Even as the number of ways to legally watch film and television online continue to multiply, piracy stays firmly stuck in the craw of industry bodies determined to stem the flow of wily users pirating Nashville (RIP, terrible, beautiful show).
Associations representing movie studios, recording artists and other rights holders are switching tack from unsuccessful punitive measures like prosecuting individual users and issuing blanket takedown notices, to forging voluntary alliances with private companies that are hosting infringing content on their web domains. The domain registry that owns .movie, for example, recently agreed to kill off websites registered with it if they're hosting pirated movies.
The Motion Picture Association of America and Radix (which owns .site, .music, .tech, and .website, among others) have announced a partnership where the domain registry service will blacklist sites on any of its domains found to be hosting copyright infringing materials, acting on complaints lodged by the MPAA. This is a deal almost identical to the one the MPAA signed earlier in the year with the US-based Donuts domain registry, which owns .movie, among other domains. (Radix and Donuts are both generic top-level domain (gTLD) registries.)
As voluntary agreements between private commercial entities, these deals fall outside the purview of government regulation. But there do appear to be some restrictions. Documents obtained by TorrentFreak and confirmed by the MPAA describe several steps to prove a website is hosting “clear and pervasive copyright infringement.” Donuts will only act on complaints filed by real life people at the MPAA, not on algorithm-based or mass data-scraped submissions for takedowns, the same conditions as the Radix deal. The MPAA must also prove that it has made contact with the registrar and ISP of the allegedly infringing domain, proving which laws have been broken and then escalating the complaint with Donuts or Radix only once other remedies have failed. These steps are intended to bestow the MPAA with the title of “trusted notifier,” a role that requires the association to act in good faith.
This aspect of the partnerships has raised the ire of the civil liberties organization Electronic Frontier Foundation (EFF). The EFF is concerned that leaving these extra-judicial decisions to private enterprise is not the best way to police infringing content because the punishment of blacklisting could have unintended consequences, censoring sites that serve other purposes. Removing a whole domain and everything on it rather than only content found to be infringing could have a chilling effect on free speech, and not leave remedy for sites that are wrongly removed.
Writing on the foundation’s website, EFF senior staff attorney Mitch Stoltz said:
“Taking away a website’s domain name means interrupting all of the speech that takes place on that site. It creates a much greater danger of censorship than suppressing individual pages or files. And the domain name system only works so long as most Internet users trust it to direct them to the websites they ask for, not only those that politically connected companies and repressive governments want them to see. That’s why domain registries and registrars shouldn’t take part in policing the contents of websites and services.”
On the question of transparency in its blacklisting processes, Mason Cole, Donut’s head spokesperson told Fusion, “We wanted to make sure that there’s a process for the registrant to be heard, so that if allegedly infringing content is brought to our attention, there has to be an issue of due process where the person holding that domain name has a chance to have his or her side heard. We’re not tilting one way or another. We don’t just receive a complaint and immediately adjudicate it, we want to make sure that both sides are heard.”
How to protect the copyrights of producers while not silencing legitimate discourse increasingly relies on ad-hoc remedies outside of the legal system. Cole said that Donuts plans to make the non-proprietary aspects of the decision process public through the company’s website “in the next few weeks.” Whether or not this transparency will adequately satisfy critics of the deals remains to be seen.
This raises questions similar to those around Facebook’s Trending Topics curation controversy. Are private Internet companies that provide essential services in effect utilities, or are they businesses first? As avenues of speech, what is the most appropriate entity to adjudicate what appears on commercial websites? The Donuts and Radix deals were motivated by what the two companies both say were strategic business decisions to “run clean namespaces.” What to one person looks like good business sense to another looks like the slippery slope to censorship.
Thorny issues of free speech aside, the agreements as they stand are a victory only of sorts for the MPAA and other industry bodies still seeking ways to remedy piracy in the whack-a-mole landscape of the web. The most-trafficked torrenting and pirated streaming domains fall outside the remit of either the Donuts or Radix deals.
"There are a lot of problematic sites on .com and .org, .net, legacy TLDs and on country code domains," said Dean Marks, Executive Vice President of the MPAA. "The majority of the top 500 pirate sites were on those domain names. If we could get into a notifier arrangement with other big registries then that would be great, but I think it’s going to take work and take time."
Marks also said that since February the MPAA has lodged three complaints with Donuts in total.
In other words, neither the Pirate Bay not kickass torrents are going offline as a result of these specific arrangements any time soon, but there are going to be a few less options for pirates wanting to get their entertainment for free.
Elmo is a writer with Real Future.