After Copyright Debacle, Hollywood Tries Again with State Attorneys General

"Those who cannot remember the past are doomed to repeat it."

The wisdom of this old adage is again demonstrated in recent media reports which indicate that the entertainment industry has sought to entice some state attorneys general to utilize their prosecutorial powers to block Internet sites. Hollywood knows how controversial that proposal is; state attorneys general may not.

Three years ago I wrote in this space about a disastrous entertainment industry-backed legislative proposal that pursued the same goal, known as the Stop Online Piracy Act (SOPA). That bill, according to the National Journal, "once had broad bipartisan support and was a top priority for the entertainment industry, [but] has become a dirty word." Despite warnings from engineers, security experts, human rights advocates, and many Internet users, many members of Congress initially championed and rushed toward passage this extremely ill-considered bill.

That miscalculation led to one of the largest grassroots uprisings in recent political history, and certainly the largest ever involving technology policy. Even the MPAA later likened it to the Arab Spring. Thousands of websites participated in an Internet Blackout in January 2012. Members of Congress who had been assured the issue was uncontroversial found their office mobbed, and their phone banks and inboxes swamped with millions of phone calls and emails in a single day. Tumblr users alone made over 87,000 calls to Congress; at one point, 2,000 calls per second were attempted to Congressional offices. Overnight, the bill gained dozens of Congressional opponents and lost over a dozen supporters; it even became a subject in the 2012 Republican presidential primary, drawing criticism from nearly all candidates.

Those rapidly defecting members had been led down the proverbial garden path; they were persuaded that the effort was not technologically destabilizing censorship, but rather righteous law-enforcement. They were misled. Three years after paying the public relations price for that mishap, members of Congress are understandably wary of doing anything that looks even remotely like SOPA.

This is apparently why the entertainment industry turned its focus from Washington to the states, devising what some accounts allege to be a prosecution-for-hire arrangement, where the legal heavy lifting is outsourced to industry-funded law firms, and AGs assume they will reap the benefits of media coverage cultivated by industry funded PR firms. This arrangement is predicated on the assumption that there will be PR benefits to cultivate, however. Taking history as a guide, site-blocking mostly generates PR catastrophes. Following SOPA, for example, Immigration and Customs Enforcement (ICE) floundered through a series of misadventures as it seized the domain names of websites that were not, in fact, infringing IP rights.

Some state attorneys general, perhaps including Mississippi's Jim Hood, may not recall the Internet Blackout and don't know the controversial history of site-blocking. This may explain why they are venturing into this political minefield. The entertainment industry's actions, however, cannot be explained by mere ignorance. Since SOPA, Hollywood has publicly claimed a preference for Internet collaboration over combat, yet these recent media accounts suggest that it is waging a secret war in state capitals.

As the New York Times recently covered, reasonable questions can be asked about the propriety of influence-driven law enforcement decisions. In addition to questionable ethics, this is bad business. If the money being spent to ghost-write legal process for media-hungry attorneys general were instead invested in forging partnerships to find new ways to reach consumers using technology and digital distribution, rights holders, online services, and consumers alike would benefit. Instead, we seem to be re-fighting the battles of yesteryear, except this time the victims of political backlash will be in state capitals, rather than on Capitol Hill.