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.

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.

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:

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.

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.

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).

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.

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.

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.

Filed Under: copyright, injunction, site blocking, sopa
Companies: movietube, mpaa