As stated in my post announcing a voluntary agreement between MPAA and domain-name service Donuts, both rights holders and digital rights proponents should applaud this kind of B2B approach to mitigating online piracy. That doesn’t mean I thought the latter parties actually would applaud it. And with the stalwart predictability of a honey badger, Mitch Stoltz of the Electronic Frontier Foundation fired off this missive, eager to criticize the agreement just hours after it came out of the shrink wrap. The conditions of the agreement are so straightforward that it seems to me any honest acknowledgment of its terms might have stayed Stoltz’s hyperbolic pen before describing Donuts in this context as the “copyright police” or before beginning his post as follows:
“The companies and organizations that run the Internet’s domain name system shouldn’t be in the business of policing the contents of websites, or enforcing laws that can impinge on free speech.”
Right off the bat, Stoltz misrepresents the process as described in the agreement. Donuts will not be “policing” any content at all. Instead, the agreement outlines very specific conditions under which the MPAA may send a referral, backed by evidence, to Donuts regarding a domain that is “clearly and pervasively” engaged in large-scale piracy. At that point, Donuts has full discretion to choose to investigate further and to consider taking mitigating action consistent with its own Terms of Service. That’s not quite the same as engaging a private company to “enforce the law” as Stoltz states. It is a voluntary effort by a company to uphold or comply with the law in its practices, which is consistent with the internal policies of corporations all over the world. So, why is the broader rationale different with a domain name service provider? I know. Because the Internet is special.
Meanwhile, shutting down, delisting, or blocking sites dedicated to enterprise-scale piracy via court-ordered injunction has occurred repeatedly for at least 15 years, and yet free speech has endured. So, it is hard to imagine how the free speech calculus changes if a private company—which has a clear, vested interest in keeping domains online—decides to not support a specific enterprise engaged large-scale infringement. But as we’ve seen in other contexts, the EFF is a place where imaginations run wild. For instance, Stoltz writes:
“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. And that’s why we’ll continue to fight the website-blocking power grab.”
So, here’s the bottom line of the agreement vis-a-vis Donuts’s role, with some important words in bold:
If Donuts is satisfied that the domain clearly is devoted to clear and pervasive copyright infringement, Donuts may, in its discretion and as permitted under its Acceptable Use and Anti-Abuse Policy, suspend, terminate, or place the domain on registry lock, hold, or similar status as it determines necessary to mitigate the infringement.
I have to admit the ability to translate that into “interrupting speech” or to invoke “repressive governments” is actually something of an art-form. The EFF should probably give an award for Best Post Making a Mountain out of a Molehill (of course, I’ve never been invited to one of their dinners, so maybe they do). Anyway, is Stoltz actually suggesting that if Donuts—and by extension other services—were to suspend domains under these types of guidelines, that this is a slippery slope toward censorship by order of a repressive government? Why? How? Which repressive government? China? The Web is already massively censored in China, which is a human rights issue that has nothing to do with the mechanisms in this type of voluntary, anti-piracy initiative.
Here’s a news flash: free speech doesn’t exist in several other countries. And where free speech doesn’t exist, it cannot be infringed or chilled; it is instead a right yet to be won—a struggle largely separate from the exigencies of either Hollywood studios or Silicon Valley Internet companies, though both industries have a vested interest in a world where speech ultimately prevails. Meanwhile, in this country, there can be consequences for actually stifling someone’s speech, so Donuts has legal and financial incentive to proceed with due diligence in regard to any referral it receives. Moreover, it will be the case that any domain meeting the standards for referral by the MPAA will be an enterprise-scale infringer operating in a foreign country–not somebody’s blog.
Speech simply does not belong in this discussion, but since it is the perennial excuse for piracy, I think it’s worth mentioning, that piracy champions love to say that no measure can stop the major infringing sites because they will always move around the Web; but this same observation is never made about free speech itself, which is considerably more agile and infinitely larger in scope. The EFF might notice that there are trillions of expressions made every hour on the Internet, and no legislative or private-industry measure—at least in this country—is likely ever going to stop that.
At the same time, we might also keep in mind that the platforms we use for most of this speech–like the one I’m using right now–belong to corporations, and corporations sometimes fail. In this regard, the EFF might consider that the Internet it so staunchly defends can be corrupted by piracy, which has been linked to malware and other scams that harm users and weaken the faith of advertisers in the digital ecosystem. After all, the major Internet companies don’t have hundred-million-dollar valuations because they’re platforms for free speech; they’re valued in the stratosphere because they are advertising and data mining businesses. And that’s fine, I guess, but let’s shed the illusion that these sites are run on principle. Wall Street doesn’t invest in principle. They like money.
In this regard, I have to call particular attention to Stoltz’s statement that “the domain name system only works so long as most Internet users trust it to direct them to the websites they ask for ….” Indeed. But it’s disappointing that the EFF does not acknowledge the loss of trust in the system that occurs when search for quality information or legitimate resources yield top results that include piracy and SPAM. At the very least, the user’s time is wasted; and at most, clicking on these links can expose him to malware leading to identity theft and other hazards. Perhaps more benignly, we know that in walled gardens like Facebook, our feeds are no longer chronological but rather represent what that company’s algorithm has determined we “want” to see. And similar manipulation of results in Google search “tailored” to our apparent preferences continues to be studied as a means to influence political debate or effect the outcome of an election. If the EFF wants to fuss about free speech, these seem like far more acute areas of focus than the hypothetical shutting down of a handful of criminal operations.
And so, I return to my lead question: What in blazes does the EFF want? They don’t like law-enforcement remedies for online piracy, and they apparently don’t want to see voluntary cooperation between OSPs and rights holders either. At a certain point, it seems we have to conclude that what they want most of all is to maintain their relevance by constantly finding a problem for every solution.
© 2016, David Newhoff. All rights reserved.