Today, most observers would tell you the piracy fight has reached a standstill. It's easy to take down infringing links from platforms like Google and YouTube, and a string of international prosecutions has turned file-sharing sites like The Pirate Bay and Isohunt into an endangered species. At the same time, more draconian measures that would wipe the sites off the internet entirely have largely failed within the US after a string of legislative defeats that culminated in 2011's SOPA and PIPA fights.
A secret "site-blocking confab" with a senior Comcast engineer
But Hollywood isn't happy with the status quo, new documents purporting to be from the Sony hack show that the MPAA still sees SOPA-style site blocking as a primary goal, a stance that has put them increasingly at odds with Google. Blocking pirate sites is such a focus that the MPAA often rules out more incremental efforts at fighting piracy on the grounds that they would stand in the way of the group's ultimate goal, which is to restrict users from browsing certain web sites. The industry may have lost the fight to make SOPA law, but it’s still aggressively pursuing SOPA’s goals.
On October 8th, Hollywood lawyers met for a secret "site-blocking confab" with a senior Comcast engineer at the MPAA's offices in Sherman Oaks. A leaked agenda from the meeting (pasted below) shows a crash course in the basic technical issues of site-blocking, from IP- and URL-based tactics to the larger political landscape. One session offered "Lessons from the Field," asking, "Have there been issues in site-blocking to date that should inform our thinking?" The group also circulated an earlier technical analysis, which suggested a hybrid model combining IP-based and URL-based models. If US law ever offers a way to wipe copyright-infringing sites off the web, the MPAA will know exactly how to do it.
The failure of SOPA in 2011 seems to have scared the MPAA away from any effort to pass new laws, so instead the group is looking for more aggressive ways to interpret existing law. One email sent by MPAA counsel Steven Fabrizio on August 9th, lays out a number of ways the MPAA might file "no-fault" injunctions that don't require wrongdoing by ISPs, whether through DMCA section 512j or the Federal Rules of Criminal Procedure. (The 512j argument is embedded below.) Either avenue would allow the group to respect the DMCA's safe harbor clauses, while still effectively blocking infringing content from the web. If the legal arguments succeed, Hollywood might get site-blocking powers without having to bother with a SOPA-style law.
Hollywood might get site-blocking powers without having to bother with a SOPA-style law
Another report explores whether site-blocking might be possible through the US International Trade Commission, which administers US trade laws. The ITC could potentially require ISPs to block pirate sites, but according to the emails, the legal reasoning required might prove too risky to try out in court. According to the memo, the idea was first proposed by Jenner & Block on August 3rd, 2012, but has resurfaced over and over in the years since. Ultimately, Fabrizio seems cautious on the approach, saying, "an action in the ITC would require the Commission (and the Federal Circuit on appeal) to resolve a number of novel issues in our favor. As such, the ITC appears to be a more complex and uncertain approach than the federal court approaches we have discussed."
In each case, the MPAA shows a single-minded focus on site-blocking as the most important tool in the fight against piracy — but that focus has also come with a cost. Making the case to block a site like The Pirate Bay requires the studios to treat the site as entirely devoted to illegal content, which has occasionally prevented them from engaging with the sites to fight piracy within the system. In previously published documents, Sony was forced to abandon a novel torrent-based publicity effort for exactly this reason. Earlier this year, one executive suggested the studio seed fake versions of a television show that would redirect users to legal versions of the same content. The idea was met with widespread approval, but was ultimately nixed by legal concerns. "Unfortunately the studio position is that we cannot post content (even promos) on torrent sites," wrote senior executive Pamela Parker. Elaborating on the reason, she said only that it "has something to do with the coordinated efforts with the MPAA."
The result is an all-or-nothing bet by the MPAA. As long as the industry is going after site-blocking powers, it can’t pursue more peaceful measures like seeding promos and steering file-sharers to paid downloads. It also forces the industry to cross swords with Google, as it pushes for more and more control over the open web. It’s made the MPAA a lot of enemies — and so far, the industry doesn’t have much to show for it. But judging by the leaks, Hollywood won't give up the fight any time soon.