The telcos’ ongoing battle against Net Neutrality have led them to make a lot of silly legalistic arguments, but one in particular has opened the whole Internet to grave danger from a legal attack from the entertainment industry, which may finally realize its longstanding goal of subverting DNS to help it censor sites it dislikes, even if it makes life much easier for thieves and spies who use DNS tricks to rob and surveil.
A leaked MPAA document discloses the studios’ lobbyists’ plan to force ISPs to give it control over DNS (one of the key goals in SOPA), by using the arguments raised in the decade-old Brand X case, where the ISPs said that they were more than a “telecommunications service” and were, instead, an “information service” because they provided DNS (among other things).
The reason this matters is that “information services” are treated differently from “telecommunications services” in the Digital Millennium Copyright Act, and if ISPs’ DNS responses are “information services,” then then DNS is subject to takedown requests, meaning that ISPs could have a legal duty to break their DNS in order to stop users from looking up the addresses of websites once they receive an unsubstantiated complain about those sites.
But this whole line of argument collapses if the FCC uses the preferred tool to enforce Net Neutrality: “Title II classification,” which would unambiguously make the ISPs into “telecommunications services,” and take DNS out of the line of MPAA fire. But of course, the ISPs have pledged their immortal souls and their last dimes to fighting this classification — and if they win, we all lose. It also explains why the MPAA hates Net Neutrality so much.
Given that, if the FCC were to reclassify broadband back under Title II, this leg of the MPAA’s argument would essentially evaporate. Because it would confirm, absolutely, that broadband providers are telco service providers, and thus clearly protected by the DMCA under 512(a). Thus, for the whole “notice and takedown at the DNS level” plan to be most likely to succeed, the MPAA really needs broadband to remain classified under Title I, so that it can rely on the argument that DNS services are not part of being a telecommunications service, but rather should be classified as a “information location tool” subject to notice and takedown.
I recognize that this may be confusing to follow — though I’ve tried to lay out the specifics from both copyright and telco law in a way that’s clear. The short version of this is simply that a key part of the MPAA’s “site blocking by DNS” plan, actually relies on the fact that broadband providers are not, currently, classified as telco services under Title II. If that changes, it takes away a big part of the MPAA’s legal argument. Personally, I think the MPAA’s argument, even if broadband is classified under Title I, is incredibly weak already, but having the FCC reclassify broadband providers back under Title II would make the MPAA’s attempt to break the internet that much harder, even with the loophole language concerning copyright infringement.
And, of course, all this goes to show just how far former Senator, now MPAA boss, Chris Dodd has gone in selling his soul to Hollywood. Back when he was in Congress, he was a big supporter of net neutrality. Apparently, being principled doesn’t pay as good.
Hollywood’s Secret War On Net Neutrality Is A Key Part Of Its Plan Stop You From Accessing Websites It Doesn’t Like [Mike Masnick/Techdirt]