Major movie studios are again trying to make a website they don’t like disappear without a trial. This time, the studios are asking for one court order to bind every domain name registrar, registry, hosting provider, payment processor, caching service, advertising network, social network and bulletin board — in short, the entire internet — to block and filter a site called Movietube.
If they succeed, the studios could set a dangerous precedent for quick website blocking with little or no court supervision, and with internet service and infrastructure companies conscripted as enforcers. That precedent would create a powerful tool of censorship — which we think should be called SOPApower, given its similarity to the ill-fated SOPA bill. It will be abused, which is why it’s important to stop it from being created in the first place.
In 2012, the internet community stopped SOPA, a bill that would have created new, easy-to-obtain court orders against domain name registrars, ad networks, payment providers and search engines to force them to cut off service to a website accused of “facilitating” copyright or trademark infringement. Everyone from network engineers to civic organisations to entrepreneurs to millions of ordinary internet users spoke out against the bill. Constitutional scholars showed how SOPA orders could act as prior restraints on speech, one of the most egregious forms of First Amendment violation. The internet’s architects helped explain how using the domain name system (DNS) for site blocking would undermine the internet’s security and empower the censorship efforts of repressive governments. You, the internet community, helped Congress understand that SOPApower will inevitably be abused to silence marginalised or unpopular opinions. Congress shelved the bill and hasn’t brought it back.
This year, members of the Motion Picture Association of America and the Recording Industry Association of America have begun filing lawsuits that pretend as if SOPA was actually signed into law. These entertainment distributors choose non-US website owners who are unlikely to garner much sympathy with the public and are unlikely to show up in a US court to defend themselves. They speed up court processes by instilling a false sense of urgency, giving internet companies and defenders of the public interest little time to weigh in. The courts, seeing little or no formal opposition, put their stamp on broad site-blocking orders written by the entertainment companies. The companies then have a legal banhammer to use against any internet company who could possibly help force the foreign site off of the internet — and even some that can’t.
So far this year, entertainment companies have used these SOPA-like orders to take down a site that promised to stream the recent boxing match between Floyd Mayweather and Manny Pacquiao, and another to make Blu-ray ripping software disappear. Another case would have forced the content delivery network CloudFlare to filter its service for any sites that had the word “grooveshark” in their names. CloudFlare and EFF were successful in getting that order modified to take away the filtering requirement.
The case by MPAA’s member studios against the MovieTube sites was filed two weeks ago. Like the others, it targets foreign websites with unknown owners who are unlikely to defend themselves in U.S. court. Like the others, it demands a site-blocking order as quickly as possible. This time, though, the draft order the studios want the District Court for the Southern District of New York to sign is so broad, it potentially could be used against almost any internet platform or service. It would cover all “persons and entities providing any services to or in connection with the domain names”, specifically including “domain name registries”, “content delivery networks”, “domain name server systems” (i.e. every internet service provider), “web hosting providers, digital advertising service providers, search-based online advertising services, … domain name registration privacy protection services”, “social media services” and “user generated and online content services”.
The MPAA members also call out numerous internet companies by name against whom they want to wield the banhammer: Verisign, Neustar, Afilias Limited, Nominet UK, Public Interest Registry, AdCash, Propeller Ads Media, MGID, Matomy Media Group, Facebook, Twitter, YouTube, Flickr and Tumblr.
If the court signs this proposed order, the MPAA companies will have the power to force practically every internet company within the reach of U.S. law to help them disappear the MovieTube websites. Regardless of whether those sites are engaged in copyright infringement or not, this is a scary amount of power to confer on the movie studios. And it looks even worse at scale: if orders like this become the norm, internet companies large and small will have to build infrastructure resembling the Great Firewall of China in order to comply.
On top of all this, the studios also fired another shot in their battle against private domain name registrations. In their complaint against Movietube, the studios went to great lengths to demonise domain privacy, accusing the owners of Movietube of “hav[ing] concealed their identities by hiding behind ‘proxy’ or ‘privacy’ registration surrogates.” The MPAA’s claims make domain privacy services sound like a nefarious tool of criminals, where in reality it’s used by those who depend on privacy to voice unpopular opinions on the internet while avoiding harassment. The MPAA’s claims are similar to claims made by the studios, along with major music labels and other entertainment distributors, that have been working to pressure ICANN to eliminate or sharply limit proxy registration providers. EFF joined many other activists last month in a letter to ICANN explaining the potential for harassment and the threats to free speech that would be created by eliminating privacy in domain registrations
Entertainment distributors’ efforts to turn the internet into a copyright and trademark enforcement machine have been abused again and again. Powerful, private interests use the takedown procedures created by Congress to censor critical commentary. Precedents set by RIAA during its lawsuit campaign of 2004-2008 led directly to today’s scourge of copyright trolls. SOPApower will be no different. Of course, the entertainment companies won’t explain to the courts all of the ways the power they seek will be abused. But EFF will, and we hope internet companies will too.