December 18th, 2014

MPAA Wants to Use DMCA to Effectively Bring Back SOPA

In “Nineteen Eighty-Four,” Winston Smith’s job was to rewrite the past for the Inner Party. Mainly, he made people vanish from the pages of history. Anyone who came under the party’s bad graces suddenly disappeared from all media; from all newspaper articles, books, television archives and any other mentions. In Orwell’s world, anyone declared a nonperson was completely erased. S/he never existed.

According to memos leaked from the recent hack on Sony, the big studios would like to employ a Winston Smith to remove domain name listings from ISPs DNS directories, effectively removing entire websites from the Internet for most users, as if they never existed.

The movie moguls want to do this in the name of fighting their old monster-under-the-bed, content piracy. Not surprisingly, they plan on evoking an old enemy of a free and open Internet in the process, the Digital Millennium Copyright Act (DMCA), while attempting to revive at least a part of the ghost of the Stop Online Piracy Act (SOPA), which was killed back in 2011.

What Sony and other studios want to do is use their trade association, the Motion Picture Association of America (MPAA), to employ a tactic that had been included in SOPA and make it apply to the DMCA. Under the plan, the MPAA would use the DMCA to order ISPs to remove DNS records of sites it believes to be illegally offering copyrighted works. This would mean that when a user types in the name of an “offending” site, say “freemoviesnow.com,” instead of resolving to an IP address, a “site not found” message would be returned.

On Tuesday, The Verge published this quote from the purloined memo which spells out details of the plan:

“A takedown notice program, therefore, could threaten ISPs with potential secondary liability in the event that they do not cease connecting users to known infringing material through their own DNS servers. While not making it impossible for users to reach pirate sites (i.e., a user could still use a third-party DNS server), it could make it substantially more complicated for casual infringers to reach pirate sites if their ISPs decline to assist in the routing of communications to those sites.”

There are too many things wrong about this scheme to begin a serious inventory count here. Firstly, this action could effectively break the DNS system upon which the Internet is based, as reported not only by The Verge but by ExtremeTech as well.

The later article also offers this cautionary analysis:

“It would be one thing if DMCA takedowns were weapons of last resort, only deployed in rare circumstances. Instead, we’ve seen many, many cases where corporations and some individuals resort to DMCA attacks to silence critics or to simply assert improper ownership of an asset.”

I can attest to that last quote from personal experience.

About a dozen years ago I wrote a newspaper column on a plagiarism case in which author Stan Tenen and the Meru Foundation had sued Dan Winter. Although Winter had lost the suit and suffered a draconian judgement, it seemed obvious to me and many others that the loss had been due to the failure by Winter to defend himself more than with any merit to the plaintiff’s case. I said as much in the column, which was vetted by the paper’s legal department before being published and distributed without incident.

A couple of month’s later, however, when I posted the article on my personal website, I found myself the subject of a DMCA takedown notice. It didn’t matter that I had used best journalistic practices in writing the piece, that facts were clearly identified against conjecture; Tenen and Meru were still able to use the DMCA to convince Google to omit articles from inclusion in search results because of “copyright infringement.” This caused selected searches on the site to include the message: “In response to a legal request submitted to Google, we have removed 2 result(s) from this page.”

Because the DMCA let Google off the hook legally if they complied with the order, it was easier for them to just drop some search results than to look further to see if plagiarism actually existed. The terms of the DMCA meant that the complaining parties, Tenen and Meru, had no obligation to prove their case. Luckily, I had a good rapport with my hosting company, which examined the facts and felt no need to take the site down or to request that I remove the “offending” articles.

If the DNS shenanigans that the MPAA are now considering had been in place at the time, that wouldn’t have mattered. Google wouldn’t matter, nor would my host matter, because ISPs across the country would be failing to resolve my domain to an IP. I would be effectively gone from the Internet as if I’d never existed.

Luckily, according to ExtremeTech, this plan being cooked by the MPAA currently has a long way to go before it’ll be ready to go to the table.

“In all fairness, the legal team that drafted this document acknowledges that such arguments are currently unlikely to prevail in the current climate.”

That’s the good news. The bad news is that this is even being considered.

Now would be the time to nip this in the bud, to foil this plan so that Winston Smith exclaims, “Rats!”

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