Studios Are Going After Piracy Again, Potentially Reigniting Fight Over Free Speech

Winston Cho
·6 min read

In 2011, at the tail end of the golden age of digital piracy, Hollywood mobilized to crack down on copyright infringement through a pair of bills that would’ve restricted access to sites that host pirated content. The legislation was met with fierce opposition from Silicon Valley and online free speech advocates, who argued that it would’ve effectively promoted censorship, leading to a series of coordinated protests that included Wikipedia going dark and Google blacking out its logo. The proposed laws died soon after.

Studios are again ramping up their war on piracy, this time attempting to avoid the pitfalls in similar efforts more than a decade ago.

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Motion Picture Association chief executive Charles Rivkin on Tuesday announced at CinemaCon that the trade group representing the major studios will work with members of Congress to enact legislation allowing companies across the media and entertainment industries to move for the blocking of access to websites that facilitate the sharing of pirated movies and TV shows.

“Piracy is clearly not a victimless crime,” Rivkin said. “Across the globe, it undermines everyone who works in production — actors, directors, writers, carpenters, craftspeople and more.”

The announcement is part of a renewed bid to block websites accused of hosting copyright-infringing content that enable piracy. Depending on how the legislation is constructed, it also could allow bad actors to weaponize copyright law in a way that stifles free speech across the internet.

“Measures like this are inevitably used to censor lawful speech,” says Electronic Frontier Foundation intellectual property litigation director Mitch Stoltz. “Because they afford an easy way to make something disappear from the internet, they’re a magnet for abuse.”

If the effort sounds familiar, Hollywood in 2011 backed legislation called the Stop Online Piracy Act and the Protect Intellectual Property Act. Media and entertainment companies maintained that their only goal was to go after foreign websites that distribute unauthorized copies of content. Servers for The Pirate Bay, for example, were located in Sweden, making it harder for U.S. companies to take action against the company. SOPA’s intent was to cut off user access to piracy sites by requiring providers to withhold services (think Google in search and PayPal in payment processing).

Legislation has yet to be proposed but under MPA’s vision, a process overseen by a federal judge will be created in which a copyright holder can move for an order to block a certain site, says MPA senior vp and associate general counsel Ben Sheffner. If they disagree, internet service providers and members of the public will have a chance to respond. The burden will be on the copyright owner to prove that the site is dedicated to infringement and enabling piracy, with the entire process taking place in a matter of months opposed to years if a studio were to initiate a lawsuit. If an order is granted, it’ll be left to the ISP or other intermediaries on how to deny consumers access to the site.

In typical copyright litigation, a court first determines whether the defendant has violated any of the plaintiff’s rights. If there’s liability, a judge then orders that the infringement cease. A case under this so-called “no-fault regime” would proceed differently, with the copyright holder not suing or seeking damages in the traditional sense but rather solely seeking an order for intermediaries that connect the pirate site and users to halt the infringement. “Let’s be clear: This approach focuses only on sites featuring stolen materials,” Rivkin said. “There are no gray areas here.”

Asked how the proposed law will be different from SOPA, Sheffner says that it will be a “much narrower piece of legislation.”

In 2012, SOPA was criticized for forcing intermediaries into a role in which they’re making editorial decisions on content. Google, Reddit, AT&T, Cox and Verizon didn’t respond to requests for comment.

The MPA points to identical site-blocking legislation in other countries. Over the past decade, more than 50 countries including the U.K., Canada and South Korea have enacted regimes that authorize courts or administrative agencies to disable access to websites dedicated to piracy, according to the group. Since then, more than 90,000 domains used by over 27,000 websites engaged in copyright infringement have been taken down, said MPA general counsel Karyn Temple in testimony before legislators last year, noting that piracy cost the economy up to 560,000 jobs.

She added, “These laws work. They result in fewer visits to piracy sites. Even more important, they result in more visits to legal sites. And none of the predictions about the purported ill effects of site blocking have come true. Examples of over-blocking — blocking of non-infringing content — have been rare to the point of nonexistence. Site blocking has not stifled free expression.”

Enforcement mechanisms to take down copyrighted content on third-party platforms are provided for in the Digital Millennium Copyright Act. Copyright holders can, for example, send YouTube a notice that a video is infringing on their intellectual property. YouTube, which is protected from liability as long as it takes certain steps to remove the content, then notifies the user, who can dispute the claim. The MPA is pushing further legislation because the DMCA is largely ineffective against foreign entities.

Actions taken under the DMCA may offer a window into how the law may be utilized, if it passes. In 2018, Sony sent Facebook a notice that musician James Rhodes, who was performing a song by Bach, was infringing on its copyright to the performance (Bach songs are in the public domain as long as it’s an original performance). After Facebook muted the video, Rhodes disputed the claim, explaining that “this is my own performance of Bach” and that he “owned all the rights.” Sony rejected the reasoning. His video was only restored after he took to Twitter and emailed executives at Sony. “What about the thousands of other musicians without that reach …?” he tweeted.

The MPA in 2023 also sent a takedown notice over an individual who made a playlist of Pluto TV links allowing for other apps to play content — with the ads — outside of its app, much in the same way a DVD can be played on any player. The group claimed the playlist, which gathered publicly available information in a single repository, was being used to “engage in massive infringement of copyrighted motion pictures and television shows.”

“Any entity that wants information censored will want to use it,” Stoltz says. “There’s no way to limit this [legislation] to piracy or egregious piracy or some other formulation of narrow social harm.”

While acknowledging deficiencies with the DMCA, Stoltz stresses, “The way to reduce infringement is to provide content through lawful channels that are user friendly and appropriately priced and that people want to use.”

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