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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.

MPAA logo

MPAA Logo

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!”

Christine Hall has been a journalist since 1971. In 2001, she began writing a weekly consumer computer column and started covering Linux and FOSS in 2002 after making the switch to GNU/Linux. Follow her on Twitter: @BrideOfLinux

10 comments to MPAA Wants to Use DMCA to Effectively Bring Back SOPA

  • Roger_Babson_05_Sep_1929

    “Rather than bang an empty drum
    of protest, citizen be dumb!”

    –Peter Weiss

  • Mike

    If government was interested in doing what’s right, they’d abolish the DMCA and outlaw groups like the MPAA. Groups like the MPAA are a cancer on free society and draconian laws like the DMCA have no place in the world outside police states like North Korea.

  • Mike

    Wouldn’t it be poetic if the Sony hack was made possible by a Sony machine infected by their little piece of malware they inflicted on the rest of the world a few years back:

    https://en.wikipedia.org/wiki/Sony_BMG_copy_protection_rootkit_scandal

  • Alberto Bundy

    in the end there will never be a win for them. they can take down all the sites they want, but they cant take away the physicality of taking a blank disc and burning a copy from the original. Their failure from the getgo is hysterical at best.

  • Wogster

    The whole issue with piracy would go away if media producers used sane pricing structures. Similar to what the music industry does with services like iTunes, where a song costs 99¢. When a DVD or Blu-Ray comes out at $49.95, few people are willing to spend that, However if the production company made a HD digital download available for say $3, and the DVD for $4,95 they would see piracy wiped out over night.

  • db

    All this will do is have some clever person keep their own records (their own DNS server) so it wouldn’t matter anyway. That would intern lead to new DNS services that people would pay for thus circumventing what ever MPAA thinks they can do.

    All that a DNS server does it map an IP to a name, if that is it then a walk around will happen. I live in Canada and we have a ISP called Rogers who last year had a “big outage” which was really a DNS server had gone down, replacing the default DNS to something like Google’s DNS magically fixed the “downed service”. This would be no different, look at geo location IP and how companies like netflix, hbo, amc, … try to block people from accessing content when they are coming from different countries, well that dumb approach has created a business opportunity for VPN/Proxy services.

    If they block it, they will want it even more. There will always be a way around things. The “because I said so” childish behaviour will never win and a more mature approach is required, what that is I can’t really say but what MPAA is trying to do isn’t it.

  • @db You can always use OpenDNS. However, that’s not going to help an effected website, since the average user not only doesn’t know about alternative DNS servers, but wouldn’t know how to change which one their OS uses.

  • Christine,

    I imagine if the MPAA gets their way that alternative DNS structures will spring up like mushrooms after a rain and that a whole boatload of tools to help users quickly flip to these unrestricted systems will follow…leaving ISP’s out of the DNS business except for stragglers.

    Congress: Sure let’s break the internet on a fundamental level just to satisfy a few whining media companies with deep pockets.

  • So, I’ve been at this DMCA thing for about 15 years now. It’s discouraging but I have some info.

    1. Let’s not use domain names. Would that make it tougher for them? Just a Thought.

    2. DMCA abuse is rampant. Let’s set up sites with names of files that are not infringing.

    3. File counter notifications as it is a violation of the DMCA to file a false notification.

    Finally, and this is the most messed up part – Imagine if your ISP could care less if the DMCA notification was legit or not. Imagine if just receiving a notification meant disruption of service, denial of service or potential future denial of service based on your ISP TERMS OF AGREEMENT. Be careful out there!

    I could go on and on about injustice regarding the DMCA. Even I was taken down for posting my DMCA book online which I owned the electronic rights. That was 2001 and they used Terms of Service. Seriously.

    I do have some old vids from protests in 2000/2001. Going to put a little something together. Not a pro but here’s a teaser.

  • […] MPAA Wants to Use DMCA to Effectively Bring Back SOPA by Christine Hall. Published December 18, 2014. The MPAA has a plan to protect its copyrights which […]