By Dennis D. McDonald

Based on a review of emails hacked from Sony, The Verge’s Project Goliath: Inside Hollywood’s Secret War Against Google describes an organized effort by the Motion Picture Association of America (MPAA) to influence how internet service providers (ISPs) treat alleged copyright violations. 

MPAA’s approach appears to be to work with state attorneys general to promote the “legalized” blocking of Internet traffic that support transmission of potentially infringing and unauthorized copying of digitized copyrighted materials (e.g., movies).

One reason Google (“Goliath”) is targeted by MPAA is that Google’s search service can support the location of potentially offending files. Google (and others) oppose such efforts to restrict such traffic, hence the MPAA’s “war against Google.”

The Verge’s review of the hacked Sony emails reveals that MPAA has funded efforts to influence various U.S. state attorneys general to take action against internet service providers (ISPs) that are being used to transmit infringing copies.

Federal intellectual property law in the past did not appear to be explicit about what actions could be taken in advance of an explicit determination of infringement by a court. As a result of changes in Federal law, administrative processes (such as “DMCA take-downs”) have been developed to speed up the formal process by which alleged infringing files can be blocked (or restored if the original takedown is determined to be in error). Google’s YouTube service is a frequent target of such takedown notices when copies of unlicensed copyrighted materials are uploaded. Errors are made occasionally; Leo Laporte was once a frequent critic of DMCA given his tech news empire’s reliance for online video distribution and the occasional spurious “takedown” notices he occasionally received.

It does appear from the Sony emails that the MPAA has attempted to recruit state legal enforcement mechanisms to control infringing websites as administrative actions. The Verge article does not provide details about what specific forms this influence takes although the impression is made that MPAA is making the most of working with “friendly” state attorneys general.

What does appear clear from a review of the emails is that the MPAA through its lobbying and funding is working with states to advance efforts to block selected Internet traffic through ISPs. It was doing so secretly since presumably  (a) it did not want Google to know about its tactics and (b) it realized that such “lobbying,” should it become public, would be closely scrutinized especially by those who feel that industry should not be so straightforward and obvious about its efforts to influence how our legal system operates.

I’m of two minds about this industry attempt to influence how the law and the Internet operate.

On the one hand, let’s not be naïve. A lot of industry lobbying is like this. Special interest groups craft legislation and work directly with legislators and administration officials at all levels to influence how laws are written and enforced; ‘twas ever thus. The MPAA may be embarrassed that it has been revealed as proposing large sums of money to influence state law but it’s not the only organization that does this. The insurance industry, pharmaceutical manufacturers, gun manufacturers, and others all have state legislation programs that they don’t openly advertise as a matter of course.

On the other hand, the MPAA knows that any efforts to “censor” Internet traffic via ISPs will be resisted not only by Google but by a wide range of interest groups that want to keep government out of regulating which content is transmitted via the web. “Slippery slope” arguments are important to such groups. The distance between restricting content due to copyright status and content due to political content is a narrow one indeed.  Once we allow one industry to carve out exemptions and then streamlinine how certain files can be removed from the web, what’s to keep other industries from proposing more categories of information that can be blocked in advance?

Copyright © 2015 by Dennis D. McDonald