The MPAA, the trade association of Hollywood’s six largest studios, has asked India’s telecom regulator TRAI to allow ISPs to block and throttle the piracy of copyrighted content on the Internet. They submitted the comment in response to TRAI’s consultation paper on net neutrality, through their Indian arm, the Motion Pictures Distribution Association (MDPA). This filing is consistent with the MPAA’s narrow stabs at net neutrality regulation in the US.
The MPAA did not respond to a request for comment from MediaNama.
What the MPDA wants
In its filing, the MPDA has said:
…illegal or unlawful content can and should be treated differently from legal content and, as such, should not be affected by the rules governing net neutrality. It is necessary and proper for certain exceptions to be made for unlawful content. Content that infringes copyright is, by definition, unlawful. We urge that a clear statement be included in any eventual net neutrality regulation that specifies that pirated and infringing content is unlawful and therefore not subject to the normal net neutrality policy of prohibiting content based regulations.
[…] as a remedy to address the dissemination of, or unauthorized access to, unlawful content, blocking and
throttling are necessary and appropriate measures. Blocking access to infringing sites is not inconsistent with net neutrality. In fact, blocking illegal sites, especially when they originate from outside the country, is often the only effective remedy to prevent access to illegal content in India. TSPs must be able to block sites
that link, stream, make available, or otherwise communicate to the public unauthorized or illegal content.
MPDA has asked the TRAI to:
(i) Encourage TSPs to work with content owners to employ the best available tools and technologies to combat online content theft;
(ii) affirm that TSPs’ use of reasonable TMPs includes the right to use tools and technologies to address the flow of stolen content on their networks;
(iii) specify that TSPs engaged in network management are entitled to a presumption that good faith efforts to manage networks to deal with online theft are reasonable; and
(iv) clearly state that the use of reasonable TMPs (Traffic Management Practices) to deter online content theft should not depend on an advance judicial or regulatory determination of “lawfulness” prior to every use.
Bollywood and Blocking (Nikhil adds)
Back in 2012, then Saregama MD Apurv Nagpal had told MediaNama that they wanted ISPs to be held liable for online content, in their case, streaming of pirated music. Saregama had led a move to get 104 websites that were pirating music blocked, with court permission. Telecom operators are protected under Section 79 of the IT Act, where they have limited liability as intermediaries – in that they don’t have actual knowledge of what their network is being used for; a court order is required to block content. What the MPDA is asking for is something that telecom operators will not do: for them to proactively monitor content is likely to ensure that they have knowledge of content flowing through their networks. It’s almost as if the MPDA is trying to transfer liability on to telecom operators and ISPs, and the TRAI can’t possibly allow this, since it would be in violation of the IT Act.
The act of actively blocking content, without “advance judicial or regulatory determination of ‘lawfulness’ is also going to be contested as a violation of free speech rights. Currently, Bollywood needs court permission to get links blocked, and even the John Doe orders they get amount to overreach.
Hollywood and net neutrality
In 2007, the MPAA sent a similar letter to the US’s telecom regulator, the FCC. In that letter, they argued that since ISPs should be able to block access to pirated content. Partly because of this filing, the FCC exempted copyrighted content from the 2010 Open Internet regulations. Even then, the MPAA didn’t actually have a way of blocking websites, since Internet providers in the US are not required to block content. This is because they are exempt from the DMCA, which is the cornerstone of anti-piracy efforts in the US.
In internal memos, the MPAA’s lawyers have argued that they might be able to use a legal loophole to take that exemption away from ISPs. This would force them to use methods like DNS filtering to block sites. DNS is the part of the Internet’s architecture that translates website URLs to their IP address equivalent. That strategy fell apart when the FCC reclassified broadband providers as ‘common carriers’ that can’t discriminate in the data on their network. But it might be a possibility again, now that the newly appointed chairman has announced his plans to roll that classification back.
The Stop Online Piracy Act (SOPA) in the US, which the MPAA worked hard to push through, initially had provisions for DNS filtering. After facing backlash, the senators sponsoring SOPA and a similar bill withdrew the provision. Neither bill eventually came to pass.