Project Goliath: Inside Hollywood's secret war against Google

SOPA was just the beginning

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What is "Goliath" and why are Hollywood’s most powerful lawyers working to kill it?

In dozens of recently leaked emails from the Sony hack, lawyers from the MPAA and six major studios talk about "Goliath" as their most powerful and politically relevant adversary in the fight against online piracy. They speak of "the problems created by Goliath," and worry "what Goliath could do if it went on the attack." Together they mount a multi-year effort to "respond to / rebut Goliath’s public advocacy" and "amplify negative Goliath news." And while it’s hard to say for sure, significant evidence suggests that the studio efforts may be directed against Google.

At the beginning of this year, the MPAA and six studios — Universal, Sony, Fox, Paramount, Warner Bros., and Disney — joined together to begin a new campaign against piracy on the web. A January 25th email lays out a series of legally and technically ambitious new tools, including new measures that would block infringing sites from reaching customers of many major ISPs. Documents reviewed by The Verge detail the beginning of a new plan to attack piracy after the federal SOPA efforts failed by working with state attorneys general and major ISPs like Comcast to expand court power over the way data is served. If successful, the result would fundamentally alter the open nature of the internet.

mpaa goliath

This is the January 25th email from MPAA Global General Counsel Steven Fabrizio, laying out the group's Goliath strategy:

Site Blocking/ISP Measures - INPUT REQUESTED - PRIVILEGED

We did not get to have a full discussion of site blocking during our January meeting. However, I believe I have spoken with enough of you individually to have a good read of the room as to our authority to proceed with the necessary analysis. In this email, I outline the planned scope of analysis. Because the analysis will involve some expense for technical experts, consultants and lawyers (likely totalling in the $200-300k range), I want to make sure we are on the same page. If anyone disagrees with the plan, as described below, please let me know. Otherwise, we will proceed, with the goal of having something to present to you at our March meeting. (My goal is to use our February meeting to present and discuss a detailed US Goliath strategy.)

SCOPE 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.

ANALYSIS The analyses that remain to be done fall into three general categories:

Legal Analyses. The legal analyses that remain to be completed are the smallest part of the project. We need to finalize the All Writs Act research and confirm that developments in the law since the time of previous 512(j) analyses do not materially affect the existing analyses. In the event we recommend or present litigation options, we will also consider tactical issues, including issues related to venue and the interplay of the All Writs Act and 512(j).

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.

Political Analyses. Here, we mean political in the broadest sense. There are important Hill issues to consider (e.g., how a strategy might impact the copyright review process). We also need to consider ISP relations issues (e.g., whether a strategy might impact the Copyright Alert program, or any progress we have been making to secure voluntary ISP assistance). Finally, in the post-SOPA world, we need to consider the extent to which a strategy presents a risk of a public relations backlash (e.g., whether a strategy might invigorate and galvanize the anti-copyright forces we saw in the SOPA debates, and what ultimate impact that might have). Each of these issues are like to have considerations that cut in many directions. To get a comprehensive assessment and weigh them in context, we will work closely with the MPAA Policy and Communications teams (and, with them, will solicit input from the appropriate studio policy and communications people).

Hopefully, at the conclusion of this set of analyses, we will be in a position to make a decision that is informed by all considerations of consequence.

If you have any questions, or want to talk through any of this, don’t hesitate to call. Best,
SBF