Flickr and Tumblr) be required to cease or disable providing such services to (i) Defendants in relation to Infringing Copies or infringement of Plaintiffs’ Marks; and/or (ii) any and all of the MovieTube Websites.
Courts have granted similar interim relief directed to third-party service providers in cases with similar facts. The first such case, The North Face Apparel Corp. v. Fujian Sharing Import & Export Ltd. (“Fujian ”), 10-Civ-1630 (AKH) (S.D.N.Y.), was brought against defendants in China selling counterfeit goods through the Internet directly to consumers in the United States. In Fujian, the district court granted an ex parte temporary restraining order, seizure order, asset restraining order, and domain-name transfer order, later continued by a preliminary injunction order.Of course, last week, a bunch of internet companies -- Google, Facebook, Tumblr, Twitter and Yahoo -- filed an amicus brief highlighting how ridiculous the widespread demand is:
Plaintiffs are asking the Court to grant a preliminary injunction not just against the named Defendants, but also against a wide array of online service providers—from search engines, to web hosts, to social networking services—and require them to “cease providing services to the MovieTube Websites and Defendants[.]” None of those providers is a party to this case, and Plaintiffs make no claim that any of them have violated the law or play any direct role in the Defendants’ allegedly infringing activities.And... just days later, the movie studios tell the judge that they need not rule on this issue at all, and they're happy to drop the request for the preliminary injunction entirely, because the MovieTube websites have already been shut down (h/t to Eriq Gardner, who first reported on the studio's letter).
Plaintiffs’ effort to bind the entire Internet to a sweeping preliminary injunction is impermissible. It violates basic principles of due process and oversteps the bounds of Federal Rule of Civil Procedure 65, which restricts injunctions to parties, their agents, and those who actively participate in a party’s violations. The proposed order also ignores the Digital Millennium Copyright Act (“DMCA”), which specifically limits the injunctive relief that can be imposed on online service providers in copyright cases. Even if Plaintiffs had named those providers as defendants and obtained a final judgment against them, the DMCA would not permit the relief that Plaintiffs are asking for at the outset of their case, where they have not even tried to claim that these nonparties have acted unlawfully.
We represent Plaintiffs in the above-titled action. We write to inform the Court that after Plaintiffs filed their Complaint (and presumably in response thereto), Defendants shut down their infringing websites, and as of today, such websites remain offline. Plaintiffs are no longer seeking preliminary injunctive relief at this time but will seek permanent relief as soon as possible. Defendants’ time to answer or otherwise respond is August 19, 2015.In short: we had hoped to quietly get a court to pretend SOPA existed so we could point to it as proof that this is perfectly reasonable... but the internet folks spotted it, so we'll just walk away quietly, and hope that next time, those darn internet companies, and those eagle-eyed lawyers at the EFF aren't so quick to spot our plan.
Moreover, because Plaintiffs have withdrawn their motion for preliminary injunctive relief, the arguments offered by Amici Curiae... in opposition to that motion are not ripe for consideration and are otherwise inapplicable. Accordingly, Plaintiffs have not addressed them here. To the extent Amici are requesting what amounts to an advisory opinion, such a request is improper and should not be entertained.
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Filed Under: copyright, injunction, site blocking, sopa
Companies: movietube, mpaa
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And... just days later, the movie studios tell the judge that they need not rule on this issue at all, and they're happy to drop the request for the preliminary injunction entirely, because the MovieTube websites have already been shut down
...
In short: we had hoped to quietly get a court to pretend SOPA existed so we could point to it as proof that this is perfectly reasonable... but the internet folks spotted it, so we'll just walk away quietly, and hope that next time, those darn internet companies, and those eagle-eyed lawyers at the EFF aren't so quick to spot our plan."
I really don't know how you interpreted the situation as stated in your last paragraph. In short the MPAA got what they wanted, they intimidated a potentially perfectly legitimate service to shut down (which is good for them in its own right and also servers as an example to other potential startups) and they managed to avoid a ruling that could potentially make it harder for them to do so in the future. This is similar to how IP trolls (both patent and copy protection) often ask for something but tend to cave in when there may be a potential ruling against them that could hurt future rackets. The MPAA did good for themselves.
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Just wait for TPP & TTIP
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They pulled the plug because they didn't want precedent that could be used against them, but as far as showing that they can still kill any site or service they want simply by making it too expensive to fight back, yes, they definitely won on that account.
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We would have got away with it too.
We would have got away with it too if it wasn't for those meddling kids...
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Run little sleaze-bags, run
Yeah, it's this part that really caused them to tuck tail and run. They really didn't want to have to defend their claims in an adversarial court, where they could be challenged and potentially set a precedent that could be used against them, so they ducked out to avoid any possibility of that happening.
And why not after all, the main objective, killing off the service and making yet another example that they can had been achieved, the optional 'get ruling favorable for future endeavors' was merely a bonus, something nice to have, but not necessary really.
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The "Amici" here are actually hostile to, and allergic to, courts of law, therefore try to head off being under common law.
Now: "That third parties providing services used in connection" ... "such services to (i) Defendants in relation to Infringing Copies or infringement of Plaintiffs’ Marks" is NOT BROAD AS YOU CLAIM. Well within wishes (which are what court filings can at least include).
So why did Google, Facebook, Tumblr, Twitter and Yahoo go berserk? -- Because all have an interest in fostering piracy on one hand, and keeping a distance from the requirements of common law.
On the merits: as Google found in the British Columbia case, the "Amici" (who are actually hostile to courts!) might well find that they are in fact subject to injunction from mere local courts.
AND OF COURSE IN FINEST TECHDIRT TRADITION, IT'S ALL IRRELEVANT NOW! Next anomaly.
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Re: @ "killing off the service"
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Response to: Anonymous Coward on Aug 18th, 2015 @ 7:41am
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Re: Response to: Anonymous Coward on Aug 18th, 2015 @ 7:41am
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Response to: Anonymous Coward on Aug 18th, 2015 @ 7:59am
Masnick and the fanboys simply do not understand how courts work.
You do... THEN WHAT THE HELL ARE YOU DOING HERE AT THIS PIRATE SITE? -- RUN! You will only get your brain rotted! -- Seriously Get out now! It's too late for me, but save yourself!
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Re: Re: @ "killing off the service"
... oh, right, it wasn't, the company was driven into the ground before any such ruling could be made, making innocence or guilt meaningless, just as intended.
For all intents and purposes they were punished as though they were found guilty, without actually being found guilty, and anyone who cares about justice should be objecting to that. It doesn't matter if you think a person, site or service is 100% guilty, punishment should never precede a finding of guilt, instead only being applied after one.
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Re: Response to: Anonymous Coward on Aug 18th, 2015 @ 7:41am
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Re: Response to: Anonymous Coward on Aug 18th, 2015 @ 7:59am
The results of this case would beg to differ with your statement. We know how they work and are thankful that this time they have had a sensible outcome.
It actually appears the MPAA have no idea how law works and are obviously upset about this loss as they have sent their best trolls to Techdirt to try and reinforce their point. (MPAA please note these idiots you pay to troll here only make your position less tenable).
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Re: Response to: Anonymous Coward on Aug 18th, 2015 @ 7:59am
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It's already been proven and admitted that he uses Tor. He's a filthy, filthy pirate.
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If studios are hemorrhaging money, it's obvious why - their overlords are throwing away money for laws they freely admit they never needed.
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Re: Re: Response to: Anonymous Coward on Aug 18th, 2015 @ 7:59am
"It's too late for me" it indicates that this user is pretending that this site turned him into an evil pirate and that you should run before they turn you. This piracy disease is so infectious even he caught it. It's a parody of the IP extremists that think that anyone that disagrees with them is an evil pirate and are going to turn everyone else into evil pirates and that any service that offers content is automatically illegal and anyone supporting them is in support of no one being able to make a return on their investment and is against artists.
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Re: Response to: Anonymous Coward on Aug 18th, 2015 @ 7:59am
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Re: Re: Re: @ "killing off the service"
First, a preliminary injunction is not an assumption of guilt, and should not be treated as such. It merely means that, if granted, in the court's opinion, ongoing operations by the defendant will result in significant further damages to the plaintiff. Whether defendant is liable for said damages, or was criminal in causing them, is neither implied nor contraindicated.
Second, such preliminary injunctions must not be rubber stamped. They must be assessed on a case-by-case basis, and, if granted, only after significant deliberation.
Further, should the court rule for the defendant, they are entitled to remuneration for any lost profits stemming from the injunction. (Though, again, IANAL. They may need to counter-sue. If so, the law should be changed.)
Finally, under NO circumstances should an injunctive action be levied against any entity which is not a named defendant, as the MPAA tried here. Not only are such things prima facie foolishness, but the deeper concerns at play are very unsettling. If you seek preliminary injunctive relief against an entity, then name them as a defendant in your suit. Importantly, this provides said entity opportunity to present arguments against the injunction beforehand, rather than the court taking unilateral action.
Of course, the MPAA did not name Google et al as defendants, because accusing them of wrongdoing in this matter is an indefensible position. If they had the slightest case against "Goliath", can anyone honestly tell themselves that they wouldn't have pursued it with abandon?
They do, however, have a case against MovieTube. They have a reasonable argument for a judge to grant a preliminary injunction against MovieTube, ordering cessation of operations pending the result of the case. They do not have anything approaching a reasonable argument for seeking injunctive action against entities who are not accused of wrongdoing.
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Like settling out of court...
Despite all the talk of frivilous and unneeded lawsuits in the US I believe the US judiciary would be better if settled and dropped cases could be used as case precedent(s).
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If they're not parties...
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Re:
Do me a favor, and point out where in copyright law it says you can force a third party to censor an entire site based on accusations of copyright infringement.
Here, I'll even point you to the part of the law that says this *isn't* allowed.
https://www.law.cornell.edu/uscode/text/17/512
But, you know, your misguided hatred of me will let you lie and lie and lie.
This is not about enforcing copyright law. Copyright law itself says you can't do this. This is about abusing the law to pretend it does more than it does.
Why are you in favor of abusing copyright law?
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Which reminds me, time for some more DVDfab monkey business in your honor.
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I asked you a pretty straightforward question and you came back with a random ad hom attack.
I guess I win.
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I asked you a pretty straightforward question and you came back with a random ad hom attack.
I guess I win.
I'll play, Mike!
The injunction against the defendants comes under 17 U.S.C. 502. The applicability of that injunction to those in "active concert or participation" with the enjoined defendants comes from F.R.C.P. 65.
OK, now you go!
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Here's a hint, are you saying that the Registries and/or Registrars are in "active concert or participation" with the enjoined defendants?
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Re: The "Amici" here are actually hostile to, and allergic to, courts of law, therefore try to head off being under common law.
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Re: Response to: Anonymous Coward on Aug 18th, 2015 @ 7:59am
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Here's a hint, are you saying that the Registries and/or Registrars are in "active concert or participation" with the enjoined defendants?
Well, that's the issue. The district court in the Cloudflare case said that it was in active concert with the Grooveshark websites, but there's not a lot of case law on this point. It's certainly not the slam dunk Mike pretends it to be. And Mike's claim that 512 is "the part of the law that says this *isn't* allowed" is just silly. These third parties aren't being enjoined under 512.
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It's not silly at all. 17 U.S.C. 512 enumerates the limitations of liability on service providers for copyright infringement. These limitations apply to the injunctive relief provided by 17 U.S.C. 502 as stated in the very first paragraph of 512:
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A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright... (emphasis mine)
These third parties are not being enjoined under 502--the defendants are. 512 does not apply to these third parties since they're not being enjoined under 502 in the first place.
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I think that the court order in that case was wrong and was way overbroad. Cloudflare resisted up to a point, but still complied. I don't believe that the court order against Cloudflare would stand up under appeals.
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It seems obvious to me that resolving its domain names, speeding up the delivery of its content, etc. helped Grooveshark to do what it had been enjoined from doing. Same with Google and the others here. If Google links to an enjoined website, it's driving traffic to that website and helping it to violate the injunction.
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IANAL, but that doesn't seem right. They are enjoined under F.R.C.P 65, but the whole reason for enjoining them is because of a violation of 17 U.S.C. 501 in the first place. I'm not sure how you can just ignore that part when dealing with third parties. It's a copyright case to begin with.
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I disagree. Using you logic, car manufacturers would be liable for supplying cars to bank robbers.
Congress specifically carved out the 512 and 230 safe harbors to protect service providers from the unlawful actions of their users. Groveshark was a Cloudflare user.
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Except that section doesn't nullify 17 USC 512. (Indeed, if an OSP is eligible for 512 protection, I doubt it would even be possible to claim that they are in "active concert or participation" with the third party.)
The 512 safe harbors don't mention anything about the OSP's themselves being named defendants (or not). It is all-encompassing: "injunctive or other equitable relief." There is no exception to that very, very clear statement; it's not "injunctive or other relief, provided that they are named defendants."
Simply put, any entity that has 512 safe harbors absolutely cannot have an injunction levied against them on account of infringement by their users - except as provided for in 512(j). This is black-letter law.
Your objection is a complete red herring.
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Re: Re: Re: Re: @ "killing off the service"
My above post still stands, though. There's nothing wrong with a judge declaring a preliminary injunction against MovieTube itself.
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Re: Response to: Anonymous Coward on Aug 18th, 2015 @ 7:41am
In other words, portraying them accurately?
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Re: Response to: Anonymous Coward on Aug 18th, 2015 @ 7:59am
Listen Grandpa, the only person still in existence on the planet (presumably) over the age of 12 that still uses that term is you.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
The third parties would not be enjoined under 65/502/512. They wouldn't be enjoined at all. The defendants would be enjoined, and that injunction would apply to anyone with notice of it that then aids the defendants in violating the injunction. And it's not just a copyright case. There are two Lanham Act claims that the Google amicus brief didn't even discuss, presumably because they've got nothing.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
That's not a good comparison. FRCP 65 prevents anyone with knowledge of an injunction from aiding the party enjoined. Car manufacturers don't have knowledge of any injunctions against bank robbers.
Congress specifically carved out the 512 and 230 safe harbors to protect service providers from the unlawful actions of their users. Groveshark was a Cloudflare user.
512 wasn't the issue there. Cloudflare didn't even argue that 512 protected it. The DMCA doesn't let service providers knowingly aid defendants that have been enjoined.
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Of course it doesn't nullify 512. The point is that 512 doesn't apply to third parties such as Google since they're not being enjoined. The only party that would be enjoined is Movietube. Third parties with actual notice of that injunction could be ordered to not aid Movietube, but that's not the same thing as an injunction against those third parties. If the plaintiffs were seeking an injunction against third parties such as Google directly, then 512 would be applicable. But they're not, so it's not.
The 512 safe harbors don't mention anything about the OSP's themselves being named defendants (or not). It is all-encompassing: "injunctive or other equitable relief." There is no exception to that very, very clear statement; it's not "injunctive or other relief, provided that they are named defendants."
512j says: "The following rules shall apply in the case of any application for an injunction under section 502 against a service provider that is not subject to monetary remedies under this section..." There has been no application for an injunction against these third parties. There has only been an application for an injunction against Movietube. 512 doesn't apply to the third parties since no one is trying to enjoin them.
Simply put, any entity that has 512 safe harbors absolutely cannot have an injunction levied against them on account of infringement by their users - except as provided for in 512(j). This is black-letter law.
Your objection is a complete red herring.
There is no injunction being sought against these third parties. They are not being enjoined. The defendants would be the ones enjoined, and FRCP 65 would prevent anyone with notice of that injunction from aiding them. Being prevented from aiding an enjoined party is not the same thing as being enjoined. The third parties couldn't be enjoined unless they were named as parties. They haven't been named, and the plaintiffs aren't seeking to enjoin them.
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How is that an injunction against MovieTube? That is neither ordering MovieTube to transfer the registration (which would be fine), nor is it a notice to a third-party to cease assistance to an enjoined act. It is very clearly an (attempted) injunction against a third party.
Don't the DMCA safe harbor provisions declare that providing said services to an entity who uses them for illegal purposes is not considered criminal facilitation? If they would be allowed to continue to provide service if named as defendants, why is the bar suddenly lowered when they are third parties?
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Re: Re: Re: Re: @ "killing off the service"
The rest I could see as reasonable, but it's this step that things get messy. How do you decide remuneration for a business that's been destroyed thanks to the injunction against it? Net worth at the time it was shut down? Net worth plus expected profits it could have brought it had it not been shut down?
Unless payment for damages resulting from an injunction are mandatory, and I doubt they are, an injunction against a person/company is basically a finding of guilt, before a ruling of guilt.
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Here's a hint: Paul Duffy supported copyright abuse like you, and look where he ended up. Perhaps you'll follow him soon.
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It's a distinction that perhaps only lawyers could love, but there's a difference between being enjoined and being bound by an injunction issued against someone else. The registries/registrars would not be enjoined, but they would be bound by the injunction against Movietube (assuming they have actual notice and are aiding Movietube). The court can order Movietube or those bound by the injunction to take action concerning Movietube's property, such as its domain names. But just because these third parties can be bound by the injunction, that doesn't mean they were enjoined.
See FRCP 65: "The order binds only the following who receive actual notice of it by personal service or otherwise: (A) the parties; (B) the parties’ officers, agents, servants, employees, and attorneys; and (C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B)." It's (C) that applies to third parties.
Don't the DMCA safe harbor provisions declare that providing said services to an entity who uses them for illegal purposes is not considered criminal facilitation? If they would be allowed to continue to provide service if named as defendants, why is the bar suddenly lowered when they are third parties?
Under the DMCA, they generally don't get to continue providing services if they know they're being used to infringe. They'd lose the safe harbor if they did.
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Re: Response to: Anonymous Coward on Aug 18th, 2015 @ 7:41am
Your simple mind is showing again. Just like there are legal and illegal ways to defend real (as opposed to imaginary) property, there are ways to react to copyright infringement that are allowed in law and there are ways that clearly are not.
For someone who likes to scream and shout about the illegal activity of people you don't like, you seem quite happy to justify the MPAA trying to do the same.
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And that point is the one that is false. An OSP is, by nature, a third party. 512 only applies to third parties such as Google.
Being prevented from aiding an enjoined party is not the same thing as being enjoined.
If that "prevention" takes the form of a court-ordered injunction, then yes, those parties are being "enjoined." That's pretty much the definition of the word.
This was exactly what the MPAA sought. They referred to it specifically as "preliminary injunctive relief" in their filings.
Let's make something absolutely clear. If an OSP has 512 safe harbors, the only relief that any court is legally allowed to grant against that OSP is specified in 512(j). They cannot do anything more than that.
If a court-ordered action on that OSP is outside the bounds of 512(j), the court is acting unlawfully. You can call it whatever you like, try to redefine the term "enjoined" so that is only applies to named defendants, or whatever. But it's still unlawful.
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You're confused. When an injunction is sought against a service provider for the actions of its third-party users, that doesn't make the service provider a third party. The injunction is against the service provider directly. 502/512 applies to such a direct injunction. That's different than an injunction against a site like Movietube that binds third parties in active concert with the site. 502/512 says nothing about injunctions not binding third parties in active concert.
If that "prevention" takes the form of a court-ordered injunction, then yes, those parties are being "enjoined." That's pretty much the definition of the word.
You clearly are confused. There is a fundamental difference between being the party enjoined and being a party bound by that injunction because it is in active concert with the party enjoined. I suggest researching this before making such broad pronouncements presented as fact.
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Re: Response to: Anonymous Coward on Aug 18th, 2015 @ 7:41am
What makes the MPAA evil criminals isn't that they are defending their rights. It's that in the course of doing so, they are running roughshod over everyone else's.
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Re: Re: Re: Re: Re: @ "killing off the service"
Using a court to destroy a company you don't like without a finding of guilt is undoubtedly something that needs to be prevented, but, as usual, things are never that simple.
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If that's the case, why did the MPAA back off from the injunction?
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I wouldn't read too much into it. The plaintiffs said they're bringing a motion for a permanent injunction ASAP. They don't need preliminary relief since the defendants already shut down operations and ran away. I think it's inaccurate to claim that the plaintiffs have backed off. They already got what they wanted in the short-term. Let's see what they want in the long-term.
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And that is the type of injunction that the MPAA was seeking. The injunction didn't state that "MovieTube be required to transfer the domain names..." (&etc). It stated that "Registries and/or Registrars be required to transfer the domain names..." (&etc). The injunctions were directed at the service providers directly.
There is a fundamental difference between being the party enjoined and being a party bound by that injunction because it is in active concert with the party enjoined.
For the purposes of 512 safe harbors, there is not. "A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief..."
It is all-encompassing. If you have those safe harbors, it doesn't matter if you might be considered "in active concert with the party enjoined." Even if you are, you cannot be bound by any injunction whatsoever that falls outside of 512(j).
The safe harbors in 17 USC 512 place absolute limits on the injunctions that can be granted under Rule 65.
Of course, it doesn't make any difference, because courts have defined "active concert or participation" very narrowly. For example:
- Regal Knitwear Co. v. Board
The activities carried out by the OSP's do not even come close to this level of involvement. There is precedent on this point:
- Blockowicz v. Williams LLC
So, not only are the OSP's protected against any injunctive relief outside of 512(j), the injunctions would be outside the bounds of Rule 65 in any case.
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