MPAA May Try to Stop Data ‘At the Border’

The MPAA is attempting to apply a new tactic in tackling piracy, the International Trade Commission (ICT), which would allow data to be stopped ‘at the border’.

According to a leaked document and two public filings (1)(2), the movie industry is trying to have digital transmissions regulated much like imported goods and apply this law to site blocking.

The ITC plays a role in assisting US patents in tackling infringement, such as the importing of physical goods that infringe these patents.

The Verge brought our attention to a recent case relating to 3D printing and digital transmissions that may have set a precedent for using the ICT to tackle copyright infringment.

The heart of the case is a company called ClearCorrect, which 3D prints clear plastic braces custom-designed for each patient’s teeth. Much of the technology involved in the process is already under patent, but ClearCorrect has gotten around those patents by farming out its intricate computer modeling to an office in Pakistan. That modeling violates a number of US patents — and if ClearCorrect were shipping back the resulting braces in a box, it would be a simple case: the goods would be contraband, to be stopped at the border. But instead, ClearCorrect is only transmitting digital models from Pakistan and printing out the braces in local offices in Texas. The only thing coming in from Pakistan is raw modeling data. So what’s a trade commission to do?

The trade commission gave itself the power to consider digital models as physical goods – and stop them at the border in October of 2014 – bypassing legal precedent limits. The MPAA wants to use this power over digital imports to restrict sites at the ISP level. And MPAA’s lawyers are hopeful that this new power will turn out fruitful.

According to Techdirt, the commission “granted itself the power to treat the incoming digital models as physical goods”, which would make it possible to stop them at the border and be of great benefit to the MPAA in its fight against piracy.

Technical limitations

Transit ISPs (those shipping data from other countries) can be handled with court orders than by ITC regulation but with inbound traffic, technical limitations makes it less feasible.

For one, the lack of information on incoming packets means the blocks would only affect IP addresses. If a “pirate site” shares an IP address with another site, the block won’t work. And IP addresses could easily be shared to circumvent blocking at transit ISP level.

Also, applying blocks at transit levels with make the Internet shift to different pathways, making the blocks useless altogether.

The law firm then turns to restricting outbound traffic to infringing websites at ISP level. However, this will ignore the inbound traffic of transit ISPs and would require action at the end of US ISPs. The pitch relies on convincing the agency that access to pirate sites is a violation.

There’s another pitch for ISPs to have been involved in ‘unfair’ action by ‘forcing’ the movie industry to ‘compete’ with infringing versions of its own work. Also, there is a mention of contributory infringement, although that attempt seems unlikely. The reasonable approach appears to be utilizing the ITC’s power to obtain cease-and-desist orders against ISPs, restricting them to enable access to pirate websites.

Censorship standpoint

The ITC’s power over digital transmissions will turn ISPs into custom agents who need to inspect outgoing requests and incoming packets. This will increase Internet censorship and negatively impact Internet users, and the DCMA safe harbor would no longer apply.

These new powers aren’t in effect yet but a decision is expected in 2015.