Before the
Intellectual Property Enforcement Coordinator
Washington, D.C. 20502
In the Matter of
Development of the Joint Strategic Plan
on Intellectual Property Enforcement
Request for Written Submissions

)
)
)
)
)
)

Comments of the Motion Picture Association of America, Inc.
Nov. 13, 2018

Neil Fried
SVP & Senior Counsel
Motion Picture Association of America, Inc.
1301 K Street NW, Washington, D.C. 20005
(202) 378-9100

 Table of Contents

Overview ......................................................................................................................................... 1
I.

Americans Are Continuing to Enjoy Another Golden Age of Movies and Television ...... 2

II.

Respect for Copyright Drives Innovation and Competition ............................................... 4

III.

Piracy Continues to Harm Consumers and Competition .................................................... 5

IV.

To Further Drive American Competitiveness, Combat Cyber-Threats, and Protect
Consumers, the MPAA Asks the IPEC to Help Ensure Continued Access to WHOIS Data,
to Push for Trade Agreements with Strong Copyright Provisions, to Advance Federal
Agency Efforts to Combat Streaming Piracy, and to Encourage Internet Intermediaries to
Engage in Voluntary Initiatives to Stem Content Theft...................................................... 9
A.

The IPEC Should Work with the NTIA to Preserve Access to WHOIS Data ...... 10

B.

The IPEC Should Push for Trade Agreements That Raise the International Level of
Copyright Protection and Enforcement, Reduce Market Barriers to U.S. Movies
and Television Programming, and Refrain From Expanding Online Immunities 13

C.

The IPEC Should Encourage Additional Efforts by the DOJ, Immigration and
Customs Enforcement, Customs and Border Protection, the FTC, the FCC, and
Other Relevant Departments to Combat Piracy .................................................... 17

D.

The IPEC Should Encourage Internet Intermediaries to Engage in Voluntary,
Collaborative Initiatives to More Proactively Curb the Mass, Unauthorized
Dissemination of Copyrighted Content ................................................................ 19

Conclusion .................................................................................................................................... 22

 Overview
American audiences have never had more choices in the movies and television shows they
can enjoy—or when, where, and how to enjoy them. Much of this results from our nation’s respect
for copyright, which encourages the production of U.S. content and its wide dissemination at home
and abroad. That benefits audiences, helps drive American innovation, produces well-paying jobs,
and grows the local and national economies.
Piracy remains a problem, nonetheless, as illegal enterprises enlist online tools to facilitate
unauthorized dissemination of content on a global scale. Compounding matters is the lack of
accountability of some major online platforms for their failure to prevent content theft and other
illicit conduct over their services. By creating a less hospitable environment for individuals and
businesses to engage in commerce and creativity, and forcing legitimate firms to compete with
unlawful actors, that lack of accountability harms consumers, growth, and American
competitiveness.
The MPAA thus welcomes the Administration’s approach of treating “America’s inventive
and creative capacity as something [to] protect, promote, and prioritize.”1 To that end, and
consistent with the Administration’s four-part approach to promoting and protecting intellectual
property by: 1) engaging with America’s international partners; 2) using all its legal authorities,
including trade tools; 3) expanding law enforcement action and cooperation; and 4) partnering
with the private sector and other stakeholders,2 the MPAA asks the IPEC to:


work with the National Telecommunications and Information Administration to restore and
preserve access to WHOIS data, which law enforcement, the private sector, and public interest
groups use to combat illicit online activity, including not only the theft of intellectual property,
but also sex trafficking, unlawful sale of opioids, cyber-attacks, and identity theft;



push for trade agreements that raise the international level of copyright protection and
enforcement, that reduce market barriers to U.S. movies and television programming, and that
refrain from expanding online immunities, which lessen incentives for online platforms and
internet intermediaries to proactively curb online lawlessness;



encourage additional efforts by the DOJ, Immigration and Customs Enforcement, Customs and
Border Protection, the FTC, the FCC, and other relevant departments to combat piracy, which
harms consumers, competition, and cybersecurity; and



continue encouraging internet intermediaries to engage in voluntary, collaborative initiatives
to more proactively curb the mass, unauthorized dissemination of copyrighted works.

1

In re Development of the Joint Strategic Plan on Intellectual Property Enforcement, Request for Written
Submissions, 83 Fed. Reg. 46522, 46523 (Sept. 13, 2018), https://www.gpo.gov/fdsys/pkg/FR-2018-0913/pdf/2018-19863.pdf.
2

Id. at 46523.

1

 I.

Americans Are Continuing to Enjoy Another Golden Age of Movies and Television

American viewers are benefitting from unprecedented competition for movies and
television programming—not only in theaters and over broadcast, cable, and satellite services, but
also online, as the following three charts indicate. The U.S. film and TV industry releases more
than 450 movies and nearly 500 scripted shows per year.3 The industry makes that content
available to American audiences through 140 lawful online film and TV services as of 2017, up
from 80 in 2012.4 U.S. viewers used those services, many of which have become global
powerhouses, to access 163.1 billion movies and TV episodes in 2017, up from 51.6 billion in
2012.5 The number of scripted shows reached 487 in 2017, up from 288 in 2012. Of those 487
shows, 117 were created for online outlets, compared to just 15 shows five years earlier.6
U.S. Cumulative Number of Still Active* Online Services for Full Length Film & TV, Source: MPAA Database
(*does not include services that offered film/TV for time period within this range, but not at present)

140

120

100

80
134
60

112

140

121

101
80

40
65
55
20

0
2010

2011

2012

2013

2014

3

2015

2016

2017

MPAA, 2017 THEATRICAL HOME ENTERTAINMENT MARKET ENVIRONMENT REPORT (2018) (using data for
U.S. country-of-origin movies only), https://www.mpaa.org/research-docs/2017-theatrical-home-entertainmentmarket-environment-theme-report/; Joe Otterson, 487 Scripted Series Aired in 2017, FX Chief John Langford Says,
VARIETY, Jan. 5, 2018, https://variety.com/2018/tv/news/2017-scripted-tv-series-fx-john-landgraf-1202653856/.
4

MPAA database.

5

IHS Markit. See www.IHS.com.

6

FX Networks Research (2018).

2

 Number of Scripted Original Programs, Source: FX Research

Broadcast and Cable

Online

487
500

455

389
400

349

350
266
6

200

216
4

260

288

90
49

33
373

24

300
250

117

422

450

356

365

370

325

15
273

212

150
100
50
0
2010

2011

2012

2013

2014

2015

2016

2017

U.S. Online Film & TV Views and Transactions (Billions), Source: IHS

180
160
140
120
100
163.1

80
117.8

60
87.2
40
20

35.9

51.6

73.6

62.3

26.6

0
2010

2011

2012

2013

2014

3

2015

2016

2017

 As audiences benefit from this activity so, too, do America’s national and local economies.
In the process of making content available online and off, the television and film industry supports
2.1 million jobs and $139 billion in wages across all 50 states; enlists more than 93,000 businesses,
87 percent of which are small businesses employing fewer than 10 people; and contributes $134
billion in sales.7 In addition, the industry pays $49 billion to 400,000 local businesses.8 A major
motion picture filming on location contributes on average $250,000 per day to the local
community, and a one-hour television episode contributes $150,000 per day. Notably, the local
community enjoys that up-front financial injection regardless of whether the film or TV show
becomes a hit or a flop.
II.

Respect for Copyright Drives Innovation and Competition

Respect for copyright helps drive this creative and economic activity, making the United
States the global leader in the creation of content enjoyed worldwide. The Constitution’s Copyright
Clause recognizes that securing the rights of creators in the fruits of their creativity, including to
determine how to disseminate their works, increases both the production and distribution of
content, to the ultimate benefit of the public.9
The exclusive rights of creators to protect, disseminate and license their content helps
manage the economic risks in the ultra-competitive video marketplace. Producing and distributing
a major motion picture costs on average $100 million, and six out of ten never make back their
initial investment. Major television productions now rival feature films not only in quality, but
also in cost, reaching millions of dollars per episode. Yet, according to an industry rule of thumb,
80 percent of scripts never become a pilot, 80 percent of pilots never become a series, and 80
percent of series never see a second season, reinforcing the high risk of this creative business.
The ability of content owners and distributors to use technological protection measures—
sometimes referred to as digital rights management—enables them to offer a wide variety of
innovative viewing options at different price points. Because of these technological measures,
audiences can choose how to access programming, including by downloading content to a hard
drive, streaming content for a limited time on a pay-per-view basis, enjoying content as part of a
subscription service, watching content over TV Everywhere applications in different places across
different devices, and accessing full seasons of a television series, either to catch up with past
episodes or to watch them all at once when a content creator makes them available en masse from
the start. Without technological protection measures to provide effective differentiation among
offerings and to ensure viewers gain access to the programming on the terms authorized, content

7

MPAA, THE ECONOMIC CONTRIBUTION OF THE MOTION PICTURE & TELEVISION INDUSTRY TO THE UNITED
STATES (NOV. 2017), https://www.mpaa.org/wp-content/uploads/2018/03/MPAA-Industry-EconomicContributionFactsheet_2016-FINAL-2.pdf.
8

Id.

9
See U.S. CONST., art. I, § 8, cl. 8 (conferring upon the legislative branch the role “[t]o promote the Progress of
Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries”); Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985)
(stating that “[b]y establishing a marketable right to the use of one’s expression, copyright supplies the economic
incentive to create and disseminate ideas.”).

4

 creators would not be able to offer all these choices through various outlets at various points in the
distribution cycle.
III.

Piracy Continues to Harm Consumers and Competition

Although physical-goods-based piracy remains a persistent threat in many parts of the
globe, unauthorized distribution online is frequently extra-jurisdictional in reach and has the most
significant impact on the worldwide market for U.S. movies and television programming. In the
past, many copyright skeptics claimed that pervasive online piracy would wither away once
copyright industries made a robust menu of content widely and easily available online. But despite
the U.S. motion picture and television industry’s embrace of the internet as a powerful way to
reach audiences through lawful services, online piracy remains a drag on American content
production and innovation.
Content thieves take advantage of a wide constellation of easy-to-use online technologies,
such as direct download, streaming, and piracy applications, usually for monetary gain. These sites
and services often have the look and feel of legitimate content distributors, luring unsuspecting
consumers into piracy. An estimated 542 million pirated movies and TV shows were downloaded
in the United States in 2017 using peer-to-peer protocols alone.10 Streaming piracy has now
surpassed illicit downloading via peer-to-peer protocols, with streaming piracy sites representing
37 percent of visits to sites with unauthorized content, compared to 36 percent for sites hosting
downloadable files of infringing content and 27 percent for peer-to-peer sites.11
An emerging global threat is piracy from illegal internet protocol television services that
provide stolen telecommunication signals or channels to a global audience via dedicated web
portals, third-party applications, and piracy devices configured to access the service. The MPAA
has identified more than one thousand of these illegal IPTV services operating around the world.
Piracy devices preloaded with software to illicitly stream movies and television
programming and a related ecosystem of infringing add-ons continue to be problematic, although
enforcement actions against key targets are having an impact. Websites enable one-click
installation of modified software onto set-top boxes or other internet-connected devices. This
modified software taps into an ecosystem of infringing content add-ons and portals to illicitly
stream movies and television programming live or “on demand.”
The following overview of the ecosystem surrounding the theft and unauthorized
dissemination of copyrighted movies and television shows will help put the problem in context:12

10

MarkMonitor. See www.markmonitor.com.

11

Analysis of SimilarWeb data, based on sites with at least 10,000 copyright removal requests in 2017 according
to the Google Transparency Report.
12

For illustrative examples, see In re Request for Public Comment on the 2018 Special 301 Out of Cycle
Review of Notorious Markets, Docket No. USTR-2018-0027, MPAA Comments (Oct. 1, 2018), available at
https://www.mpaa.org/policy-statement/mpaa-comments-to-ustr-on-notorious-markets/.

5

 Linking and Streaming Websites. Linking sites aggregate, organize, and index links to
content stored on other sites. Linking sites that offer unauthorized access to movies and
TV shows typically organize posts by title, genre, season, and episode, and often use the
official, copyright-protected art to advertise the content. The sites then provide one or more
active links so users can access the infringing content. Depending on the website, users are
commonly presented with the options of either streaming the content in a video-on-demand
format or downloading a permanent copy to their computers. Many streaming link sites
also frame or embed video players from third-party websites, reducing the number of clicks
needed to get to content while retaining the user to serve advertisements. Some also appear
to be hosting the underlying content files on servers they control to maintain continuity of
infringing offerings and to avoid takedowns on third-party file-hosting sites. They largely
derive their revenue from advertising and referrals.
Direct Download Cyberlockers and Streaming Video Hosting Services. Direct download
cyberlockers and streaming video hosting services are websites that provide centralized
hosting for infringing content that the public can downloaded or stream. The distribution
process is simple. A user uploads an infringing file and the cyberlocker or video hosting
service gives the user a link for accessing the file. The user posts the link on one or several
linking sites. Clicking the link will initiate a download or stream of the uploaded file. Links
for unauthorized copies of movies and television programs are widely disseminated across
the internet, not just via linking sites, but also via mobile and other web applications, social
media platforms, forums, blogs, and email. Complicating enforcement, cyberlockers and
video hosting services frequently provide several unique links to the same file and use
proxy services to mask where the site and content are hosted. If a content owner sends an
infringement notice for one of the links, the others may remain active, enabling continued
infringement. Additionally, many cyberlockers and video hosting services do not respond
at all to takedown notices. According to a NetNames and Digital Citizens Alliance report,
“[u]nlike legitimate cloud storage services … the cyberlocker business model is based on
attracting customers who desire anonymously to download or stream popular, copyright
infringing files that others have posted.”13 NetNames found that the 30 direct download
and streaming cyberlockers it analyzed took in close to $100 million in total annual revenue
and generated average profit margins of 63 to 88 percent from a mix of advertising and
subscription services.14 The principle use and purpose of these cyberlockers is to facilitate
content theft. By making vast amounts of infringing premium content available to the
public, these sites attract huge amounts of traffic.
Illegal Internet Protocol Television Services. Illegal internet protocol television services
typically offer hundreds of channels illegally sourced from providers worldwide, alongside
video-on-demand content that includes unauthorized copies of movies and television
13

NETNAMES, BEHIND THE CYBERLOCKER DOOR: A REPORT ON HOW SHADOWY CYBERLOCKER BUSINESSES
USE CREDIT CARD COMPANIES TO MAKE MILLIONS (Sept. 2014),
http://www.digitalcitizensalliance.org/cac/alliance/content.aspx?page=cyberlockers.
14

Id.

6

 series. Many of these illegal services are subscription based and run for profit, offering
monthly or yearly packages to their user base. The technical infrastructure related to these
services is often vast and complex, making the identification of content sources and service
operators extremely challenging. The marketing and sale of these services is often carried
out by a network of global re-sellers who purchase subscriptions at wholesale prices and
re-sell them for a profit, further complicating investigations. To function, illegal internet
protocol television services must rely on infrastructure and support services, such as
hosting providers, media servers, and panel hosting. Some of the infrastructure and support
services are unaware of the underlying illegal activity. Others, however, tailor their
business strategies towards illegal sites or look the other way, even when informed,
themselves becoming bad actors.
Piracy Devices and Applications. A damaging piracy ecosystem has emerged around
piracy devices and applications, sometimes referred to as “illicit streaming devices.” The
devices, often Android-based “set-top boxes,” are sometimes built around Kodi opensource media software. The applications connect users to streams of stored or “live” pirated
movies and television programming, and enable “plug and play” connection to a standard
television set, thus undermining the licensing fees paid by distributors on which content
creators depend. Six percent of North American broadband households—some 6.5 million
homes—are accessing known subscription television piracy services, according to
Sandvine.15 A rough estimate by Sandvine suggests the streaming device piracy ecosystem
may be generating ill-gotten gains of $840 million per year in North America, a number
that may well be understated.16 Streaming devices preloaded with infringing applications
and TV/VOD subscription services can be found online and in physical marketplaces.
Additionally, illegal applications that can make legitimate streaming devices infringing can
be found through a myriad of legitimate and specialty app repositories.
Peer-to-Peer Networks & BitTorrent Portals. Users of peer-to-peer or file-sharing networks
use software that allows them to join “swarms” of other users who are distributing a
particular title, such as a movie, TV show, or book. As each user downloads pieces of the
file, his or her computer distributes the pieces to others in the swarm. The most popular
peer-to-peer software is “BitTorrent.” BitTorrent websites facilitate file distribution by
organizing and indexing torrent files, and initiating and managing the download process.
The BitTorrent landscape remains popular, serving millions of torrents or tens of millions
of users at any given time.
Hosting Providers. Hosting providers make available the essential infrastructure required
to operate a website. Websites engaged in massive copyright infringement depend on a
hosting provider to make their websites easily viewable and to provide high-quality
15

SANDVINE, SPOTLIGHT: SUBSCRIPTION TELEVISION PIRACY 2 (Nov. 2017),
https://www.sandvine.com/hubfs/downloads/archive/2017-global-internet-phenomena-spotlight-subscriptiontelevision-piracy.pdf.
16

Id.

7

 streaming videos. The hosting provider has the ability to take websites engaged in massive
copyright infringement offline or to disable or otherwise shut them down. Some hosting
providers allow sites to hide behind a content delivery network. A content delivery network
is typically used to effectively and efficiently deliver content to a global user base by
placing servers all around the world that cache the pages of the website, providing a highspeed hosting infrastructure to some of the most popular web streaming services. One of
the by-products of using a content delivery network is that they mask the true IP and hosting
provider of a website. Given the central role of hosting providers in the online ecosystem,
it is disconcerting that many refuse to take action when notified that their hosting services
are being used in clear violation of their own terms of service prohibiting intellectual
property infringement and in blatant violation of the law.
Ad Networks. The companies connecting advertisers to infringing websites inadvertently
contribute to the prevalence and prosperity of infringing sites by providing funding to the
operators of these sites through advertising revenue. Although many ad networks have
established best practices and guidelines to address ads supporting or promoting piracy,
detection and policing of illicit sites continues to have its challenges.
Physical Counterfeit Products. Although digital dissemination presents the most pressing
threat to the creative industries, hard-copy piracy and counterfeiting remains a problem
because of the counterfeit products’ high quality, including the packaging, which often
makes it indistinguishable from legitimate product. These products can be purchased from
websites and online sales platforms, sometimes even legitimate ones, and are often fulfilled
through small-package shipments from U.S.-based sellers obtaining their inventory from
overseas, which obfuscates their origin and presents significant challenges for customs
authorities to detect and interdict the illicit shipments. Individual infringing sellers also
hide behind anonymous and false registrations on sites that have weak or non-existent
seller-vetting procedures.
All these forms of infringement harm a broad swath of the legitimate movie and television
production and distribution sectors, including content creators, large and independent movie and
television studios, production crews, small businesses that support productions, sports leagues,
broadcast and pay-TV networks and distributors, and over-the-top video services. The illicit
activity unlawfully competes with digital entrepreneurs and established players trying to grow
lawful and innovative content and distribution businesses. The large-scale availability of pirated
content makes it harder for legitimate content companies and distributors to earn a return on
investment, and thus also discourages some of that investment in the first place. Moreover, by
diverting subscribers from these legitimate services and siphoning financial returns that would
otherwise be available to re-invest in creative content, piracy harms competition and limits the
ability of content creators and distributors to offer innovative choices in movies, television
programming, and other video services.
Such piracy also harms consumers, both because it interferes with the public benefits
derived from copyright protection and because it directly imposes risks of other consumer harms.

8

 For example, as companies have focused resources on ensuring their advertising does not appear
on pirate sites, those sites have increasingly used the pirated content as bait for identity theft and
malware distribution as an alternative source of revenue. Indeed, one-third of pirate sites expose
users to malware and pirate sites are 28 times more likely to infect users with malware than
mainstream websites.17 Further, a March 2018 Carnegie Mellon University study found that
doubling the amount of time spent on infringing sites causes a 20 percent increase in malware
count.18 Such risks jeopardize the general public and legitimate digital trade. The spread of piracy
thus presents a growing threat not only to commerce, but also to consumers, the health of the
internet, and cybersecurity.
IV.

To Further Drive American Competitiveness, Combat Cyber-Threats, and Protect
Consumers, the MPAA Asks the IPEC to Help Ensure Continued Access to WHOIS
Data, to Push for Trade Agreements with Strong Copyright Provisions, to Advance
Federal Agency Efforts to Combat Streaming Piracy, and to Encourage Internet
Intermediaries to Engage in Voluntary Initiatives to Stem Content Theft

The IPEC seeks input regarding the U.S. government’s intellectual property enforcement
efforts, broken down by the Administration’s four-part approach to promoting and protecting
intellectual property: A) engagement with international partners; B) use of legal authorities,
including trade tools; C) law enforcement action and cooperation; and D) engagement with the
private sector and other stakeholders.19 Along those lines, the MPAA asks the IPEC to:


work with the NTIA to restore and preserve access to WHOIS data, which law
enforcement, the private sector, and public interest groups use to combat IP theft
and other forms of illicit online activity, such as sex trafficking, illegal sale of
opioids, cyber-attacks, and identity theft;



push for trade agreements that raise the international level of copyright protection
and enforcement, that reduce market barriers to U.S. movies and television

17
DIGITAL CITIZENS ALLIANCE, DIGITAL BAIT 2 (Dec. 2015),
https://www.digitalcitizensalliance.org/clientuploads/directory/Reports/digitalbait.pdf. See also EUROPEAN UNION
INTELLECTUAL PROPERTY OFFICE, IDENTIFICATION AND ANALYSIS OF MALWARE ON SELECTED SUSPECTED
COPYRIGHT-INFRINGING WEBSITES 3 (2018) (stating that copyright infringing websites “commonly distribute
various kinds of malware and potentially unwanted programs (PUPs), luring users into downloading and launching
these files”), https://euipo.europa.eu/tunnelweb/secure/webdav/guest/document_library/observatory/documents/reports/2018_Malware_Study/2018_Malware_
Study_en.pdf.
18

RAHUL TELANG, DOES ONLINE PIRACY MAKE COMPUTERS INSECURE? EVIDENCE FROM PANEL DATA (2018),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3139240.
19

In re Development of the Joint Strategic Plan on Intellectual Property Enforcement, Request for Written
Submissions, 83 Fed. Reg. 46522, 46523 (Sept. 13, 2018), https://www.gpo.gov/fdsys/pkg/FR-2018-0913/pdf/2018-19863.pdf.

9

 programming, and that refrain from expanding online immunities, which lessen
incentives for online platforms and intermediaries to proactively curb lawlessness;


encourage additional efforts by the DOJ, Immigration and Customs Enforcement,
Customs and Border Protection, the FTC, the FCC, and other relevant departments
to combat piracy, which harms consumers, competition, and cybersecurity; and



continue encouraging internet intermediaries to engage in voluntary, collaborative
initiatives to more proactively curb the mass, unauthorized dissemination of
copyrighted content.

A.

The IPEC Should Work with the NTIA to Preserve Access to WHOIS Data

WHOIS data—which contains contact information about domain name registrants—has
been a cornerstone of online security and safety since before the dawn of the commercial internet.20
Access to such information is critical to: 1) creating the transparency, accountability, and trust
consumers need to be willing to share their data in the online environment; 2) protecting consumers
from online lawlessness—including not only IP theft but also sex trafficking, unlawful sale of
opioids, cyber-attacks, and identity theft; and 3) maintaining the hospitable online environment
necessary to promote internet communication, commerce, and creativity.
Unfortunately, the Internet Corporation for Assigned Names and Numbers has enacted a
Temporary Specification21—under the stated goal of complying with the European Union’s
General Data Protection Regulation—that is unnecessarily resulting in restricted access to
important WHOIS data well beyond what the GDPR mandates, and not just in Europe, but also in
the United States and elsewhere. The GDPR does not apply at all to non-personal information;22
and even in the case of personal information, the regulation acknowledges legitimate interests can
warrant collection and disclosure, such as public safety, law enforcement and investigation,
enforcement of rights or a contract, fulfillment of a legal obligation, cybersecurity, and preventing
fraud.23 Moreover, the GDPR does not apply to American registrars and registries with respect to
domain name registrations by U.S. registrants, or where domain name registrants and registrars
are located outside the European Economic Area.24 Furthermore, it applies only to information
about “natural persons,” and so imposes no obligation to obfuscate information about domain
20

See History of WHOIS, ICANN WHOIS, https://whois.icann.org/en/history-whois (last visited Nov. 7, 2018).

21

ICANN, TEMPORARY SPECIFICATION FOR GTLD REGISTRATION DATA (May 25, 2018),
https://www.icann.org/resources/pages/gtld-registration-data-specs-en.
22

See GDPR, arts. 1 (describing the subject matter and objectives of the regulation as relating to the processing
and protection of personal data), https://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32016R0679&from=EN.
23

See id., arts. 2(2)(d), 5(1)(b), 6, 23. See also ICANN, GOVERNMENTAL ADVISORY COMMITTEE,
Communiqué—San Juan, Puerto Rico (Mar. 15, 2018) (stating that the GDPR allows for access to data for
legitimate purposes),
https://gac.icann.org/advice/communiques/20180315_icann61%20gac%20communique_finall.pdf.
24

See GDPR, arts. 2(2)(a), 3.

10

 name registrants that are companies, businesses, or other legal entities, irrespective of the
nationality or principal place of business of such entities.25 Applying any GDPR-related
restrictions on the WHOIS data of domain name registrants other than natural persons that are
residents of the EEA or who register domains with EEA registrars thus goes beyond the
regulation’s scope and is already harming consumer protection, public safety, and cybersecurity,
as government entities, the private sector, and public interest groups are warning.26 For example,
inconsistent implementation of ICANN’s Temporary Specification and confusion among
registrars and registries has impeded attempts to investigate and mitigate cyber-attacks, according
to a joint analysis of more than 300 survey responses by the Anti-Phishing Working Group and
the Messaging, Malware, and Mobile Anti-Abuse Working Group.27
Now is the time to be increasing online transparency, not diminishing it. The MPAA
therefore asks the IPEC to work with the NTIA to ensure that certain basic WHOIS information
remains publicly available, and that any information that the GDPR does require to be removed
from public access still be available to third parties with legitimate interests through a reasonable,
timely, and effective process. The IPEC and the NTIA should take an “all of the above” approach
and help advance a variety of contemporaneous efforts to ensure continued WHOIS access,
including through diplomatic channels, the ICANN multistakeholder process, trade agreements,
and U.S. legislative action.
For example, the MPAA urges the Administration to continue reiterating the importance
of access to WHOIS data and the problems associated with ICANN’s overbroad application of the
GDPR,28 and to ask European policymakers and data protection authorities to clarify that the
25

See GDPR, art. 1 (describing the subject matter and objectives of the regulation as relating to the protection of
natural persons. See also GAC Communiqué (stating that the GDPR applies only to the privacy of natural persons,
not legal entities).
26
See e.g., GAC Communiqué; Letter from more than 50 national and international organizations, trade
associations, companies and non-profit entities to Article 29 Working Party, European Commission (March 5,
2018), https://www.icann.org/en/system/files/files/gdpr-comments-sheckler-et-al-article-29-wp-whois-05mar18en.pdf.
27
ANTI-PHISHING WORKING GROUP & MESSAGING, MALWARE AND MOBILE ANTI-ABUSE WORKING GROUP,
ICANN GDPR AND WHOIS USERS SURVEY 4 (Oct. 2018), available at https://apwg.org/apwg-news-center/icannwhois-access/temporySpecSurvey and https://www.m3aawg.org/rel-WhoisSurvey2018-10.
28
See, e.g., Remarks of David J. Redl, Assistant Secretary of Commerce for Communications and Information,
ICANN 61 (Mar. 12, 2018) (stating that “the WHOIS service is an incredibly valuable tool for governments,
businesses, intellectual property rights holders, and individual Internet users around the world,” supporting “a
solution that maintains the WHOIS service to the greatest extent possible in the face of data protection and privacy
regulations such as the European General Data Protection Regulation,” expressing a need to “maintain[] a WHOIS
service that is quickly accessible for legitimate purposes,” encouraging “revisions to [ICANN’s interim] model to
permit access to the most amount of registration data as possible,” voicing “concern[] with the uncertainty around
how access to WHOIS information for legitimate purposes will be maintained in the period between the date of
GDPR enforcement, May 25, and the time in which the community is able to develop and agree to a formal
accreditation process,” calling for “[p]lans … to be put in place to ensure that the users behind the already defined
legitimate purposes—such as law enforcement, intellectual property enforcement, and cybersecurity—are not
stymied in their efforts to serve the public interest,” and saying that “[t]he United States will not accept a situation in
which WHOIS information is not available or is so difficult to gain access to that it becomes useless for the

11

 GDPR does not prevent access to WHOIS data in the European Economic Area for legitimate law
enforcement, consumer protection, and enforcement of rights purposes. The MPAA also asks the
IPEC to convey to registrars and registry operators that it expects them to continue making WHOIS
data publicly available outside the applicable reach of the GDPR. In the category of
multistakeholder efforts, the IPEC and the NTIA should urge ICANN and stakeholders to
accelerate work on adopting a post-GDPR WHOIS-solution through the Expedited Policy
Development Process on the Temporary Specification for gTLD Registration Data.29 The IPEC
and the NTIA should also continue to support efforts to provide access to non-public WHOIS data
through an accreditation and access model, including the proposal from ICANN for a unified
access model, or through other means that ICANN has suggested exploring, such as ICANN
assuming legal responsibility for providing access as a sole controller.30 On the trade side, the
Administration should seek robust WHOIS access requirements in future trade agreements,
perhaps expanding on language included in the U.S.-Mexico-Canada Agreement.31
In the meantime, the IPEC and the NTIA should support federal legislation requiring
registrars and registry operators to continue providing lawful access to WHOIS data. Such access
requirements could be included in stand-alone legislation or as part of a broader privacy bill. As
the NTIA and other domestic and foreign governmental entities continue to work with stakeholders
and European officials, such legislation would set a baseline level of access and exercise the federal
government’s prerogatives regarding the application of WHOIS and privacy policy to activity with
a U.S. nexus.

legitimate purposes that are critical to the ongoing stability and security of the Internet.”),
https://www.ntia.doc.gov/speechtestimony/2018/remarks-assistant-secretary-redl-icann-61; Letter from David J.
Redl, Assistant Secretary of Commerce for Communications and Information, to Cherine Chalaby, Chair, ICANN
Board of Directors (Apr. 16, 2018) (requesting an investigation into GoDaddy’s throttling of Port 43 access and
masking of WHOIS information),
https://www.ntia.doc.gov/files/ntia/publications/redl_to_icann_on_registrar_issues_april_2018_1.pdf. See also
Remarks of David J. Redl, Assistant Secretary of Commerce for Communications and Information, IGF-USA (July
27, 2018), https://www.ntia.doc.gov/speechtestimony/2018/remarks-assistant-secretary-redl-igf-usa-2018; Remarks
of David J. Redl, Assistant Secretary of Commerce for Communications and Information, ICANN 63 (Oct. 22,
2018), https://www.ntia.doc.gov/speechtestimony/2018/remarks-assistant-secretary-redl-icann-63.
29

See Heather Forrest, Generic Names Supporting Organization Council Chair, GNSO Council Launches EPDP
on the Temporary Specification for gTLD Registration Data, ICANN BLOG (July 19, 2018) (discussing launch of a
“fast track” policy development process to be completed by May 25, 2019), https://www.icann.org/news/blog/gnsocouncil-launches-edpd-on-the-temporary-specification-for-gtld-registration-data.
30

Göran Marby, ICANN President and CEO, ICANN GDPR and Data Protection/Privacy Update, ICANN
(Sept. 24, 2018), https://www.icann.org/news/blog/icann-gdpr-and-data-protection-privacy-update.
31
United States-Mexico-Canada Agreement, art. 20.C.11(1)(b) (requiring each nation, in connection with the
management of its country-code top-level domain, to provide online public access to a database of domain name
registrant contact information, subject to each nation’s law and, if applicable, relevant privacy and data protection
policies), https://ustr.gov/sites/default/files/files/agreements/FTA/USMCA/20%20Intellectual%20Property.pdf.

12

 With the dissolution32 of the Affirmation of Commitments between ICANN and the
Department of Commerce,33 ICANN is no longer subject to a federal contractual obligation to
ensure WHOIS data remains publicly accessible. And while ICANN’s bylaws and policies do still
include commitments to make WHOIS data accessible,34 that, alone, has not prevented domain
name registrars and registry operators from limiting WHOIS access in the face of litigation
uncertainty stemming from the GDPR and ICANN’s vague and overbroad Temporary
Specification. Creating a clear, countervailing obligation for registrars and registry operators to
provide access to WHOIS data will remove the uncertainty stemming from an overbroad
application of the GDPR, and facilitate the legitimate WHOIS interests of third parties, law
enforcement, and other entities. Indeed, the GDPR itself specifically allows for disclosure of data
to the extent required by local law.35
B.

The IPEC Should Push for Trade Agreements That Raise the International Level of
Copyright Protection and Enforcement, Reduce Market Barriers to U.S. Movies
and Television Programming, and Refrain From Expanding Online Immunities

Strong intellectual property policy is a core trade issue. Indeed, more than half of what is
commonly called the U.S. “digital trade surplus”36 comes from IP royalties and licensing fees.37

32

See Letter from Lawrence E. Strickling, Assistant Secretary for Communication and Information, to Dr.
Stephen D. Crocker, Chair, ICANN Board of Directors (Jan. 6, 2017),
https://www.icann.org/en/system/files/correspondence/strickling-to-crocker-06jan17-en.pdf.
33

Affirmation of Commitments Between the Department of Commerce and the Internet Corporation for
Assigned Names and Numbers, ¶ 9.3.1 (Sept. 30, 2009) (committing “to maintain timely, unrestricted and public
access to accurate and complete WHOIS information, including registrant, technical, billing, and administrative
contact information”), https://www.ntia.doc.gov/node/524.
34

See Bylaws for Internet Corporation for Assigned Names and Numbers, art. 1, § 4.6(e)(i), (e)(ii) (as amended
June 18, 2018) (stating that “subject to applicable laws, ICANN shall use commercially reasonable efforts to enforce
its policies relating to registration directory services and shall work with Supporting Organizations and Advisory
Committees to explore structural changes to improve accuracy and access to generic top-level domain registration
data, as well as consider safeguards for protecting such data” and that ICANN “shall cause a periodic review to
assess the effectiveness of the then current gTLD registry directory service and whether its implementation meets
the legitimate needs of law enforcement, promoting consumer trust and safeguarding registrant data”),
https://www.icann.org/resources/pages/governance/bylaws-en; Göran Marby, ICANN President and CEO, Data
Protection and Privacy Update—Plans for the New Year, ICANN Blog (Dec. 21, 2017) (making “it a high priority
to find a path forward to ensure compliance with the GDPR while maintaining WHOIS to the greatest extent
possible”), https://www.icann.org/news/blog/data-protection-and-privacy-update-plans-for-the-new-year.
35

See General Data Protection Regulation, art. 6(1)(c), 3, https://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32016R0679&from=EN (allowing disclosure “for compliance with a legal
obligation to which the controller is subject.”).
36

See Letter from Michael Beckerman, CEO, The Internet Association, to Ambassador Robert Lighthizer, U.S.
Trade Representative (May 16, 2017) (touting the United States’ $159 billion “digital trade surplus”),
https://cdn1.internetassociation.org/wp-content/uploads/2017/05/Lighthizer-Letter-5.16.pdf.
37

Alexis N. Grimm, Department of Commerce, Bureau of Economic Affairs, Trends in U.S. Trade in
Information and Communications Technology (ICT) Services and in ICT-Enabled Services (May 2016),
https://www.bea.gov/scb/pdf/2016/05%20May/0516_trends_%20in_us_trade_in_ict_serivces2.pdf.

13

 The licensing of intellectual property, which includes copyrighted content, accounted for $124.5
billion of a total $403 billion in information and communication technology-enabled services
exports—or 31 percent—in 2016.38 Copyright and the demand for high-quality content drive
global digital trade, and our trade policy should reflect this reality.
The core copyright industries of the United States—those industries whose primary
purpose is to create, produce, distribute, or exhibit copyright materials—contribute more than $1.2
trillion to U.S. GDP, or close to 7 percent of the U.S. economy. 39 In terms of jobs, the core
copyright industries employ more than 5.5 million workers, representing more than 4.5 percent of
the U.S. private workforce, with an average annual salary of $93,221, which is 38 percent higher
than the average U.S. wage.40 The core copyright industries also outpace the rest of the economy
in terms of growth, with an aggregate annual growth rate from 2012 to 2015 of almost 5 percent,
more than twice the growth rate of the entire U.S. economy during that period.41 And the copyright
industries also shine when it comes to foreign sales and exports. The recorded music, motion
pictures, television, software publishing, and non-software publishing copyright industries (such
as newspapers, books, and periodicals) collectively represent $177 billion in overseas sales, more
than the respective sales of each of the chemicals, aerospace products and parts, agricultural
products, and pharmaceuticals and medicines industries.42
The American motion picture and television production industry remains one of the
most highly competitive in the world. Approximately 450 lawful services around the globe
offer audiovisual content to audiences online, 43 and the number of subscriptions to online
video services around the world increased to 446.8 million in 2017 —a 33 percent increase
compared to 2016. 44 Contractual freedom to license on a territorial basis, a foundational
copyright principle, is of paramount importance to the audiovisual sector and a driver of our
sector’s services trade surplus. Indeed, the U.S. entertainment industry generates $16.5 billion in
audiovisual exports, registering a positive balance of trade in nearly every country in the world
with a 4-to-1 export-to-import ratio, and producing a positive services trade surplus of $12.2
billion, or five percent of the total U.S. private sector trade surplus in services—larger than each

38

JESSICA R. NICHOLSON, U.S. DEPARTMENT OF COMMERCE, ECONOMICS AND STATISTICS ADMINISTRATION,
OFFICE OF THE CHIEF ECONOMIST, DIGITAL TRADE IN NORTH AMERICA, ESA ISSUE BRIEF #01-18, at 4 (Jan. 5,
2018), https://www.commerce.gov/sites/default/files/media/files/2018/digital-trade-in-north-america.pdf.
39

STEVEN E. SIWEK, INTERNATIONAL INTELLECTUAL PROPERTY ALLIANCE, COPYRIGHT INDUSTRIES IN THE U.S.
ECONOMY: THE 2016 REPORT 2 (2016), http://www.iipawebsite.com/copyright_us_economy.html.
40

Id.

41

Id.

42

Id.

43

MPAA database.

44

MPAA, THEME Report 3 (2017), https://www.mpaa.org/wp-content/uploads/2018/04/MPAA-THEMEReport-2017_Final.pdf.

14

 of the surpluses in the advertising, mining, telecommunications, legal, information, and health
related services sectors.45
Every indication is that the industry’s trade surplus will continue to grow under expanded,
legitimate, digital trade. The most significant impediment to this growth is online copyright
infringement. In 2016, there were an estimated 5.4 billion downloads globally of pirated, widerelease films and primetime television and video-on-demand shows using peer-to-peer protocols—
and that doesn’t include other sources like streaming and downloading sites.46 With regard to
worldwide streaming piracy, in 2016 there were an estimated 21.4 billion total visits to streaming
piracy sites across both desktops and mobile devices.47 This infringement harms content creators;
the platforms that license high-value, high-quality content; and the consumers who are put at risk
for malware, identity theft, and fraud when they visit infringing websites. More broadly, online
theft harms the health and sustainability of the online ecosystem and has a serious distorting effect
on U.S. competitiveness and legitimate digital trade.
Consequently, our trade agreements should be supporting our copyright industries—and
thus our economy—by including strong IP chapters, including robust civil and criminal
enforcement measures. Indeed, the U.S. International Trade Commission has noted the importance
of strong protections against digital piracy for U.S. creative exports.48 A key issue in this regard is
ensuring future trade agreements explicitly require the threat of civil liability for “secondary
infringement,” i.e. for businesses built around inducing or materially contributing to infringement
or directly benefitting from infringement they are in a position to control. Such principles of
secondary liability are well-established in U.S. law and form a critical foundation for effective
online enforcement. To date, this concept has been implicit in trade agreements, but has not been
realized in practice. Moreover, rightsholders should have fully effective injunctive relief, akin to
that provided by Rule 65 of the U.S. Code of Civil Procedure. Future agreements should also
provide for effective, deterrent criminal enforcement against commercial-scale infringement
without proof of profit motive; ensure deterrent-level pre-established damages, require aiding and
abetting liability for all criminal copyright offenses, and ensure camcording is a crime.
Strong provisions against circumvention of technological protection measures are also
important. As discussed in Part II, above, the U.S. film and television industry relies on
technological protection measures to enable diverse business models for digital content delivery.

45

MPAA, THE ECONOMIC CONTRIBUTION OF THE MOTION PICTURE & TELEVISION INDUSTRY TO THE UNITED
STATES (NOV. 2017), https://www.mpaa.org/wp-content/uploads/2018/03/MPAA-Industry-EconomicContributionFactsheet_2016-FINAL-2.pdf.
46
Alliance for Creativity and Entertainment, The Threat of Online Piracy,
https://alliance4creativity.com/mission/the-threat-of-online-piracy/ (last visited Nov. 13, 2018).
47

Id.

48

U.S. INTERNATIONAL TRADE COMMISSION, DIGITAL TRADE IN THE U.S. AND GLOBAL ECONOMIES, PART 1
(July 2013), https://www.usitc.gov/publications/332/pub4415.pdf.

15

 The global minimum standards for copyright in the digital environment, including legal protections
for technological protection measures, are established by the World Intellectual Property
Organization Internet Treaties. The IPEC should work with its interagency colleagues to ensure
that our trade agreements obligate trading partners to fully and effectively implement these digital
trade-enabling treaties.
Future trade agreements should avoid, however, a rote recitation of Section 512 of the
Copyright Act.49 Section 512 reflects an intent to foster a system of shared responsibility between
copyright owners and service providers to deal with the problem of widespread infringement
occurring over the internet. In a number of important areas that delineate this shared responsibility,
however, the courts have strayed from the text and intent of the language and the overall purposes
underlying section 512, to the detriment of content holders and the balance that Congress sought
to strike. Moreover, we have in recent years seen other countries more effectively and nimbly
respond to online piracy in their markets through site blocking, notice-and-stay-down, and
injunctive relief. As such, we recommend moving to high-level language that establishes
intermediary liability and appropriate limitations on liability while accommodating effective
enforcement innovations made by some of our trade partners. This would be fully consistent with
U.S. law and avoid the same misinterpretations by policymakers and courts overseas.
Access to foreign markets is also critically important. The nature of the online
marketplace—including essentially unlimited capacity, immense diversity, and rapid change—
ensures the availability of diverse content for every audience, leaving no excuse for protectionism.
The IPEC should thus work with its interagency colleagues to preserve a rigorous policy of nondiscrimination in the online and offline marketplace. Quotas and other discriminatory measures
have no place in trade agreements.
Because copyright is such a strong contributor to the U.S. economy and trade, the last thing
we should be doing is weakening copyright abroad. We thus ask the IPEC to counsel its
counterparts in the U.S. government against exporting outdated limits on online liability, especially
in light of domestic conversations questioning the fitness of online liability limitations at home.
Poorly constructed limits on online liability may come at the expense of consumer protection,
numerous public policy objectives such as curbing sex trafficking, and the copyright industries,
which produce millions of jobs and a trade surplus.
Advocates for inclusion of such online liability limits—the same groups seeking to use
trade agreements to weaken IP policy—are cynically transparent in stating that they wish to do so
to prevent the recent efforts by Congress to re-examine them in the United States.50 Exporting

49

17 U.S.C. § 512.

50

See Jeremy Malcolm, Electronic Frontier Foundation, Could Platform Safe Harbors Save the NAFTA Talks?
(Jan. 23, 2018) (arguing that one reason to include Section 230 of the Communications Act in NAFTA is to prevent
Congress from modifying it in U.S. law), https://www.eff.org/deeplinks/2018/01/platform-safe-harbors-touted-safe-

16

 these limitations for online platforms would hinder the goals of promoting the free flow of
information and strengthening the global marketplace for American digital products and services.
Consumers globally will be more reluctant to engage in internet communication and commerce in
the face of increased online criminality, and U.S. creative industries will be hampered in their
ability to export content in the face of a weakened international IP environment. The NTIA has
observed that “at least one-third of online households have been deterred from certain forms of
online activity, such as financial transactions, due to privacy and security concerns.” 51 Online
lawlessness is thus one of the more significant and growing threats to the global free flow of
information online. Magnified on a global scale, these concerns can pose a real risk to U.S.
economic interests at home and abroad.
Similarly, trade agreements should not include expanded articles on copyright exceptions
and limitations, but instead should include a clean recitation of the three-step test, providing both
rightsholders and users a familiar and widely understood and accepted framework for exceptions
and limitations to copyright. The three-step test, which is the time-tested standard reflected in
TRIPS, the Berne Convention, and the 1996 WIPO Internet Treaties, remains a flexible and
broadly supported mechanism that supports appropriate exceptions, including in the digital
environment.
C.

The IPEC Should Encourage Additional Efforts by the DOJ, Immigration and
Customs Enforcement, Customs and Border Protection, the FTC, the FCC, and
Other Relevant Departments to Combat Piracy

Given the harms of piracy to competition and consumer welfare, we ask the IPEC to
coordinate affirmative steps by the DOJ, Immigration and Customs Enforcement, Customs and
Border Protection, the FTC, the FCC, and other relevant departments to combat piracy.
A critical component in the battle against piracy is enforcement by government agencies,
which has significant deterrent value. A prime example is the U.S. government’s 2012 criminal
enforcement action against Megaupload. Then the largest piracy “cyberlocker,” Megaupload alone
accounted for 4 percent of all global internet traffic. The enforcement action prompted many other
pirate operations to shutter. A peer-reviewed study of this reduction in piracy sources demonstrated
a 6.5 to 8.5 percent increase in legitimate digital sales for three major studios in 12 countries.52 We
would expect similar beneficial results for the studios and other creators were the U.S. government
to become more active in the fight against streaming, for example.

nafta-talks; Neil Turkewitz, What the EFF? (Jan. 27, 2018) (noting that the EFF has previously opposed such
“policy laundering” as an inappropriate use of trade agreements), https://medium.com/@nturkewitz_56674/whatthe-eff-d16950bf0a0f.
Developing the Administration’s Approach to Consumer Privacy, Docket No. 180821780-8780-01, Notice
and Request for Public Comments, 83 Fed. Reg. 48600, 48600 (Sept. 26, 2018), https://www.gpo.gov/fdsys/pkg/FR2018-09-26/pdf/2018-20941.pdf.
51

52

BRETT DANAHER AND MICHAEL D. SMITH, GONE IN 60 SECONDS: THE IMPACT OF THE MEGAUPLOAD
SHUTDOWN ON MOVIE SALES 4 (Sept. 2013), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2229349.

17

 To that end, a coalition of the content community met with the National Intellectual
Property Rights Coordination Center, which brings together 23 U.S. and foreign agencies under
the stewardship of the U.S. Immigration and Customs Enforcement’s Homeland Security
Investigations division, to urge the federal government to bring criminal enforcement actions
against purveyors of streaming piracy services. The IPEC also convened stakeholders and federal
agencies to discuss the issue, and the MPAA would welcome the IPEC’s encouragement to the
DOJ to move forward with criminal enforcement actions. While DOJ pursues such criminal
enforcement under current law, the MPAA also asks the IPEC to support DOJ’s repeated calls for
legislation closing the streaming piracy loophole.53 In yet another example of technology
outpacing the law, unauthorized distribution of copyrighted content through downloads can be
prosecuted as a felony, but unauthorized streaming can be pursued only as a misdemeanor. With
illicit streaming now overtaking downloading as a method of piracy, that distinction not only
makes little sense, it may actually incentivize illicit enterprises to move toward streaming.
The MPAA would also welcome the IPEC’s consulting with Customs and Border
Protection about interdiction of illicit streaming devices entering the country from abroad, as well
as coordination with other departments to bring about effective action. For example, FTC
Chairman Simons attended the streaming piracy meeting the IPEC convened, and the MPAA
would welcome the IPEC’s recommendation that the FTC help mitigate the harm to consumers
and competition that comes from piracy and the spread of malware. To date, FTC efforts appear
to have been largely confined to a consumer advisory.54 Taking more affirmative steps would help
prevent unlawful services from stifling investment in, and competition by, legitimate online
content services; would help combat cybersecurity threats; and would help protect consumers from
identity theft and fraud stemming from malware. For example, the FTC could consider an unfair
and deceptive trade practices action against entities marketing streaming piracy devices and
applications as “100 percent legal” and a way to “never pay for content again,” or for harm to
consumers stemming from malware. An expanded effort to educate consumers and policymakers
about the harms of piracy, the threat to the competitive market for American digital products and
services, and the risks to cybersecurity could also pay dividends.
Lastly, one result of the IPEC meeting was a letter from FCC Commissioner Michael
O’Rielly encouraging Amazon and eBay to work with the FCC to keep streaming piracy devices
off their online marketplaces,55 which they graciously agreed to do. This also opens up the
possibility of FCC enforcement actions to the extent that those devices are not in compliance with

See, e.g., Statement of David Bitkower, Acting Deputy Assistant Att’y Gen., Crim. Div., U.S. Dep’t of
Justice, Copyright Remedies: Hearing Before the Subcomm. on Courts, Intellectual Prop. & the Internet of the H.
Comm. On the Judiciary, 113th Cong. 2 (2014), at 7-8, http://judiciary.house.gov/_cache/files/c2cf069f-5e3d-44498614-c05b183fd910/bitkower-doj-remedies-testimony.pdf.
53

54

See Will Maxson, Assistant Director, Division of Marketing Practices, FTC, Free movies, costly malware,
CONSUMER INFORMATION BLOG (April 12, 2017), https://www.consumer.ftc.gov/blog/2017/04/free-movies-costlymalware.
Letter from FCC Commissioner Michael O’Rielly to Devin Wenig, CEO, President, Director, eBay and Jeff
Bezos, CEO, Amazon (May 25, 2018), https://docs.fcc.gov/public/attachments/DOC-350985A1.pdf.
55

18

 FCC emissions requirements and other regulations. The MPAA would welcome the IPEC’s
encouragement of such FCC actions.
D.

The IPEC Should Encourage Internet Intermediaries to Engage in Voluntary,
Collaborative Initiatives to More Proactively Curb the Mass, Unauthorized
Dissemination of Copyrighted Content

A significant factor contributing to the piracy problem is a lack of accountability on the
part of some online platforms—a number of which are among the world’s largest internet
companies—for unlawful conduct occurring over their services. While online platforms play an
active and crucial, global role in providing access to content, the relationship between the
platforms and the content is often seen as less direct in light of certain platforms’ predominately
“user-generated content” business models. Providers of curated content, by contrast, are more
closely associated with the content and service environment they offer. This has led to disparate
incentives when it comes to the level of responsibility assumed by large internet platforms as
compared to other businesses. The lack of platform accountability presents significant risk of
consumer harm and restraint on competition by unfairly forcing legitimate content production and
distribution businesses to compete with material that is stolen, generally impairing the legitimate
online marketplace with lawlessness, and reducing innovation and consumer choice, as people
across the political spectrum are observing.56
The web has certainly made it easier for individuals to access and create entertainment,
gather and share information, start their own businesses, conduct commerce, and interact with their
government. But over the course of the last decade, we have entered an always-on, broadband and
mobile, micro-targeted world where a very few, largely unregulated social media and internet
platforms have massive influence over how people communicate and engage in commerce.57

56
See Letter from 17 conservative organizations to Senate and House Judiciary and Commerce Committee
Chairmen Chuck Grassley, Bob Goodlatte, John Thune, and Greg Walden (April 17, 2018) (stating that “many of
the internet’s problems result from a lack of accountability”), https://conservative.org/article/coalition-letterexpressing-support-for-recent-hearings-on-internet-platforms; Letter from 50 civil rights organizations to Senate and
House Chairmen and Ranking Members John Thune, Bill Nelson, Greg Walden, and Frank Pallone (May 10, 2018)
(stating that “[r]ecent events, from the ‘fake news’ crisis and attacks on our elections, to the widespread use of social
media platforms by hate groups, have laid bare the extent of tech companies’ inability—or unwillingness—to police
their own platforms”), http://httponline.org/2018/05/http-joins-advocacy-groups-call-comprehensive-legislationprotect-americans-privacy-civil-rights/; Letter from 17 multicultural content organizations to Reps. Judy Chu, Mario
Diaz-Balart, Michelle Lujan Grisham, and Cedric Richmond (Sept. 4, 2018) (stating that “the lack of accountability
for dominant internet platforms causes serious harms and undermines trust online”), https://www.icontalks.com/wpcontent/uploads/2018/09/Multicultural-Creators-Letter-9.4.18.pdf.

See Zeynep Tufekci, It’s the (Democracy-Poisoning) Golden Age of Free Speech, WIRED, Jan. 16, 2018
(stating that “[i]n the 21st century, the capacity to spread ideas and reach an audience is no longer limited by access
to expensive, centralized broadcasting infrastructure. It’s limited instead by one’s ability to garner and distribute
attention. And right now, the flow of the world’s attention is structured, to a vast and overwhelming degree, by just a
few digital platforms: Facebook, Google (which owns YouTube), and, to a lesser extent, Twitter.’”),
https://www.wired.com/story/free-speech-issue-tech-turmoil-new-censorship.
57

19

 Unfortunately, those platforms don’t amplify only the actions of well-meaning people using the
internet for good. They also amplify the actions of bad actors who exploit the capabilities and
reach of these platforms, often precisely as designed, as part of commercial-scale illicit enterprises.
Ordinarily, businesses are held legally accountable if they don’t take reasonable steps to
combat illegal activity related to their services.58 Online platforms, however, are largely absolved
from such accountability, stemming in large part from liability limits enacted by Congress two
decades ago when the commercial internet was relatively nascent.59 The presumption underlying
the liability limits was that the platforms would take voluntary steps to curb abuses, but that has
not happened to a sufficient degree.
Online enforcement efforts are complicated when intermediaries fail to take adequate steps
to ensure their services are not being used to facilitate copyright infringement, a problem
compounded by the fact that most website operators operate anonymously and outside the
boundaries of the law. All stakeholders in the internet ecosystem—including hosting providers,
cloud and anonymizing services, advertising networks, payment processors, social networks, and
search engines—should actively seek to reduce online content theft. As MPAA Chairman and
CEO Charles Rivkin observed in recent letters to Congress and in remarks before the Technology
Policy Institute, more effective voluntary efforts by online platforms to curb abuse of their
services—in collaboration with those impacted by the abuses—could help preserve trust online
and a healthy and vibrant internet ecosystem.60 For example:

58
See Chairman Bob Goodlatte, Facebook, Google and Twitter: Examining the Content Filtering Practices of
Social Media Giants, BEFORE THE H. COMM. ON THE JUDICIARY, 115th Cong. (July 17, 2018) (observing that hotels
can be held liable if they don’t do enough to curb sex trafficking in their rooms; nightclubs can be held liable if they
don’t do enough to curb drug transactions on their dance floors; landowners can be held liable if they don’t do
enough to protect people from hazards on their property; pawn shops can be held liable if they don’t do enough to
curb fencing of stolen goods in their stores; and traditional media companies can be held liable if they disseminate
defamatory material, even if produced by others), https://judiciary.house.gov/hearing/facebook-google-and-twitterexamining-the-content-filtering-practices-of-social-media-giants/.
59

See 47 U.S.C. § 230 (added to the Communications Act of 1934 by the Communications Decency Act, which
was itself part of the Telecommunications Act of 1996, Pub. L. No. 104-104, sec. 509, 110 Stat. 56, 133, 137,
available at https://www.gpo.gov/fdsys/pkg/PLAW-104publ104/pdf/PLAW-104publ104.pdf); 17 U.S.C. § 512
(added to the Copyright Act in 1998 by the Digital Millennium Copyright Act, Pub. L. No. 105-304, sec. 202(a),
112 Stat. 2860, 2877, available at https://www.copyright.gov/legislation/pl105-304.pdf).
60

See Letter from MPAA CEO Charles Rivkin to House Energy and Commerce Committee Chairman Greg
Walden and Ranking Member Frank Pallone (April 10, 2018), https://www.mpaa.org/policy-statement/mpaa-houseletter-online-accountability/; Letter from MPAA CEO Charles Rivkin to Senate Judiciary and Commerce
Committee Chairmen and Ranking Members Chuck Grassley, John Thune, Dianne Feinstein and Bill Nelson (April
10, 2018), https://www.mpaa.org/wp-content/uploads/2018/04/180410-MPAA-FB-hearing-Senate-letter.pdf;
Charles Rivkin, Chairman and CEO, MPAA, A Declaration of Accountability for Cyberspace, Keynote Address at
the Technology Policy Institute Aspen Forum (Aug. 20, 2018), https://www.mpaa.org/speeches_and_op_eds/adeclaration-of-accountability-for-cyberspace/.

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 

Advertisers, advertising agencies, and online ad networks are working with stakeholders
to combat fraudulent digital advertising traffic and to make sure internet ads don’t
inadvertently support web sites facilitating malware, piracy, and counterfeit goods.61



Payment processors such as MasterCard, Visa, and PayPal are working with content
creators and others to prevent websites from using those companies’ financial networks to
collect subscription or other revenue from unlawful online activities.



Donuts and Radix, major operators of new domain name extensions such as .movie and
.online, have a streamlined process to respond to notices from content companies and, in
some cases, suspend the domain names of large-scale pirate sites registered in their domain
extensions for violating their anti-abuse policies.62



Amazon and eBay are working to prevent the sale over their online marketplaces of
streaming devices and applications designed and marketed for piracy. Amazon has also
been a strong partner in efforts to target such piracy at the source, including joint litigation
and criminal referrals made against suppliers of piracy-targeted devices, and actions to
significantly disrupt the unlawful applications underlying such devices.

These are all positive developments. Other platforms and internet intermediaries would do
well to better emulate these types of voluntary, collaborative initiatives to combat copyright
infringement and other unlawful online behavior. Unfortunately, many continue to fall short. The
IPEC could do much to promote greater collaboration aimed at reducing these harms by endorsing
voluntary initiatives, as it has in the past.63 For example, more online intermediaries should adopt
“trusted notifier” programs, under which they accept referrals from the content community about
entities using the intermediaries’ services in the aid of piracy and, after doing their own due
diligence, take remedial action. In particular:
Domain name registrars and registry operators should agree to keep WHOIS data public,
to the extent permitted by law; to suspend the domain names of referred sites; to freeze the
domain name so it becomes unavailable to others; and to disclose the true name and address
of pirate site operators, prevent that operator from re-registering, and agree not to challenge
third-party application of court orders regarding domain name suspension in cases by
rightsholders against pirate sites.

61

See Trustworthy Accountability Group, https://www.tagtoday.net/.

62
See Donuts and MPAA establish new partnership to reduce online piracy (Feb. 9, 2016),
https://www.mpaa.org/press/donuts-and-mpaa-establish-new-partnership-to-reduce-online-piracy/; Radix and the
MPAA Establish New Partnership to Reduce Online Piracy (May 13, 2016), https://www.mpaa.org/wpcontent/uploads/2016/05/Radix-and-the-MPAA-Establish-New-Partnership-to-Reduce-Online-Piracy.pdf.
63
U.S. INTELLECTUAL PROPERTY ENFORCEMENT COORDINATOR, 2013 JOINT STRATEGIC PLAN ON
INTELLECTUAL PROPERTY ENFORCEMENT 6-7 (June 2013),
https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/IPEC/2013-us-ipec-joint-strategic-plan.pdf, U.S. JOINT
STRATEGIC PLAN ON INTELLECTUAL PROPERTY ENFORCEMENT: FY 2017-2019, at 11 (Dec. 2016),
https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/IPEC/2016jointstrategicplan.pdf.

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 Hosting providers should filter using automated content recognition technology; forward
DMCA notices to users, terminate repeat infringers after receipt of a reasonable number of
notices, and prevent re-registration by terminated users; implement download bandwidth
or frequency limitations to prevent high volume traffic for particular files; agree not to
challenge third party application of court orders regarding suspension of hosting services
in cases by rightsholders against pirate sites; remove files expeditiously; and block referral
traffic from known piracy sites.
Reverse proxy servers should disclose the true hosting location of pirate sites upon referral;
terminate identified pirate sites, and prevent these sites from re-registering; and agree not
to challenge third party application of court orders regarding suspension of reverse proxy
services in cases by rightsholders against pirate sites.
ISPs should forward Digital Millennium Copyright Act notices to users; terminate repeat
infringers after receipt of a reasonable number of notices and prevent re-registration by
infringers; expeditiously comply with document subpoenas for user information; and block
sites subject to court order in the applicable jurisdiction.
Social media should remove ads, links, and pages dedicated to the promotion of piracy
devices and terminate repeat infringers.
Some argue there is tension between curbing illegal activity online and free expression.
The argument is made far too broadly. Combating unlawful conduct like identity theft,
unauthorized distribution of entire copyrighted works, cyberattacks, and illicit sale of opioids is
no more a threat to free expression on the internet than it is in the physical world. In fact, curbing
illegal activity promotes free expression by creating a safer environment where individuals feel
comfortable to communicate and engage in commerce, and to create and lawfully access content.
Conclusion
Respect for copyright drives not just creativity, but also innovation, economic growth, and
American competitiveness. Piracy—and online lawlessness generally—undermines the ability of
audiences, businesses, and our nation to reap the full benefits of the internet for commerce and
communication, as well as puts consumers at risk. The MPAA therefore asks the IPEC to:


work with the NTIA and the State Department through diplomatic channels to restore and
preserve access to WHOIS data;



push for trade agreements that raise the international level of copyright protection and
enforcement, that reduce market barriers to U.S. movies and television programming, and
that refrain from expanding online immunities;



encourage additional efforts by the DOJ, Immigration and Customs Enforcement, Customs
and Border Protection, the FTC, the FCC and other departments to combat piracy; and



continue encouraging internet intermediaries to engage in voluntary, collaborative
initiatives to proactively curb the mass, unauthorized distribution of copyrighted content.
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