Hollywood, Silicon Valley Sharpen Their Swords in Piracy War

The battle against online piracy may be shifting to movie streaming sites, but the PR war over tactics is still stuck in SOPA mode.

The Stop Online Piracy Act stalled out in early 2012, in the face of an unprecedented online protest, driven in part by tech congloms, that it would jeopardize the free flow of Internet content. But the specter of the battle still lingers. In recent months, Hollywood studios have been accused of attempting to revive the stalled legislation in a number of ways, most recently via legal maneuvering.

Last month, major studios sued MovieTube, an operator of a series of sites that stream pirated movies and TV shows, and sought a preliminary injunction that would require third parties to “cease or disable” services to the company. Google, Facebook, Twitter, Tumblr and Yahoo pushed back, contending in a court filing that the studios’ proposed injunction would be too sweeping in its scope. They fear it would set a precedent for other cases, and bind service providers to the litigation.

In a proposed amicus brief, the tech companies said that the injunction being proposed “would require the same intermediaries targeted by SOPA to engage in the same kind of content- and domain-blocking that would have been required by SOPA had it been enacted.”

The studios have since dropped the injunction request after MovieTube pulled its sites.

But the the tech firms’ outcry was only the latest charge that other means were afoot to impose the failed legislation. The studios and tech companies each weighed in on an Intl. Trade Commission case over dental braces in which the ITC claimed authority to prevent patent-infringing 3D digital files from crossing borders, just as it would halt counterfeit physical goods. The studios argued that the intent of Congress was for trade law to protect U.S. industries “from all manner of unfair acts,” while the tech sector decried that notion as potentially allowing broad government oversight over Internet transmissions. The case is now before a federal appellate court.

On the state level, Google general counsel Kent Walker has labeled an investigation by Mississippi Attorney General Jim Hood into the company’s search practices as a studio attempt “to revive the failed SOPA legislation through other means.” And studios’ and labels’ calls for online registrars to better enforce piracy has raised the argument that the MPAA was leveraging the Internet Corp. for Assigned Named and Numbers to use the domain name system to enforce copyright law. The studios countered that their efforts have been distorted by “fringe tech groups.”

Studios have argued that they are merely trying to pursue an antipiracy strategy by applying laws already on the books.

Jonathan Lamy, spokesman for the Recording Industry Assn. of America, painted the anti-copyright forces as hypocrites. “During the SOPA debate, the common response was that existing law or agencies like the ITC were the appropriate ways to deal with overseas rogue websites,” he said. “Fast forward three years, and apparently those statements are ‘no longer operative.’ Our job is to hold them to their word.”

Some public interest groups say that there is good reason to sound the SOPA alarm over the current round of skirmishes: Leaked MPAA memos from the Sony hack showed that the studios were exploring a range of legal options, including court orders, that would require ISPs to quarantine infringing sites.

Sherwin Siy, vice president of legal affairs for the nonprofit Public Knowledge, says that while the term “SOPA” has been used as a rallying point for different issues since 2012, the recent cases are relevant, because they have to do with the idea of site blocking, which was “what motivated the SOPA protest in the first place.”

Citing the MovieTube case, Aaron Liskin of Kinsella Weitzman Iser Kump & Aldisert said that although the studios’ request for an injunction was “somewhat uncommon,” the fact that they don’t know who’s behind the website is an operative factor. Still, he allows, “The general rule of thumb is that injunctions bind parties (to litigation). Here Facebook and Yahoo are not parties.”

Studios are well aware that their moves risk being branded as “SOPA-like,” and it’s a reason no major antipiracy legislation has been pursued since 2012. They have been working on a counter-PR strategy, via groups like CreativeFuture — formerly the studio- and guild-backed Creative America — to try to mobilize the content community around the value of protecting creative works. But there’s also a recognition that getting that message ingrained in the minds of consumers is a long-term initiative.

Ruth Vitale, CEO of CreativeFuture, took to the group’s blog to mock what she saw as particularly alarmist reactions to the MovieTube case.

“I know that ‘stop censorship’ and ‘don’t break the Internet’ were effective talking points more than three years ago,” she wrote. “That’s the past, and a reference to legislative history. I think we’re all a bit wiser now. Can we finally collectively agree that piracy is not free speech?”

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