After Internet Companies Protest, MPAA Declares Victory And Walks Away From Attempt To Backdoor SOPA

from the nice-try... dept

The MPAA has been working on a number of tricks to find a SOPA through the backdoor in the last few months -- more on some of the many attempts coming soon -- but in one attempt, it's suddenly walking away. A few weeks ago, all of the major movie studios filed a lawsuit over the website MovieTube (actually a series of websites). While it may well be that MovieTube was involved in copyright infringement (and thus a lawsuit may be perfectly appropriate), the concerning part was that, as a part of the lawsuit, the studios were demanding a remedy that is not available by law: that anyone who provides any kind of service to MovieTube be forced to stop via a court injunction. This was the kind of tool that was a part of SOPA, which (you may recall) never became law. Among the requests in the lawsuit:

That the Registries and/or Registrars be required to transfer the domain names associated with Defendants’ MovieTube Websites, or any subset of these domain names specified by Plaintiffs, to a registrar to be appointed by Plaintiffs to re-register the domain names in respective Plaintiffs’ names and under Plaintiffs’ respective ownership.

That content delivery networks and domain name server systems be required to cease providing services to the MovieTube Websites and/or domains identified with the MovieTube Websites and disable any access to caches they maintain for the MovieTube Websites and destroy any caches they maintain for the MovieTube Websites.

That third parties providing services used in connection with any of the MovieTube Websites and/or domain names for MovieTube Websites, including without limitation, web hosting providers, cloud services providers, digital advertising service providers, search-based online advertising services (such as through paid inclusion, paid search results, sponsored search results, sponsored links, and Internet keyword advertising), domain name registration privacy protection services, providers of social media services (e.g., Facebook and Twitter), and user generated and online content services (e.g., YouTube, Flickr and Tumblr) be required to cease or disable providing such services to (i) Defendants in relation to Infringing Copies or infringement of Plaintiffs’ Marks; and/or (ii) any and all of the MovieTube Websites.

A few days later, the good folks at EFF reminded everyone that SOPA did not pass, and this attempt to require a SOPA-level block is not actually what the law allows. Of course, as we noted soon after the SOPA fight, it appeared that some courts were pretending SOPA did pass, mainly in a variety of lawsuits involving counterfeit goods (rather than copyright infringement). And the movie studios rely on that in their more detailed argument in favor of this broad censorship order on third parties who aren't even a part of this case:

Courts have granted similar interim relief directed to third-party service providers in cases with similar facts. The first such case, The North Face Apparel Corp. v. Fujian Sharing Import & Export Ltd. (“Fujian ”), 10-Civ-1630 (AKH) (S.D.N.Y.), was brought against defendants in China selling counterfeit goods through the Internet directly to consumers in the United States. In Fujian, the district court granted an ex parte temporary restraining order, seizure order, asset restraining order, and domain-name transfer order, later continued by a preliminary injunction order.

Of course, last week, a bunch of internet companies -- Google, Facebook, Tumblr, Twitter and Yahoo -- filed an amicus brief highlighting how ridiculous the widespread demand is:

Plaintiffs are asking the Court to grant a preliminary injunction not just against the named Defendants, but also against a wide array of online service providers—from search engines, to web hosts, to social networking services—and require them to “cease providing services to the MovieTube Websites and Defendants[.]” None of those providers is a party to this case, and Plaintiffs make no claim that any of them have violated the law or play any direct role in the Defendants’ allegedly infringing activities.

Plaintiffs’ effort to bind the entire Internet to a sweeping preliminary injunction is impermissible. It violates basic principles of due process and oversteps the bounds of Federal Rule of Civil Procedure 65, which restricts injunctions to parties, their agents, and those who actively participate in a party’s violations. The proposed order also ignores the Digital Millennium Copyright Act (“DMCA”), which specifically limits the injunctive relief that can be imposed on online service providers in copyright cases. Even if Plaintiffs had named those providers as defendants and obtained a final judgment against them, the DMCA would not permit the relief that Plaintiffs are asking for at the outset of their case, where they have not even tried to claim that these nonparties have acted unlawfully.

And... just days later, the movie studios tell the judge that they need not rule on this issue at all, and they're happy to drop the request for the preliminary injunction entirely, because the MovieTube websites have already been shut down (h/t to Eriq Gardner, who first reported on the studio's letter).

We represent Plaintiffs in the above-titled action. We write to inform the Court that after Plaintiffs filed their Complaint (and presumably in response thereto), Defendants shut down their infringing websites, and as of today, such websites remain offline. Plaintiffs are no longer seeking preliminary injunctive relief at this time but will seek permanent relief as soon as possible. Defendants’ time to answer or otherwise respond is August 19, 2015.

Moreover, because Plaintiffs have withdrawn their motion for preliminary injunctive relief, the arguments offered by Amici Curiae... in opposition to that motion are not ripe for consideration and are otherwise inapplicable. Accordingly, Plaintiffs have not addressed them here. To the extent Amici are requesting what amounts to an advisory opinion, such a request is improper and should not be entertained.

In short: we had hoped to quietly get a court to pretend SOPA existed so we could point to it as proof that this is perfectly reasonable... but the internet folks spotted it, so we'll just walk away quietly, and hope that next time, those darn internet companies, and those eagle-eyed lawyers at the EFF aren't so quick to spot our plan.

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

Aussie Study: Infringers Spend More On Content Than Non-Infringers

from the try-and-buy dept

We've argued for quite a long time that treating "pirates" like criminals instead of potential customers is a massive mistake for a whole host of reasons. There's the futility of the legal game, for instance, as well as the possible public relations nightmare that going after the public, even the infringing public, can create. But the best reason to not treat infringers like criminals is because they're often the best actual customers of content out there as well. In study after study, it's shown that a person who engages in some infringement spends more total money on movies, music, and video games than someone who gets everything legit. Pirates, scurvy-laden bastards as they may be, happen to be the creative industries' best customers.

And it turns out it's no different in Australia, where a recent government study bore out the same conclusion: infringers spend more money on content than content-saints.

Consumers who flirt with the morally ambiguous line of content consumption spend more money, according to a survey released by the Australian Department of Communications. Over a three-month period among respondents aged 12 and over, the survey found that those who consumed a mixture of copyright-infringing and non-infringing content spent on average AU$200 on music, AU$118 on video games, AU$92 on movies, and AU$33 on TV content. Consumers who only consumed non-infringing content spent only AU$126 on music, AU$110 on video games, AU$67 on movies, and AU$22 on TV; whereas pure copyright-infringing content consumers spent a mere AU$88 on music, AU$24 on video games, AU$53 on movies, and AU$8 on TV content.

In every market, the sometimes-infringer spends more. In the case of music and movies, the delta between the occasional infringer and the all-legal consumer is huge, much larger than the delta between the all-legal and all-infringement consumers. Video games and television don't show the same delta, but even in those arenas the occasional infringers spent more than the saint. Why? How?

Well, because the occasional infringer infringes because they're a fan, a fan perfectly happy to spend money on scarce goods where spending that money makes complete sense.

However, the survey also found that the majority of spending on music and movies was not on the content items themselves.

"For both music and movies, the majority of the average spend was not from purchases of either digital or physical copies. In the case of music, this primarily consisted of concerts and gigs, and in the case of movies, this primarily consisted of going to the cinema," it said.

And since the advents of the VHS and cassette tapes, that's always been the case. Theaters are about experience and live music for great acts will always be in demand, even if bootleg tapes and pirated DVDs are in hefty supply, which they are. For the content itself, the survey respondents essentially indicated that the juice wasn't worth the squeeze.

A majority of survey respondents said that they would pay for a music subscription service that charged AU$5 per month, and AU$10 per month for a movie subscription service. Only 5 percent of respondents said that nothing would make them stop consuming copyright-infringing content.

In other words, the "everyone just wants everything for free" line the entertainment industries have been pimping for decades is bunk. Instead, the overwhelming majority of customers and potential customers want content on-demand at prices that make sense, in which case they're perfectly willing to fork over the money. And even when they feel the price doesn't make sense, they're still willing to fork over money for things they do value as fans -- even though they may have become fans through pirated content. Either way, the industries win. It's just a matter of how much they want to win. Hint: crying over infringers who spend the most money isn't the optimal response.

Frustratingly, this government study was released roughly a month after Australia passed its version of SOPA, largely at the behest of industry lobbyists armed to the teeth with industry numbers showing industry losses at the hands of these same dastardly pirates who are spending so much money on their products. It sure would have been nice if the government had managed to have access to their own data before passing such draconian legislation, rather than relying on the historically unreliable data from the entertainment industry.

Filed Under: australia, copyright, infringement, research, sopa, spending

Australia Passes Its Own SOPA, Ignores All Concerns About It

from the because-of-course dept

As was widely expected after getting the greenlight to move forward with the bill, the Australian palirament has now approved its version of SOPA, allowing courts to issue censorship orders to block entire foreign websites outright, with no real recourse. The few Senators who pointed out how problematic this would be appear to have been totally ignored. Scott Ludlam pointed out that this approach was both lazy and dangerous while Senator David Leyonhjelm (from a different party than Ludlam) succinctly explained the problems with the bill: He notes that it's "vaguely drafted and unlikely to achieve its aims." Furthermore, he notes that it "aims to protect rightsholders at everyone else's expense." As he points out, that's not what Parliament is supposed to be doing. He further highlights how ridiculous it is that Australia has no fair use -- and to pass stronger enforcement without fixing the problems of Australian copyright law hinders free expression and public use is really ridiculous.

Making matters worse, as Crikey points out, those pushing in favor of the bill were using industry supplied numbers on the economic "losses" of piracy that were so ridiculous as to be literally unbelievable, and yet no one really paid attention. Specifically, it attacks the claims made that piracy is costing the movie industry 6,000 jobs per year, which is pretty bizarre for an industry that only employs about 30,000. But, making matters even worse, the number of jobs in the industry... has been going up, not down:

In the last two years, movie and sound recording has employed, on average, 27,100. The two years before that, it employed on average 27,600. So, decline? Well, the two years before that — 2009-11 — was employment of 26,600. And over 2007-09 it was 25,200; between 2005 and 2007, some 24,700 worked in the industry.

Employment in that sector allegedly being smashed by piracy is increasing — not uniformly, but substantially. At the end of the 1990s (when George Lucas was making Star Wars here) the industry barely employed 20,000 people. In the mid-1990s, the sub-division employed 13,000 — less than half of its current level.

There's more in that report that highlights how the numbers supporters of the bill were using simply don't pass the simplest laugh test. But, alas, Hollywood still gets the last laugh, because the politicians passed it anyway. They'll quickly discover that it won't put a dent in any copyright infringement. Nor will it create new jobs in Australia -- except perhaps for VPN vendors. But there's a decent likelihood that it will lead to less innovation, fewer new services and perfectly legitimate sites getting blocked.

To be honest, the haste with which this bill has moved through the Australian Parliament is exactly how the entertainment industry expected the original SOPA to cruise through Congress. It was only because so many Americans spoke out against it that it was stopped. It's too bad that not enough Australians did the same Down Under.

Filed Under: australia, censorship, copyright, david leyonhjelm, scott ludlam, sopa

Australia's SOPA Gets The Green Light

from the site-blocking-down-under dept

Last December, we warned that Australia was about to get its own version of SOPA. The key aspects of the proposed law were exactly the parts of SOPA that so concerned millions of people in America: the ability of someone to make a copyright complaint that would force an ISP or other third parties to block entire websites with little to no due process. In March, just such a bill was introduced, pushed by Attorney General George Brandis, who refused to listen to consumer advocates and their concerns (though he met plenty of times with Hollywood reps). Also, more importantly, supporters of the bill did not conduct any sort of cost/benefit analysis to see if it was worthwhile.

And now, that bill has been given the green light to move forward after the Parliamentary committee reviewing the bill voted to move forward with it -- despite the lack of the cost/benefit analysis. From their recommendations, it appears that almost everyone on the committee has almost no clue about how this would work, the impact on free expression or the collateral damage created from blocking entire sites. Instead, it just takes for granted that "copyright infringement poses a significant threat to the viability and success of Australia's creative industries" and thus something must be done! Even if that "something" won't solve the problem and will actually create many more problems.

In addressing the lacking cost/benefit analysis, the committee more or less shrugs its shoulders and says, well, how about we add a plan to review how well this is working two years down the road.

The only dissenting view was put forth by Senator Scott Ludlam, who spoke out clearly about the problems of Australia implementing its own SOPA:

The Copyright Amendment (Online Infringement) Bill 2015 is the latest in a long line of misguided attempts by the government to monitor, control and censor the Internet.

The Bill will allocate a significant new censorship power to the Court that will be used by copyright owners to block access to online content. However, there is a substantial weight of evidence showing that it will be relatively easy to evade the Bill's provisions, that it does not contain appropriate safeguards, and that it may result in legitimate online sources being blocked.

Most importantly, there is also a significant weight of evidence showing that the Bill will not meet its aims, as it does not address the underlying cause of online copyright infringement: The continual refusal of offshore rights holders to make their content available in a timely, convenient and affordable manner to Australians.

As we had mentioned, there had been some concern earlier this year that the vague terms in the bill -- specifically about "facilitating" infringement -- could lead to VPNs being banned. When asked about that, defenders of the bill kept giving non-committal answers about that not being the target -- and the committee report seems to accept that as fine, so long as there's some sort of notation with the bill saying that it's not intended to go after VPNs:

The committee acknowledges the evidence given by the Department of Communications regarding VPNs but notes that the Bill does not explicitly contemplate the introduction of injunctions against VPNs. The committee also notes that VPNs are unlikely to meet the 'primary purpose test' in proposed paragraphs 115A(1)(a)-(c). The committee would however be reassured if the government were to clarify the status of VPNs in the Explanatory Memorandum to the Bill.

What's somewhat amazing to me is that a couple years ago, when it looked like Australia might actually introduce fair use into its copyright law, the copyright industry flipped out, arguing, in part, that because there wasn't a history of case law to rely on, it would lead to craziness while the courts sorted things out.

Yet, amazingly, when it comes to this sort of site blocking, it appears the copyright maximalists take the exact opposite stance: arguing that it's fine to let the courts flat out censor websites, because the courts will have lots of "discretion" to sort things out:

The committee takes the view that by providing the Court with a high level of discretion the Bill would allow the Court to both target specific issues that arise in individual cases and develop a general body of jurisprudence to provide more legal certainty into the future. As the Bill would allow the Court to tailor an order to the circumstances of a particular case, the committee expects that the Bill would encourage the Court to draft orders in such a way so as to effectively deal with the online copyright infringement but at the same time limit any unintended consequences such as over-blocking or accidental blocking.

Yeah, because courts never get tripped up by this kind of stuff...

And of course, Australia should know damn well how poorly this kind of stuff works in practice, because after the Australian Securities and Investments Commission tried to block about 1,000 websites a couple years ago, it accidentally knocked a quarter of a million sites offline because no one understood that multiple sites could share the same IP address. And yet, these are the same people voting to move forward with this plan to let the government simply declare websites "bad" and cut them off.

Again, as we noted back in the SOPA days, nearly every new technology has been declared a major "facilitator" of "piracy" by the copyright industries before they figured out how to use them. This includes: radio, recorded music, television, cable television, the photocopier, the VCR, digital music, the DVR, the MP3 player, online video and online storage lockers. All of them. Under bills like SOPA or this Australian version of SOPA, the industry is allowed to effectively kill such innovations early, making it more difficult for the content industries to adapt and embrace these new services which time and time again have been shown to make the industry more money in the long run.

It is the ultimate ignorant and lazy response of Australian politicians to believe that they need to block new innovations because the copyright industry refuses to innovate or figure out ways to better serve the public. And, even worse, they seem to feel the only way to do so is in a way that censors large parts of the internet, puts tremendous costs on ISPs (to be passed on to consumers), and which will only serve to drive infringement further underground, rather than magically convincing people to give extra money to Hollywood.

Filed Under: australia, censorship, copyright, site blocking, sopa, vpns

Australians Get Their Own SOPA; Attorney General Doesn't Even Bother To See If His Censorship Regime Is Technically Feasible

from the details,-details dept

Back in December, we noted that it appeared that Australia was about to get its own SOPA, and that appears to now be happening. The Australian press is reporting that Attorney General George Brandis is ready to introduce site blocking legislation that mimics SOPA almost directly, in that it would force ISPs to block access to foreign websites, based on claims that those websites facilitated copyright infringement. This was the key part of SOPA, which was rejected, in part, because it would lead to serious concerns about the way in which the underlying internet functioned. Forcing ISPs to block entire sites breaks some fundamental principles of the internet. So, you would think that perhaps the geniuses behind Australia's plan would at least talk to internet providers first before moving forward with this plan, right? Well, you'd be wrong:

John Stanton, CEO of telco industry body the Communications Alliance, said it was "disappointing" that the industry had not been consulted on the bill prior to its impending introduction.

The bill is coming from Australian Attorney General George Brandis, who has been pushing for exactly this for quite some time, after only listening to the entertainment industry voices, and refusing to discuss the issue with consumer advocates, or those who understand the pointlessness and danger of full site blocking. Brandis also has ignored the careful, and detailed, process that the Australia Law Reform Commission went through investigating copyright reform, in which it proposed a number of ways to modernize Australia's copyright system. Instead, Brandis is just focused on giving Hollywood what it wants, with apparently no consideration for what that means for the public or the internet.

Of course, we all know what happened when the US Congress tried to rush through SOPA. It will be interesting to see how Australians react to a similar proposal, pushed by a politician who has made it pretty clear that the technical details of the internet laws he pushes are not that important to him, just so long as he can pretend that he's being "tough" on criminals.

Filed Under: australia, copyright, george brandis, site blocking, sopa

MPAA Abusing DMCA Takedowns To Attempt A Poor Man's SOPA

from the good-luck-with-that dept

The old guard in Hollywood, so frightened of an internet they don't understand, tends to be rather transparently buffoonish in its strategies to try to break the internet. For a few years, the MPAA was totally focused on a "three strikes" strategy -- believing that if people were getting kicked off the internet, that it would lead them to stop file sharing and go back to paying large sums of money for bad movies. That plan failed miserably. The followup idea was even worse: known as full site blocking, the idea was to convince countries to pass laws that would force ISPs, search engines, domain registrars and others to completely block access not just to infringing content, but to entire sites that the legacy copyright industries deemed "bad."

This was always problematic on a few different levels. First, the entertainment industry has a rather horrible track record of declaring some new innovation "bad" and "illegal" when it shows up on the scene, only much later realizing that the "bad" or "illegal" thing is actually exactly what consumers are looking for. In the past, the industry has attacked radio, television, the VCR, the photocopier, the DVR, the MP3 player and YouTube (among many other things). Giving Hollywood a full on veto for any new technology, before it's had a chance to grow, thrive and show how useful it can be, seems like a great way to kill off innovation. Yet, that's what Hollywood wants. Second, the concept of site blocking itself is incompatible with some of the very fundamentals of the internet. It breaks DNS, it creates big security problems, and it has tremendous collateral damage (not that Hollywood gives a shit about that).

The original site blocking plan was to pass SOPA in the US, which had site blocking provisions. It was seen as a slam dunk easy win by Hollywood, until suddenly, it wasn't (thanks to the internet speaking up loudly). But, similar strategies have worked better in other countries, as courts have often ordered ISPs to block certain sites, often with little review and almost no due process. Yet, as we discovered thanks to the Sony Hack last year, the MPAA is still 100% focused on figuring out ways to implement full site blocking, even as its internal discussion admits it has no idea about the technological feasibility of it. Instead, it's pushing on a few different fronts, from trying to get states Attorneys General involved to abusing the process at the International Trade Commission to "block" sites "at the border."

However, it appears that the latest strategy is just to file a bunch of bogus DMCA takedown notices to Google on the top level domain, rather than on specific content. It's no secret that the MPAA has been asking Google to implement full site blocking for quite some time -- even though doing so wouldn't actually help (because instead of the sites, you'd just get people telling you how to get to those sites or you'd get even sketchier sites). TorrentFreak noticed that the MPAA issued a bunch of questionable DMCA notices on top level domains recently, nearly all of which Google rightly rejected. The law is pretty clear that you have to be identifying the specific work to be taken down, rather than just generally pointing to a site.

The MPAA knows this, which makes the sending of a bunch of top level domains... bizarre. (TorrentFreak also points out that the MPAA may have even sent its own mpaa.org domain in a DMCA notice, but there's a decent chance that that's just someone playing a prank). The decision to file such clearly bogus DMCA notices, from an organization that is so totally focused on site blocking and which has large groups of lawyers looking for every angle to bring in full site blocking... suggests that this isn't just the MPAA getting lazy. Instead, it may be part of a plan to try to set up a test case, in which the MPAA sues over getting Google to remove an entire domain, based solely on a takedown (or series of takedowns) on that top level domain. If so, that would be an astoundingly stupid ploy -- one that the MPAA would have a high likelihood of losing. But perhaps desperate times at the MPAA call for desperate measures. Of course, we're still wondering when the folks over at the MPAA will get desperate enough to focus on giving people what they want, rather than treating them all as criminals.

Filed Under: censorship, copyright, dmca, full site blocking, site blocking, sopa, takedowns, urls
Companies: google, mpaa

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

MPAA Knows It Doesn't Understand SOPA-Style Site Blocking, But Has Decided It's The Answer

from the really,-guys? dept

While I still think the biggest story to come out of the Sony hacks is the fact that the MPAA had a plan to fund investigations of Google by public officials to get negotiating leverage over the company, a lot of other interesting tidbits have been revealed as well, including the fact that the MPAA still really, really believes in the idea of site blocking. It has listed it as a "high priority" item that was discussed in a recent anti-piracy strategy meeting bringing together the top lawyers from most of the major Hollywood studios: As the TorrentFreak article above notes, the MPAA laid out a four prong approach to force site-blocking on the US. The Verge recently posted an MPAA email that described at least some of the strategy as well:

We have traditionally thought of site blocking in the US as a DMCA 512(j) issue. In some ways, that is too narrow and we plan to expand our scope of inquiry on two levels. First, DMCA 512(j), by its terms, necessarily creates an adversarial relationship with the target ISP (and more generally with the ISP community). We have been exploring theories under the All Writs Acts, which, unlike DMCA 512(j), would allow us to obtain court orders requiring site blocking without first having to sue and prove the target ISPs are liable for copyright infringement. This may open up avenues for cooperative arrangements with ISPs. Second, we start from the premise that site blocking is a means to an end (the end being effective measures by ISPs to prevent infringement through notorious pirate sites). There may be other equally effective measures ISPs can take, and that they might be more willing to take voluntarily. Our intention is to work with our own retained experts and Comcast (and MPAA’s Technology group) to identify and study these other possibilities, as well as US site blocking technical issues.

The MPAA is right that 512(j) is likely a dead end. In fact, a legal analysis done by the MPAA's lawyers at Jenner & Block (the MPAA's preferred legal hatchet men) details why. The "All Writs Act" approach is nutty, and would lead to significant push back from a variety of parties (we just recently noted that the DOJ has been trying to use the All Writs Act to get companies to help decrypt encrypted phones). There would undoubtedly be a big legal fight over any such attempt. Other plans, like using the ITC or the Communications Act would also run into problems.

In fact, The Verge also just published some internal legal analysis from Jenner & Block explaining why the ITC route is really risky and unlikely to work, whether targeting transit ISPs (Level3, Cogent, etc...) or access ISPs (Verizon, Comcast, AT&T, etc...). Amusingly, the "alternative" to SOPA that was pushed out by some anti-SOPA folks in Congress actually would have made the ITC route more feasible, but the MPAA was among its loudest critics. And yet now suddenly it's exploring the ITC path? Ha!

Either way, the most insane part of all of this is the fact that, nearly three years after SOPA, the MPAA more or less admits in an email that it hasn't really analyzed the technological impact of site blocking (which was a key component of SOPA) and feels like maybe it should get on it. From the email sent by MPAA General Counsel Steven Fabrizio:

Technical Analyses. Very little systematic work has been completed to understand the technical issues related to site blocking in the US and/or alternative measures IPSs might adopt. We will identify and retain a consulting technical expert to work with us to study these issues. In this context, we will explore which options might lead ISPs to cooperate with us.

Talk about putting the anti-piracy cart before the internet horse...

Meanwhile, the MPAA -- recognizing the shit storm created by SOPA -- has made sure that all of its site blocking efforts are to remain as quiet as possible (oops):

Be cautious about communications on site-blocking—continue building a record of success where possible, but avoid over-communicating and drawing negative attention.... Where site-blocking is actively under consideration, make available research (1) that site-blocking works and (2) that it does not break the Internet (lack of "side effects"). [Do this] in closed-door meetings with policymakers and stakeholders, [but] not necessarily publicized to a wider audience.

Yes, make sure people think site blocking "works" even though the MPAA doesn't have the requisite technical knowledge to understand it. So, in the interest of open source research, I'm going to help the MPAA out a bit and explain to them why site blocking is stupid and massively counterproductive. I mean, they could just look at what's happened in the past few weeks since The Pirate Bay went down, leading tons of other sites to pop up and (as reported in Variety -- normally a keen source of spinning in favor of the studios) the actual impact on infringement online was basically nil.

But, let's take this a step further. Let's say... for example, that the MPAA succeeded in having certain "evil" sites blocked. Thankfully, at about the same time as these meetings were going on, the MPAA also gave Congress a list of the sites it considered "notorious." Let's take one -- how about torrentz.eu -- and do a basic Google Search showing what results would come up if Goliath Google were forced not to link to the site (which is slightly different from site blocking, but the MPAA is also talking about similar efforts to get full domains "removed" from Google as an alternative to site blocking -- and the end results would be pretty much the same thing). Take a look: If you can't see it, it's basically a bunch of links to pages listing out where you can go instead of that particular site. In short, site blocking is stupid. It won't actually cut down on any infringing activity, and it's easily gotten around, whether by VPNs or just by doing a rather basic search. Now, of course, the MPAA and its friends would likely still blame Google for this state of affairs, but I'm curious how the MPAA contends that Google should return results on such a site if it's been blocked or removed from search? How could it possibly also block out links to sites that list alternatives? Or is part of the plan to expand the censorship all the way down the pile so that any site that even mentions sites that the MPAA declares "notorious" also need to be blocked? Because if that's the case, they're going to run into a pretty massive First Amendment question before long.

The problem -- as always -- is that the MPAA still thinks that the public is stupid, and that if they can successfully "block" sites that people will stop looking for alternatives. The reality is that the way to get people to stop looking for unauthorized alternatives is to make better authorized alternatives -- but that's clearly still not a priority for the MPAA. And that's a real shame.

And none of this even touches on the problems with false positives (something that's already happened a bunch) or how site blocking might seriously screw up certain security setups, like DNSSEC (something the MPAA was clearly warned about during the SOPA fight, but which it still seems to deny is a real problem). In fact, during a recent secret "Site Blocking" meeting by the MPAA, it still appears to mock the idea that site blocking would break the internet by messing up DNSSEC. That's because the MPAA still doesn't seem to fundamentally understand the issues at play. If they actually talked to some real engineers at ISPs, maybe they'd learn that this whole infatuation is misguided and won't work.

In short, the MPAA sees site blocking as a priority because it doesn't understand the first thing about site blocking and why it would fail -- and that's speaking legally, technically and using just basic common sense. So why is the MPAA so focused on that, rather than actually innovating and adapting? This is what happens when you put a bunch of litigators, rather than innovators, in charge.

Filed Under: all writs act, circumvention, dns, dnssec, itc, site blocking, sopa, steven fabrizio, whole domain removal
Companies: mpaa

Australians May Get Their Own SOPA

from the christmas-time-for-copyright-owners dept

Christmas has come early for copyright owners in Australia. The film company, Roadshow, the pay television company Foxtel, and Rupert Murdoch's News Corp and News Limited--as well as copyright industries--have been clamoring for new copyright powers and remedies. In the summer break, the Coalition Government has responded to such entreaties from its industry supporters and donors, with a new package of copyright laws and policies [pdf].

There has been significant debate over the proposals between the odd couple of Attorney-General George Brandis and the Minister for Communications, Malcolm Turnbull. There have been deep, philosophical differences between the two Ministers over the copyright agenda. The Attorney-General George Brandis has supported a model of copyright maximalism, with strong rights and remedies for the copyright empires in film, television, and publishing. He has shown little empathy for the information technology companies of the digital economy. The Attorney-General has been impatient to press ahead with a copyright regime. The Minister for Communications, Malcolm Turnbull, has been somewhat more circumspect, recognizing that there is a need to ensure that copyright laws do not adversely impact upon competition in the digital economy. The final proposal is a somewhat awkward compromise between the discipline-and-punish regime preferred by Brandis, and the responsive regulation model favored by Turnbull.

In his new book, Information Doesn't Want to Be Free: Laws for the Internet Age, Cory Doctorow has some sage advice for copyright owners:

Things that don't make money:

• Complaining about piracy.
• Calling your customers thieves.
• Treating your customers like thieves.

In this context, the push by copyright owners and the Coalition Government to have a copyright crackdown may well be counter-productive to their interests.

The Internet Filter

The proposal to give copyright owners the power to block websites is highly controversial. The Australian Government have devised a local version of the Stop Online Piracy Act--nicknamed #SOPA. There is a concern that such a power will interfere with civil liberties, traditional freedoms, and Internet rights. There is also an anxiety that copyright trolls will abuse such a scheme. The Australian Government has not explained what safeguards and protections will be in the bill.

Malcolm Turnbull has been super-sensitive to criticisms of the copyright regime. He was incensed by questions from the Fairfax journalist Ben Grubb about whether the legislation was an internet filter:

That's nonsense Ben. There's no internet filter here at all. What on earth are you talking about… What we're, look, what we are simply doing is proposing to amend the … we're going to amend the Copyright Act to make it more straightforward for rights owners to do what they can do now, which is to seek an order that access be prevented' to a site that is infringing content. Now the reason for the legislative provision is to make it available, is to enable you to get a remedy against an ISP -in other words to get an order against an ISP whose costs would have to be covered and so forth to block access to an overseas illegal download)…, uh, pirate site. I'll just use the word pirate because it's easy we understand what we're talking about. So if you have, you know, bengrubbdownloads.com.au in Australia and you are happily streaming, you know, unlicensed copies of movies, then this amendment would have no relevance to you because the rights owners can go after you directly.

Critics of the regime have been unconvinced by such sophistry, and have been of the view that blocking websites amounted to an internet filter.

Professor Dan Hunter from Swinburne University has commented that blocking websites is bad for Australia's digital economy. He observed that 'a poorly drafted law will inevitably be used to threaten Australia's nascent cloud computing industry, because cloud storage is where a large number of infringing files are found these days.'

The Copyright Code

The Australian Government has given an ultimatum to internet service providers to co-operate with copyright owners or else. If internet service providers refuse to co-operate within four months, the Australian Government will be able to impose its own industry scheme. The Ministers explained:

The Attorney-General and the Minister for Communications have written to industry leaders requiring them to immediately develop an industry code with a view to registration by the Australian Communications and Media Authority (ACMA) under Part 6 of the Telecommunications Act 1997. The code will include a process to notify consumers when a copyright breach has occurred and provide information on how they can gain access to legitimate content. The Minister and the Attorney-General expect strong collaboration between rights holders, internet service providers (ISPs) and consumers on this issue. A copy of the letter to the industry leaders is attached. Failing agreement within 120 days, the Government will impose binding arrangements either by an industry code prescribed by the Attorney-General under the Copyright Act 1968 or an industry standard prescribed by the ACMA, at the direction of the Minister for Communications under the Telecommunications Act.

Such a proposal involves a striking combination of copyright law and media law. Internet service providers face a Hobson's choice--they can either submit to an industry code with copyright owners in a short time frame, or else have the Federal Government impose an industry code upon them.

Dr. Nicolas Suzor and Eleanor Angel from Queensland University of Technology have provided an incisive analysis of the regime:

ISPs and copyright owners have 120 days (over the holiday period) to come to agreement on an issue that they have been at loggerheads over for the past five years. The government hasn't given ISPs much negotiating power, either. The clear threat is that if ISPs don't give the industry what it wants, the government will do it for them. These types of industry codes can be an effective way to regulate, but the only way they will reflect the overall public interest is if consumer groups are also given a seat at the negotiating table. We also need transparency and continual monitoring to ensure the scheme is not being abused, and public interest groups must have the power to effectively protect end users. In this proposal, consumer groups are not invited, and rightsholders hold all the power.

The Coalition Government's tactics and strategies in this area are crafty. Professor Susan Sell has highlighted the use of soft power in copyright policy-making. This is a classic instance of trying to use industry codes and private agreements to achieve copyright goals. There will be much debate over whether the new scheme will constitute an Internet Tax.

Consumer Rights

Australian consumers have been let down by the copyright proposals. There is no defense of fair use, even though such a defense had been recommended by the Australian Law Reform Commission. There is no policy action on IT pricing rip-offs by copyright owners and information technology owners. Furthermore, the Government has failed to provide for a general safe harbor for intermediaries. As a result, Australian consumers are third-class citizens in the digital economy--lacking the rights and privileges of their counterparts in the United States.

The Coalition Government has not extended the safe harbor for intermediaries such as search engines, social media, and internet video sites. Malcolm Turnbull noted: 'Given that this is related to broader issues than just online copyright, this proposal will not be pursued at this time.' He stressed: 'The Government expects that schools, libraries, search engines and wifi providers will continue to take steps to reduce online copyright infringement on their systems.' Such a decision represents a public policy failure for Google--which had been heavily lobbying the Federal Government for an extended safe harbor. Google's Digital Alliance has protested against the decision. However, the Coalition Government has shown little sympathy for Google and other information technology companies--especially given the scandal over tax avoidance in the new economy. Moreover, the Coalition Government has been keen to please Rupert Murdoch--who has called Google “Kleptomaniacs” in the past.

Nonetheless, such an approach to intermediary liability in respect of copyright law is of concern. It is outrageous that Malcolm Turnbull expects that schools and libraries will be copyright cops and police copyright infringement on their networks. Such a proposal will interfere with the mission of schools and libraries to provide access to knowledge.

Although the Coalition Government emphasized that timely access to affordable copyright content was key to addressing copyright infringement, the policy package provides no legislative or administrative proposals to address that issue. Turnbull sought to explain why the Coalition Government had not responded to the IT Pricing inquiry: 'The Inquiry raised significant public awareness of the issue of price disparity and brought to the attention of Australians a range of options and opportunities available to level the playing field.' He noted: 'The Government agrees that Australian consumers should be empowered to seek out goods and services at the best available price, consistent with the measures being introduced for online copyright.' Turnbull observed that 'there are also a number of other processes underway within Government including the Competition Policy Review (the Harper Review) and the Government's consideration of its response to the Australian Law Reform Commission's report into Copyright in the Digital Economy.' While the Coalition Government has deferred its response to the IT Pricing inquiry, it has rushed ahead with its proposals to enhance the rights and remedies of copyright owners.

Political Responses

In response, the Australian Labor Party has lambasted the proposal. In a powerful critique, Jason Clare MP has maintained that the Abbott Government does not understand the Internet:

The Abbott Government has made it clear it doesn't understand the internet or its users. Senator Brandis demonstrated this with his complete inability to explain metadata earlier this year. Malcolm Turnbull is about to buy an ageing copper network because he thinks that by 2023 the median household in Australia will only require 15 Mbps.

Jason Clare argued: 'It is clear that action is needed both to deter piracy, and to encourage access to legitimate content.' He also wondered whether the proposals of the government would be effective: 'Site-blocking is unlikely to be an effective strategy for dealing with online piracy'. Jason Clare maintained that 'the Government has passed the buck back to industry, asking rights holders and ISPs to reach an agreement among themselves'. He contended: 'Any crackdown on the infringement of copyright needs to be accompanied by changes to make copyright law fairer, clearer, and more in keeping with public expectations'. In his view, 'The Government should look after the interests of consumers.'

The Australian Greens have also been highly critical of the copyright proposals of the Coalition Government. Senator Scott Ludlam has commented:

The Greens will not support amendments to the Copyright Act to allow rights holders to apply for a court order requiring ISPs to block access to a website. Such a move would be a defacto Internet filter and would allow rights holders to unilaterally require websites to be blocked. This kind of Internet filter would not be effective at all, due to the widespread availability of basic VPN software to evade it.

Senator Ludlam was also of the view that the ultimatum for a copyright code was unjust: "The Australian ISP and content industries have continuously failed to successfully negotiate a shared approach to copyright infringement over a period of at least three years, due in large part to the unwillingness of copyright holders to be flexible in their position." He observed: "In this context, the Government's requirement that a joint code be developed within 120 days is farcical." In his view, "This is not enough time to develop a code." Senator Ludlam lamented that "the Government has not specifically allocated a role for public interest organisations to have a place at the negotiating table," even though "users will be the ones most affected by this new code." He concluded: "Any industry code will be easily evaded by copyright infringers and will not address the real issue: The lack of timely, affordable availability of content in Australia, which other markets such as the US already enjoy."

CHOICE Australia--the leading consumer rights' group in Australia--was also disappointed by the copyright proposals. Alan Kirkland was wary of 'an industry-run internet filter to block 'offending' websites'. He commented:

We know that internet filters don't work. This approach has been called ineffective and disproportionate by courts overseas, and it risks raising internet costs for everyone.

Kirkland said that there was a need to fix the availability, and the high prices in respect of copyright works.

The Communications Alliance has been cautious about the Coalition Government's copyright plans.

Pirate Party Australia has denounced the new copyright regime. President of the Pirate Party, Brendan Molloy, has commented:

This proposal is effectively the beginning of an Australian version of the failed US Stop Online Piracy Act. Notification schemes, graduated response schemes and website blocking do not work. They are costly, ineffective and disproportionate, as evidenced by academia and decisions of foreign courts. Fighting the Internet itself as opposed to solving the lack of convenient and affordable access does not work, nor does propping up business models that rely upon the control of content consumption in the digital environment.

Deputy President, Simon Frew, added: "Website blocking is censorship, plain and simple." He commented: "By ignoring the IT Pricing Inquiry and numerous submissions to different reviews that Australians are regularly paying more and waiting longer for content, the Coalition is looking to enact a legislative dinosaur that will be easily bypassed by savvy Internet users in seconds."

The Institute of Public Affairs has also expressed reservations about the proposed copyright regime. Chris Berg commented:

The government's proposal to block websites that infringe copyright is an internet filter and a threat to free speech. This is nothing more than an internet filter, of the sort which the Coalition proudly opposed when it was proposed by the Rudd and Gillard governments. There is no reason to believe that this will reduce copyright infringement in any material way.

Such criticism is notable--given that the Institute of Public Affairs is often an ally and a friend of the Coalition Government, across a range of policy fields.

The Future of the Internet

It will be interesting to see what the Australian Senate will make of the Coalition Government's proposals in respect of a copyright crackdown in 2015. The Australian Senate has been compared to the Star Wars' Cantina--such is its diversity and variety. Much will depend upon cross-benchers like Nick Xenophon, the Palmer United Party, Family First, the Liberal Democratic Party, and various micro-parties and independents.

The Coalition Government's copyright proposals will further enhance the private power of copyright owners in respect of the governance of the Internet. Bernard Keane worries: "We've thus arrived at the fully fledged war on the internet by this government that some of us have long been predicting, a war motivated by commercial interests and the never-satisfied greed of security agencies for more powers of surveillance and control, and a deep and abiding fear of what citizens will do with communications technology that is no longer controlled by governments." This is disturbing. The Internet will be increasingly subject to the rule of private sovereigns. As Tim Berners-Lee says, we need a Magna Carta to protect an open and accessible Internet--rather than a copyright crackdown.

Dr. Matthew Rimmer is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law, and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA).

Filed Under: australia, copyright, george brandis, malcolm turnbull, site blocking, sopa

Senator Whitehouse Is Very Angry About A Made Up Google Search And A Made Up Pirate Bay

from the something-must-be-done dept

Senator Sheldon Whitehouse was a strong supporter of the SOPA/PIPA approach to breaking the internet to appease Hollywood. Even as lots of others bailed out on their support of the bills, Whitehouse refused to change his position. It appears he'd like to push such a solution again. On Wednesday, the Senate held hearings for the nominees for both the head of the US Patent and Trademark Office, Michelle Lee, as well as the new "Intellectual Property Enforcement Coordinator" (IPEC), Dan Marti. Marti is a bit of a wildcard, with most of his legal practice related to intellectual property being focused on trademark, rather than copyright. So it was worth paying attention to what he had to say in response to the questions. However the most bizarre and ridiculous question came from Senator Whitehouse, who proved to be rather confused about how both the internet and copyright law worked. You can see the full video here. Whitehouse begins talking around the one hour, 35 minute mark. He kicks it off by displaying his ignorance. First, he refers to Marti's predecessor, Victoria Espinel, and how he had asked her to do more to stomp out piracy, and then launches into a statement almost entirely devoid of factual statements:

I can remember Ms. Espinel coming here, some time ago to talk about the progress she intended to make in dealing with the criminal activity that steals American intellectual property, particularly entertainment content, and provides it to viewers, and that they were going to work really hard, with other American corporations that were supporting that activity to try to knock it down.

So while we were having this hearing, I picked up my iPad, and I went to Google, and I Googled "pirate movie." And Google gave me "The Pirate Bay" [holds up his iPad] which is an illegal enterprise, operating out of Sweden. And if you go to the page where you would get access to the pirate content, it says "get access now" and underneath it you have the flags of Visa, of Mastercard, of American Express, of Cirrus and of Paypal. And below that it tells you all the devices it works on and shows you the logos of Apple, Android, and so forth.

It looks to me like this criminal activity is still being wrapped around with the apparent support of a wide variety of American corporations. [Incredulous expression]. Explain to me how there's been progress made.

Almost everything Senator Whitehouse said in this statement is either wrong or totally clueless. It does not speak well of him as a Senator to be so misinformed about some rather basic things. First, there are the basics. A search engine is not and should not be illegal. Yet, Senator Whitehouse doesn't seem to understand the different role of a system like The Pirate Bay from a site that actually hosts or uploads infringing content. Second, at the time of the hearing, the Pirate Bay is down, so his claims pretending to show the site are clearly a lie. It's been in the news a lot that the site is gone. You'd think some staffer would have told Senator Whitehouse not to use that example.

Third, a Google search on "pirate movie" does not link to The Pirate Bay at all. Here's the search done on Google: Note that it actually highlights a 1982 movie, and even points people to Amazon where they can purchase it. Nowhere on the page does it point anyone to The Pirate Bay or any other site from which you can download infringing content. Not even close.

Senator Whitehouse appears to be flat out lying about what happens when you do such a search on Google, and then compounding it by lying about going to The Pirate Bay. On top of that, his description of what he claims he saw on The Pirate Bay appears to be totally false as well. And while some of my critics may find this difficult to believe, I've never used the site (other than occasionally reading some of its blog posts) so I reached out, via Twitter, to multiple people who had used the site regularly to see if his description was accurate. None could ever remember seeing credit card logos or Apple/Android logos. And, why would they, really, since the content found on The Pirate Bay was usually just pure files and available for free. So there would be no need to post credit card logos or even device compatibility, since that would depend more on the kinds of apps you used to view/listen/read the files obtained. Yes, there were tons of ads on the site, people point out, but they tended to be for crappy porn sites and the like.

In other words, almost every detail of what Senator Whitehouse describes is a lie. He may be describing some other site, but he didn't find it with the search he described and it wasn't The Pirate Bay. And even if there were logos from American companies, anyone can set up a website with such logos and it means nothing about whether they're complicit.

And then he demands that something must be done?

Marti barely gets half a robotic sentence out in response, saying that "criminal actors, criminal enterprises have no limits" when Whitehouse cuts him off with some more nonsense:

They actually do! [Holds up iPad again] There are ways in which these companies could go to court and try to knock this stuff down. There are ways in which prosecutors can have discussions with companies about aiding and abetting offenses and about being accessories to offenses. There's a lot that can be done in this area, it seems to me!

Marti points out that he was talking about something entirely different -- that sites will of course put up logos to make themselves try to look legit (though he doesn't go so far as to point out that Senator Whitehouse's suggestion that because a site puts up a logo, that doesn't mean the company whose logo was put up isn't "aiding and abetting" a damn thing).

Even more to the point, Whitehouse's claim that companies can "go to court and try to knock this stuff down" also makes no sense. Under what law? What legal issue is there in the (fake) circumstances that Whitehouse describes? At most, there might be a trademark violation, and does he really think it's worth company's time to go after such fly-by-night sites for trademark violations? And the whole "aiding and abetting" claim is ridiculous. Is Senator Whitehouse honestly claiming that if a site that offers up infringing works notes that the works can work on Apple or Android that Apple or Google are "accessories" to a crime? Isn't a Senator supposed to understand the law?

Whitehouse then turns to Michelle Lee, who used to work at Google, but on patent policy, not copyright, and asks her if Google could stop this. Though, again, he's flat out lying about what Google is supposedly doing. It's a bizarre question. And Lee just says she doesn't know the answer to that question (how could she when it makes no sense). Whitehouse gives a sarcastic "Hmm!" in response, as if he's discovered something -- other than actually revealing his astounding ignorance. He further claims that because Lee was a deputy general counsel at Google (again on patents, not copyright issues) that it shows that Google didn't really care about this issue. Really?

Finally, he appears to attack Marti for not having done anything, despite the fact he's not in the job yet, and then claims that all of this proves that the "voluntary" process that Espinel championed (like the ridiculous "six strikes" agreements between some ISPs and the legacy entertainment companies) is not enough. He seems to clearly be hinting that we need more government action, or more SOPA-type laws, based on an entirely false scenario that either he or his staffers (or some... lobbyists) made up and handed to him. Instead, all it shows is him getting angry in a manner that displays his near total ignorance of the topic at hand.

Is it really too much to ask that the people who make the laws impacting technology not be totally ignorant about both the laws and the technology? Frankly, Senator Whitehouse owes Marti, Lee and basically all internet users an apology.

Filed Under: copyright, danny marti, ip czar, ipec, michelle lee, search, senate, sheldon whitehouse, sopa, voluntary agreements
Companies: google, the pirate bay