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Entertainment Distributors’ Push For Site-Blocking Power Get More Extreme

DEEPLINKS BLOG
October 15, 2015

Entertainment Distributors’ Push For Site-Blocking Power Get More Extreme

Major entertainment companies are asking the courts for more and more power over the basic operation of the Internet. On Tuesday, the major U.S. record labels filed suit against a Florida startup called Aurous, which is developing a music player application that uses BitTorrent. We’ve all seen this movie before—the labels’ complaint looks similar to the ones they once filed against Napster, Grokster, Aimster, Kazaa, and other music sharing applications. But there’s a new twist: the labels want the court to give them the power to force “all third-party distributors of applications”—yes, all of them—to design their software to block any domain name or website used by Aurous. They want the same power over every Internet intermediary or other service provider that might “support” Aurous in some way. They want to take Aurous’s domain name away from it. And they will likely ask for all of these things to happen before trial or a final court judgment.

According to recent news reports, Aurous is a music player application with a slick user interface that seems inspired by Spotify’s. Aurous’s creator, Andrew Sampson, has said that the program will interface with various music services that the user might subscribe to, and will also play locally stored music. But the labels’ complaint says that Aurous connects by default to a Russia-based music streaming and download site called Pleer, or alternatively to several other “known pirate sites.” The record labels compare Aurous to Popcorn Time, another BitTorrent client with a simple, compelling user interface.

Many of the labels’ accusations mirror those they leveled against Grokster and other bygone file-sharing applications. One is that the software makes “streaming and downloading of infringing content over the Internet so easy that anyone can use it.” In other words, the labels are arguing that although anyone can download music, including infringing copies, using the software of their choice, and even though BitTorrent is a value-neutral technology with important lawful uses, anyone who makes BitTorrent easier to use should be responsible when the technology is misused. That’s a troubling argument, and one the courts have often rejected.

The labels are also arguing that the makers of Aurous should be liable for massive damages because they could have built copyright filters into the program. The upshot of that argument is that anyone building technology that touches copyrighted works would be required to include filters, which will inevitably block legitimate downloads while failing to stop infringement. U.S. courts have wisely rejected calls for mandatory filtering.

The labels also try to cast a pall of suspicion over privacy-enhancing technology. Their complaint points out that Aurous includes built-in virtual private network (VPN) software, which the labels call “optimizing [Aurous’s] usefulness for infringement.” Many people use VPNs to secure their communications against surveillance and to guard their privacy. Painting VPN use as inherently suspicious is a boon to prying and repressive governments, who seek to destroy privacy by associating it with wrongdoing.

Still, the most troublesome part of the labels’ complaint is the remedies they ask for: a temporary restraining order as well as a permanent injunction that will bind “all third parties” and require them to help make Aurous disappear from the Internet. They’re asking for an order “enjoining all third parties with knowledge of the order from maintaining, operating, or providing advertising, financial, technical, or other support to Defendants.”

We’ve seen just how broadly the entertainment companies would like to define “support” for an Internet service they want to ban. In the “New Grooveshark” case earlier this year, the labels tried (without success) to force the Web optimization and security company CloudFlare to filter its users and ban anyone who used the word “Grooveshark” in a domain name. And in the “MovieTube” case, movie studios asked for an order binding every domain name registrar, registry, ISP, hosting provider, and social network, though they withdrew that request when major Internet companies voiced their concerns with the court.

This kind of request is part of a strategy by major entertainment companies to get through the courts what they failed to get from Congress with the SOPA/PIPA bills: the power to decide when a website or application is “rogue” and to force all kinds of Internet intermediaries to block and filter them, preferably without a trial or final judgment from a court.

The problems this would cause are the same as they were in 2011 when Congress considered creating such a censorship power—and rejected it. Co-opting the Internet’s infrastructure to regulate content (whether for copyright infringement, blasphemy, or criticism of government) makes the Internet less reliable and secure, and would destroy trust in the mechanisms (like the domain name system) that keep the Internet from fracturing into inaccessible local fiefdoms.

The courts should reject site-blocking power grabs like this one, and we’re confident that they will—if they get the facts and are informed of the harms. We hope that Internet companies of all sorts will stand up to the site-blocking agenda by fighting back when they receive court orders like the one the labels are asking for in this case, and by joining friend-of-the-court briefs.

Edited 10/19 to reflect that Pleer is not a BitTorrent tracker site.

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