Hollywood Believes The Time Is Ripe To Bring Back SOPA

It’s been twelve years since the big SOPA/PIPA fight. I’ve been talking with a few folks lately about how it feels like many people have either forgotten that story or weren’t paying attention when it happened. Two years ago, we did a 10-year retrospective on the fight, and it feels like some people need a refresher. Most notably, Charles Rivkin, the head of the MPA (formerly the MPAA), certainly appears to need a refresher because he just announced it’s time to bring back SOPA.

For the young ones in the audience, SOPA (and its Senate companion, PIPA) were bills pushed strongly by the film (MPA) and recording (RIAA) industries. They were pushing for “site blocking” for websites that the industries accused of being “dedicated to piracy.” The law was a slam dunk. It had a huge number of co-sponsors, and the MPA/RIAA combo had convinced Congress to pass ever more expansive copyright laws basically every two to three years for the past 25 years. SOPA was set to become law.

Until it wasn’t. Because the public spoke up loudly. I (coincidentally) was at the Capitol on the day of the big Internet Blackout in protest of SOPA/PIPA, and I heard the phones ringing off the hook. I was running up and down the halls of the office buildings, having Reps. tell me how they were removing their names from the co-sponsor list. The public spoke up and it worked.

But it’s important to remember why it worked: because the law was a horrific attack on free speech and the open web. And for no good reason.

We spent much time explaining why this would be a clear violation of the First Amendment. Under the First Amendment, you cannot shut down an entire publishing house just because it sometimes has published works that contain, say, defamation. You cannot ban access to a photocopying machine because some users use it to infringe. SOPA was basically built-in prior restraint.

You can only target the actually violative content and not declare entire sites be blocked. That goes way beyond what the First Amendment allows.

On top of that, it’s dangerous. First, as was made clear at the time, site blocking of that nature would fuck with underlying technological protocols that are designed to return sites on request. In particular, it would break DNSSEC, which remains an important bit of security online.

There is also the very real risk of false positives. We have plenty of examples of this. During the run-up to SOPA, Universal Music actually declared hip-hop star 50 Cent’s personal website to be dedicated to infringing content. Also, the risk of collateral damage is very real. In the past, we’ve had stories of orders to block a single site, not realizing it was on a shared server, that ended up with tons of sites blocked as collateral damage.

All that is to say: site blocking is bad, doesn’t work, isn’t needed, would cause real damage, and much, much more.

And so of course the MPA and Rivkin are trying to bring it back. In a speech earlier this week, Rivkin laid out the “state of the industry.” He pulled out all the old debunked hits from a decade ago about how piracy was killing Hollywood and blah blah blah. The problem is, it’s just not true. Earlier this year we released our latest Sky is Rising report, which again showed that Hollywood is thriving, and that piracy was never a particularly serious problem.

Indeed, the only reason there’s recently been a small increase in infringing use is because the big streaming companies (who are all members of the MPA) have started implementing a bunch of bullshit policies designed to annoy users and to squeeze them for more money, while giving less in return. The cause of piracy is the MPA members themselves.

But, alas, Rivkin insists that site blocking is the only answer to his own members’ failures to treat customers right:

So today, here with you at CinemaCon, I’m announcing the next major phase of this effort: the MPA is going to work with Members of Congress to enact judicial site-blocking legislation here in the United States.

For anybody unfamiliar with the term, site-blocking is a targeted, legal tactic to disrupt the connection between digital pirates and their intended audience.

It allows all types of creative industries – film and television, music and book publishers, sports leagues and broadcasters – to request, in court, that internet service providers block access to websites dedicated to sharing illegal, stolen content.

Let’s be clear: this approach focuses only on sites featuring stolen materials. There are no gray areas here.

Site-blocking does not impact legitimate businesses or ordinary internet users. To the contrary: it protects them, too.

And it does so within the bounds of due process, requiring detailed evidence establishing a target’s illegal activities and allowing alleged perpetrators to appear in a court of law.

Almost everything Rivkin says here is bullshit. Hollywood is thriving these days. They had a blip due to COVID, but there is no indication, at all, that “piracy” has ever been a problem, let alone now. Rivkin tosses out bullshit numbers claiming massive job and revenue losses from piracy, and those numbers come from laughably bad studies that often assume every infringing copy is a lost sale. Or they lump in claims of “trademark infringement” to argue that every counterfeit product is the same as someone downloading a movie they would never have paid for in the first place.

But, more importantly, site blocking is 100% prior restraint and unconstitutional in the US. There is no serious due process in any site blocking regime, and every attempt has resulted in all sorts of bogus blocks and takedowns, many of which we’ve detailed over the years.

Rivkin’s claims that there “are no gray areas” and that it “focuses only on sites featuring stolen materials” would sound a lot better if we didn’t have a long list of bogus seizures of sites based on lies told by the RIAA and MPA. Remember Dajaz1? That site was seized by the government because the RIAA lied and claimed it featured infringing content. It did not. It was a music blog that the industry itself would often send material to in an effort to hype up artists.

Or how about OnSmash? It was another blog that the recording industry regularly sent tracks to as a promotional gambit, only to then claim it was a pirate site. It was seized and the government ignored requests to return it for FIVE YEARS, before finally handing it back to the original owner with no charges filed and no apology.

There are many more examples like this of sites being seized by the government based on outright lies by the industry. There is no due process. There is no fairness. It absolutely destroyed “legitimate businesses and ordinary internet users.”

Rivkin is lying. He’s hoping that people are too distracted with things like generative AI and fights over Section 230 to realize that they’re bringing back SOPA and looking to destroy the open internet once again.

Do not let this move forward. If Rivkin is mentioning it, it means he has the MPA’s usual crew of bought-and-paid-for Congressional Reps and Senators ready to spring into action.

Congress is going to need to be reminded why the internet stood up and said “NO!” last time SOPA/PIPA came around. They need to be reminded why they’ve stayed away from copyright law for the most part all these years, realizing it had become a third rail issue. The MPA bringing SOPA back suggests they think internet users are distracted and have moved on.

We’re going to need to show Rivkin that he’s wrong.