The news story I recently wrote about a corrupt attorney general conspiring with the MPAA to take down Google has certainly caught the interest of our readers. Although the emails that Google recently obtained did contain some new information, many details of the conspiracy have actually been publicly available for a while. The Sony hack late last year revealed several emails that mention a strategy for movie studios to take on Goliath. It becomes clear from reading a few emails that Goliath is in fact a code name for Google.
While there was some coverage of the MPAA's Goliath strategy back in December, it managed to slip under the radar for most people. Due to the renewed interest in this topic, thanks to the recent news coverage, I feel now would be a good time to revisit the Sony emails. I will be making use of WikiLeaks' database of Sony documents. The documents I will be looking at are a series of emails from Steven Fabrizio of the MPAA, which were sent to Rebecca Prentice of Paramount, Leah Weil of Sony, Maren Christensen of Universal Studios, John Rogovin of Warner Brothers, Gary Roberts of Fox, and Alan Braverman of Disney. All these individuals hold the position of General Counsel at their respective companies.
The first email is from January 26,2014. The main topic of the email is Site Blocking and ISP measures with regards to dealing with copyright infringement. In the introductory paragraph, Fabrizio mentions that he wishes to use their February meeting to discuss the Goliath strategy. While this is the only mention of it in the email, the fact that it is brought up at all suggests it is connected to the content of the email.
The main thrust of the email is rethinking the way copyright holders deal with site blocking. While they normally use the a section of the DMCA act to block sites that host infringing content, Fabrizio says he is exploring theories of using the All Writs Act. The All Writs Act grants courts the power to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." What actions are necessary or appropriate is a judgment call, which varies from person to person. However, there may be the possibility of expanding site blocking by relying on this act, depending on how the courts interpret it. The other concern brought up is that site blocking creates an adversarial relationship with ISPs. Fabrizio suggests that ISPs may voluntarily choose to take alternative actions, which may be just as useful as site blocking, when dealing with infringing content. He states that he is working with Comcast to study these possibilities.
The main purpose of the email is to get approval for funding of analysis related to these issues. This includes legal analysis related to the All Writs Act, technical analysis relating to site blocking or alternatives, and political analysis relating to the possible backlash against these actions. Fabrizio is clearly worried about public perception of these actions when he states, "Finally, in the post-SOPA world, we need to consider the extent to which a strategy presents a risk of a public relations backlash (e.g., whether a strategy might invigorate and galvanize the anti-copyright forces we saw in the SOPA debates, and what ultimate impact that might have)."
The next email is from February 27, 2014. In it, Fabrizio states he wants to use their March meeting to discuss and get approval for an expanded Goliath strategy. He also reproduces for them a report from Tom Perrelli. Tom Perrelli works for Jenner and Block, a law firm often employed by the MPAA. Perrelli's report has a ton of interesting information, particularly it specifically refers to Jim Hood, the corrupt attorney general from my previous article.
The report mentions conflicts between Attorney Generals and Goliath, and that Goliath has threatened to go after them like it went after the people in DC over SOPA. The report states that AGs are concerned about 3 things: What Goliath would do if it went on the attack, the resources an investigation would take, and the viability of legal theories to be used against Goliath. The report also states that it's critical to keep AGs focused on Goliath, and the time has come for some subset of AGs, Hood alone if necessary, to issue CIDs. A CID is a Civil Investigative Demand, which is fairly similar to a subpoena, and indeed much news coverage will simply refer to CIDs as subpoenas for simplicity. Now if there was a legitimate investigation going on, it seems that AGs wouldn't be waiting for the go ahead from the MPAA to issue CIDs. In fact, the CID that Hood later issued against Google was put under a temporary injunction by a federal court, after finding that Hood acted in bad faith.
The plan also says there should be broad support from AGs, even those not directly involved in the CIDs. This has become a reality as 40 AGs throw their support behind Hood in his fight against Google. The final section is the most damning, as it calls for "us"(meaning Perrelli and lawyers at Jenner and Block) to draft the CIDs and get the AGs focused on a clear timeline for issuing the CIDs.
An email from March 21, 2014 seeks approval for a budget for the Goliath strategy, which aims at strengthening the State AG effort. It also explains the connection between the Goliath strategy and the DCA, which has its own budget to worry about. The DCA refers to the Digital Citizen Alliance, an advocacy group which, according to its about page, is fighting against online scams, the sale of dangerous drugs online, and the distribution of stolen movies, music and images. He states that the DCA has almost no overlap with the Goliath strategy but is complementary to it. Fabrizio closes the email by stating:
In connection with the bolstered State AG effort, we intend to take more of a leading role in directing DCA’s anti-Goliath efforts, to ensure DCA’s own activities support our activities. We also intend to use DCA as one of the primary public advocacy platforms for the anti-Goliath information and evidence we develop through our investigation. We are pretty comfortable that what we are proposing is completely additive to what DCA has been and will be doing.The final email I'm going to look at is from May 8, 2014. It proposes two possible budgets for consideration, which will be discussed at the next meeting. Budget 1 calls for spending $500k for Jenner and Block to draft CIDs as well as provide general support to AGs. It also calls for spending $85k to rebut Goliath public advocacy as well as create negative news coverage of Goliath based on AG action.
Budget 2 has the same $500k for Jenner and Block and ups the advocacy/media spending to $100k. It also sets aside $340k for Keystone, which appears to have activities related to investigation and analysis of Goliath. The budget also sets aside $150k for Jenner and Block to work with Keystone to develop evidence and package evidence for advocacy. It also sets aside 60k for Hemu, whose purpose is described as, "Long-time trusted AG advisor who AG’s want as resource. Assist AG’s to understand/assimilate evidence and claims. Vet/vouch for our work product. Public spokesperson for AG’s as needed."
After years of dealing with Jim Hood, it's not too difficult to see why Google switched its focus to the MPAA after the Sony hack brought these emails to light. It's clear that not only is Jim Hood corrupt, but many other AGs may also be unduly influenced by the MPAA. The major movie studios are thoroughly entrenched in the American political system, but Google is no pushover. I believe they were quite right in identifying Google as the biggest threat to their agenda. If anyone can take on the movie industry, it would be Google.