The Democratic Party has appointed a committee tasked with drafting the party’s platform. The 15-member panel includes MPAA lobbyist Howard L Berman, an attorney and former U.S. Representative who not only co-sponsored SOPA and tried to enshrine P2P network sabotage in law, but has also been funded by Hollywood throughout his career.
For many years, major U.S. entertainment companies have been trying to gain the power to make websites disappear from the Internet at their say-so. The Internet blacklist bills SOPA and PIPA were part of that strategy, along with the Department of Homeland Security’s project of seizing websites that someone accused of copyright infringement. Hollywood’s quest for more censorship power was on display again today at a House of Representatives committee hearing that was supposed to be discussing reforms at ICANN, the nonprofit organization that oversees the Internet’s domain name system. Amidst a discussion of new top-level domain names (such as “.sucks”), a lawyer representing the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), and other groups told the House Judiciary Committee’s Internet subcommittee that ICANN should force the companies that register domain names to suspend domains based on accusations of copyright infringement.
If this sounds familiar, that’s probably because it’s exactly the sort of system that the disastrous SOPA bill would have created—one where entire websites can be forced to go dark, without a day in court, because some material on the site is accused of infringing a copyright. We wrote about this strategy in March, when it appeared in the US Trade Representative’s “Notorious Markets List,” also at Hollywood’s request.
This new strategy to obtain censorship power is based on vague language in the agreements that ICANN made with the companies selling names in new top-level domains like .website, .ninja, and .biz. The agreements say that domain name registrars “shall take reasonable and prompt steps to investigate and respond appropriately to any reports of abuse.” The agreements don’t mention copyright, or require domain registrars to disable a domain without a court order. But that didn’t stop Steve Metalitz, the lawyer for a coalition that includes MPAA and RIAA, from arguing that “reports of abuse that are submitted to registrars by right-holders” should lead to “investigation” and “redress.” Of course, a registrar like Tucows or Namecheap has no control over the contents of websites—they simply register domain names. From a technical standpoint, the only “redress” a registrar can offer to a copyright holder such as a movie studio is to suspend a site’s domain name, making the entire site inaccessible to most visitors.
Here’s a suggestion: if you’re a Congressional Representative whose job it is to regulate all sorts of important things, and you state in a hearing “I don’t know anything about this stuff” before spouting off on your crazy opinions about how something must be done… maybe, just maybe educate yourself before confirming to the world that you’re ignorant of the very thing you’re regulating. We famously saw this during the SOPA debate, where Representatives seemed proud of their own ignorance. As we noted at the time, it’s simply not okay for Congress to be proud of their own ignorance of technology, especially when they’re in charge of regulating it. But things have not changed all that much apparently.
We already wrote about FBI Director James Comey’s bizarre Congressional hearing earlier this week, in which he warned those in attendance about the horrible world that faced us when the FBI couldn’t spy on absolutely everything. But the folks holding the hearing were suckers for this, and none more so than Rep. John Carter. The ACLU’s Chris Soghoian alerts us to the following clip of Carter at that hearing, which he says “is going to be the new ‘The Internet is a Series of Tubes'” video. I would embed the video, but for reasons that are beyond me, C-SPAN doesn’t use HTTPS so an embed wouldn’t work here (randomly: Soghoian should offer CSPAN a bottle of whiskey to fix that…).
Here’s the basic transcript though:
Rep. John Carter: I’m chairman of Homeland Security Appropriations. I serve on Defense and Defense subcommittees. We have all the national defense issues with cyber. And now, sir, on this wonderful committee. So cyber is just pounding me from every direction. And every time I hear something, or something just pops in my head — because I don’t know anything about this stuff. If they can do that to a cell phone why can’t they do that to every computer in the country, and nobody can get into it? If that’s the case, then that’s the solution to the invaders from around the world who are trying to get in here. [Smug grin]
FBI Director Comey: [Chuckle and gives smug, knowing grin]
Carter: Then if that gets to be the wall, the stone wall, and even the law can’t penetrate it, then aren’t we creating an instrument [that] is the perfect tool for lawlessness. This is a very interesting conundrum that’s developing in the law. If they, at their own will at Microsoft can put something in a computer — or at Apple — can put something in thatcomputer [points on a smartphone], which it is, to where nobody but that owner can open it, then why can’t they put it in the big giant super computers, that nobody but that owner can open it. And everything gets locked away secretly. And that sounds like a solution to this great cyber attack problem, but in turn it allows those who would do us harm [chuckles] to have a tool to do a great deal of harm where law enforcement can’t reach them. This is a problem that’s gotta be solved.
As we’ve noted many times in the past, the entertainment industry likes to take a multi-pronged approach to its quixotic efforts to “stop piracy” (which could be much better dealt with by simply giving the public more of what they want). Working on federal copyright law to continually expand it is one main strategy, but there are a lot of others as well, including pressuring private companies to voluntarily censor content, getting international trade agreements to force laws to change and… getting random state laws to force through big changes quietly. This last strategy has come into focus lately, especially with the rise of so-called “true origin” bills, that are almost certainly unconstitutional, but are rapidly popping up in a variety of states. This is actually a replay of an old strategy. I remember similar “true origin” efforts being pushed about a decade ago, and I’d thought they’d completely died out… but they’re back.
The way they work is pretty simple: they outlaw anonymity on the internet if your website distributes any kind of audiovisual work. The point of this is twofold: one, for those who “register” and reveal their name and address, it makes it easier for the RIAAs and MPAAs of the world to sue a site for copyright infringement. And, for those who don’t reveal their names, the RIAA and can ask the states to prosecute the site owners for failing to reveal their names.
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 wouldthink 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.
There has been an increasing push by the legacy entertainment industry to get “full site blocking,” in which companies can declare sites they don’t like as “rogue” and order ISPs to block all access to them. This was the whole point of SOPA. And while that law failed in the US, the entertainment industry is still interested in figuring out other paths to making it happen. Courts in many other countries have been much more receptive to this form of censorship — and have regularly ordered ISPs to block sites. This is true in Sweden as well, but it appears that one ISP, Bredbandsbolaget, is going to fight back for as long as it can, according to Torrentfreak:
“It is an important principle that Internet providers of Internet infrastructure shall not be held responsible for the content that is transported over the Internet. In the same way that the Post should not meddle in what people write in the letter or where people send letters,” Commercial Director Mats Lundquist says.
“We stick to our starting point that our customers have the right to freely communicate and share information over the internet.”
Of course, this means that they’ll be going to court later this year. Torrentfreak notes that the MPAA is pulling the strings behind this, of course:
Internal movie industry documents obtained by TorrentFreak reveal that IFPI and the Swedish film producers have signed a binding agreement which compels them to conduct and finance the case. However, the MPAA is exerting its influence while providing its own evidence and know-how behind the scenes.
Also of interest is that IFPI took a decision to sue Bredbandsbolaget and not Teliasonera (described by the MPAA as “the largest and also very actively ‘copy-left’ Swedish ISP”). The reason for that was that IFPI’s counsel represents Teliasonera in other matters which would have raised a conflict of interest.
Meanwhile, we’re still left wondering how any of this encourages people to actually spend more money to support content creators.
As part of the annual joke from the USTR known as the Special 301 Report (which is so ridiculous that even top people at the US Copyright Office mock the USTR about it), the USTR publishes what it calls its “notorious markets list.” The Special 301 Report, if you don’t know, is the report where big companies whine to the USTR about countries those companies feel don’t respect US intellectual property rights enough. The USTR collects all of those whinings, and rewrites it as a report to send out to US diplomats to try to shame countries into “cracking down” on the behaviors that these companies don’t like — no matter whether or not it complies with US or local intellectual property laws. Starting a few years ago, the USTR broke out a separate list of online websites, which it refers to as “notorious markets.” It started doing this in 2011, in a process that was intended to support SOPA (because SOPA supporters wanted the list of “rogue” sites that would be banned under SOPA).
The USTR itself admits that there’s basically no objective or legal rationale behind its process:
The List does not purport to reflect findings of legal violations, nor does it reflect the U.S. Government’s analysis of the general IPR protection and enforcement climate in the country concerned.
The latest Notorious Markets list is out (technically, it’s the “2014 Out-of-Cycle Review of Notorious Markets”) and it’s full of the usual misleading crap. It’s quite amazing to watch US government officials celebrating the censorship of online forums and websites, calling it “progress.” Free expression is not particularly important to the USTR when the MPAA complains about it, apparently.
But the really astounding move in this latest report is by the USTR to start including domain registrars as “notorious markets,” including one of the most popular and widely used registrar in the world, Tucows:
This year, USTR is highlighting the issue of certain domain name registrars. Registrars are the commercial entities or organizations that manage the registration of Internet domain names, and some of them reportedly are playing a role in supporting counterfeiting and piracy online.
And here is the entry against Tucows:
Tucows.com: Based in Canada, Tucows is reportedly an example of a registrar that fails to take action when notified of its clients’ infringing activity. Consistent with the discussion above, USTR encourages the operators of Tucows to work with relevant stakeholders to address complaints.