MPAA Apparently Silently Shut Down Its Legal Movies Search Engine

from the we-hardly-knew-ye dept

In 2015, with much fanfare, the MPAA released its own search engine of sorts as WhereToWatch.com. The idea behind the site was to combat the argument that people pirate films because there are too few legal alternatives. The MPAA built the site to show where those legal alternatives do in fact exist. Left unaddressed, of course, were questions about how useful and convenient those alternatives were, how users had to navigate through a myriad of restrictive policies for those legal alternatives, and how terrible Hollywood must be in promoting its legal alternatives if the only thing needed to stop all this piracy was an MPAA search engine.

On top of that, WhereToWatch served as something of an excuse for many draconian polices the MPAA was pushing for all along. By being able to point to the search engine as "proof" that all kinds of legal alternatives to piracy were readily available, the MPAA argued that policies such as "notice and staydown" as well as site-blocking were legitimate pursuits. Somewhat predictably and with a heaving helping of irony, WhereToWatch received multiple DMCA takedown notices for its search results, demonstrating how perilous DMCA takedowns have become.

And now comes the news that the MPAA actually shuttered the site months ago.

The MPAA pulled the plug on the service a few months ago. And where the mainstream media covered its launch in detail, the shutdown received zero mentions. So why did the site fold? According to MPAA Vice President of Corporate Communications, Chris Ortman, it was no longer needed as there are many similar search engines out there.

“Given the many search options commercially available today, which can be found on the MPAA website, WheretoWatch.com was discontinued at the conclusion of 2017,” Ortman informs TF. “There are more than 140 lawful online platforms in the United States for accessing film and television content, and more than 460 around the world,” he adds.

That is all absolutely true today, though it was also true three years ago when the site was launched. The simple fact of the matter is that the site did little to serve any real public customer base. Yes, legal alternatives to piracy exist. Everyone knows that, just as they know that there are far too many hoops and restrictions around which to jump that have nothing to do with price. The MPAA and its client organizations have long asserted strict control over their product to the contrary of public demand. That is, and has always been, the problem.

On top of all that, the MPAA showed its no better at promoting its site than it was at promoting the legal alternatives to pirating movies.

Perhaps the lack of interest from the U.S. public played a role as well. The site never really took off and according to traffic estimates from SimilarWeb and Alexa, most of the visitors came from Iran, where the site was unusable due to a geo-block.

Look, the basis for this effort was a good one: promote legit movie-watching to customers currently pirating. That's laudable. But Hollywood is in the business of convincing the public to do so every bit as much as the public is obligated to buy Hollywood's products. It's not enough to build a search engine to the current unwanted offerings and call it a day.

You have to actully innovate.

Filed Under: culture, movies, piracy, search engine, streaming, what to watch
Companies: mpaa

MPAA Report Shows How The Internet Is Saving The Film Industry, Not Destroying It

from the told-you dept

The MPAA has long found itself in the odd position of cheerleading its own industry's never-attained demise. One of the core functions of the organization has been to demonize the internet with incessent discussions about how piracy is "killing" the industry, a death that never seems to take. Others have posited that the movie industry needs the internet more than the other way around, which hasn't prevented Hollywood from waging a clandestine war through pricing and burdensome licensing arrangements with service providers that actually stave off piracy, such as Netflix. Whether Hollywood knew it was waging this war is an open question, but the end result of its tactics were to tamp down the usefulness of Netflix.

And, yet, Netflix grew and grew anyway.

Which perhaps has brought us to something of a turning point. There is a major change in the MPAA's latest annual report, one which serves to laud the internet for saving its industry, instead of killing it. The MPAA has decided to finally start including home-viewing numbers and revenue in the report, and the numbers make it quite clear where the industry's revenue is coming from.

Breaking from tradition, newly installed MPAA chairman-CEO Charles Rivkin has decided to include home entertainment spending in the MPAA's annual report on the health of the film business. Previously, the report focused solely on theatrical revenue. There's good reason for the change-up, considering the explosion in digital subscription services, compared to the volatile theatrical market and the demise of DVD sales, once the jewel in the crown of Hollywood's profit machine.

In 2017, combined global spending on theatrical and home entertainment hit $88.4 billion. Digital home entertainment, which includes streaming services, soared 31 percent year-over-year to $32.1 billion, while physical home entertainment spending continued to plummet, down 15 percent to $15.7 billion. But, thanks to digital — up a staggering 161 percent from five years ago — total home entertainment spending was up 11 percent ($47.8 billion).

Another way to put this, assuming we want to adopt the context the MPAA has tried to paint of an industry in peril, is that the MPAA is reporting that the internet saved Hollywood. Going further during a press call, Rivkin excitedly stated that this rising trend in home-viewing isn't showing any sign of stopping, either. Of particular importance are the revenue trends in digital streaming, a technology that, again, MPAA members have tried to handcuff in every way they can. Enormous licensing sums, restricting access to catalogs, and confusingly granting and pulling access to certain films and shows has been par for the course. Despite all of that, the demand from the public is clear: more streaming, more access, more movies.

Even those representing movie theaters, where domestic revenues continued to decline, are starting to get how important the internet is to the movie-making ecosystem.

"You might find oxymoronic for someone who represents theater owners to champion the home entertainment part of the report," said National Association of Theatre Owners president John Fithian, who also participated in the press call. "Those same people who have the most technologies are also the most frequent moviegoers. We want our distribution and production partners to make more money in the home because they can make more and bigger movies for us."

If everyone is on board with this as they're making out to be, strategies should shift right now to those that are more internet and consumer friendly. Reductions in release windows, expansion of catalogs from the studios, and an eye on pricing licensing to maximize adoption among consumers. These are the things Hollywood should be doing and they are the polar opposite of what it's done for years.

Perhaps this report is the first step in the entertainment industry finally realizing that the internet is not its enemy, but might actually be its salvation. If not, the MPAA's own numbers show that it will be biting the hand that feeds it.

Filed Under: charles rivkin, movies
Companies: mpaa, netflix

Hollywood's Behind-The-Scenes Support For SESTA Is All About Filtering The Internet

from the you-know-it dept

Over at the EFF blog, Joe Mullin has an excellent discussion on why Hollywood is such a vocal supporter of SESTA, despite having nothing to do with Hollywood. It's because the bill actually accomplishes a goal that Hollywood has dreamed about for years: mandatory filtering of all content on the internet.

For legacy software and entertainment companies, breaking down the safe harbors is another road to a controlled, filtered Internet—one that looks a lot like cable television. Without safe harbors, the Internet will be a poorer place—less free for new ideas and new business models. That suits some of the gatekeepers of the pre-Internet era just fine.

The not-so-secret goal of SESTA and FOSTA is made even more clear in a letter from Oracle. “Any start-up has access to low cost and virtually unlimited computing power and to advanced analytics, artificial intelligence and filtering software,” wrote Oracle Senior VP Kenneth Glueck. In his view, Internet companies shouldn’t “blindly run platforms with no control of the content.”

That comment helps explain why we’re seeing support for FOSTA and SESTA from odd corners of the economy: some companies will prosper if online speech is subject to tight control. An Internet that’s policed by “copyright bots” is what major film studios and record have advocated for more than a decade now. Algorithms and artificial intelligence have made major advances in recent years, and some content companies have used those advances as part of a push for mandatory, proactive filters. That’s what they mean by phrases like “notice-and-stay-down,” and that’s what messages like the Oracle letter are really all about.

There's a lot more in Mullin's post, but it actually goes much beyond that. Every rock you lift up in looking at where SESTA's support has come from, you magically find Hollywood people scurrying quietly around. We've already noted that much of the initial support for SESTA came from a group whose then board chair was a top lobbyist for News Corp.. And, as we reported last month, after a whole bunch of people we spoke to suggested that much of the support for SESTA was being driven by former top News Corp. lobbyist, Rick Lane, we noticed that a group of people who went around Capitol Hill telling Congress to support SESTA publicly thanked their "partner" Rick Lane for showing them around.

In other words, it's not just Hollywood seeing a bill that gets them what it wants and suddenly speaking up in favor of it... this is Hollywood helping to make this bill happen in the first place as part of its ongoing effort to remake the internet away from being a communications medium for everyone, and into a broadcast/gatekeeper dominated medium where it gets to act as the gatekeeper.

And if you think that Hollywood big shots are above pumping up a bogus moral panic to get their way, you haven't been paying attention. Remember, for years Hollywood has also pushed the idea that the internet requires filters and censorship for basically any possible reason. Back during the SOPA days, it focused on "counterfeit pharmaceuticals." Again, not an issue that Hollywood is actually concerned with, but if it helped force filters and stopped user-generated content online, Hollywood was quick to embrace it.

Remember, after all, that the MPAA set up Project Goliath to attack Google, and a big part of that was paying its own lawyers at the law firm of Jenner & Block to write demand letters for state Attorneys General, like Mississippi Attorney General Jim Hood, who sent a bogus subpoena and demand letter to Google (written by the MPAA's lawyers and on the MPAA's bill). And what did Hood complain about to Google in that letter written by the MPAA's lawyers? You guessed it:

Hood accused Google of being “unwilling to take basic actions to make the Internet safe from unlawful and predatory conduct, and it has refused to modify its own behavior that facilitates and profits from unlawful conduct.” His letter cites not just piracy of movies, TV shows and music but the sale of counterfeit pharmaceuticals and sex trafficking.

The MPAA has cynically been using the fact that there are fake drugs and sex trafficking on the internet for nearly decade to push for undermining the core aspects of the internet. They don't give a shit that none of this will stop sex trafficking (or that it will actually make life more difficult for victims of sex trafficking). The goal, from the beginning was to hamstring the internet, and return Hollywood to what it feels is its rightful place as the gatekeeper for all culture.

Indeed, our post earlier about Senator Blumenthal's bizarre email against a basic SESTA amendment from Senator Wyden to fix the "moderator's dilemma" aspect was quite telling. He falsely claimed that adding in that amendment -- that merely states that the act of doing some moderation or filtering doesn't append liability to the site for content they fail to filter or moderate (which is the crux of CDA 230's "Good Samaritan" language) -- would create problems for Hollywood. Indeed, a key part of Blumenthal's letter is that this amendment "has the potential to disrupt other areas of the law, such as copyright protections."

But that makes zero sense at all. CDA 230 does not apply to copyright. It doesn't apply to any intellectual property law, as intellectual property is explicitly exempted from all of CDA 230 and has been from the beginning. Nothing in the Wyden amendment changes that. And... it does seem quite odd for Blumenthal to suddenly be bringing up copyright in a discussion about CDA 230, unless it's really been Hollywood pushing these bills all along, and thus in Blumenthal's mind, SESTA and copyright are closely associated. As Prof. Eric Goldman notes, talking nonsensically about copyright in this context appears to be quite a tell by Senator Blumenthal.

Filed Under: broadcast, cda 230, censorship, communications, dmca, filtering, fosta, hollywood, intermediary liability, sesta
Companies: mpaa

Why Is Hollywood Pushing A Totally Bogus Push Poll Trying To Undermine The Internet?

from the questions,-questions dept

If you've spent time on Facebook lately, you may have come across the following advertisement:

The ad is from "CreativeFuture", an MPAA front group that pretends to be representing the interests of "artists" but miraculously only seems to promote the extreme viewpoints of the giant Hollywood studios (imagine that). The group is often the go to quote for the copyright extremist position -- and has a history of basically blaming technology for Hollywood's own failures to adapt.

Not surprisingly, then, that it's now running this highly unscientific "survey" with a bunch of ridiculous leading questions, to try to argue that internet companies aren't doing enough and that Congress should destroy the laws that protect the open internet. You can check out the survey yourself, but let's dig into the questions and just how leading and/or silly they are.

It starts off with the following preamble:

In recent months, there has been rapidly growing concern in Washington, in the press, and among members of the public over the lack of responsibility shown by the major internet platforms (including Google and Facebook) toward potentially illegal activity taking place on their services.

From sex trafficking to foreign influence on our elections, from privacy to piracy, it has become increasingly clear that more needs to be done – by the internet platforms themselves, and possibly by the U.S. government – to ensure platform responsibility.

Note the use of "sex trafficking." For the most part, Hollywood has been trying to hide the fact that it's been one of the biggest supporters of SESTA, the fake law that pretends its targeting sex traffickers, but is really targeting the internet. It's kind of rich for an industry that includes Harvey Weinstein, Woody Allen and Roman Polanski among its biggest "names" to be complaining about sex trafficking.

From here on it, I'll just post the text instead of screenshots, but I'll include the above so you can see what it looks like in case it magically disappears after this post goes live.

1. There is growing evidence that the major internet platforms are being used for purposes that may violate U.S. laws. Should the major internet platforms take responsibility for these uses of their services?

• Yes
• No

That's a broad and incredibly leading (and misleading) question. Lots of tools are used to violate US laws. This includes cars and telephones. But we don't call for Ford to take responsibility for the fact that people speed, or for AT&T to take responsibility for the fact that someone phones in a bomb threat. That's not how it works. But, of course, if you don't know any of that and just think "oh, bad stuff is happening, of course someone should take responsibility" gullible people are going to vote "yes." You could just as easily rephrase the question as "Bad people sometimes use the internet too. Should that be the fault of Google and Facebook that they don't magically make bad people good?" Such a question would be equally as meaningful.

2. Recently, the major internet platforms opposed the Stop Enabling Sex Traffickers Act (SESTA) because they want to avoid responsibility or legal liability for such uses of their services. Do you believe that the major internet platforms need to do more to stop sex trafficking on their services?

• Yes
• No

First of all, this isn't entirely accurate. As we've discussed, the Internet Association and especially Facebook have been supportive of SESTA. And the reason that other (smaller) platforms have opposed SESTA is not because "they want to avoid responsibility or legal liability," but because they know why that's a really dangerous plan that will create lots of problems unrelated to sex trafficking while actually making the problem of sex trafficking worse. As we've discussed at great length -- and which the team at Creative Futures would admit if they had an intellectually honest bone in their bodies -- the problem with SESTA is that it creates a moderator's dilemma. It will lead some sites to stop moderating entirely to avoid the "knowledge" standard in the bill. And it will cause others to censor with wild abandon to try to avoid any and all liability, no matter how ridiculous. Of course, coming from Hollywood -- an industry famous for sending tons of bogus DMCA takedowns -- widespread censorship of legitimate content apparently isn't a big deal. Hollywood should be fighting for the First Amendment, not shitting all over it.

3. The major internet platforms benefit greatly from the Digital Millennium Copyright Act (DMCA) of 1998 and the Communications Decency Act (CDA) of 1996, two 20-year-old laws that were intended to give the then-fledgling internet the opportunity to grow. Today, the major global internet platforms – companies like Facebook, Google, and Twitter – use these laws to avoid taking responsibility for the content they deliver to consumers or help them find, and from which they make immense profits. Given the tremendous growth of the internet in the last 20 years, do you believe it is time to reconsider the DMCA and the CDA?

Hilarious. Remember, the DMCA was pushed for by Hollywood back in the 1990s. They even went so far as to route around Congress (who refused to give them the DMCA) and get it into a trade agreement in Geneva, forcing Congress to pass the DMCA to "comply with our international obligations." For Hollywood to now whine about the DMCA that they pushed so hard for is hilarious. Separately, the "reason" given in this question about why Congress passed both the DMCA and CDA 230 is not at all accurate. Hollywood engaging in historical revisionism? What a surprise! The reason for both laws was not to let the fledgling internet grow. It was to properly place liability on those actually breaking the law. Yes, growing the internet was cited in the debate for both, but because anyone with common sense could see that falsely putting liability on websites for actions of users would be a disaster for the internet -- whether its in its early days or end-times.

4. Do you believe that services like Facebook, Google, and Twitter should take greater responsibility for the use of their platforms to promote false and misleading news articles?

Does Hollywood really want to call out others for "promoting false and misleading" information? Does no one in Hollywood know anything about Hollywood's own history of propaganda and fake news? Either way, once again, what CreativeFuture is pushing here is misleading and ridiculous. The people creating fake news are responsible for creating fake news. Making a tool that they use "responsible" for it would be like making the guy who built the printing press responsible for fake news propaganda published in newspapers. That's not how it works.

5. Do you believe that services like Facebook, Google, and Twitter should take greater responsibility to ensure that foreign agents cannot use their platforms for political advertising or influence?

Great. Now Hollywood is trying to argue that Google and Facebook should block foreigners from using its platforms. Lovely. As we pointed out when the Mueller indictment of Russian trolls came out, they went to incredible lengths to hide the fact that they were Russian. People looking to abuse the system will always figure out ways around blocks -- and it's not like Google and Facebook and others haven't been pressured already to do more, just in the court of public opinion.

6. Do you believe that services like Facebook, Google, Twitter, and others should take greater responsibility for protecting the privacy of their users?

This one's a layup. Who's actually going to say no to this? Everyone's going to say yes, but no one will discuss the details or what it means. Besides, is Hollywood really positioning itself as the bastion of protecting privacy? The same Hollywood that couldn't even protect Sony Pictures' emails from leaking all over the internet? And the same Hollywood where Harvey Weinstein was famous for running an army of spies to go after critics, and leaking personal information about them to the press? That same Hollywood?

7. Do you believe that services like Google, Facebook and Twitter should take greater responsibility for the use of their platforms to facilitate the illegal distribution of creative copyrighted movies, television shows, music, photography, and books?

What does "greater responsibility" even mean in this context? All of those sites have spent many, many, many millions of dollars to set up systems that go way beyond what the law requires to take down (or block from ever being posted) tons and tons of content. And, of course, to Hollywood, it's never enough. It can never be enough. But rather than get its own house in order, it just wants to blame the internet. Same old song.

8. Has the growing public attention to the failure of giant internet platforms like Facebook, Google, and Twitter to take responsibility for their role in facilitating illegal activities changed your opinion of the companies?

No. But the growing flailing by CreativeFuture and the MPAA has made it clear how desperate they've become.

I can't wait for CreativeFuture to release the ridiculous "results" of this poll and pretend that it proves anything.

Also, irony of ironies: without CDA 230 it's quite unlikely that this ad or this survey would exist at all. SurveyMonkey relies heavily on CDA 230 to allow anyone to post whatever surveys they want -- without requiring it to be reviewed carefully before it went up. If SurveyMonkey needed each poll to be reviewed by an editor, SurveyMonkey wouldn't exist at all. Similarly, Facebook's ad platform would not be open to all to use, would likely be significantly more expensive and less useful and targeted. But, CreativeFuture doesn't know or doesn't seem to care about any of that, so long as it can push this extremist viewpoint against the internet.

Filed Under: blame, cda 230, dmca, hollywood, intermediary liability, push poll
Companies: creative future, creativefuture, mpaa

MPAA Opposes Several Filmmaker Associations Request For Expanded Circumvention Exemptions

from the not-our-film-studios dept

Over the past few weeks, we've mentioned in a couple of posts that the Copyright Office is currently taking public commentary for changes to the DMCA's anti-circumvention exemptions provisions. While we've thus far limited our posts to the Museum of Art and Digital Entertainment's bid to have those exemptions extended to preserving online video games and the ESA's nonsensical rebuttal, that isn't the only request for expanded exemptions being logged. A group of filmmaker associations put in a request last year for anti-circumvention exemptions to be extended to filmmakers so that they can break the DRM on Blu-ray films in order to make use of clips in new works. At issue is the fact that these filmmakers are able to make use of clips in these new works thanks to fair use but cannot readily get at them due to the DRM on the films themselves.

This is confusing and creates uncertainty, according to the International Documentary Association, Kartemquin Films, Independent Filmmaker Project, University of Film and Video Association, and several other organizations. Late last year they penned a submission to the Copyright Office, which is currently considering updates to the exemptions, where they argued that all filmmakers should be allowed by break DRM and rip Blu-rays. The documentary exemptions have been in place for years now and haven’t harmed rightsholders in any way, they said.

“There is no reason this would change if the ‘documentary’ limitation were removed. All filmmakers regularly need access to footage on DVDs and without an exemption to DVDs, many non-infringing uses simply cannot be made,” the groups noted.

So, there are several groups that lobby for documentarians going to bat for the larger filmmaking world, having seen just how beneficial the exemptions they enjoy have been to the documentary craft. Frankly, it's nice to see associations such as these not simply staying in their own lane and instead advocating for their larger craft as a whole. Unlike, say, the MPAA which leapt to respond with claims of how awful all of this would be.

A group of “joint creators and copyright owners” which includes Hollywood’s MPAA, the RIAA, and ESA informs the Copyright Office that such an exemption is too broad and a threat to the interests of the major movie studios.

The MPAA and the other groups point out that the exemption could be used by filmmakers to avoid paying licensing fees, which can be quite expensive.

Which, of course, is precisely the point of these exemptions. An end-around of fair use by locking up content behind DRM in order to extract licensing fees from those that legally would otherwise not have to pay them is a special kind of perversion of the DMCA. Not to mention copyright law as a whole, actually. Recall that the entire purpose of copyright law in America is to promote the creation of more works for public consumption. What the MPAA is arguing is that these exemptions, which would do much to promote new work, should be cast aside in favor of a system in which those new works live at the pleasure of the licensing schemes of the major movie studios. Unlike the group petitioning for the exemptions, the MPAA isn't even bothering to hide who's interests it cares about.

If the filmmakers don’t have enough budget to license a video, they should look for alternatives. Simply taking it without paying would hurt the bottom line of movie studios, the filing suggests.

“Many filmmakers work licensing fees into their budgets. There is clearly a market for licensing footage from motion pictures, and it is clear that unlicensed uses harm that market.

“MPAA members actively exploit the market for licensing film clips for these types of uses. Each year, MPAA member companies license, collectively, thousands of clips for use in a variety of works,” the group writes.

The Copyright Office has limited the exemption to the documentary genre for a good reason, the creators argue, since non-documentaries are less likely to warrant a finding of fair use.

Except, thanks to the silliness of reserving fair use as an affirmative defense rather than a clearly defined statute, whether a use qualifies as fair use or not is a question to be answered after the use, not before. And that question isn't a valid reason to lock up content behind DRM from filmmakers that could make fair use of it.

The MPAA goes on to suggest that if the Copyright Office and the Librarian of Congress were to allow these exemptions, it would lead to "widespread hacking" that would ultimately defeat the DRM in Blu-ray discs entirely. Limiting the exemption to documentaries has kept this from happening because the documentary market is smaller. None of that, however, serves as a true copyright argument and instead is, again, all about the licensing fees Hollywood is able to extract by locking up content on discs behind DRM.

It is nice of the MPAA to lay its loyalties bare for all to see, however -- major movie studios and nobody else, it seems.

Filed Under: circumvention, clips, copyright, dmca, dmca 1201, drm, fair use, filmmakers
Companies: mpaa

Mistakes And Strategic Failures: The Killing Of The Open Internet

from the unfortunate dept

Sometime tomorrow, it's widely expected that the House will approve a terrible Frankenstein bill that merges two separate bills we've spoken about, FOSTA and SESTA. The bills are bad. They will not actually do what the passionate and vocal supporters of those bills claim they will do -- which is take on the problem of sex trafficking. Neither bill actually targets sex traffickers (which, you know, one would think would be a prime consideration in pushing a bill that you claim will take on sex trafficking). Instead, they seek to hold third parties (websites) responsible if people involved in sex trafficking use them. This has all sorts of problems that we've been discussing for months, so I won't reiterate all of them here, but suffice it to say if these bills were really about stopping sex trafficking, they sure do a horrible job of it. If you want to try to stop these bills, check out EFF's action page and please call your Congressional Rep., and let them know they're about to do a really bad thing. If you want more in-depth information, CDT has you covered as well. Finally, Professor Eric Goldman details piece by piece what this Frankenstein bill does and how bolting SESTA and FOSTA together make two bad bills... even worse, and even less clear as to what it actually does.

Over the last week, I've spoken, either on background or off the record, to over a dozen different people on a variety of sides and in a variety of different positions concerning these bills, trying to understand how we got to the point that horrible bills that will undoubtedly do serious harm to the internet -- without actually doing much of anything to stop sex trafficking -- are actually likely to get passed. And the story that emerges is one of a series of blunders, misunderstandings, strategic errors and outside forces that drove things in this direction -- helped along quietly by some anti-internet industries that were all too willing (if not eager) to exploit legitimate concerns about sex trafficking to get what they wanted (without actually helping sex trafficking victims).

Let's start with the blundering. There were both large scale blunders and small scale ones. The large scale blunder is that too many folks who work at the big internet companies failed to recognize how the narrative was shifting on "the internet" over the past two years or so. Despite some efforts to warn people that the tide was shifting, many in the internet world insisted it was all overblown. And, to some extent, they are right. Recent polls show that the public still views all the big internet firms very favorably. But, sometimes a narrative can trump reality and, over the past year especially, the "narrative" is that the public doesn't trust those companies anymore. Some of that is driven by the results of the 2016 election and the (exaggerated) claims of "fake news."

But a narrative can be so powerful that even if it doesn't match up with reality, it can become reality as more and more people buy into it. And, right now, many in the media and in politics have both grabbed onto the "people no longer trust big internet" narrative with a chokehold and won't let go. And the big internet companies seemed wholly unprepared for this.

The second blunder appears to be more specific to Facebook -- and it involves a complete misunderstanding of CDA 230. Last week, I pointed to a big Wired cover story about Facebook, where I called out the reporters for explaining CDA 230 exactly backwards -- falsely claiming that CDA 230 meant they couldn't take a more proactive role in moderating the site. Of course, that's wrong. CDA 230 is explicitly why they can take a more active role.

However, since posting that article, I've heard from a few people at Facebook who told me that the view expressed in the article was actually the view within Facebook. That is, Facebook's own legal and policy team pushed the idea internally that heavy moderation may run afoul of CDA 230. This is wrong. But, incredibly, Facebook's own confusion about how the law works may now make their incorrect belief a reality, as it may have helped lead to the tech backlash, leading to things like SESTA, which would put in place a "knowledge" standard for losing CDA 230 immunity... meaning that companies will be much less proactive in monitoring.

That's a huge, huge blunder.

Next up were the strategic errors. Back in November, the Internet Association -- the trade group that represents the largest internet companies (but not the smaller ones) surprised many people by coming out in favor of a modestly update version of SESTA. As we pointed out at the time, this was selling out the internet way too early and way too cheaply. There are a few different explanations of how this happened making the rounds, but one that has come up repeatedly is that Facebook threw in the towel, believing two things (1) that it's getting hit so hard on so many things, it couldn't risk (falsely) being labeled as "soft on sex trafficking" and (2) it knew that it could survive whatever legal mess was created by SESTA. Some smaller internet companies believe that this second point is one that Facebook actually likes because it knows that smaller competitors will be hobbled. To say that these companies are pissed off at Facebook and the Internet Association would not accurately convey the level of anger that came across. But it wasn't just Facebook. We heard that a few other Internet Association members -- mainly those who don't rely quite as much on CDA 230 -- wanted to just "get past" the issue, and supported the Internet Association cutting whatever deal it could and moving on.

This has greatly pissed off a lot of people -- including many other (smaller) Internet Association members who feel that their own trade association sold them out. And it has greatly pissed off many other groups, including other trade groups representing internet organizations and especially public interest, civil society and free speech organizations, who historically have aligned well with the Internet Association on efforts to protect an open internet. Within these groups, a feeling of trust with the Internet Association has been broken. There is plenty of support for the idea that the Internet Association, with the help of Facebook, got played and made a huge strategic mistake in settling. The Internet Association wouldn't go on record with me, but suffice it to say the organization disputes my characterization of what happened and would really, really prefer I didn't write this post. However, after talking to multiple other people who were deeply involved in negotiations over SESTA, there is a general feeling that the Internet Association caved and did so way too quickly when better, more workable solutions were still on the table. But, in caving, most of those discussions were tossed aside. Many people are mad that the Internet Association, with the help of Facebook, seemed to get desperate and got played right into a bad deal that harms the internet.

And note that unlike the RIAA/MPAA, which the Internet Association was basically set up to mimic as an opposing force, the Internet Association refused to take a hard line stance on this. The RIAA and MPAA don't exactly have a history of caving on issues (even when they should). The Internet Association folded, and many people involved in protecting and building the internet are not at all happy about this. And just as the internet companies failed to recognize the power of the narrative, I'd argue that the Internet Association has failed to grasp the level of anger it has generated with its moves over the last few months as well.

Speaking of the MPAA, its fingerprints are all over SESTA, even as it's tried to keep them mostly out of sight. For years, part of the MPAA's "strategy" against the internet disrupting its business was to tar and feather internet companies for enabling illegal activity totally unrelated to copyright infringement (after realizing that whining about piracy wasn't winning them any sympathy). They tried to focus on drug sales for a while. And terrorism. But it appears that sex trafficking was finally the one that caught on in Congress.

And that leads to the final point: the convenient exploitation of all of the above by "foes" of the open internet and free speech. The MPAA, officially, has been pretty quiet about SESTA, though some of its studios officially endorsed the bill. Going through lobbying records, Disney appears to be the only major studio that officially lobbied on behalf of SESTA, but multiple people suggested that former top 20th Century Fox lobbyist Rick Lane was heavily involved as well. While I don't see his name in any official lobbying disclosure forms, a group pushing for SESTA officially thanked Lane for helping them go around Capitol Hill to stump for SESTA, calling him an "extraordinary partner." And, not surprisingly, Lane recently posted a giddy LinkedIn post, excited about tomorrow's vote, while totally misrepresnting both what SESTA does and the reasons many are concerned about it. Oh, and let's not forget Oracle. The company that has seemingly decided that attacking internet companies is more important than actually innovating has been one of the most vocal supporters of SESTA, and also lobbied heavily in favor of it in Congress.

Thus, a key aspect of how the internet works -- which many of this bill's supporters don't actually understand -- is at serious risk. The internet companies probably should have realized sooner how the narrative was shifting. They probably should have better understood -- and explained -- how CDA 230 actually enables more monitoring and filtering, not less. But, that's not what happened. The Internet Association could have continued to fight, rather than giving in. But none of that happened, creating an unfortunate perfect storm to do serious harm to the internet. And, again, perhaps that would all be worth it if SESTA would actually help stop sex trafficking. But it will almost certainly make the problem worse.

And, that doesn't even get into the fact that the company almost always cited as an example of why we need SESTA, Backpage.com, is almost certainly about to face a ruling in a case saying that Backpage is not protected by CDA 230. The fact that Congress is unwilling to even wait and see how that case turns out (or what a grand jury that is supposedly investigating Backpage decides) suggests that this bill has never actually been about stopping sites like Backpage, but about punching a huge hole in CDA 230 and creating havoc for tons of internet platforms -- especially smaller ones.

This situation is a pretty big mess, and it wasn't helped by misjudgments and strategic errors by various internet companies and the Internet Association. But the effort to undermine aspects of the internet also has some "help" from those who are gleeful about how this is all working out. And it's not because they think this will do a damn thing to stop sex trafficking. And it's really too bad, as the end result of this bill may make it that much harder to actually deal with sex trafficking online.

Filed Under: cda 230, fosta, intermediary liability, narrative, rick lane, section 230, sesta
Companies: facebook, internet association, mpaa

Copyright Maximalists Throw In The Towel On Term Extension; Admit That Maybe Copyright Is Too Long

from the about-fucking-time dept

Last week, in writing about how this should be the last year (for forty straight years) that no old works have moved into the public domain in the US due to repeated copyright term extensions, I noted that there did not appear to be much appetite among the usual folks to push for term extension. Part of this is because the RIAAs and MPAAs of the world know that the fight they'd face this time would be significantly more difficult than when they pushed through the Sonny Bono Copyright Term Extension Act 20 plus years ago. Not only do they know it would be more difficult, they know that they'd lose. Unlike last time, this time the public is paying attention and can mobilize on the internet.

Indeed, we were surprised a few years back when then Copyright Office boss, Maria Pallante -- who has long pushed for copyright maximalism in many different areas -- suggested one tiny aspect of potential copyright reform could be to make the last twenty years (the life plus 50 to life plus 70 years) sort of optional. Even this very, very minor step back from the idea of automatic life plus 70 years (or more!) was fairly astounding for what it represented. Copyright interests have never been willing to budge -- even an inch, and here was a tiny inch that they indicated they were willing to give up.

Tim Lee, over at Ars Technica, has now (incredibly) got three of the biggest copyright maximalist organizations on the record to say that they will not lobby for copyright term extension, and (even more incredibly) got the Authors Guild (the perpetually pushing for crazy new expansions of copyright law freaking Authors Guild!) to even say that they think maybe we should scale back to life plus 50 again:

The Author's Guild, for example, "does not support extending the copyright term, especially since many of our members benefit from having access to a thriving and substantial public domain of older works," a Guild spokeswoman told Ars in an email. "If anything, we would likely support a rollback to a term of life-plus-50 if it were politically feasible."

The RIAA and MPAA were slightly more muted, basically saying they "are not aware" of any efforts or proposals and it's not something they're pushing:

"We are not aware of any such efforts, and it's not something we are pursuing," an RIAA spokesman told us when we asked about legislation to retroactively extend copyright terms.

"While copyright term has been a longstanding topic of conversation in policy circles, we are not aware of any legislative proposals to address the issue," the MPAA told us.

Of course, those statements are kind of funny, because they both know damn well that the only way such proposals would even be a topic for discussion is if they were pushing for them. That won't mean some nutty copyright holder won't push for an extension, but the RIAA and MPAA's recognition that they would lose (and lose spectacularly and embarrassingly) means that no such proposal is going to go anywhere.

Now, let's see what it will take to get them on board with the Authors Guild plan to start to move copyright terms in the other direction.

Filed Under: copyright, copyright term, copyright term extension, lobbying
Companies: authors guild, mpaa, riaa

MPAA Wins: Australia To Carve Google And Facebook Out Of Its Expanded Safe Harbor Provisions

from the rights-for-only-some dept

Back in November, we discussed some reforms Australia was looking to make to its copyright laws. Chiefly at issue was how safe harbors were incorporated into the law, with those provisions applying only to primary service providers like ISPs due entirely to what appears to be a simple poor choice of words in the law. Under strict reading of the law as written, websites, libraries, and schools that allow internet users to create their own content and engage online would not be subject to safe harbor provisions, unlike the country's American counterpart. The government initially signaled that it wanted to harmonize its law with EU and American law, before the lobbying dollars of the entertainment industry sprung into action, causing the government to walk this back a bit.

And, now, it seems that all it took was some meager conversation between government officials and industry representatives for safe harbors to be yanked away from the usual MPAA targets.

Shortly after the government embarked on a detailed consultation with entertainment industry groups. They accuse platforms like YouTube of exploiting safe harbor provisions in the US and Europe, which forces copyright holders into an expensive battle to have infringing content taken down. They do not want that in Australia and at least for now, they appear to have achieved their aims.

According to a report from AFR, the Australian government is set to introduce new legislation Wednesday which will expand safe harbors for some organizations but will exclude companies such as Google, Facebook, and similar platforms.

What should be immediately obvious is the complete lack of logic for this type of move. Either safe harbor provisions should filter down from the primary ISPs or they shouldn't. Carving out exceptions to these important provisions, which serve primarily to increase expression and foster activity on the internet, strictly to some of the most popular platforms on that internet at the behest of movie-makers is the sort of thing that one struggles to describe as something other than purely the sale of national law to commercial interests. Oddly, the government has confirmed that safe harbor would apply to the afore-mentioned library, culture and archive spaces, just not to Google and Facebook, which arguably do as much as any other sites for culture and to archive information.

This action is also a useful data point for anyone to keep in mind when the entertainment industry discusses American and EU safe harbor provisions. It's clear by this involvement with the laws of a sovereign nation that those groups hate safe harbor laws and would like nothing more than to do away with them entirely. Let's all just keep that in mind whenever some mewing spokesperson for the entertainment industry wants to comment on our own safe harbor laws domestically.

Filed Under: copyright, free speech, innovation, intermediary liability, safe harbors
Companies: facebook, google, mpaa

The Strange Fight Over Who Should Take John Conyers Spot Atop The Judiciary Committee

from the there's-a-bit-more-to-look-at-than-that... dept

As you may have heard, Rep. John Conyers recently stepped down from his role as Ranking Member (basically top member of the minority party) on the powerful House Judiciary Committee, and this week has announced his retirement, in response to multiple accusations of sexual harassment. That has kicked off something of an interesting and important debate over who should replace him as ranking member on the Judiciary Committee.

The next in line by seniority is Rep. Jerry Nadler. But right behind him is Rep. Zoe Lofgren. By way of disclosure, I'll note that I've gotten to know Lofgren over the years, and have donated to her election campaign. But even before I'd ever spoken to her, I've noted how she remains one of the few people in Congress who seems to consistently do the right thing on basically all of the issues that we care about at Techdirt. You can see our past coverage of stories involving Lofgren. Most specifically on copyright and surveillance, she hasn't just been on the right side, she's been leading the way. She is, almost single-handedly, the person who stopped SOPA from passing. She has consistently raised important issues and introduced important bills and amendments concerning copyright, NSA surveillance and the CFAA among other things.

Obviously, I think she'd make a great ranking member for the Judiciary Committee (or the chair should the House flip sides in the future). So I was happy to see her recently announce her intention to run for the Ranking Member position against Nadler. Who knows if she'll actually get the position, but I found it odd that upon announcing it, she was immediately attacked by, of all places, The Intercept, which put forth a really strange article accusing Lofgren of being a Google shill. This was strange on multiple levels -- though, I get it. Lofgren gets called a "Google shill" for the same reasons that we do here at Techdirt. Because, even though we frequently disagree with Google on a variety of issues, on the whole we support many of the same policies that protect free speech and open innovation online.

That's also true of Lofgren. While she's supported key policies on copyright, online speech, innovation and surveillance, she's similarly pushed back against Google quite frequently as well. She's publicly criticized the company for its lack of diversity. She's voted against a bill to expand H1-B visas that Google supported. She voted against Trade Promotion Authority (which Google stupidly supported -- as noted in one of my links above) that paved the way to moving forward on TPP. On top of that, the tech industry has mostly pushed back on CFAA reform, such as Lofgren's Aaron's Law, because companies want to have it as a tool to use against employees at times. Just recently, Lofgren has started digging into competition inssues in Silicon Valley, warning about the lack of competition and how it's a problem -- a position that, more than likely, Google finds worrisome.

That's just part of why it's so odd that the Intercept, of all publications, would post this article suggesting that Lofgren doesn't belong as the ranking member on the Judiciary Committee just because she's "close" to Google. Even odder, is the fact that the authors of the piece -- two reporters whose work I've long respected, Ryan Grim and Lee Fang -- focus entirely on claiming that Lofgren is a product of Google, while ignoring anything about Nadler. Not only has Nadler been on the wrong side of many of these same key issues, if you consider Lofgren somehow tied to Google (again, incorrectly) then you would similarly have to conclude that Nadler is in the pocket of the legacy entertainment industry, and their ongoing quest to destroy the internet as we know it. If you start looking at Nadler's campaign finance situation, it sure looks like he's the MPAA and the RIAA's favorite Congressman.

In the last campaign cycle, the RIAA gave significantly more to Nadler than any other Democrat. Same with Disney. Same with Sony. Same with Time Warner. Same with Universal Music. Same with the Association of American Publishers. Same with ASCAP. While Viacom gave a bit more to three other members, Nadler was the 4th highest support on the Democratic side. Comcast gave a little more to Conyers, but again, Nadler is near the top of the list. The Grammys have given more to Nadler than any other Democrat, and he repays them by holding events with them all the time.

There's a pretty clear pattern here. If the legacy copyright players want something on the Democratic side, Nadler's their guy. And, maybe that doesn't matter to the Intercept. Maybe it doesn't matter that bad copyright policies that he promotes would have serious downsides to the way the internet works, to free speech and to privacy. Maybe, the Intercept has decided that any possible "connection" to Google is worse than everything else. But considering that the whole creation of The Intercept came about because of the Snowden revelations, and a key focus of The Intercept is to report on the evils of government surveillance, it's kind of surprising that it would publish an article promoting Nadler over Lofgren while ignoring that Nadler has not always been a close friend of surveillance reform. It's true that he's sponsored some reform efforts, including the USA Freedom Act, but just last month he was seen voting against an important amendment brought forth by Lofgren, to end backdoor searches in the ongoing effort to reform Section 702.

So it seems odd that the Intercept is effectively arguing that Nadler would make a better ranking member on Judiciary, even as Lofgren has a stronger record on stopping government surveillance, just because some (falsely) believe that Lofgren is "tied" to Google. And, at the very least, if they're going to tar Lofgren because her views sometimes align with Google's, it seems that it could at least treat Nadler equally by looking into his close connections with the legacy entertainment business.

Filed Under: cfaa, copyright, hollywood, house judiciary committee, jerry nadler, john conyers, surveillance, zoe lofgren
Companies: google, mpaa, riaa

MPAA Sticks Its Nose Into Australia's Copyright Business: Warns Against Fair Use And Geo-Blocking Relief

from the moar-copyright dept

It's been no secret that the MPAA has been sticking its nose in the copyright laws and enforcement of Australia for some time now. From pressuring government officials in the country to force ISPs to act as copyright police, to trying to keep Australian law as stuck in antiquity as it possibly could be, to trying to force the country to enforce American intellectual property law except the parts it doesn't like, the MPAA nearly seems to think of itself as an official branch of the Australian government. Given the group's nakedly hostile stance towards fair use, it should be no surprise that it doesn't want to see that sort of law exported to other countries and has worked to actively prevent its installation Down Under.

It seems these efforts are not working, however, as the Australian government is currently entertaining not only adopting American-style fair use laws, but also adding exceptions to geo-blocking as well. The MPAA, as you'll have already guessed, is not happy about this. This whole thing started with the government responding to its own Productivity Commission's report on ways to make copyright law in the country better, so as to make Australian citizens more productive.

Two months ago the Government responded to these proposals. It promised to expand the safe harbor protections and announced a consultation on fair use, describing the current fair dealing exceptions as restrictive. The Government also noted that circumvention of geo-blocks may be warranted, in some cases.

The MPAA snapped into action, essentially suggesting in its absurd foreign trade barriers 2018 list that fair use, which the MPAA hates, works in America because our legal system has matured on copyright law in a way that Australia's has not. Put another way, fair use is good enough for America, but Australia is not good enough for fair use.

“If the Commission’s recommendations were adopted, they could result in legislative changes that undermine the current balance of protection in Australia. These changes could create significant market uncertainty and effectively weaken Australia’s infrastructure for intellectual property protection,” the MPAA writes.

“Of concern is a proposal to introduce a vague and undefined ‘fair use’ exception unmoored from decades of precedent in the United States. Another proposal would expand Australia’s safe harbor regime in piecemeal fashion,” the group adds.

This is flatly absurd. The fair use model Australia is considering is essentially the American model, which has produced a boon of creative and educational output. What the MPAA is suggesting is that fair use should not be implemented because Australian courts haven't produced enough caselaw to make room for it. How the country would ever pile up that caselaw without implementing fair use is an open question the MPAA doesn't seem particularly interested in answering.

But its comments on geo-blocking relief are just plain weird. There is something of a "Nice economy you have there. It'd be a shame if something happened to it" ring to all of this.

“Still another would allow circumvention of geo-blocking and other technological protection measures. Australia has one of the most vibrant creative economies in the world and its current legal regime has helped the country become the site of major production investments. Local policymakers should take care to ensure that Australia’s vibrant market is not inadvertently impaired and that any proposed relaxation of copyright and related rights protection does not violate Australia’s international obligations,” the MPAA adds.

Based on comments like that, you would be forgiven for thinking that the MPAA had the best intentions for Australian economy at heart. Why that would be is another open question nobody seems to want to answer, likely because the obvious truth is that the MPAA doesn't care about the Australian economy at all, it only cares about the Hollywood bottom line. It hates that fair use exists in America, so of course it doesn't want to see it exported elsewhere. It loves exerting every kind of control over its product, so of course it doesn't want geo-restriction laws to be relaxed.

Why the MPAA should have any say in how Australia governs itself is a mystery for the ages, but it sure seems to think its opinion on these things matters.

Filed Under: australia, fair use, geoblocking
Companies: mpaa