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August 11, 2015

Stopping Criminals Isn't "Censorship"

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I’ve gotten used to efforts by the Electronic Frontier Foundation to fabricate allegations that suggest efforts to combat theft will break the Internet and end free speech. So it was not surprising that the EFF is seeking to mischaracterize a lawsuit filed by the MPAA on July 24 against the website and a ring of affiliated sites. Importantly, the only purpose of MovieTube is to illegally distribute and stream stolen copies of the latest movies and television programs for a profit (see the screenshot below).  Shutting down sites like MovieTube is part of a never ending battle by rights holders against those who blithely steal others’ creations for their own benefit. Also, protecting those works helps defend the livelihoods of millions of film and TV workers worldwide while ensuring the continued growth of a legal and vibrant creative marketplace. 

But the EFF is more concerned, it seems, about the “rights” of the operators of MovieTube to continue business as usual. 


Again, to be clear, MovieTube traffics in one product: illegal movies and TV shows. Producing great movies and TV shows is risky and expensive. For example, according to IMDB and, the total estimated production budgets for the movies shown above is almost $520 million. And that excludes marketing costs, which can double the price of any particular production. Thus, it’s safe to say that the sunk costs for the displayed movies is, perhaps, close to $1 billion. For context, 6 in 10 movies don’t recoup their investment, making the financial success of hits critical to the bottom line of production companies as they compensate for box-office busts.

MovieTube seeks to profit from these works at the expense of American creators and workers. They are not in the free speech business. Conversely, the creators of those movies have contributed speech to our shared culture, and investments and jobs to our shared economy.

The EFF seeks to portray the action by the MPAA as censorship.  But seeking a court order to shut down a website that is devoted to wholesale copyright infringement has nothing to do with censorship.  It is not stifling anyone’s right to free speech online. Far from censorship, shutting down these sitesis about putting a stop to an enterprise devoted to theft.  Nothing about that enterprise includes free speech, that’s simply an attempt to profit from someone else’s hard work. Internet freedom does not mean demonstrable illegal activity online gets a free pass. Indeed, over 150 organizations – including IPI – have signed letters (here and here) to world leaders stating:

Protecting IP and Internet freedom are both critically important and complementary; they are not mutually exclusive. A truly free Internet, like any truly free community, is one where people can engage in legitimate activates safely, and where bad actors are held accountable.

Congruent with this philosophy, the operators of MovieTube are entitled to – and receive – the benefit of due process. This, and similar, court cases are brought before federal judges.  Plaintiffs (the MPAA studios) need to demonstrate to the court’s satisfaction the merit of their claims to obtain relief.  This is not controversial.

What seems to be agitating EFF in this case is that the MPAA is also seeking relief with respect to third parties providing services to the MovieTube sites. Similar relief has been obtained in trademark and other copyright violation cases and the Internet has survived…. (Read this and this).  Again, there is full due process.  A third party service provider that receives an order from the court can go to court and challenge it.

Orders against third party service providers in these kinds of cases demonstrate the courts recognize that U.S. based Internet intermediaries have a shared responsibility to help bring blatantly infringing activity  to a halt.

And finally, the EFF charges are ridiculous on an even more basic level – content companies rely heavily on Internet distribution.  To assert that MPAA is seeking “an injunction against the entire Internet” doesn’t make sense given that a substantial portion of the studios’ revenue comes from making their content available on the Internet. The notion that studios are seeking to limit online distribution is unfounded. And the veracity of the claim is betrayed by deals between content companies and online distributors such as Netflix, Amazon, Hulu, Google, and many others. Indeed, as the MPAA notes on their website, in the US there are currently more than 100 legitimate websites offering access to legal online movies and TV shows (more than 400 worldwide). And those sites appear to be populated with high quality content, not just titles once relegated to discount bins. Indeed, KPMG recently released a study concluding that 94 percent of the more than 800 titles studied were available on at least one of thirty-four online services surveyed. And to help connect consumers with particular movies or shows of interest to them amongst so many options, the media industry has created a new search tool ( enabling consumers to find legal online sources for content. None of these actions seems consistent with an industry at “seeking an injunction against the Internet.”

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