Once again, major record labels are asking a court to give them power over the Internet’s basic infrastructure. This is the very power that Congress has refused to give them, and the very power they have proven unable and unwilling to use responsibly. This time, their alleged target is the website Youtube-MP3.org, a site that extracts the audio tracks from YouTube videos and allows users to download them. But as in other recent lawsuits, the labels’ real target appears to be nearly every company that operates or supports the operation of the Internet. The labels are seeking a court order that would bind all of these companies to assist the labels in making Youtube-MP3 disappear from the Internet.
Even if that website is found to be liable for copyright infringement, the law doesn’t give copyright or trademark holders such sweeping power to edit the Internet. And it never should.
Record labels have been filing many lawsuits against websites that they deem to be connected to copyright infringement. These sites, run from outside the U.S., don’t bother appearing in U.S. court to defend themselves—and the labels know this. When one party doesn’t show up to court and the other wins by default, judges often grant the winning party everything they ask for. Record labels, along with luxury brands and other frequent filers of copyright and trademark suits, have been using this tactic to write sweeping orders that claim to bind every kind of Internet intermediary: hosting providers, DNS registrars and registries, CDNs, Internet service providers, and more. Some of these requested orders claim to cover payment providers, search engines, and even Web browsers. Judges often sign these orders without much scrutiny.
Then, the labels and brands, armed with an overbroad and often, in our view, legally invalid order they wrote themselves, try to force Internet intermediaries into helping make the website disappear, and sometimes to filter their services to keep the website from coming back. The central defect of these orders is that they purport to bind third-parties who have no notice or opportunity to challenge them before they issue. Some intermediaries, faced with these orders, cut off websites without asking questions. Others, including Automattic (WordPress), CloudFlare, and the domain name registrar Tucows, have stood up for Internet users by insisting on proper, legally binding orders. A group of major Internet companies including Google, Facebook, Tumblr, Twitter, and Yahoo! also pushed back against this abuse in an amicus brief last year.
Still, the campaign for website-blocking power continues. In the lawsuit filed today, a group of major record labels including UMG, Warner, and Sony sued the German company behind YouTube-MP3, alleging various theories of copyright infringement and a claim under Section 1201 of the DMCA. It remains to be seen whether the site is in fact liable for copyright infringement. But whether or not the site is liable, that's no excuse for throwing due process out the window. The labels are again grabbing for power to conscript Internet intermediaries as content police. Among other demands, the labels’ are asking the court for an order:
(A) enjoining Defendants and all third parties with notice of the Order, including any Web hosts, domain-name registrars, domain name registries, and proxy or reverse proxy services, and their administrators, from facilitating access to any or all domain names, URLs and websites (including, without limitation, www.youtube-mp3.org) through which Defendants infringe Plaintiffs’ copyrights;
(C) enjoining all third parties with notice of the Order from maintaining, operating, or providing advertising, financial, technical, or other support to YTMP3 and any
other domain names, URLs, or websites through which Defendants infringe
Plaintiffs’ copyrights, including without limitation www.youtubemp3.org; and enjoining all third-party distributors of applications, toolbars or similar software with notice of the Order from distributing any applications, toolbars, or similar software applications that interoperate with any domain names, URLs, or websites through which Defendants infringe Plaintiffs’ copyrights, including without limitation www.youtube-mp3.org.
As we’ve explained before in other cases, this request is a gross overreach. Federal court rules have a narrow provision that lets successful plaintiffs request a court order against a defendant and people in “active concert and participation” with them, meaning a close associate or co-conspirator. That provision doesn’t allow for orders that bind every vendor providing services to a defendant, especially those with no direct business relationship. So the litany of intermediaries listed in the labels’ complaint are not within the court’s power to bind.
What the complaint asks for is also far broader than the law allows. By asking all of those intermediaries to block all “websites through which Defendants infringe Plaintiffs’ copyrights,” without specifying the URLs, the labels are seeking to conscript all of these companies as investigators who must chase down the defendants and block every website they use, under any name. Neither copyright nor trademark law allows courts to put this burden on Internet intermediaries, and for good reason: it’s prohibitively expensive for many, it inevitably leads to blocking of lawful speech, and it gives a big advantage to established players.
Finally, and perhaps worst of all, the record labels want to ban “any applications” that might “interoperate” with with youtube-mp3.org and any other websites owned by the defendants. That would seem to require every Web browser, mobile app, and Internet-connected device to block an ever-changing list of websites. Left unchecked, these kinds of orders could become a mechanism whereby the content industry gets veto power over online innovation.
Complying with orders like these will, over time, require Internet intermediaries to build new architectures of censorship that can block customers, sites, or applications whenever a super-injunction like this one requires it. Building such mechanisms will tempt other copyright and trademark holders, and many other special interests, into trying to use them to control the speech of others. That’s partly why court orders must be specific, and can’t bind the entire world.
While Youtube-MP3 might be a neutral tool with lawful purposes, it might also run afoul of the law--this lawsuit will determine that. But whether or not the site is judged to be infringing, the legal limits on court orders that can silence speech exist to protect everyone. And if they are eroded in cases like this one, everyone’s speech will be less free. That’s why we stand up to site-blocking power grabs like the one in this case, and we hope Internet companies that look out for their users will, too.
Update (9/27/16): RIAA posted a press release on its website, confirming that the true purpose behind this lawsuit is to compel a vast array of Internet intermediaries to help make websites disappear. Cary Sherman, the Chairman and CEO of RIAA, directed his comments to “everyone in the music ecosystem,” including search engines and those who publish “app charts.” Along with the demands in the lawsuit itself, these comments make clear that record labels want to use the judicial process to gain regulatory power over the entire Internet.