EFF reacts to MPAA-Donut anti-piracy pact with predictable hyperbole and histrionics

by Ellen Seidler | Copyright

Once again, EFF pulls out the piracy as “free speech” mantra

When it comes to the EFF and piracy, it’s kind of like the movie Ground Hog Day….same thing over and over and over again.  As such, it was no surprise this week when the EFF’s Mitch Stoltz—-displaying typically knee-jerk EFF form, published a blog post decrying this week’s announcement that the MPAA and top-level domain registrar Donuts had reached a voluntary partnership to “reduce online piracy.”  Of course, when it comes to the EFF, there’s no middle ground, and any effort to combat piracy is always met with the same, tired talking points.

While there’s little debate that protecting “free speech” online is important, the EFF routinely makes a point of muddying the waters so as to push its own misguided agenda of absolutism.  According the its political playbook–any effort made to fight online piracy–warrants conflating “theft” with “speech” in all communiqués on the subject. Of this most recent agreement, Stoltz dutifully warns:

Taking away a website’s domain name means interrupting all of the speech that takes place on that site. It creates a much greater danger of censorship than suppressing individual pages or files.

To the EFF piracy = free speech

Ah yes, he pulls out the crumpled “censorship” card…Last time I checked, websites in the business of piracy for profit don’t offer any speech worth protecting, unless of course, phrases like “free download” or “watch free” fit the bill.

As I noted in a post earlier this week, many pirate websites don’t provide DMCA contact information.  Creators who find their work illegally posted there have little recourse but to turn to web hosts and/or domain registrars for relief.  If a site truly offers visitors worthwhile “speech,” why hide?  Why not provide a legit contact email?  Because there’s nothing legit about it.  They’re engaging in criminal activity and they know it.

According to EFF rules, any website that exists, save for maybe those trafficking in child porn, should be allowed to operate unimpeded by the rule of law.  Essentially, as far as the EFF is concerned, piracy should be considered a protected form of speech.  Shutting down pirate sites would censor the rights of criminals, don’t cha know?

The fact is these sites–often rife with malware and explicit ads–have nothing to do with speech and everything to do with making a buck off the backs of others.  Doesn’t it cheapen the concept of “free speech” when it’s disingenuously used as an excuse to shield criminal sites from the consequences of illegal activities?   What exactly is it about profiteering pirate websites that makes them worthy of protection under the mantle of “free speech?”  The answer–absolutely nothing.

Another argument found in the EFF playbook, along with piracy = protected speech refrain, is the slippery slope excuse.  Stoltz makes use of this tattered canard as well:

The danger in agreements like this is that they could become a blanket policy that Internet users cannot avoid. If what’s past is prologue, expect to see MPAA and other groups of powerful media companies touting the Donuts agreement as a new norm, and using it to push ICANN and governments towards making all domain name registries disable access to an entire website on a mere accusation of infringement.

Insert sound of ominous drumbeats here.  True to form, the EFF doesn’t shy away from hyperbole and histrionics to advance its agenda.

Stoltz’s warning of dire consequences comes despite the fact there’s nothing in the agreement that could be construed as allowing the disabling of access to an “entire website” based solely on a mere “accusation of infringement.” Stoltz attempts to massage his argument by pulling a truncated quote from Torrent Freak:

According to the website TorrentFreak, this will make MPAA “the definitive authority on what is considered a large-scale piracy website.” This raises the risk of a website losing its domain name, or having it co-opted, without a court judgment or other legal process. [emphasis added]

Well, not quite…though it makes for a good talking point, in reality the process is a tad more complex than he would have us believe. Torrent Freak’s analysis by Andy is actually quite balanced, and the paragraph Stoltz pulls a quote from should really be read in its entirety to appreciate its true context:

Under the agreement the MPAA will be granted “Trusted Notifier” status, i.e. it will become the definitive authority on what is considered a large-scale piracy website. Sites that are subsequently found to be breaching Donuts’ terms and conditions will either have their domains suspended or put on hold.

“This is a groundbreaking partnership and one we’re proud to undertake,” says Donuts Co-Founder and Executive Vice President Jon Nevett.

How convenient to omit the second sentence as well as additional details as to what “subsequently found to be breaching” actually means.

Remember, this is a “partnership” that both the MPAA and Donuts agreed to.  If the MPAA has been given “Trusted Notifier” status it’s because Donuts has given the OK.  This status also comes with a myriad of strings attached.

A number of safeguards have been established to prevent the very alarmist scenario Stoltz warns of.  Like other online service providers, Donuts has a “terms of service” and as such, has the right to assess whether a site has broken those terms, no court judgment required.  It’s also worth noting that Donuts will also investigate the allegations before taking any final action against a site: According to terms of the agreement:

…If Donuts is satisfied that the domain clearly is devoted to clear and pervasive copyright infringement, Donuts may, in its discretion and as permitted under its Acceptable Use and Anti-Abuse Policy, suspend, terminate, or place the domain on registry lock, hold, or similar status as it determines necessary to mitigate the infringement…

Reading the various checks and balances outline via Torrent Freak, the multi-step process seems thoughtful and fair to both sides.  Of course, it’s not a process that requires litigation, but certainly appears to be within the bounds of what’s allowed by law.  There’s also nothing preventing site operators from taking the issue to court, though it’s doubtful that any–known for scattering like a cockroach when a light is shone on their activities–will avail themselves of that option.   Indeed, though the agreement may not be to the EFF’s liking, one assumes its been carefully vetted by attorneys for both Donuts and the MPAA.

The MPAA will also have to do its research before initiating any move against a site.  As Torrent Freak noted in its analysis: 

the MPAA is required to fulfill several criteria, including that any complaint filed with Donuts is authorized by its members. The movie industry group is then expected to provide evidence of “clear and pervasive copyright infringement” on the domain in question while indicating which laws have been violated.

…before contacting Donuts the MPAA will have to do additional preparatory work, including alerting both the site’s registrar and hosting provider to the alleged problems. While providing Donuts with the details of the discussions, the MPAA will be required to indicate why these failed to stop the alleged infringement.

Of course, examining the agreement’s actual (rather than imaginary) language provides an inconvenient truth not in line with EFF talking points.  The organization’s public posture has always been rigid, and its analysis myopic–if not fabricated outright–when it comes to assessing any reasonable efforts to reduce online piracy.

In furthering his criticism of the voluntary agreement between the MPAA and Donuts, Stoltz sees ulterior motives, this despite the numerous safeguards in place to prevent abuse, including human review of forwarded complaints.  According to Stoltz:

…Donuts may have business reasons for bowing to MPAA’s demands, such as encouraging the major studios that make up MPAA to buy lucrative domains in the .movie space.

It’s yet another predictable red herring.  It’s a no-brainer that, deal or no-deal, movie studios are likely to purchase .movie domains if it’s thought to be in their best (business) interests to do so.  On the other hand it makes total sense that Donuts, as seller of the .movie domain, may well want to ensure that its products–assorted top-level domains–don’t become cesspools of criminal activity.  Isn’t that just a good business practice?

For the EFF, “compromise” is a dirty word

Speaking of business, this agreement provides yet another example of voluntary efforts among the business and tech industries to find a path forward that respects the interests of both.  We’ve seen similar efforts among advertisers working with the creative industry to stop the flow of ad money to pirate sites.  Another example of this trend were the recent House Judiciary Committee copyright “listening tour” roundtables where the perspectives of “a wide range of creators, innovators, technology professionals, and users of copyrighted” were heard.

Despite ongoing efforts by many to bridge the gaps and find consensus on ways to find workable solutions to issues like online piracy, the EFF seems committed to the position that finding “compromise” is an untenable approach.  The organization routinely targets any–and all– attempts to tame bad behavior in the Wild West corners of today’s internet. No matter whether legislative initiatives or stakeholders developing voluntary best practices, the EFF response is always a resounding, “NO!”

The EFF’s response to any progress made to safeguard online commerce resembles ‘Chicken Little’s’ Henny Penny.  It’s an act that’s growing old.  Perhaps it’s time the EFF to take a page from The Day No One Played Together instead.

There is common ground to be found, if only we are willing to look.  The agreement between the MPAA and Donuts may well provide a good blueprint for where we can begin.