MPAA Wants Regulators To Force ISPs To Block Sites 'At The Border'

from the to-stop-pirates,-sometimes-you've-got-to-break-a-few-internets dept

When SOPA died its inglorious death, the MPAA's best shot at ISP-level site blocking died with it. But the MPAA is nothing if not stubborn and is still willing to wreak havoc on the internet in exchange for a slight dip in infringement.

According to a leaked document from the MPAA's law firm [pdf link] and two public filings in support of the International Trade Commission (sent over by Charles Duan of Public Knowledge), the movie industry is hoping to use the agency's new willingness to regulate digital transmissions like physical goods as a foundation for site blocking.

As we've discussed for years, the ITC has been an active player in helping US patent holders go after those they believe are infringing. Generally, this has taken the form of blocking imports of infringing physical goods -- that the ITC deems as infringing (using different rules than the US court system). This has often allowed patent holders two separate bites at the apple -- one in the courts, and one at the ITC. But a recent case saw the ITC shift its focus -- and its purview -- in response to some circuitous patent infringement. Russell Brandon at the Verge details the case that has led to the MPAA's next attempt at site blocking.

The heart of the case is a company called ClearCorrect, which 3D prints clear plastic braces custom-designed for each patient's teeth. Much of the technology involved in the process is already under patent, but ClearCorrect has gotten around those patents by farming out its intricate computer modeling to an office in Pakistan. That modeling violates a number of US patents — and if ClearCorrect were shipping back the resulting braces in a box, it would be a simple case: the goods would be contraband, to be stopped at the border. But instead, ClearCorrect is only transmitting digital models from Pakistan and printing out the braces in local offices in Texas. The only thing coming in from Pakistan is raw modeling data. So what's a trade commission to do?

In October of 2014, the trade commission -- blowing past legal precedent and established statutory limits -- granted itself the power to treat the incoming digital models as physical goods… and stop them at the border.

In the sweeping and unprecedented decision below, the International Trade Commission found that its authority to regulate trade extends to pure "electronic transmission of digital data" untied to any physical medium. Generally, by statute, the Commission's jurisdiction is limited to oversight of "importation . . . of articles." However, the Commission expansively construed the term "articles" to potentially include anything "bought and sold in commerce," thereby leading to its conclusion that digital data was an article of importation.

The MPAA, which has entered comments in favor of the ITC's self-granted power expansion, wants to use the agency's power over digital imports to block websites at the ISP level. The leaked Jenner & Block memo confirms this. The MPAA's lawyers don't consider it a slam dunk but they are cautiously hopeful that the ITC's land grab will pay off.

As discussed in the 2012 ITC Memo, seeking a site-blocking order in the ITC would appear to offer a number of advantages over federal court litigation, at least at first blush. This now seems even more so given the ITC’s recent decision (albeit now on appeal) holding that electronic transmissions are “articles” within the meaning of Section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337. As also discussed in the 2012 ITC Memo, however, such an action would still involve several difficult questions of first impression, making the prospect of success in that forum uncertain.

While the ITC's new aim -- stopping infringing digital files at the "border" -- would seem to be the ideal starting point, the memo points out that many technical limitations make this approach less than feasible. The "transit" ISPs -- those that "ship in" data from other countries -- can be handled more easily by other court orders than by ITC regulation. The ITC's purview only covers inbound traffic, and technical limitations make this a weaker approach. For one, the lack of information on incoming packets means the blocks would only affect IP addresses. If a "pirate site" shares an IP address with another site, the block won't work. And IP addresses could easily be shared to circumvent blocking at transit ISP level.

The memo also notes that the internet is designed to flow around obstructions. Applying blocks at the transit level would simply shift infringing loads to other pathways, nullifying the blocks altogether.

The law firm then addresses blocking outbound traffic to infringing sites at the ISP level. This would ignore the inbound traffic of "transit" ISPs and demand action be taken by US ISPs.

Even though site blocking by transit ISPs may be impractical in most (and likely all) cases, it may still be possible for the ITC to issue orders to the consumer-facing network access ISPs requiring them to cease and desist from providing their subscribers with access to the pirate site. To do so, however, the ITC would first have to find that the network access ISPs, by providing their subscribers with access to the pirate site, have themselves violated Section 337.

That's the sales pitch for ISP-level site blocking. It somewhat ignores the new powers of the ITC and instead relies on convincing the agency that access to "pirate sites" -- even as a "dumb pipe" -- is a violation of Section 337. Definitions will need to be stretched and ISPs that allow their customers to roam the web freely will need to be painted as contributors to infringing activity.

Because it is the transit ISPs and not the network access ISPs that actually carry the infringing data across the border, we would need to persuade the ITC that the network access ISPs’ conduct is also tantamount to “importation into the United States” of copyright-infringing articles... For this reason, we may be able to develop a case that the network access ISPs, by virtue of the integral role that they play in the process of accessing and delivering infringing content from the foreign site to the end user, should be treated as an importer for purposes of Section 337.

If that doesn't work, the next argument is to portray the ISPs as involved in the sale of counterfeit goods.

Even if we cannot persuade the ITC that network access ISPs are “importers” of the infringing articles, it can plausibly be argued that the network access ISPs are engaged in a post-importation “sale” of the infringing articles to their end-user subscribers, in violation of Section 337. See 19 U.S.C. §1337(a)(1)(B) (providing that “sale after importation into the United States” is an unlawful act). The difficult question presented here is whether an ISP, by providing network access in exchange for its subscribers’ payment, can be found to have engaged in the “sale” of the infringing articles as that term is used in Section 337.

The arguments don't get any less ridiculous. There's a pitch for ISPs to have participated in "unfair acts" by "forcing" (read: allowed customers to access sites the MPAA doesn't like) the motion picture industry to "compete" against infringing copies of its own works. There's even a small paragraph that pushes the notion of contributory infringement, although the law firm notes that this would be the longest shot of all. The likeliest approach appears to be the use of the ITC's power to obtain cease-and-desist orders against ISPs, forbidding them from allowing access to "pirate" sites.

Public Knowledge's brief [pdf link] in opposition to the ITC's pending power shift points out that even though the statute itself is old (Tariff Act of 1930), its authors directly contemplated the difference between physical and more ethereal goods -- and made it clear that the two shouldn't be treated identically.

Evidence from the early 1900s indicates that Congress and others would have cleanly distinguished importation and telecommunication, vesting authority over each in distinct agencies. Treating the Commission as having authority over telecommunications data, then, conflicts with this distinction. To the extent that the Commission’s interpretation of “digital data” as an imported article encompasses such telecommunications data, this Court should reject that erroneous interpretation of the Commission’s purview.

[...]

There is substantial evidence that, around 1930, data transmissions were generally understood to be distinct from articles of commerce and international trade. This understanding influenced Congress, as reflected in its creation of separate and distinct agencies to oversee trade and telecommunications.

The distinction was highlighted by the Supreme Court as early as 1887, in considering one specific type of telecommunications data, namely telegrams:

Other commerce deals only with persons, or with visible and tangible things. But the telegraph transports nothing visible and tangible; it carries only ideas, wishes, orders, and intelligence. Other commerce requires the constant attention and supervision of the carrier for the safety of the persons and property carried. The message of the telegraph passes at once beyond the control of the sender, and reaches the office to which it is sent instantaneously. It is plain, from these essentially different characteristics, that the regulations suitable for one of these kinds of commerce would be entirely inapplicable to the other.

The brief also points out that, while the ITC is correct in noting that internet transmissions couldn't possibly have been envisioned during the crafting of the 1930 Tariff Act, similar "articles" like telecommunications and radio signals had already been discussed by Congress, and each time, these were not allowed to fall under the same regulatory agency.

Putting the ITC in charge of digital transmissions will turn ISPs into ad hoc customs agents who need to inspect incoming packets and outgoing requests. Cloud services would also be negatively affected, as load balancing would need to be rebuilt from the ground up in order to accommodate the legal concerns now inherent in every transmission. The DMCA safe harbor would no longer exist, forcing ISPs to stay one step ahead of IP holders, building in anticipatory takedown response systems and choke points. The MPAA still wants site blocks and is still willing to break the internet to get them. Even the cautiousness displayed in the legal memo still glosses over the severe disruptions this use of the ITC's new powers will cause.

The good news? The ITC's "digital = physical" shift isn't in effect yet. The case prompting this shift is still under appeal and no decision is expected until late 2015. Chances are, this decision will be appealed as well, likely landing it in front of the Supreme Court sometime in the next few years. The MPAA can't move on its arguments until this is all decided. But it's ready to move as soon as it can, and this isn't its only plan of attack.

Filed Under: 3d printing, copyright, itc, patents, site blocking, sopa, virtual goods
Companies: clearconnect, mpaa

Hollywood Narrow-Mindedly Sees Google Fiber As A Threat, Not A World Of New Opportunities

from the glass-half-full dept

Most reasonable people and businesses are excited about how Google Fiber is shaking up the uncompetitive broadband industry, and bringing new opportunities to a select few cities. That doesn't include Hollywood (with its deep love of Google in tow), which apparently thinks Google Fiber is a bad thing because it might spike piracy rates. Leaked data suggests that Warner Brothers and Sony Pictures Entertainment launched a survey back in 2012 to track piracy rates before and after Google Fiber deployment in Kansas City. About 2,000 individuals between the ages of 13 and 54 were asked about Google Fiber, piracy, and their media consumption habits.

Unsurprisingly, more than half of those surveyed said they were interested in signing up for $70, 1 Gbps connections (or Google's 5 Mbps connection, which is free after a $300 installation fee). Of those survey participants who said they pirated content, roughly a third stated that they'd likely pirate more often with a connection of that speed. In traditional entertainment industry logic, each instance of infringement is counted as a sale loss, and therefore the survey magically concludes that Google Fiber would be responsible for $1 billion in additional piracy losses annually:The survey continues and ties piracy rates directly to downstream broadband speeds, proclaiming this is "another indication that piracy becomes more attractive with Google Fiber":If you haven't come to this conclusion yet on your own, all of this logic is utterly stupid, given that faster speeds result in an overall increase in all online behavior, including the use of legitimate content services. Everything becomes more attractive with better broadband connections. The survey even notes this, 39% of the respondents stating they would use paid streaming subscription services more, and 34% stating they would rent and purchase online videos more frequently. Unsurprisingly, the entertainment industry doesn't bother to calculate these potential sales, nor does it calculate the potential sale opportunities created by offering better services that would only work on ultra-fast connections.

It's yet another example of the entertainment industry's ridiculously narrow thinking when it comes to, well, everything. A reasonable businessman (or woman) would look at those ultra-fast speeds and see opportunity. The entertainment industry looks at these same connections and can only see menace and bogeymen.

Filed Under: broadband, google fiber, hollywood, opportunity, piracy, threat
Companies: google, mpaa

Sony Hack Reveals That MPAA's Big '$80 Million' Settlement With Hotfile Was A Lie

from the of-course-it-was dept

For years, we've pointed out that the giant "settlements" that the MPAA likes to announce with companies it declares illegal are little more than Hollywood-style fabrications. Cases are closed with big press releases throwing around huge settlement numbers, knowing full well that the sites in question don't have anywhere near that kind of money available. At the end of 2013, it got two of these, with IsoHunt agreeing to 'pay' $110 million and Hotfile agreeing to 'pay' $80 million. In both cases, we noted that there was no chance that those sums would ever get paid. And now, thanks to the Sony hack, we at least know the details of the Hotfile settlement. TorrentFreak has been combing through the emails and found that the Hotfile settlement was really just for $4 million, and the $80 million was just a bogus number agreed to for the sake of a press release that the MPAA could use to intimidate others.

“The studios and Hotfile have reached agreement on settlement, a week before trial was to start. Hotfile has agreed to pay us $4 million, and has entered into a stipulation to have an $80 million judgment entered and the website shut down,” the email from Sony’s SVP Legal reads.

Considering the time and effort that went into the case, it would be no surprise if the movie studios actually lost money on the lawsuit.

The good news for the MPAA is that the money was paid in full. There were some doubts if Hotfile would indeed pay up, but during the first weeks of December last year the $4 million was sent in three separate payments.

Of course, all of this is just for show. You can safely assume that none of the much lower $4 million went back to any content creators. Instead, it's likely it got plowed back into the MPAA's vast "anti-piracy" machine, allowing it to be used for other lawsuits and funding investigations by state Attorneys General.

Still, is it any surprise that the industry famous both for its fictional "Hollywood Endings" and "Hollywood Accounting" where a hit movie like one of the Harry Potter films can bring in nearly a billion dollars, but still have a "loss" for accounting purposes, would create a made-up scenario in which everyone pretends many tens of millions of dollars are paid due to "infringement"?

Filed Under: copyright, file sharing, settlements, sony hack
Companies: hotfile, mpaa

Mississippi Attorney General Dares Reporters To Find Any Evidence Of Hollywood Funding... So We Did

from the oops dept

The saga of Mississippi Attorney General Jim Hood and his cozy ties to Hollywood continue to come out. He's been claiming that, sure, he met with Hollywood's top lawyer, Tom Perrelli, had him prep Hood for a meeting with Google, and even took a ~4,000 word angry letter that Perrelli wrote for him, signed it as his own and sent it to Google -- but he did all that without knowing that Perrelli worked for Hollywood's top lobbying arm, the MPAA. Uh huh.

And then in a press conference, he insisted that he was doing this out of his own interest in protecting the children -- but also admitted that his office didn't have any intellectual property experts and didn't have a million dollars to do an investigation (approximately the amount the MPAA's leaked emails show them discussing to fund this investigation) and that he needed to rely on such help from "victims" to make his case. It's fairly rare, though, that "victims" of a crime run the actual law enforcement investigation and fund it as well.

Still, in that last post, we also mentioned how Hood implied that anyone suggesting he was "paid off" might be defaming him, and apparently also stated that he wasn't getting any money from Hollywood, encouraging reporters to "check records."

Hood: Not getting any money from Hollywood as far as he knows. Encouraged us to check records.

— Therese Apel (@TRex21) December 18, 2014

Okay then. Let's... check the records. Here, for example, is the MPAA's Political Action Committee apparently giving $2,500 to an operation called "The Friends of Jim Hood." And, you can also look at the public record of who donated to his campaign, which pretty clearly shows donations to his campaign from NBC Universal and 20th Century Fox. Oh, and for good measure, the RIAA as well: And then there are some that are not as direct, but are at least noteworthy. First up, we've got the "Mike Moore Law Firm." Now, this might not be that surprising. Moore is a long time friend of Hood and preceded him as Attorney General. Moore apparently helped Hood get into politics and the two are regularly seen together. So it's no surprise that Moore would donate to his campaign. But it's at least noteworthy because the NY Times revealed that a Hollywood front group, the Digital Consumer's Alliance, which is funded by the movie studios, hired Moore as a lobbyist. So, at the very least, this may count partially as money from Hollywood: There were a few other interesting ones, but the other one I'll point to is from the Patrick Lynch Group. It's a "government affairs" operation focused on lobbying state attorneys general. But if you look at its page listing out when it's "in the news," a large number of them involve stories attacking Google. Here's an op-ed written by Patrick Lynch a few years ago attacking Google, which notes that he represents "FairSearch.org," which is a somewhat infamous Microsoft front group that has been behind a variety of attacks on Google throughout the years. So it may not be "Hollywood" money directly, but it's a top lobbyist for an effort to attack Google. None of that, of course, means that Hood is, in any way, beholden to this kind of money. This is just the nature of politics. But Hood was the one who directly dared reporters to check the record and said he hadn't received money from such sources. That's wrong. He did. The least he can do is admit it.

Filed Under: campaign contributions, funding, jim hood, mike moore, patrick lynch, tom perrelli
Companies: 20th century fox, comcast, fox, google, mpaa, nbc universal, riaa

Whether Or Not Mississippi Attorney General Jim Hood Is In Hollywood's Pocket, He Sure Doesn't Understand Free Speech Or The Internet

from the let's-take-this-slowly dept

We already discussed the rather unbelievable (in that they are, literally, unbelievable) claims from Mississippi Attorney General Jim Hood that he didn't know he was working with the MPAA's top outside lawyer when he had that same lawyer, Tom Perrelli of Jenner & Block, spend time prepping him for a meeting with Google in which he attacked Google's practices, and further when he signed his name to a ~4,000 word letter to Google that Perrelli wrote, attacking Google's practices. He just assumed that Perrelli -- who probably charges more per hour than you can possibly imagine -- was doing it to help Hood out, rather than for a client. And he expects everyone to believe that, even though at the same time Hood himself had called one of the MPAA's top lobbyists to discuss Google. And, further, he doesn't appear to think there's anything wrong that his political mentor, Mike Moore, who helped get him his job as Attorney General (Moore was in that job before Hood), just happened to take a cushy lobbying job paid for by Hollywood companies right around the same time. It's all a giant coincidence.

But if Hood is going to take a step back and reflect on just how bad this looks, he sure isn't showing it. Instead, he's coming out swinging, holding a press conference in which he appears focused on revealing his own ignorance of the law and technology (with a special focus on his vast desire to censor the internet -- and anyone who criticizes him). This was held yesterday, prior to Google's filing this morning challenging Hood's subpoena (the one the MPAA knew was coming). While the Google filing discussed in that previous post detailed many of the problems with Hood's legal theories, the press conference displayed an astounding lack of understanding of the law, of search engines and of basic technology.

Take a look: He kicks it off by blaming Google for the story, arguing that it was Google who sifted through the hacked Sony emails and found these rather damning results. That's rather insulting to the first reporters who found those emails -- mainly the folks at TorrentFreak and The Verge who really kicked the whole thing off, revealing the MPAA's plans to fund Hood's investigation into Google. It's interesting that he flat out claims that Google did this, considering that later (we'll get to this), he argues that it's defamatory for anyone to suggest that he's in the pocket of the MPAA. Apparently, blind speculation is fine, but informed explanation based on the leaked documents is defamation.

He then suggests not only that it was Google sorting through the emails, but also that this is illegal. He claims that the law says it's okay for reporters -- but perhaps not companies. Huh?

I want to talk about a story that's been pushed out by a large corporation called Google. I mean, they pushed this story out. They rifled through the emails that were stolen from Sony. And, you know, I equate it to rifling through someone's stolen property. You know, someone goes in your house and steals your filing cabinet and your clothes and the drawer and sets it out on the road. Do they have the right to go through it? Certainly there's case law saying the media has the right to publish this type of thing. But, you know, companies like Google that have pushed this story, putting it out to blogs, and it winds up, you know, they're trying to do a story about Sony working with other industries, not just within their industry, to try to do something about intellectual property theft, and Attorneys General is unfair, to say the least, that they try to spin it, by feeding the NY Times documents and emails and things like that, to indicate somehow that Attorneys General just came to this because the motion picture industry just got involved in it.

So, again, he implies that Google was the one who rifled through the documents, and that it's possibly illegal -- and further suggests that giving actual evidence to reporters at the NY Times is, at the very least "unfair." Hood has a very interesting understanding of journalism and fairness. But, note, of course, that he doesn't deny what the NY Times actually reported -- that he, as Attorney General -- took a ~4,000 word letter from the MPAA's top attorney and sent it to Google almost entirely unchanged.

Instead, this press conference is about attacking Google and free speech at every opportunity. Every single opportunity. He kicks it off by talking about (what else?) child pornography (because that's the copyright industry's go to moral panic button -- even though all it's done is actually made the child porn situation even worse by making it more difficult to find and deal with abusers). And then he excitedly talks about getting banks to stop doing business with sites, and then easily slides back and forth between child porn and copyright infringement as if you can block one you can easily block the other. This is an old argument of the copyright industries, and it's simply wrong. Child porn can be identified, because it's inherent in the image itself. Copyright, on the other hand, isn't about the material, but the use. You can't tell, just by looking at a picture, a song or a movie if it's infringing or not. You can't tell if it's licensed. Or if it's fair use. Or if it's public domain. But Hood doesn't seem to care. Despite no legal basis, he declares certain sites to be flat out illegal, and says that Google needs to block them completely. He even seems to recognize the lack of a legal basis, because he says that Google should just "team up with a non-profit" who will "make a list" and Google should censor that list.

Let's just be clear about what Attorney General Jim Hood is asking for here: he's asking for a censorship list of sites that need to be blocked without a legal review or court order.

And, then, from child porn to copyright... he moves on to drugs.

Here's an example. Just today, my investigators typed in the words "buy drugs." [points to screen] And if you look right here, on this list, this is Google, what do you find here: Silkroad.org! That is an illegal drug site that was taken down by the federal government. And here's CanadianDrugs.com. That is the company, from which our investigators bought drugs online.... They know about that website, because I wrote them a letter and said here's where we made these purchases online. But yet, even today, some kid in Mississippi, types in "buy drugs," they're going to find a way to buy some.

Huh. First off, Hood is flat out wrong about Silk Road. It was never at SilkRoad.org (that appears to be some author's site). It was a Tor hidden site. It never had a URL like that. Second, the site that's actually at the top of the list (SilkRoadDrugs.org) is a blog/news site about Silk Road and other types of hidden markets. This actually demonstrates the very serious problem with Hood's argument. What he's doing here is calling for the flat out censorship of a news publication for writing about hidden markets online (and the legal issues related to them). Hood and his staffers are so clueless that they can't tell the difference between an actual online drug market and a news site. And yet, they think that Google should just automatically censor sites on his say so? That's not how it works.

Furthermore, this highlights the absolute stupidity of trying to demand that Google ban "illegal" websites. In this case, you could never find Silk Road via Google (no matter what Hood wrongly claims) because it never had a Googleable URL. Instead, you could only find websites that then explain how to get to Silk Road. And that's exactly what would happen if you banned other sites. In its place would pop up informational sites -- protected by the First Amendment -- that explain how to get to the sites that Google was told to block. Thus, blocking those sites doesn't solve the problem in the slightest.

Second, the site that the search links to is not "CanadianDrugs.com," but "CanadaDrugs.com," (though CanadianDrugs leads to the same site) which is a site that is actually backed by PharmacyChecker, the Canadian International Pharmacy Association and the Manitoba International Pharmacists Association as being a legitimate online pharmacy. Now, yes, some can argue about the issue of importing drugs into the US from Canada, but importing legitimate drugs from Canada is very different from buying illegal drugs -- and in fact, politicians from President Obama to Senator Patrick Leahy have pushed for allowing greater importation of drugs from Canada as a way to make drugs more affordable. Apparently, Jim Hood doesn't want poor people to be able to buy cheaper drugs. Nice guy.

Third, and most importantly, Hood's populist crap about kids from Mississippi being able to buy drugs online -- that's not because of Google. Hell, Hood himself can be blamed just as much as Google, because at this very press conference he announces publicly a website from which he claims he was able to buy illegal drugs. Think about that for a second. If you're a kid in Mississippi looking to buy illegal drugs online, which are you going to do: do a random search for "buy drugs" on Google and then hope for the best. Or go directly to the website that the Attorney General of your state just said you can buy illegal drugs from. If the "crime" that Google has committed here is to point people to a site from which they can buy illegal drugs, hasn't Attorney General Jim Hood violated the very same law (in an even worse fashion by flat out saying there are illegal drugs there)?

Either way, if the site is illegal, that's not Google's decision to make. Get a court order declaring the site illegal and present that to Google. And, of course, as mentioned above, that still won't solve your problem, because it will just result in First Amendment protected websites telling users how to get to the sites that Google has banned.

Jim Hood doesn't seem to understand any of this, and it shows a real lack of understanding of both the First Amendment and the internet.

That's the kind of stuff we're talking about. We're talking about prescription drugs. Now, if they're stealing music and movies and software, you know, the piracy issues, that's bad! That's a crime. And if Google is assisting them, they're assisting in a crime.

Okay, you'd hope that an Attorney General would know the law, but it looks like he doesn't know the first thing about the law here. First off, copyright infringement has both civil and criminal parts, but most copyright infringement is civil, not criminal (also, it's infringement, not "stealing.") Second, even if we were talking about criminal copyright infringement (which has a few requirements), to then argue that Google's role of linking to websites when people ask for those sites equals "assisting" shows a complete lack of understanding of the concept of "aiding and abetting" in criminal law. Aren't Attorneys General supposed to know this stuff? Just because a tool is used to commit a crime, it doesn't make the provider of the tool guilty of assisting. Again, if that were the case, then Attorney General Jim Hood himself broke the law multiple times in this press conference when he named sites where you can buy drugs and download music (he talked a lot about MP3Skull, for example).

In fact, Google got caught. They paid a half a billion dollar fine. Do y'all remember that? They paid a five hundred million dollar fine to the federal government.

Except, no. Again, Hood is misrepresenting things. Google did pay a $500 million fine, but not for its search results. That was for advertisements in its AdWords program for a questionable pharmacy -- and the details in that case involved an ad sales guy for Google who seemed to go out of his way to try to help an obviously up-to-no good federal informant set up ads for a pharmacy to sell illegal drugs. In that case, there was fairly clear evidence that the employee in question was directly assisting questionable behavior. But that's very, very different from organic search results.

Once again, you'd hope that someone like an Attorney General bent on going after search engines would understand the difference between advertisements and organic search. But Hood doesn't seem to know or care.

But you can still go on here and find all kinds of drugs. Heroin!

Is he really claiming that you can buy heroin on Google? Because that's bullshit. I'm sure there are places that you can buy heroin online but the idea that Google is the reason people are buying heroin is insane. Not being particularly knowledgeable about the world of heroin, I just spent some time trying fairly hard to search Google for a way to buy heroin and came up empty, other than (again) some news websites that basically just tell you about hidden drug markets online (please point the DEA or DOJ to this paragraph should they show up at my door asking why I've been doing those searches).

From there, Hood launches into a full-on assault on the internet. Or rather, his ignorant view of the internet and the law.

The internet, as I've been talking about... is the future of crime.

What does that even mean?

Their motto is do no evil, but all I'm finding as I work with them is that they're pushing evil. They're pushing evil. They're pushing other companies that deserve their respect. But more important to me, they're creating a highway for my children and our children in Mississippi to buy drugs, to have human trafficking, to buy fake IDs. I mean we have examples of how you can go online right now and buy fake IDs.

Hey, Jim Hood, stop confusing "Google" with "the internet." Google is a search engine. It finds what's on the internet. It is not the internet. It is not responsible for what people find or what they're looking for. This is a basic concept. It would help if you learned it.

We've got YouTube videos of how to buy a fake ID.

Yes, that's also known as protected speech and it's done by people who are not Google. I'm sure there are books you can buy about fake IDs as well, but you don't blame the US Postal Service for delivering them when someone buys one.

Google says "well, our system, we can't track that." Well, we found that isn't true. Because they take down this "prescription drug without a prescription" autocomplete.

Yes, here Hood seems to be conflating a variety of things. Yes, Google can and does edit the autocompletes to take down language that people complain about, but that's very different than saying "this entire site is bad." These are totally different things. Comparing the two suggests a level of technical ignorance that is kind of scary for someone so intent on censoring the internet. But, no worries, Hood's got a solution: he supports blatant out and out censorship, like that found in Germany:

If you go to Germany and type in "Nazi" you can't find anything.

First of all, that's not true. Just try it. Second, even if it were, Germany's requirements on Naziism would be a violation of our First Amendment here in the US -- the kind of thing that an Attorney General should know about.

He goes on to insist this has nothing to do with SOPA or even filtering the internet... but that he just wants Google to filter these bad sites out. This gets back to the fundamental problem with supporters of censorship like Jim Hood. They think that "bad" is an objective thing, and that if they think a site is bad, that it's "obviously" bad and thus it's not censorship or filtering. Furthermore, Hood doesn't even seem to recognize that Google has been pretty active in pushing down a variety of sites associated with infringement, to the point that various torrent sites almost entirely disappeared from the site. That's what Hood was asking for, so why doesn't he admit that Google actually basically did a bunch of what he asked?

From there, the press conference went to questions, and the first reporter points out the obvious: "I don't know why you're going after Google on this, rather than the actual websites." To that, Hood said, again, that Google was "assisting" these websites, and claims that Google is making money from these sites advertising on Google. Yet, none of the examples he showed involved advertisements. They were all organic search. And, even if they were advertisements, Google is just a platform. Anyone can go in there and buy an ad saying just about anything. How is that Google's fault?

The same reporter then pointed to the YouTube videos about buying fake IDs and said "would that not be a stifling of the First Amendment?" And Hood's response:

No. Because Google's not the government. They don't owe a First Amendment... they should just say "we're not going to do business with you website unless you clean up your act."

He's right that Google is not the government and Google can choose to block anything or set up its search results however. But the entire discussion here is about Hood -- a government official -- claiming that Google is breaking the law in not doing this. That is the First Amendment problem. And Hood doesn't even seem to understand that. In fact, just minutes later, he insists "there's going to be a court battle" to determine if Google has to block these sites. If that's the case, then it very much involves the government stepping in and deciding a free speech issue.

The reporter -- whoever he is, and he seems to fully understand all the things that Hood doesn't -- points out, again, that isn't the real problem with the actual websites, not Google. And then asks "what law is Google actually violating here." You can almost see the panic on Hood's face as he recognizes his unchecked anger wasn't about anything actually illegal. But he tries, valiantly, to come up with something:

Well, if you're made aware of it, then you're an accessory to it.

Again, huh? Pointing people to information is not an accessory to a crime. No matter how many times Hood wants to claim it, he's wrong. Or, if he's right, HE VIOLATED THAT SAME LAW in this very press conference. Hood then claims that Google has to know entire sites are illegal based on DMCA notices concerning some content on that site being infringing. Right. But under that theory, YouTube shouldn't even exist, because Viacom insisted it was illegal based on DMCA notices but then failed in court.

This is the point. You don't just get to point to a website and say "that's illegal." Go to court. Have an adversarial trial and then prove that a site is breaking the law. That's fine. But that's not what Hood is saying. He's saying if he or the movie industry or the drug industry points to a website and says "this site is illegal," then it should be blocked. But given how the entertainment industry has a long history of declaring new innovations illegal (the player piano, the radio, cable TV, the mp3 player, the VCR, YouTube, etc. etc. etc.), I'd much rather we don't go down the road where a particular entrenched industry gets a veto on innovations.

From there, Hood goes on to attack the State Attorney General's favorite bugaboo: Section 230 of the CDA. That law makes it clear that platform providers aren't responsible for the actions of users. And this makes perfectly good common sense because you don't blame AT&T for someone calling in a bomb threat, and you don't blame Ford for its car being the getaway car. But Hood really wants to blame internet companies for the way people use them. Because companies are easier to go after than people actually doing wrong -- and it generates much bigger headlines.

That was created because we wanted the internet to flourish. Companies like Google are using that shield as a sword. They're saying you can't come after us because we have immunity, even though we're changing our algorithm, and we're doing autocomplete. They're doing all that. They have that immunity unless they change that information. And when they use that autocomplete that's when they step into no man's land. They don't have that Section 230 protection.

First of all, no, Section 230 wasn't created just because we wanted the internet to flourish. That was a side effect. Section 230 was created to put liability on the actual parties responsible rather than allowing grandstanders and ignorant people to go after service providers for the way people use their services. And Google isn't saying that it has immunity just because of the law, but because it's not the one doing the actions in question.

As for the whole autocomplete bit, Hood is again totally misrepresenting things. Section 230 actually does encourage companies to make edits like that, and specifically notes that companies can't be held liable for making such choices because it wants to encourage companies to do exactly what Hood is talking about. Arguing that Google is liable for changing the autocomplete results or shifting the algorithm creates incentives for companies to do nothing at all to avoid being blamed for their own actions pointing to bad results. Hood's own solution would make things much, much worse. Section 230(c)(2) makes this clear: "No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."

I know Hood doesn't like the law, but the least he can do is understand it before misrepresenting it.

Then there's this: Hood directly calls for an insider to blow the whistle on Google:

I want some insiders to come forward who have been done wrong by Google from the Valley. I'm putting out a call to anybody out there that has information on how Google has done illegal acts. I'm trying to reach out to those people in the Valley or wherever they are. Because it's going to take an insider to bring this company to the point where it follows the law.

Right. So, throughout this talk, Hood slams anyone looking at Sony's documents as "rifling through stolen information," and then in the very same press conference asks people to leak him insider information from Google. Does the man have no self-awareness at all?

At the end, he then admits that his office doesn't understand this stuff or have a budget -- so he has to rely on the rather biased MPAA instead:

Reporter question: Is there a budget for legal support?

Hood: For our office? [shakes his head] You know, I've got investigators.... The answer to your question is No. We're going to have to spend some money. We don't have experts in the area of intellectual property theft. We're going to have to rely on lawyers that have that type of expertise. So, the legislature doesn't give me a budget of a million dollars just to do these kinds of major investigations, so we have to work with and rely on industries -- and we're going to work with them and their lawyers.

Uh, so there he is taking back basically everything he had previously said about the MPAA and admitting that he is relying on them and their lawyers? Going to industry for help is one thing. But having a very biased industry (with a known -- if totally misguided -- hatred for Google) not just driving the investigation but spending that million dollars on it and writing up the letters for Hood to send and prepping him for his meetings -- that seems like a very different thing than just "talking to the victims" as Hood repeatedly claimed earlier in the interview.

Also, it appears that Hood knows fuck-all about defamation law:

Hood: Implications AGs have been paid off might even be actionable.

— Therese Apel (@TRex21) December 18, 2014

That came after the video above ended, so I'm not entirely sure of the exact context of the quote, but the idea that accurately reporting on leaked documents showing that the MPAA was funding the investigation and writing the key documents of a state Attorney General is not actionable in any way shape or form. And it's doubly ridiculous given that in this very same conference, Hood himself made a variety of speculative statements claiming that Google was the one who went through the emails and "spun" the story to the press.

But is it really any surprise that an Attorney General who is relying on a massively funded MPAA investigation to try to stifle free speech online is now implicitly threatening those who report on it with defamation lawsuits? So not only is he trying to censor the internet, he's trying to intimidate reporters into shutting up as well. Free speech be damned.

But it's okay. It's all for the children of Mississippi. And the headlines.

Filed Under: aiding and abetting, cda 230, copyright, free speech, illegal drugs, internet, jim hood, mississippi, piracy, secondary liability
Companies: google, mpaa

Google Files Legal Challenge To Attorney General Jim Hood's Subpoenas

from the well,-well dept

This story sure escalated in a hurry. Following all the news of the MPAA's tight relationship with Mississippi Attorney General Jim Hood, Google has made a filing in a Mississippi federal court seeking seeking a temporary restraining order and an injunction against Hood's investigation. As the filing notes:

For the last eighteen months, the Mississippi Attorney General has threatened to prosecute, sue, or investigate Google unless it agrees to block from its search engine, YouTube video-sharing site, and advertising systems, third-party content (i.e., websites, videos, or ads not created by Google) that the Attorney General deems objectionable. When Google did not agree to his demands, the Attorney General retaliated, issuing an enormously burdensome subpoena and asserting that he now has “reasonable grounds to believe” that Google has engaged in “deceptive” or “unfair” trade practice under the Mississippi Consumer Protection Act (MCPA), which allows for both civil and criminal sanctions. The Attorney General did so despite having publicly acknowledged in a letter to Congressional leaders that “federal law prevents State and local law enforcement agencies from prosecuting” Internet platforms. The Attorney General took these actions following a sustained lobbying effort from the Motion Picture Association of America.

As Google explains, there is no legal basis for this investigation:

First, Section 230 of the Communications Decency Act (“CDA”) precludes state regulation of Google based upon the third-party content available on its services or the manner in which Google moderates that content. “Congress provided broad immunity under the CDA to Web-based service providers for all claims stemming from their publication of information created by third parties.” Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008).

Second, the First Amendment protects Google’s organization and display of third-party information (e.g., search results), prohibits retaliation for how it organizes and displays such content, and bars state action that limits public access to constitutionally-protected speech. As multiple courts have found, the state can no more tell a search engine what results to publish than it can tell a newspaper what editorials to run. See, e.g., Jian Zhang v. Baidu.com Inc., 10 F. Supp. 3d 433, 436, 438 (S.D.N.Y. 2014). Nor can the state “encourag[e] the suppression of speech in a manner which can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request.” Zieper v. Metzinger, 474 F.3d 60, 65-66 (2d Cir. 2007) (internal quotation marks omitted).

Third, the subpoena violates the Fourth Amendment by demanding information about conduct that is plainly lawful. “[I]nvestigations premised solely upon legal activity are the very type of ‘fishing expeditions’ that” the Supreme Court has held violate the Fourth Amendment and “do[] not pass muster under any standard.” Major League Baseball v. Crist, 331 F.3d 1177, 1187-88 (11th Cir. 2003) (citations omitted).

Fourth, much of the Attorney General’s subpoena is preempted by the Copyright Act or the Food, Drug and Cosmetics Act (“FDCA”). Many of the Attorney General’s inquiries concern copyright infringement—but copyright is exclusively a matter of federal law, which the Attorney General may not enforce and with which Google fully complies. See GlobeRanger Corp. v. Software AG, 691 F.3d 702, 705-06 (5th Cir. 2012). Similarly, the Subpoena seeks information about Google’s practices ten years ago with regard to advertisements relating to the importation of prescription drugs. But the FDCA regulates importation of prescription drugs and preempts enforcement actions not brought “by and in the name of the United States.” 21 U.S.C. § 337. omitted).

In short, Jim Hood is on a massive fishing expedition over things he doesn't understand, over which he has no jurisdiction, for issues where Google fully complies with the law. The filing further notes that, yes, there is bad content on the internet, but that Google actually is extraordinarily active in pushing it down in its search results and seeking to stop people from accessing that content. But, its voluntary efforts are very different from being required to change its search results via an order from a government official:

But if a state Attorney General can punish, irrespective of well-established federal law, any search engine or video-sharing platform whenever he finds third-party content he deems objectionable, search engines and video-sharing platforms cannot operate in their current form. They would instead have to pre-screen the trillions of websites and millions of videos on the Internet, blocking anything they had not yet reviewed from being publicly accessible so as to avoid the ire of even a single state or local regulator. This would “severely restrict the information available on the Internet,” Batzel v. Smith, 333 F.3d 1018, 1027-28 (9th Cir. 2003), precisely the opposite of the “unfettered” Internet the CDA and the First Amendment protect. The Attorney General may prefer a pre-filtered Internet—but the Constitution and Congress have denied him the authority to mandate it.

Google further lists out the various threats and statements Hood has made:

In several letters to Google, the Attorney General has falsely accused it of, among other things, “aiding and abetting” and even “encourag[ing] . . . illegal activity.” Id. Ex. 5 at 3. He has characterized Google as an “accessory before the fact” in criminal conduct, id. Ex. 2 at 1, asserted it has “no corporate conscience for the safety of its customers,” id. Ex. 17 at 1, and claimed that Google “facilitates and profits from numerous illegal online activities,” id. Ex. 17 at 2. See also id. Ex. 15 at 3 (page 1 of the draft letter). He has threatened to “take legal action to change [Google’s] behavior,” id. Ex. 2 at 3, outlining “[p]ossible [c]auses of [a]ction” against Google in a presentation to the National Association of Attorneys General (“NAAG”), id. Ex. 10 at 53-57, sending numerous requests for information, see, e.g., id. Exs. 1, 5, & 22, and a broad litigation hold notice, id. Ex. 8. The Attorney General has demanded in several meetings that Google pre-screen or block third-party content and search results that merely may involve illegal activity, even at the cost of burdening lawful, protected speech. See, e.g., id. Ex. 2 at 2; id. Ex. 22 at 2; id. Ex. 27 at 5:13-6:24, 7:16-8:14. He has even sought a “24-hour link through which attorneys general[]” can request that links to particular websites be removed from search results “within hours,” presumably without judicial review or an opportunity for operators of the target websites to be heard. Id. Ex. 5 at 3.

That last one is crazy. Hood is flat out demanding a tool for government officials to censor the internet, based solely on those officials' requests.

The Attorney General has cited no evidence at all of misconduct by Google to back up these inflammatory allegations. He has instead identified a handful of web pages among the trillions reflected in Google’s index, and a smattering of videos amongst the millions of hours watched every month on YouTube, and asserted that some of the content of those websites and videos (all created by third parties) is unlawful.... He has noted that advertising occasionally appears alongside the videos about which he complains.... And he has criticized some of Autocomplete’s algorithmically-generated predictions.

Whatever that says about the actions of those who created and developed the content about which the Attorney General complains, it in no way implies that Google has violated the law. Given the vast quantity of third-party content available on the Internet, it is no surprise that some small percentage of the information found via Search or posted on YouTube is inappropriate or unlawful. Statutes such as the CDA and DMCA accept the inevitability of problematic content online as the cost of a free and open Internet, and squarely immunize Google and other interactive service providers from liability arising from such third-party content.

Furthermore, Google debunks the notion that it has done nothing to deal with such sites:

Nevertheless, Google has worked to address the Attorney General’s concerns.... In response to his questions, Google provided over one-hundred pages of written answers detailing its policies and practices for voluntarily combating abuse across its services, and voluntary shared nearly 100,000 pages of supporting documents. YouTube engineers even created a custom reporting tool and trained the Attorney General’s office on how to use it so that they could report for expedited review and possible removal videos they deemed objectionable.... To date, over half a year later, the Attorney General has used this tool to report only seven videos.... Nor, to the best of Google’s knowledge, has the Attorney General filed any legal action against any of the actual creators of the specific underlying content to which he has objected. Google has also explained the applicability of CDA immunity and the DMCA safe-harbor provisions to services like Google, as well as the constitutional concerns raised by his demands

That part I bolded is the key. It shows the reality of the situation, which is that Hood isn't really trying to stop bad content online, no matter how many times he argues otherwise -- he's just attacking Google.

There's much more in the filing, including arguing that Hood is violating the First Amendment directly in his most recent subpoena to Google:

The Attorney General has made clear that he disagrees with how Google exercises editorial judgment in the composition of its search results and YouTube content, and wishes to force Google to adopt editorial judgments that he would prefer. For content he disfavors, he asks that Google censor from search results links to websites that are readily available on the Internet, regardless of whether any court has found them unlawful, and has even gone so far as to demand that certain search terms themselves be banned.... The Attorney General has also demanded that links to disfavored content be demoted in search rankings and marked with a warning to users.... Conversely, he has asked Google to promote favored content (e.g., Hollywoodapproved websites) by raising its standing in search results and indicating its favored status with an icon.... Such demands by a government official to displace a private party’s editorial judgment in order to favor certain speech or speakers over others strike at the heart of the First Amendment.

And, of course, just because some of the content targeted may not be protected, that doesn't relieve the First Amendment problems:

State enforcement actions targeting unprotected speech can violate the First Amendment by limiting the “public’s access to constitutionally protected matter.” Smith v. People of California, 361 U.S. 147, 153 (1959). A state may not penalize a bookseller for unknowingly offering obscene material because he would then “tend to restrict the books he sells to those he has inspected,” and the limits on his ability to inspect content would “tend to restrict the public’s access to [content] which the State could not constitutionally suppress directly.” .... Similarly, a state may not sanction a magazine for unknowingly publishing unlawful advertisements because “publishers cannot practicably be expected to investigate each of their advertisers,” and the risk of sanction could lead a publisher to reject advertisements that “could conceivably be deemed objectionable by the [government],” which would deprive the public of access to protected speech, and the potential advertisers an “avenue of access to the public.” MANual Enters., Inc. v. Day, 370 U.S. 478, 493 (1962).

There's a lot more in there, but those are some of the high points. Hood has been provoking Google (at the behest of the MPAA and others) for a long time. It appears that Google has hit back.

Filed Under: copyright, dmca, first amendment, fourth amendment, free speech, injunction, jim hood, secondary liability, section 230, subpoena, temporary restraining order
Companies: google, mpaa

More Evidence Revealed Of Hollywood's Chummy Relationship With State Attorney General... Even As He Plays Dumb

from the sometimes-it's-not-that-hard-to-play dept

The saga of the MPAA and it's uncomfortably close relationship with Mississippi Attorney General Jim Hood, continues to unfold. If you don't recall, the Sony Hack revealed that the MPAA had such a close relationship with Hood that it was allotting between $585k and $1.175 million to fund Hood's (misguided and based on faulty premises) investigation into Google, even promising $100k in media support. Hood responded by first denying any serious relationship with the MPAA, only to have it come out that not only had the letter that Hood had sent to Google demanding answers been almost entirely written by the MPAA's lawyer (gotta clear the metadata, guys), but that the MPAA had hired Hood's close friend, political mentor, and predecessor in office Mike Moore to push its agenda to Hood via the Hollywood front group "Digital Citizens Alliance."

Hood, apparently, is not backing down -- though his claims are looking increasingly ridiculous. The Huffington Post discovered that not only had the MPAA's Tom Perrelli written the initial letter, but also that Perrelli prepped Hood for his meeting with Google, telling him what to say to Google. Not only that, but Hood directly called the MPAA, asking for help in going after Google. And, yet, Hood still wants to claim there's nothing there, insisting that he had no idea who Perrelli even worked for.

Really.

First, the damning evidence:

Emails obtained by The Huffington Post show that in January, Mississippi Attorney General Jim Hood (D), president of the National Association of Attorneys General, called a lobbyist for the Motion Picture Association of America (MPAA). Hood was looking for evidence of Google search results leading people to websites with pirated content -- evidence that he hoped to have on hand for an upcoming meeting with the search giant. Besides speaking with the lobbyist, Hood also worked with an outside counsel for the MPAA, a lawyer named Tom Perrelli, who prepped him and other state AGs on what to say during their meeting with Google.

Then the hard-to-believe denial:

Hood said he wan't aware that he was consulting with a lawyer who works with the MPAA on intellectual property issues. He added that he wouldn't find that problematic, if that was indeed the case.

Hood told The Huffington Post that Perrelli has offered to assist his office in its efforts to get search engines to "detect and delist" websites with illegal content and products. He said he did not know that Perrelli is a partner at Jenner & Block, a law firm retained by the MPAA.

"I could not tell you which law firm he works for now," Hood said, adding that he is "not aware" of the relationship between Jenner & Block and the MPAA.

So, Jim Hood would have you believe that he has no idea that Tom Perrelli works for Jenner & Block, or that he's outside counsel for the MPAA, and he expects people to just believe that?

Oh, and some more evidence that Hood absolutely knew he was working with the MPAA and reached out to them for "help":

According to other leaked documents, on January 16 of this year, Vans Stevenson, senior vice president for state government affairs at the MPAA, sent an email titled "STATE ATTORNEYS GENERAL PROJECT: Update on AG Denver Meeting With Google Executives" to representatives from the Recording Industry Association of America and others. The email listed 14 AGs and deputy or assistant AGs who were scheduled to attend that meeting.

In that email, Stevenson wrote: "General Hood called me last night and asked that we provide fresh examples for his planned live 'search' demonstration of illegal site activity, including the availability of motion pictures only in theatrical release, which we are working on with our outside counsel Tom Perrelli’s team."

Note, that earlier this week, Hood had clearly said that he "has never asked MPAA a legal question." Okay, so he insists he's never asked the MPAA a legal question, but called up its government affairs guy and spent hours with the MPAA's top lawyer. And people are expected to believe this?

Watch the spin:

Hood, who told HuffPost he had received assistance from the MPAA but never asked the group any legal questions, noted that Stevenson "is not an attorney, so I would not have sought legal advice from him." He added, "As I said several times, we frequently ask the companies who report intellectual property theft to assist our office in identifying counterfeit items and evidence of how their property is being stolen."

So he called the MPAA "for assistance." Yet, that's not actually what the leaked MPAA emails reveal. Instead, it shows that he called them asking for "search examples" for his staged outrage party directed at Google.

Google has finally spoken out about this and, not surprisingly, the company is not amused, pointing out that this seems like a really nasty way for the MPAA to revive SOPA via Jim Hood. Further, it calls into question the thinking behind the MPAA's campaign:

While we of course have serious legal concerns about all of this, one disappointing part of this story is what this all means for the MPAA itself, an organization founded in part “to promote and defend the First Amendment and artists' right to free expression.” Why, then, is it trying to secretly censor the Internet?

As we noted last time, Hood has a bit of a reputation down in Mississippi for questionable activities, so we can just throw this on the pile. The WSJ once called him a "so-called Attorney General" after a federal judge called Hood out as "so-called law enforcement" for "colluding with [a] trial kingpin to evade a court order." Furthermore, Judge William Acker called out Hood for being "a co-conspirator... and an aider and abetter" You can read all the sketchy details about it here.

Perhaps it's true that Jim Hood meets with high powered lawyers when he doesn't know who they work for. Perhaps it's true that -- without knowing who's paying their bills -- he takes documents from them and sends them off with almost no changes to companies demanding "answers." But if his excuse is, honestly, that he cares so little about the details that he's willing to be a patsy for big corporate lawyers without even knowing who he's now really working for that doesn't make him look good. The choice here seems to be either that Hood is lying about being deeply connected to the MPAA, and the MPAA is practically running his investigation (including the funding and writing the threat letters and subpoenas) or that Hood is so clueless that he doesn't bother finding out who high powered lawyers are working for before accepting their 4,000 word threat letters, signing his name to them and shipping them off.

I'm not sure which scenario makes him look worse.

Filed Under: attorney general, jim hood, mississippi, sony hack, tom perrelli, vans stevenson
Companies: jenner & block, mpaa

The MPAA's Secret Plan To Reinterpret The DMCA Into A Vast Censorship Machine That Breaks The Core Workings Of The Internet

from the how-very-nice-of-them dept

Yes, all the attention these days about the Sony hack is on the decision to not release The Interview, but it still seems like the big story to come out of the hack is the sneaky plans of the MPAA in its bizarre infatuation with attacking the internet. We've already covered the MPAA's questionably cozy relationship with state Attorneys General (to the point of both funding an investigation into Google and writing documents for those AGs to send in their names), as well as the continued focus on site blocking, despite an admission that the MPAA and the studios still don't have the slightest clue about the technology implications of site blocking.

Last week, TorrentFreak noted the various options that were under discussion by the MPAA for blocking sites, and now The Verge has published more information, including the analysis by MPAA's favorite hatchetmen lawyers at Jenner & Block about how site blocking might work in practice [pdf] by breaking DNS.

For years, actual technology experts have explained why DNS blocking is a really bad idea, but the MPAA just can't let it go apparently. It's just, this time, it's looking for ways to do it by twisting existing laws, rather than by getting a new SOPA-like law passed.

To understand the plan, you have to first understand the DMCA section 512, which is known as the safe harbor section, but which includes a few different sections, with different rules applying to different types of services. 512(a) is about "transitory digital network communications" and basically grants very broad liability protection for a network provider who isn't storing anything -- but just providing the network. There are good reasons for this, obviously. Making a network provider liable for traffic going over the network would be a disaster for the internet on a variety of levels.

The MPAA lawyers appear to recognize this (though they make some arguments for getting around it, which we'll get to in a follow-up post), but they argue that a specific narrow attack via DMCA might be used to force ISPs to break the basic internet by disabling entries in their own DNS databases. The trick here is twisting a different part of the DMCA, 512(d), which is for "information location tools." Normally, this is what's used against search engines like Google or social media links like those found on Twitter. But the MPAA argues that since ISPs offer DNS service, that DNS service is also an "information location tool" and... ta da... that's how the MPAA can break DNS. The MPAA admits that there's an easy workaround for end-users -- using third-party DNS providers like OpenDNS or Google's DNS service -- but many users won't do that. And the MPAA would likely go after those guys as well.

At the same time, even this narrow limitation on ISPs’ immunity could have the salutary effect of requiring ISPs to respond to takedown notices by disabling DNS lookups of pirate sites through the ISPs’ own DNS servers, which is not currently a general practice. Importantly, the argument for such a requirement need not turn on the Communications Act, but can instead be based on the DMCA itself, which expressly limits ISPs’ immunity to each “separate and distinct” function that ISPs provide. See 17 U.S.C. § 512(n). A reasonable argument can be made that DNS functionality is an “information location tool” as contemplated by DMCA Section 512(d) and, therefore, that ISPs are required, as a condition of the safe harbor, to cease connecting users to known infringing material through their own DNS servers. Should this argument hold – and we believe that it has a reasonable prospect of success – copyright owners could effectively require ISPs to implement a modest (albeit easily circumvented) form of DNS-based site blocking on the basis of only a takedown notice rather than litigation.

In short, since DMCA takedown notices apply to "information location tools," but not to "transitory network communications," the MPAA would like to argue that just the DNS lookup functionality is an information location tool -- and can thus be censored with just a takedown notice. This is both really slimy (though brilliant in its nefariousness) and insanely dangerous for the internet and free speech. We see so many bogus DMCA takedowns of basic content today, and here the MPAA is looking to effectively, and sneakily expand that to whole sites by misrepresenting the law (badly).

DNS is not an "information location tool" in the sense of a search engine. It's the core underpinning of how much of the internet works. At no point in the 16 years the DMCA has been around has anyone made an argument that the DNS system was covered by the "information location tools" definition. Because that's clearly not what it was written to cover. The MPAA's lawyers (in this "confidential" memo) appear to recognize that this argument doesn't fully make sense because of that, but they seem to think it's worth a go:

To be sure, the argument is not guaranteed to succeed, as unlike a “pointer” or “hyperlink text,” DNS provides a user’s browser with specific information (IP routing information) that the user has requested by other means (alphanumeric internet addresses), as opposed to providing the user with an active interface allowing the user to request information online, as they might from a clickable page of search results. But at least in the literal sense, DNS appears to fit within the list of Section 512(d) functions and a reasonable argument can be made that DNS is more like a “directory” than the provision of “routing” and should be treated accordingly under the statute as a Section 512(d) function rather than a Section 512(a) function.

Pushing this argument would raise many of the problems found with the original DNS-breaking proposal in PIPA/SOPA. It would raise even more serious questions about the First Amendment and prior restraint. Effectively, it would be moving the definition of "information location tool" down the stack, such that rather than requiring the removal of access to the specific infringing content, it would require removal of access to an entire site based on a single accusation of infringement. Someone uploaded an infringing video to YouTube? Under this interpretation, the MPAA can force Verizon to make YouTube disappear from the internet for all users relying on Verizon's DNS. The censorship implications are massive here, especially with no court proceeding at all. This wouldn't require anything in court -- just a single takedown notice, of which copyright holders send millions. Rather than sending all those notices to Google and getting them delisted from search, copyright holders could turn the firehose towards Verizon, AT&T and Comcast, and basically take down half the internet on their say so alone. Yes, sites could counternotice, but ISPs would have 10 business days in which they can keep sites off their DNS entirely.

The results would be insane.

And that doesn't even touch on the technical havoc this would wreak. As we've noted earlier, the MPAA admits it's not clear on the technical implications of this plan, but let's just point back to Paul Vixie's discussion of how SOPA/PIPA would break the internet by mucking with the core DNS functionality, no matter how it was implemented.

What this goes back to is the core purpose of DNS, which is merely to translate a URL into a numeric equivalent to connect. It's not an information location tool for helping people "find" information -- it's just the basic plumbing of how the internet works. It's how basically all pieces of the internet expect to work. If you put in a URL here, then DNS returns the proper IP addresses to follow through there. Breaking that, effectively fracturing the internet, and creating a patchwork of different DNS systems would create a huge list of problems not easily fixed.

And, yet, because the MPAA can't figure out how to adapt to the times, it appears to be willing to give it a shot. Because, hey, it's better than innovating.

Filed Under: copyright, dmca, dns, emails, information location tools, sony hack
Companies: jenner & block, mpaa

Attorney General Downplays Ties To MPAA... Just As NY Times Reveals MPAA Actually Wrote The Letter He Sent Google

from the corruption-in-practice dept

Last week, we wrote about how some of the leaked emails from the Sony hack revealed that the MPAA was funding and coordinating various Attorneys General attacks on Google, even over topics that have nothing to do with copyright infringement. In response, Mississippi AG Jim Hood told the Huffington Post that he barely knows anyone at the MPAA, and has no idea who their lawyers are -- and that the MPAA has "no major influence" on what he's working on:

Hood said the MPAA "has no major influence on my decision-making," although he noted that content creators occasionally provide reports and advice to him. "They're just reporting wrongdoing. There's nothing unusual about that," he said. Hood said he has never asked MPAA a legal question, isn't sure which lawyers they employ, and doesn't think he's ever met the organization's general counsel.

Okay. Now keep that above paragraph in mind as you read the latest report from the NY Times, in which reporters Nick Wingfield and Eric Lipton (who just a few months ago had written that big article on questionable lobbying of Attorneys General) dig deeper into the Sony emails concerning the MPAA and AGs Jim Hood and Jon Bruning from Nebraska. The Times also uses some public records requests to show that the infamous letter that Hood sent to Google was almost entirely written by the MPAA's lawyers. You can see the whole thing at the link, but this thumbnail shows a pretty long letter with the only parts actually written by Hood's office being the intro at the top in green and a few minor word choices. All the rest came from the MPAA's lawyers at Jenner and Block. So... Hood claims that he doesn't even know the MPAA's lawyers, that it has no influence on what he does and that the MPAA is "just reporting wrongdoing" -- but then he takes a ~4,000 word letter that those same MPAA lawyers (that he claims he doesn't know) wrote, tosses on an intro and a few minor grammatical corrections, and sends it to Google? The letter itself is a piece of pure propaganda as well, completely misrepresenting a few things, taking others out of context, and making some bizarre legal arguments. Hood, of course, is no stranger to controversy and claims of cronyism, but this is taking things to another level.

The NY Times further uncovers that the "go-between" for the MPAA and Hood is a lobbyist the MPAA hired to run an MPAA front group. That lobbyist? Hood's predecessor and close friend:

The movie industry, through a nonprofit group it funded called Digital Citizens Alliance, picked the perfect lobbyist to squeeze Mr. Hood: Mike Moore. Mr. Moore was Mr. Hood’s predecessor as Mississippi attorney general and helped start Mr. Hood’s political career. He remains a close friend of the attorney general and travels with him frequently; he has even played a role in helping Mr. Hood get elected as the president of the National Association of Attorneys General, emails obtained by The Times show.

That front group, the "Digital Citizens Alliance," is one we discussed earlier this year, when it released a report about "evil" cyberlockers based on a misreading of two debunked studies. Certain cyberlockers have demanded a retraction of the report because of its ridiculous and shoddy methodology. In other words, the Alliance is not exactly the most trustworthy of operations -- and it's hired Jim Hood's best buddy and political mentor. But Hood wants us to believe that this group has no influence on him?

Even other Attorneys General find the situation questionable:

Peggy Lautenschlager, who served as attorney general in Wisconsin, said that the role that the movie industry had played in pushing Mr. Hood, through Mr. Moore and others, was inappropriate. “A private interest is influencing some attorneys general’s offices,” she said.

Meanwhile, others are trying to understand why Jim Hood is so close with the MPAA at all, since Mississippi doesn't even have much of a connection to the film business:

That makes his behavior all the more unusual since Mississippi has almost no economic interest in the movie industry. Indeed, the state lacks a major film school, doesn’t house production for a single scripted TV show, and has served as the main shooting location for only 5 widely released movies over the past decade. The MPAA itself says that the state has a total of 242 film-and-television-production related jobs; one of the smallest per-capita totals in the nation. All-in-all Mississippi has more people who make their living arranging flowers (460, according to the Bureau of Labor Statistics’ databases) than in film and TV production. Maybe Jim Hood really likes hanging out with movie moguls?

Hood's stated reasoning makes even less sense:

"Google's not a government, they may think they are, but they don't owe anyone a First Amendment right," Hood told The Huffington Post. "If you're an illegal site, you ought to clean up your act, instead of Google making money off it."

[....]

Hood recalled a meeting in Boston, where a high school girl demonstrated to attorneys general how easy it was for her to find a violent version of "Django Unchained" on the Internet. "Some of the AGs were amazed at that real-time example of what Google is assisting," Hood said.

Hood has "tried to get Google to delist several sites," relating to pharmaceuticals. He said he views movies and music piracy as "insignificant" to state prosecutors, compared with more serious types of crime. But Hood said he would support a nonprofit organization coming up with a list of piracy sites that Google would remove from search results. He argued that current copyright law, the Digital Millennium Copyright Act, isn't adequate, because a website can get millions of takedown notices, but still do business as usual.

It appears Hood is quite confused about, well, nearly everything. No, Google doesn't "owe anyone" a First Amendment right, but the government does. And here it appears that Hood -- a government representative -- is flat out supporting a censorship list of websites that must be blocked. Furthermore, he doesn't seem to understand the difference between a search engine and actually hosting or uploading infringing content. He also doesn't seem to recognize the history of blacklists and the fact that they always over-censor. Nor does he seem to understand how Google functions. All of these things would be rather easy to find out -- but just as easy to ignore if the MPAA is the one giving you all your talking points and legal documents.

Meanwhile, the original letters revealed that the MPAA was looking for other Attorneys General it could convince to get in on the game, and the NY Times notes that a clear target is Nebraska's Jon Bruning:

The movie association and its member companies, the messages show, have assigned a team of lawyers to prepare draft subpoenas and legal briefs for the attorneys general. And the groups have delivered campaign contributions — with several movie studios sending checks — to Jon Bruning, the Republican attorney general of Nebraska, who was helping push their cause, and who made an unsuccessful bid for governor this year.

Meanwhile, the reaction to all of this has been fascinating. I've seen multiple lawyers connected to Hollywood have kneejerk reactions that paying for an investigation, coordinating all of the efforts including writing up the letters and subpoenas, is just normal, everyday "aggressive competition." Yet, these are the same people who go out there and claim that you sharing a copy of a movie you liked with someone else is morally bankrupt and evil. Some people, it seems, have a different moral compass. Frankly, private companies financing government investigations of other private companies seems a hell of a lot more morally questionable than someone sharing a copy of a film they like.

Filed Under: attorneys general, copyright, corruption, jim hood, jon bruning, lobbying, mississippi, nebraska
Companies: google, mpaa