Tech Giants to Hollywood: Stop Trying to Resurrect SOPA

2012-04 BIZ SOPA Hollywood Sign Illustration

Silicon Valley trampled Hollywood with a simple -- and, to the studios, absurd -- argument: that the anti-piracy bills would somehow "break the Internet."

With strong echoes of the tensions between the entertainment and tech sectors at the height of war over the Stop Online Piracy Act, a group of leading tech companies is interjecting its opinions in a piracy lawsuit being handled by the Motion Picture Association of America.

Two weeks ago, Paramount, Warner Bros., 20th Century Fox, Columbia Pictures, Universal and Disney sued the anonymous operators of various MovieTube websites. The film companies aimed to do something about illegal streaming sites offering films like Avengers: Age of Ultron ahead of theatrical release.

But was the lawsuit a Trojan horse for grander ambitions? The lawsuit not only aimed to shut down the pirates, but also sought a broad injunction that would order "third-party service providers [to] cease providing services" to those same sites.

Now, Google, Yahoo, Facebook, Twitter and Tumblr are asking a judge's permission to file an amicus ("friend of the court") brief. It's super rare to have one lodged this early in litigation, but the tech companies believe it is warranted.

"Amici recognize the vital importance of combating infringement on the Internet, and they work with rightsholders, including Plaintiffs themselves, to address those issues on a daily basis," states the brief arguing against an injunction. "But in pursuing the Defendants here, and attempting to resurrect the defeated Stop Online Piracy Act, H.R. 3261 (“SOPA”), Plaintiffs disregard established limits on judicial power and the careful balance that Congress has struck between the rights of online service providers and copyright owners. Those protections cannot be swept aside so readily. Plaintiffs do not need, and should not be allowed, to '[c]ut a great road through the law to get after the Devil[.]'"

As pointed out in our last story on this topic, although much of the MPAA's lawsuit over MovieTube is fairly uncontroversial, there is an aspect that deals with injunctive relief directed at third parties. The tech companies are objecting to what they see as the studios' "breathtakingly broad" efforts to ensure the cooperation of web-hosting providers, digital advertising service providers, social media services and others in getting rid of MovieTube sites. "It is no exaggeration to say that such an injunction would bind the entire Internet," argues the amici.

The Stop Online Piracy Act triggered controversy in large part due to measures making it easier to block traffic to blacklisted piracy websites. Lawmakers backed off on passage in the wake of fervent opposition led by the digital vanguard.

Afterward, the entertainment industry began to examine other ways to step up its anti-piracy campaign. Site blocking was part of the discussion — and inroads on this front were made overseas — but inside the U.S., the MPAA's own lawyers were warning how the safe harbor provisions of the Digital Millennium Copyright Act as well as Federal Rule of Civil Procedure 65 could make it difficult to get an injunction on "non-parties in a lawsuit without proof that the nonparty was acting in concert with the defendant."

The MPAA believes there's a difference between the kind of site blocking that is happening in the U.K. and the kind of injunctive relief that's at issue here in the MovieTube case.

But the tech companies still believe that the MPAA can't dance around the imposed limitations. "As nonparties to this case, the Neutral Service Providers cannot be bound by an injunction unless they are shown to be working 'in active concert or participation' with Defendants," write the tech companies.

And these tech giants hardly see themselves in "active concert" with the MovieTube sites. They analogize their relationship to these pirates as "a utility company providing electricity to an infringing business, or the postal service carrying copies of infringing materials through the mails."

The brief has other goals. One is to undercut the legal citations that the MPAA is relying upon in its aim of getting a broad injunction. Another goal is to prop up the safe harbors from copyright liability as dictated by the DMCA. Finally, the tech companies also want to make sure that the MPAA doesn't manage to sneak in the All Writs Act as the mechanism by which a judge empowers an injunction.

In their memo supporting injunctive relief, the film studios didn't spend much more than a couple of lines on All Writs Act, which was enacted in 1789 and gave the judicial branch fairly broad powers in advance of preserving jurisdiction. Although the All Writs Act was only briefly mentioned in support of an injunction, it's been under discussion at the MPAA for months, according to documents exposed in the Sony hack.

Now, the tech companies spend several pages addressing the All Writs Act, arguing, "Plaintiffs’ reliance on the All Writs Act is especially problematic because it seeks to duplicate the broad authority that Congress considered, but ultimately abandoned, in the ill-fated 2012 SOPA proposal."

Here's the entire amicus brief authored by Brian Willen and Jason Mollick at Wilson Sonsini.