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

Director Of Thor: Ragnarok Pirated Clips For His Sizzle Reel

from the everyone's-doing-it! dept

With the constant drumbeat of the evils of copyright infringement and internet piracy being issued from those leading the movie industry, you might have been under the impression everyone within the industry held the same beliefs. Between the cries of lost profits, the constant calls for the censorship of websites, and even the requests to roll back safe harbor protections that have helped foster what must be considered a far larger audience for the industry, perhaps you pictured the rank and file of the movie business as white-clad monk-like figures that served as paragons of copyright virtue.

Yet that's often not the case. While many artists, actors, and directors do indeed toe the industry line on matters of piracy, you will occasionally get glimpses of what has to be considered normalcy in how people engage with copyright issues among members of the industry. We should keep in mind our argument that essentially everyone will infringe on intellectual property at some point, often times without knowing or intending it, because engaging in said behavior just seems to make sense. During a radio interview Taiki Waititi did to promote Thor: Ragnarok, which he directed, he admitted to doing it himself.

Speaking with broadcaster Tom Power, Waititi revealed that when putting together his promotional showreel for Thor: Ragnarok, he obtained its source material from illegal sources. Explaining the process used to acquire clips to create his ‘sizzle reel’ (a short video highlighting a director’s vision and tone for a proposed movie), Waititi revealed his less-than-official approach.

“I cut together little clips and shots – I basically illegally torrented and, erm, you know, ripped clips from the Internet,” Waititi said.

“Of a bunch of different things?” Power asked.

“I don’t mind saying that…erm…on the radio,” Waititi added, unconvincingly.

Almost immediately afterwards, Waititi seemed to realize that he was admitting to copyright infringement on a recording and asked for that part of the interview to be cut out, which of course it wasn't.

So what are sizzle reels? When a director pitches a movie to a studio, they will often include a short reel of movie clips that demonstrate what they feel to be their overall vision as a director and tie that in with whatever film is being pitched. Producing a sizzle reel, particularly on short notice, can be a harrowing experience. You have to get the movies from which to pull clips. You have to make sure those movies are in a format easily editable to make the clips. You have to then splice them together in a coherent way to demonstrate your vision and themes for the movie pitch.

Of course, the internet provides an easier avenue for much of that effort, which is why a director like Waititi would naturally go to this massive resource to build his sizzle reel. It's as innocuous a thing as could be. Also, it's definitely copyright infringement.

Now, Waititi almost certainly will face zero repercussions for this confession, but only because he's a protected industry insider with great movies on his resume. But if this were an up and coming director? Or just some kids having fun? It doesn't take much imagination to conjure up images of threat letters demanding settlements, or even protracted legal proceedings over this kind of "piracy."

Whatever this discrepancy says about how copyright is selectively enforced, it should be obvious that nothing in this is promoting the progress of the arts.

Filed Under: copyright infringement, hollywood, piracy, sizzle real, taiki waititi, thor: ragnorak

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

Screen Actors Guild Tells Court There's Nothing Unconstitutional About Curbing IMDB's Publication Of Facts

from the beneficiaries-of-free-speech-protections-ask-for-less-free-speech dept

Because ageism is allegedly rampant in Hollywood, California legislators have decided to address the problem head on not at all. Instead of enforcing on-the-books laws against employment discrimination, the legislature -- backed by the Screen Actors Guild -- has decided some of the First Amendment has to go. It has crafted a new law to fight ageism in Hollywood studios… by targeting a popular movie database. In California, A + B = WTF.

The law -- currently blocked by an injunction -- forbids third-party sites with paid subscribers from publishing certain facts about actors and actresses. The only fact at issue is their age. And, despite lawmakers pretending the stupid, unconstitutional law targets a variety of websites, it's really only having an effect on one: IMDb.

This failure of a law stems from a failure of a lawsuit brought by actress Junie Hoang, who blamed her lack of starring roles on IMDb publishing her real age. She wanted $1 million in damages, apparently expecting IMDb to subsidize her next 500 years of denied acting opportunities. (Discovery during the suit revealed Hoang made less than $2000/year from acting.)

The Fail Train rolls on with the Screen Actors Guild offering its full-throated approval of First Amendment limitations, as Elizabeth Nolan Brown reports.

In its own motion, SAG-AFTRA complained that IMDB "contends it has an absolute First Amendment right to disseminate the ages of everyone in Hollywood, consequences be damned, and no matter how much or little value such expression has in the marketplace of ideas." But "so long as the communication of the age of persons in the entertainment industry writ large facilitates illegal age discrimination, such expression may be regulated consistent with the First Amendment even though specific communications might not be discriminatory."

Note that the Actors Guild doesn't claim that IMDb publishes age information that's false, nor that it publishes true information obtained in an illegal manner. Rather SAG-AFTRA asserts that IMDb somehow has a legal responsibility to help actors obtain work by concealing their ages; that the state has the ability to judge what kinds of content have "value" in the "marketplace of ideas"; and that information of "little value" can be banned.

The motion is filled with terrible arguments. But considering its conceit, where else could it go? When you start with the premise the best fix for ageism at movie studios is targeting a third-party website, there's really no room for logic or coherent arguments. Add to that the fact that actors are actively calling for free speech restrictions, and you've got an elliptical mess on your hands -- one that makes the argument the state can be trusted to determine what speech has "value."

SAG's opening salvo names and shames the real parties responsible for ageism…

Plaintiff's website publishes everyone's age regardless of whether it is relevant to any public issue at all, and does so without any comment or context. This is not an invitation to public debate. Rather, it is an open invitation for casting directors to engage in illegally discriminatory conduct…

...before moving on to spend the rest of the brief arguing that its IMDb's fault casting directors engage in illegal discriminatory conduct.

As set forth in the Declaration of Marilyn Szatmary filed concurrently herewith, there is massive age discrimination in the entertainment industry and IMDb.com facilitates that discrimination as the go-to website for casting decisions.

Publishing ages doesn't "facilitate discrimination." Nothing forces studios to participate in discriminatory hiring practices… at least nothing outside the studios themselves. Other sites without paid subscribers are still free to publish actors' ages. At least with IMDb, paid subscribers can ask to have this information removed. Other sites not targeted by this legislation (which, in reality, is every other site but IMDb) have no obligation to remove factual information from their sites.

The brief does nothing to convince anyone the law is Constitutional. All it does is make it clear SAG would rather bite the hand that feeds info to studios than the hand that feeds its members acting jobs. It's bad legislation lawmakers allowed themselves to be talked into and it should be struck down permanently by the time this is all said and done. SAG's support for the blocked bill is intellectually dishonest. The problem lies in the studios, not outside websites, no matter how much studios may rely on IMDb to do its hiring homework for them.

Filed Under: age discrimination, ages, california, facts, first amendment, free speech, hollywood, imdb, junie hoang
Companies: amazon, screen actors guild

Film Director's Op-Ed Ignores Reality To Push Hollywood Lobbying Talking Points

from the opportunistic-assertions-of-lack-of-opportunities dept

John Singleton -- the director of "Boyz n the Hood" -- has written an op-ed for The Hill (apparently at the behest of two groups heavily-influenced by major studio money) decrying "digital theft." What will happen to young indie directors like he once was, so many years ago?

At just 24 years old, I was the youngest person ever nominated for the Oscars for Best Director and for Best Original Screenplay. My career launched in 1991 — before the explosive growth of the internet, before Facebook, Twitter and torrent sites — during one of the creative and financial high points of the entertainment industry. Even then, the odds of convincing a major film company to take a risk on giving a 24-year-old kid from South Central L.A. such an enormous opportunity was highly unlikely. In 2017, I believe it’s nearly impossible.

I’m deeply concerned the creative voices of the next generation won’t have the same opportunities I had.

So, what has changed? There’s certainly no shortage of young talent. On the opportunity end of the equation, however, you can draw a straight line from the widespread digital theft of creative works to the barriers filmmakers face when breaking into the industry.

It's hard to believe Singleton isn't aware of the numerous opportunities indie directors have now that weren't available when he first broke into the business. It's also hard to believe Singleton truly believes more barriers exist now than did 25 years ago. So, it's not that Singleton isn't aware of the opportunities and lower barriers. It's that he's being intellectually dishonest to further the objectives of the two entities that asked him to speak to Congress about digital piracy.

At the invitation of CreativeFuture, a creative industries advocacy group, and the Creative Rights Caucus, a bipartisan group dedicated to protecting the rights of content creators, I spoke to hundreds of government officials about what millions of us do for a living and how critically important that work is to our society and culture.

CreativeFuture is the rebranded CreativeAmerica: a Hollywood astroturfing group supported by several major television and motion picture studios. The Creative Rights Caucus was formed by reps Judy Chu and Howard Coble. Coble wrote the "Sonny Bono Act," the bill that has saddled us with "life+70" for copyright terms. He also helped push through the PRO-IP Act back in 2008. Judy Chu is basically an unofficial mouthpiece for the entertainment industry, seeing as she can't even be bothered to rewrite their talking points before delivering them.

With this propelling Singleton's statements, it's no surprise he doesn't depict the entertainment world as it actually is. Instead, he's simply regurgitating talking points about how piracy has so badly damaged the motion picture industry, it can barely post record ticket sales year after year after year.

The tiniest amount of perfunctory Googling would have shown Singleton his assertions are full of shit. Indie filmmakers are still selling films at film festivals. Only now, it's more likely Netflix or Amazon are picking up the tab. Not only that, but streaming companies are investing heavily in original content, so it's far more likely these filmmakers will find more work outside of the traditional studio system than within it.

Singleton wants us to believe that if the major studios aren't involved, it simply doesn't exist. (This is what major studios would like you to believe as well, as they treat Netflix and Amazon more like enemies than colleagues.) But his assertions are completely divorced from reality. Here's another eminently eye-rollable passage from Singleton's screed:

It’s easy to look at piracy in a vacuum and chalk the illegal streaming of a movie up to a mere $5 or $10 loss for Hollywood investors. Yet the aggregate cost of piracy goes far beyond that. It makes film and television companies far more risk-averse, narrowing their output to that which seems the most bankable, thereby creating a climate in which no one would be willing to take a chance on a 24-year-old with a script about inner city life.

Where's the concern for the small filmmakers, who arguably lose more when people illegally stream their work? Can't find it here. All I see is concern for major motion pictures studios, that will have slightly less money to screw directors, producers, and actors out of.

And the statement about television being more "risk-averse" than ever flies in the face of reality. TV shows that would have been unthinkable during Singleton's mid-90s prime are being made as fast as TV studios can crank them out, with budgets that far exceed the average major network TV show.

Even if Netflix, Amazon, and other streaming services weren't handing out checks to indie filmmakers, platforms like YouTube and Vimeo would allow them to bring their creations to millions of viewers and monetize every play.

Singleton closes his op-ed with the expected "piracy will kill us all unless…" statement:

A critical component of that is understanding that copyright is the only thing that separates 5.5 million working Americans from the breadline. Without it, filmmaking is in jeopardy of becoming an afterthought, a hobby for the weekends.

Copyright doesn't keep filmmakers from the breadline. Copyright can't prevent infringement, so even with the absurdly-strong and ridiculously-lengthy protections given to US creators, the breadline may still be the end result. But there's no proven connection between file sharing and unemployed artists, no matter how many conclusory statements are presented without backing evidence.

Copyright doesn't enhance creativity and it can't prevent anyone from being unable to make a living doing creative work. The only purpose it really serves is to make legal threats more threatening by dangling the possibility of statutory damages above the heads of accused infringers. And that's pretty much the only purpose Singleton serves her: propping up legacy industries with legacy arguments.

Filed Under: business models, culture, hollywood, independent film, john singleton, piracy
Companies: creativefuture

Canadian Supreme Court Says It's Fine To Censor The Global Internet; Authoritarians & Hollywood Cheer...

from the d'oh-canada dept

For the past few years, we've been covering the worrisome Google v. Equustek Solutions case in Canada. The case started out as a trademark case, in which Equustek claimed that another company was infringing on its trademarks online. That's fine. The problem was that the lower court issued an injunction against Google (a non-party in the case) that said it had to block entire sites worldwide. Blocking sites already raises some concerns, but the worldwide part is the real problem. In 2015, an appeals court upheld that decision, and earlier today the Canadian Supreme Court agreed with both lower courts in a 7-2 decision.

The court is dismissive of any concerns about how an order from one country to block things on the internet globally might be abused -- calling the concerns "theoretical" and unproven. That may not last very long. First, let's look at the decision itself, and then the horrific possible consequences for free speech and innovation.

Google’s argument that a global injunction violates international comity because it is possible that the order could not have been obtained in a foreign jurisdiction, or that to comply with it would result in Google violating the laws of that jurisdiction, is theoretical. If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly. To date, Google has made no such application. In the absence of an evidentiary foundation, and given Google’s right to seek a rectifying order, it is not equitable to deny E the extraterritorial scope it needs to make the remedy effective, or even to put the onus on it to demonstrate, country by country, where such an order is legally permissible.

This is a nifty trick: because you can't show that this order might offend freedom of expression laws somewhere else in the world, let's just assume it's fair to apply absolutely everywhere. But... that's not the issue. It's not for a Canadian court to determine if its rulings obey the laws in other countries. A Canadian court has jurisdiction over Canada. And that's it. This is not about balancing theoretical harm v. real harm, this is about jurisdiction.

The court tries to get around the jurisdictional question by saying because Google is available in Canada, somehow that makes it okay to censor globally, and further, notes that the lack of borders on the internet require such a result (ignoring how this will almost certainly create massive problems down the road):

The problem in this case is occurring online and globally. The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally. As Fenlon J. found, the majority of Datalink’s sales take place outside Canada. If the injunction were restricted to Canada alone or to google.ca, as Google suggests it should have been, the remedy would be deprived of its intended ability to prevent irreparable harm. Purchasers outside Canada could easily continue purchasing from Datalink’s websites, and Canadian purchasers could easily find Datalink’s websites even if those websites were deindexed on google.ca. Google would still be facilitating Datalink’s breach of the court’s order which had prohibited it from carrying on business on the Internet. There is no equity in ordering an interlocutory injunction which has no realistic prospect of preventing irreparable harm.

This sounds nice, but makes no sense. First, again, a Canadian court only has jurisdiction over Canada. If the irreperable harm is happening elsewhere, then that's not the Canadian court's jurisdction and it has no say in the matter. The fact that purchasers outside Canada can find Datalink's website isn't a matter for Canadian courts. This may sound unfair -- as the court seemed to think -- but take two seconds to flip the script and think about how this would work with a ruling in China about stories concerning Tiananmen Square, or in Saudi Arabia about LGBTQ rights -- saying that Google had to de-index such sites in Canada, because they violated local law.

The second scary part about the ruling is that it's not just saying that Google needs to de-index sites shown to involve infringement, but that it needs to de-index an entire site because other pages on that site might, at some future point, infringe. Really. The two dissenting judges pointed out how problematic this aspect is in the ruling, and how it actually gives Equustek even more than it was seeking.

The December 2012 Order gives Equustek more than the injunctive relief it sought in its originating claim. Rather than simply ordering the modification of Datalink websites, the December 2012 Order requires the ceasing of website business altogether.

And that creates an additional problem. Since Equustek is getting more than it wanted, and because the defendant in the original case has ignored the court process, it's likely that this "temporary" injunction will effectively become a permanent one:

In our view, little incentive remains for Equustek to return to court to seek a lesser injunctive remedy. This is evidenced by Equustek’s choice to not seek default judgment during the roughly five years which have passed since it was given leave to do so.

Thus, the dissent notes, this is, in effect, a permanent injunction. And, it doesn't come close to the standards necessary for such a permanent injunction -- specifically in dragging a third party (i.e., Google) into the remedy:

As we will outline below, the Google Order enjoins a nonparty, yet Google has not aided or abetted Datalink’s wrongdoing; it holds no assets of Equustek’s, and has no information relevant to the underlying proceedings. The Google Order is mandatory and requires court supervision. It has not been shown to be effective, and Equustek has alternative remedies.

And, it fears that Google will be forced to continue to monitor and de-index any new website set up by Datalink:

The Google Order requires ongoing modification and supervision because Datalink is launching new websites to replace delisted ones. In fact, the Google Order has been amended at least seven times to capture Datalink’s new sites (orders dated November 27, 2014; April 22, 2015; June 4, 2015; July 3, 2015; September 15, 2015; January 12, 2016 and March 30, 2016). In our view, courts should avoid granting injunctions that require such cumbersome courtsupervised updating.

Finally, the dissent points out that it appears Datalink has assets in France, and Equustek could easily go after them there, and that would be a remedy that leaves Google out of the process.

Unfortunately, the dissent does not really delve into the problematic nature of a Canadian court claiming it can force a website to de-list sites globally. I already provided the Chinese/Saudi Arabian examples above, but Canadian law professor Michael Geist goes much deeper:

Google will obviously abide the ruling, but as I noted last year, what happens if a Chinese court orders it to remove Taiwanese sites from the index? Or if an Iranian court orders it to remove gay and lesbian sites from the index? Since local content laws differ from country to country, there is a great likelihood of conflicts. That leaves two possible problematic outcomes: local courts deciding what others can access online or companies such as Google selectively deciding which rules they wish to follow. The Supreme Court of Canada did not address the broader implications of the decision, content to limit its reasoning to the need to address the harm being sustained by a Canadian company, the limited harm or burden to Google, and the ease with which potential conflicts could be addressed by adjusting the global takedown order. In doing so, it invites more global takedowns without requiring those seeking takedowns to identify potential conflicts or assess the implications in other countries.

Geist also notes that this is part of the "drip drip drip" nature of mutliple rulings chipping away at free expression online:

This last paragraph noting that Google already removes links to certain content (hate speech, child pornography, and copyright takedowns) highlights the cumulative effect of court decisions and regulations that individually may seem reasonable but which quickly move toward takedowns of all kinds. In fact, the majority cites the international support for Internet injunctions with global effect as a justification for its own order. The net result is the expectation of all countries and courts that they may issue global takedown orders regardless of the impact on Internet users outside the jurisdiction or on Internet intermediaries.

Furthermore, Geist highlights where the court went wrong in saying that because it's "easy" for Google to de-index a site worldwide, there's no burden. But the technical burden is not the issue. The legal burden is:

Of course, the inconvenience does not come from the technical side of removing search results, which is indeed trivial. The real inconvenience comes from conflict of laws and the potential for global takedown orders coming from across the planet, thereby opening the door to other countries choosing what Canadians might be able to find in search results. Those issues – along with the need to identify the laws in other countries in order to avoid conflicts – do involve significant inconvenience and expense.

Indeed, a ruling like this likely will give Google more power over others, because Google has a large legal team that can handle this. Most other sites do not. Smaller sites cannot scour the globe to find out where such global takedown orders are legal and where they are not.

Another Canadian lawyer, Howard Knopf, is even more forward in pointing out how this will be abused by Hollywood:

I can just see the RIAA and MPAA salivating that the thought of getting global injunctions against Google at an interlocutory hearing from a trial judge in British Columbia. Will the mere fact that copyright subsists in BC - as it does virtually everywhere - be sufficient to get the injunction? One can imagine that few if any defendants would appear in such proceedings.

And, worse, he points out that even if Canadian trial judges see through that ploy, the RIAA & MPAA can just go jurisdiction shopping for other locations where courts will cite this case as a reason they can issue preliminary global injunctions. Canada just handed anyone who wants it a tool for global censorship. Anyone from authoritarian regimes to Hollywood may now begin to use it.

I recognize that some Google haters are cheering on this ruling because they will cheer on anything that makes Google look bad -- and the RIAA/MPAA types are celebrating this new power over Google. But this is extremely short sighted. Enabling countries to reach across borders to censor the internet does not end well. You are giving veto power over speech to the most repressive regimes, just because you dislike a company. If that's your view, you should perhaps check your priorities more carefully. And this goes doubly for the RIAA and MPAA. Those two organizations both used to fight for free speech. They both used to fight for the ability of musicians and filmmakers to express themselves. This tool that they helped create (they were involved in this case, pushing the view that the court eventually sided with), will be turned around and used to censor music and movies worldwide -- and the legacy recording and film industries will have no one to blame but themselves.

Filed Under: canada, censorship, global, hollywood, injunction, jurisdiction, right to be forgotten, trademark
Companies: datalink, equustek solutions, google

Copyright Office Admits That DMCA Is More About Giving Hollywood 'Control' Than Stopping Infringement

from the but-that's-not-what-the-law-is-about dept

We already wrote about the new Copyright Office report on DMCA 1201 -- the section of the law that deals with the "anti-circumvention" provisions of the DMCA. That post focused on the realization by the Copyright Office that the current setup of 1201 does significant harm to security research, as researchers are often frightened to actually investigate certain technologies out of a fear that they may accidentally violate copyright law in getting around some sort of "technological protection measure."

But there's much more in the report as well, and I want to focus on one part, in particular, because it demonstrates a disturbing way in which the Copyright Office thinks about copyright law. But to understand why, we need some background. One of our big complaints about Section 1201 is that it says that circumventing a "technological protection measure" (TPM) is a violation of copyright law by itself. That's always troubled us, because it means you can violate copyright law even if you're not infringing on anyone's copyright. And that seems... wrong. And it's why 1201 has been cited in various lawsuits that clearly have nothing whatsoever to do with copyright: such as cases about printer ink cartridges and garage door openers. And the courts have struggled with this quite a bit. Thankfully, there have been some good rulings, noting that interpreting 1201 this way is bonkers, and a clear abuse of the law for issues that have nothing to do with copyright. But... not all courts.

The Copyright Office report actually has a nice rundown of some of the key caselaw history, so we'll let the report do it for us. The key issue, as the report notes, is whether or not 1201 requires a "nexus" to infringement. Specifically: should it be a 1201 violation if the underlying circumvention is done for a reason that is not even remotely connected to what copyright law actually protects?

Although the United States has consistently interpreted section 1201 as creating a cause of action separate and independent from copyright infringement, courts construing the statute to date have divided over its relationship to the traditional rights of copyright owners. There currently is a circuit split as to whether a violation of the access‐control provisions under section 1201(a) requires a “nexus” to infringement—i.e., that the circumvention be done for the purpose of, or otherwise relate to, infringing an exclusive right under section 106 of the Copyright Act. This issue has particular significance in the context of copyrighted computer programs embedded in everyday consumer products.

In 2004, the Federal Circuit held in Chamberlain Group, Inc. v. Skylink Technologies, Inc. that there must be a “reasonable relationship” between the access gained by the circumvention and the protections conferred by section 106. Chamberlain’s garage door openers contained copyrighted software controlling operation of the motor. The software included a “rolling code,” which prevented the system from activating unless it received a signal from an authorized transmitter. Chamberlain alleged that Skylink’s manufacture and sale of “universal transmitters,” which circumvented the rolling code and accessed the copyrighted software, violated the anti‐trafficking provisions of section 1201(a)(2). The court, however, rejected that claim, holding that section 1201 did not create a new property right, but rather, “introduce[d] new grounds for liability in the context of the unauthorized access of copyrighted material.” The court further stated that “circumvention is not a new form of infringement but rather a new violation prohibiting actions or products that facilitate infringement.” The court also expressed policy concerns, including the view that without an infringement nexus requirement, section 1201(a) would result in anticompetitive conduct unrelated to copyright concerns. The court ultimately held that the Copyright Act granted consumers “the right to use the copy of Chamberlain’s embedded software that they purchased” and, therefore, in the absence of copyright infringement or facilitating copyright infringement, the defendant could not be liable for a section 1201(a)(2) trafficking violation.

In 2010, the Fifth Circuit in MGE UPS Systems, Inc. v. GE Consumer & Industrial, Inc., relied on Chamberlain to conclude that “[t]he DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.” The United States, however, urged rehearing on the ground that that construction was “inconsistent with the text, structure, and legislative history of the DMCA.” Such a reading, the United States argued, “threatens to frustrate Congress’s purpose in section 1201(a)(1), which was to provide a federal prohibition against bypassing passwords, encryption, and other technologies that regulate access to a copyrighted work in circumstances in which the copyright owner would not otherwise have a remedy under the Copyright Act.” The court subsequently withdrew its opinion and substituted an opinion omitting the challenged portion of the original.

Later that year, the Ninth Circuit expressly declined to follow Chamberlain and instead rejected a nexus requirement as “contrary to the plain language of the statute.” In MDY Industries, LLC v. Blizzard Entertainment, Inc., the court held MDY liable under section 1201(a)(2) for trafficking in technology in the form of a self‐playing bot, which was designed to circumvent a technological control on a video game sold by Blizzard. In rejecting the reasoning of Chamberlain, the Ninth Circuit looked to both the statutory text and its legislative history. Among other textual considerations, the court noted that section 1201(a) refers to technological measures protecting access to “a work protected under this title,” while section 1201(b) refers to measures protecting “a right of a copyright owner under this title.” The court read this distinction to indicate that Congress intended section 1201(a) to “extend[] a new form of protection, i.e., the right to prevent circumvention of access controls, broadly to . . . copyrighted works.” Section 1201(b), meanwhile, was intended “to reinforce copyright owners’ traditional exclusive rights under § 106 by granting them an additional cause of action against those who traffic in circumventing devices that facilitate infringement.”

So here's where the Copyright Office is supposed to step in and agree with the Chamberlain ruling and say that for 1201 to apply, it should require an underlying nexus to actual infringement under Section 106 of the Copyright Act, right? Right? RIGHT?!? I mean, that's the only sane response if you want to argue that anti-circumvention rules are truly about protecting copyright.

So, of course, that's not at all what the Copyright Office decided. Instead, it argues that there shouldn't be such a "nexus" requirement, because it might upset Hollywood to have less control. I mean, that's not the phrase it actually uses, but that's exactly what it's saying here:

The Copyright Office shares the concern that section 1201(a)’s protections for access controls have the potential to implicate activities far outside the traditional scope of copyright law. The Office does not, however, believe enacting an infringement nexus requirement to be advisable, as it could severely weaken the right of copyright owners to exercise meaningful control over the terms of access to their works online—a right that both Congress and the Executive Branch have properly recognized as essential to the development of the digital marketplace for creative content

If you don't live in the copyright world, this statement may not seem like a big deal, but it's actually a massive and hugely troubling admission. It's the Copyright Office saying that the point of anti-circumvention should be about giving copyright holders more control over digital marketplaces and not about preventing infringement. Of course, that's not what Hollywood has always claimed in the past. They always insist the reason they need anti-circumvention provisions all over the place is to stop infringement. But everyone has always assumed it's truly because they want more control and leverage over digital marketplaces. And here you have the Copyright Office admitting, right up front, that, sure, these provisions are about giving Hollywood extra control and not about stopping infringement.

The Copyright Office tries to justify this by arguing that (for example) bypassing the password protection on a Netflix or Spotify account might violate 1201, but wouldn't infringe on an underlying Section 106 right -- and thus 1201 without a nexus requirement is necessary to enable more Netflix or Spotify like markets:

In particular, Congress sought to facilitate the development of online content delivery platforms in which the consumer pays for access to copyrighted material rather than for possession of a copy. Section 1201(a) reflects Congress’ understanding that such models will succeed only if copyright owners have the legal right to prohibit persons from evading electronic paywalls or other technical measures used to limit access to users who satisfy the rightsholder’s specified terms.

But... this is not a copyright concern. That's a business model concern. If things like password sharing become an issue, then it's up to companies to figure out a way to deal with it -- not make it a violation of copyright law.

If Congress truly wants to protect Hollywood from people sharing their Netflix passwords, there are other ways to do it without trying to loop it into copyright law -- and 1201 is a part of copyright law. It shouldn't then be abused for completely non-copyright purposes. Having an underlying nexus to copyright is the only sane way for the law to actually be related to the fundamental rights under copyright law. But here, the Copyright Office is arguing that Hollywood should get non-copyright rights of control over digital marketplaces, just because it thinks that's good for Hollywood. And it may be good for Hollywood, but the Copyright Office's job is supposed to be about copyright. Not about what's good for Hollywood.

Filed Under: anti-circumvention, control, copyright office, dmca, dmca 1201, drm, hollywood, markets