On Friday, the major US movie studios quietly backed away from the worst parts of the censorship power-grab they attempted in July in the Paramount v. John Does (MovieTube) case. The studios are still hoping to take MovieTube’s Internet domain names away, but they are no longer asking for an order commanding the entire Internet to act as censors for them—a dangerous proposition that would open the door to more censorship and impede legitimate speech.
The studios, members of the Motion Picture Association of America, sued the anonymous operators of the movie-streaming site MovieTube back in July, accusing them of copyright and trademark infringement. At that time, they asked the court for an immediate order, known as a preliminary injunction. The studios wanted an order that would apply to all “Internet service providers, back-end service providers, sponsored search engine or ad-word providers, merchant account providers, payment processors, shippers, domain name registrar[s] and domain name registries” — in short, the entire Internet. With that order in hand, the studios could force any intermediary, or all of them, into helping make the MovieTube site disappear.
We pointed out, at the time, why an order like the one the studios were asking for was extremely dangerous. The issue is not whether the MovieTube sites were infringing copyright or harming the movie studios, but rather that expanding the legal remedies for infringement will lead to other serious harms. Blocking entire websites almost always censors First Amendment-protected speech, and the power to block entire websites is a small step away from the power to dictate their contents. Conscripting Internet intermediaries to create site-blocking mechanisms makes the Internet less reliable and secure and emboldens other would-be censors, like repressive governments. This is the very power that the Internet blacklist bills SOPA and PIPA would have created, had they passed. In a rare moment of solidarity, Facebook, Google, Tumblr, Twitter, and Yahoo! filed a brief together in the MovieTube case to explain these dangers. They also pointed out that copyright and trademark law protect most Internet platforms against being forced to police or filter content posted by others—vital protections that the studios were trying to bypass.
After the Internet companies filed their brief, the studios seemed to recognize that they had overreached. They dropped their request for a preliminary injunction and waited.
The MovieTube defendants never appeared to defend themselves, so last Friday, the court declared a default, clearing the way for a final resolution of the case. The movie studios then asked the court for a permanent injunction. Surprisingly, the site-blocking powers they are asking for are narrower than their earlier ask. Gone are the references to ISPs, hosting providers, payment networks, ad networks, and search engines. The order now seems to cover only the defendants themselves, their close confederates, and domain name registrars and registries, who would be forced to turn the MovieTube domains over to the studios.
It’s good to see the studios back away from the worst parts of their earlier grab for site-blocking power, although their new proposal still gives us cause for concern. The studios want an order that bans “index[ing] . . .link[ing] to . . . or otherwise us[ing]” their movies “or portion(s) thereof”. In other words, they want an order that makes non-infringing uses of movies, including fair uses, illegal. And they want that order to apply not only to the MovieTube defendants but to “any persons in concert or participation with them.”
That phrase is important. Federal rules let a judge issue orders to bind people who are in “active concert or participation” with the defendant in a case, meaning a confederate or co-conspirator. Recently, some trademark and copyright owners, particularly major entertainment distributors, have tried to broaden the meaning of that phrase to include neutral service providers who handle all kinds of user data. By quietly dropping the key word “active” from their injunction proposal, the studios might still be trying to give themselves broad power to edit the Internet.
Of course, major entertainment companies haven't ended their quest for site-blocking power. They continue to pursue it in court, through federal and state agencies, and by pressuring the companies that run the Internet's domain name system. We’ll be watching for signs of a broader power-grab by the studios in the MovieTube case, and we hope that service providers large and small stand up for their users by refusing to follow site-blocking orders that don’t properly apply to them.