MPAA Testing the Limits of Pirate Site Blocking in MovieTube Lawsuit

Christopher Dodd Horizontal - H 2013
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Christopher Dodd Horizontal - H 2013

Three years ago, Hollywood studios suffered a great defeat when lawmakers backed off on the Stop Online Piracy Act — a measure that foes warned would ruin the Internet by making it easier to block blacklisted piracy websites. Now, a lawsuit filed last week by members of the Motion Picture Association of America is aiming for an order that would direct "registries and registrars [to] disable the domains to the MovieTube Websites" and "third-party service providers [to] cease providing services" to those same sites reportedly hosting films like Disney's Avengers: Age of Ultronstill in theaters.

We were hardly alone in predicting that the SOPA setback wouldn't deter the MPAA from anti-piracy pursuits, but what nobody saw coming was the Sony Hack, which exposed some of the MPAA's internal discussions around site blocking.

In one particular letter dated July 18, 2014, the MPAA was advised by one of its lawyers that "when one examines the structure and legislative history" of sections 502 and 512(j) of the Copyright Act, "it appears substantially more likely than not that a court would require a copyright owner to establish the ISP’s liability for copyright infringement before the ISP can be ordered to site-block."

Kenneth Doroshow, a litigator at Jenner & Block, also brought up Federal Rule of Civil Procedure 65(d)(2) and cited a couple of cases to support an interpretation "that such injunctions may not be imposed on non-parties without proof that the nonparty was acting in concert with the defendant."

Nevertheless, on Wednesday, studio plaintiffs told a California federal judge a different story, relying upon the same sections of copyright law and civil procedure for a preliminary injunction. Read the memorandum, pages 20-23, which argues, "Given that Defendants undertake their operations and illegal activities from outside the United States, it is essential for preventing further irreparable harm to Plaintiffs that injunctive relief include orders directed at third parties whose services enable Defendants’ activities."

In recent months, the MPAA has gained ground outside of the United States. In the United Kingdom, a high court issued website blocking orders against several Popcorn Time websites. In Canada, an appeals court affirmed an order upon Google to remove links to pirate sites.

Some domestic developments may have aided the MPAA as well. For example, after HBO and Showtime sued, a California judge issued a temporary restraining order directing service providers to cease providing services to sites that were advertising an unauthorized stream of the Manny Pacquiao-Floyd Mayweather boxing match. Studio lawyers have taken note.

It's also worth mentioning that on January 25, 2014, MPAA global general counsel Steven Fabrizio wrote an internal memo that stated, "We have been exploring theories under the All Writs Acts, which, unlike DMCA 512(j), would allow us to obtain court orders requiring site blocking without first having to sue and prove the target ISPs are liable for copyright infringement."

On Wednesday, the plaintiffs in the MovieTube lawsuit indeed invoked the All Writs Act as an alterative method by which the judge could assert injunctive powers against third parties.  Not much support is given, but when the court issues its ruling shortly, it will be worth paying attention to the details of the judge's opinion.