As well as finding out that Jennifer Lawrence earns less than her male counterparts, Hollywood studio execs are self-important a-holes and Sony Pictures has a password policy that a baby could break ... it turns out movie giants are also seeking to DESTROY THE INTERNET with a ten-page legal memo.
The memo [PDF], written by outside law firm Jenner & Block in August this year, looks into whether ISPs can be pressured into removing links to pirate content by using the legal language around telecommunications.
The missive concludes that previous lines of thinking the Motion Picture Ass. of America has explored were going nowhere, but proposes an alternative that could achieve the same thing – namely, force ISPs to act against reports of infringement.
That has caused an online outcry that the movie industry's "secret plan" is "trying to break the domain name system" and destroy the "core workings of the internet".
Now we love an over-exaggeration as much as the next media outlet, but in this case, the memo is going nowhere, the plan is going nowhere, and the internet will survive ... we promise.
It is however worth briefly digging into its logic.
First, what the lawyers were asked to look into is ISPs' unique legal position that they offer "information services" as well as telecoms and so are not subject to Title II legislation (yes, the net neutrality phrase). The lawyers ponder whether that status means they are not eligible for "safe harbor" protections under the related but different DMCA legislation.
Broadly, ISPs cannot be held liable for the data flowing through their networks. So movie companies have to go after individuals and specific websites rather than be able to prevent the data from moving at all. It would be much easier for them if ISPs were held liable and so they look for ways to make it so.
Unfortunately, despite trying their best to bend the laws into the right shape, the memo's authors give up and say the argument they have developed "is not likely to succeed" which is legalese for "haven't got a hope".
They do however propose a different approach: a creative interpretation of the DMCA that would see basic DNS service classified as "linking users to an online location" rather than "routing".
If the case can be made that connecting domain names to the IP addresses used by the specific server that hosts the website is more of a directory or an index than a simple routing mechanism, then it takes the ISPs outside the safe harbor protection. And, the theory goes, Hollywood could then go to Comcast, AT&T etc and tell them to remove the specific DNS query so if people looked for a particular domain name it would simply not appear in their browser.
This argument "has better odds of success" according to the memo and a "reasonable prospect of success".
And now for the real world ...
The reality is, however, that it has almost zero chance of success and here's why in three simple bullets:
- It tries to twist the workings of the DNS into language that doesn't reflect what it actually does. To its credit, the memo notes that it is stretching credibility. But since any DNS expert would be willing to explain in some depth why the effort is wrong, it's unlikely to get far.
- Even if Hollywood could find a judge to agree with this interpretation, it would be immediately appealed and amicus briefs would fly in from Google, ICANN, the IETF and just about anyone who has any credibility about how the internet actually works. It would also reinvigorate the anti-SOPA and PIPA folk and that didn't work out so well for the IP lobby last time.
- It wouldn't actually work. Even if ISPs agreed to change their DNS tables, and even if people didn't simply use another DNS lookup system, then the way DNS software works means that the name servers that kept giving backing error messages would be simply ignored.
The advantage of having gone through effectively the same proposal - messing with the DNS - in SOPA, is that there is extensive documentation about why this is a bad idea and wouldn't work.
Probably the best comes from Paul Vixie, who as the person that wrote the software that much of the DNS runs on - BIND - knows a thing or two about the internet.
Back in 2012, Vixie walked through how such a proposal would actually be implemented technically i.e. what actual response would be given within the DNS to an attempt to block or remove a website in just part of the overall system.
A redirect would be seen as a "man in the middle" attack and routed around. A "no such domain" response (NXDOMAIN) would be also rejected. And a denial code (REFUSED) would cause the rest of the system to think something was wrong with the name server providing the refused code and ignore it.
And so, while the legal memo, theoretical though it was and written with caveats though it was, wanted to actually work to force ISPs to bring down websites (and it would be entire website too, not just pages or files in the domain), then it needed to start this first step:
- Go to an IETF meeting and persuade the technical community to develop a new DNS code that would enable an access block to specific domain(s)
This would be unlikely to go over well, for obvious reasons. ®