One of the obvious dangers of the Internet Age is that we’ll be so distracted by everything going on around us — lots of it interesting, complicated, and even important (not to mention all the stuff that’s idiotic and unimportant and fundamentally uninteresting) — that we will fail to recognize the truly important stuff when it comes along.
The IP bills that Congress now has before it — the Senate version of which is known as PROTECT-IP, the House version as SOPA (Stop Online Piracy Act), sometimes known as the “E-Parasite” bill — are deep and profound threats to the Net and to our freedom on the Net. If anyone has good ideas about how to fight back other than to stand on the street-corner, as I am doing now, and shouting to the rooftops, I’d be interested to hear them.
I helped draft a Law Profs Letter in Opposition, and I’ve blogged about it a number of times before, as have others — good places to start if you are unfamiliar with the issue are the EFF site, the CDT site, and Techdirt. But I’m going to keep at it because this is an issue that really needs more public traction than it is getting. I’m not going to stand here and say that this law will destroy the Internet as we know it, though I actually believe that to be true. I’m not going to say it, because predicting the future is impossible and I like to avoid doing it in public — though, like all of us, I have my own beliefs about what the future will bring. So I’ll put that aside and focus on the principles at stake; even if the damned thing weren’t going to destroy the Net as we know it, it is of surpassing ugliness, and if you care about freedom and liberty, you’ll agree with me.
Here’s the Internet we get after this becomes law. The prosecutor walks into a courtroom with evidence that a website — or, more likely, 1000 websites — are “dedicated to infringing activities.” If he/she can persuade the judge of that, those websites vanish from the Net (through a complex wave of judicially-mandated action that has to be obeyed by ISPs, domain name registrars, etc.). No need for messy “adversary proceedings,” “due process,” or similar niceties. No need to bother with details like “is there a defense to the charge?” No need even for the prosecutor, under the statutory terms, to prove what a copyright plaintiff would have to prove if this were an ordinary infringement suit: i.e., that the website operator in question had “actual knowledge of specific infringing files” on the site in question. None of that.
It’s nice of Congress, I suppose, to provide that a neutral judge has to have seen the evidence and issued an order before sites can be eliminated; I’m sure there are plenty of folks in Congress and the US Attorney’s Office who would like to eliminate that last bit of messiness and administrative inconvenience, too. But there’s a good reason why, except in truly extraordinary circumstances where public health and safety are imminently threatened, we don’t throw people in jail, or deprive people of their livelihoods, or divest them of their property, whenever a prosecutor and a judge agree that those are just punishments.
And it’s a lot worse than even that. Get this: The House version makes it unlawful (and subjects you to this elimination order) if you:
“tak[e] deliberate actions to avoid confirming a high probability of the use of the [website] to carry out acts that constitute a violation of [the copyright or trademark statutes].“
Take a careful look at what’s going on here. If the prosecutors have been snooping around on my website to find infringing material and I take “deliberate steps” that prevent them from “confirming” that I have such material on the site — perhaps I have this pet peeve about government agents crawling around what I might regard as private space and I have tried to keep them out — then I have violated the statute even if I don’t actually have infringing material on the site. That is, it’s an independent violation of law to keep the prosecutors from “confirming” that you’re violating the law — all the prosecutor has to show, to make you vanish from the Net, is that you’ve somehow tried to keep the prosecutor off of your website!
It violates principles I’m tempted to call sacred — and all for what?? To protect the rights of our intellectual property owners — to make the world safe for our record companies and movie studios and publishing houses. Even if it was going to work, if the price for protecting those rights is that we have to abandon due process, and the notion that there are 2 sides to every story, and the notion that government agents do not have an inalienable right to know everything that I am doing on the Internet or anywhere else, that price is way too high.
And of course it’s not going to work. I guarantee that. It’s too easy to circumvent — anyone who understands the technology will agree with that. Sure, it will ensnare many unlawful actors. But at Internet scale, ensnaring some of the bad guys does not and cannot appreciably affect the conduct in question. Think of it this way: If there are 10 bad guys out there, and you’ve got a way to catch, say, 5 of them, that’s usually a pretty good scheme. We’ll have 5 fewer bad guys, and who knows, maybe just by probabilistic chance you’ll catch all 10; after all, if you’re 50 percent likely on average to catch each bad guy, it’s unlikely but by no means impossible that you’ll get ‘em all.
But if there are 10 million bad guys and you get rid of half of them, there are still 5 million bad guys out there. And, with intellectual property, 5 million bad guys can do precisely as much “damage” to your intellectual property as 10 million. If “stamping out copyright infringement” looks like a nightmarish game of whack-a-mole that you can’t possibly win — well, I’m sorry about that, but that’s just the way the world is, so get over it. There’s more — much more — peer-to-peer file-sharing going on today than in the heyday of Napster and Grokster. Deal with it — not by killing my Internet, thank you very much.
UPDATE: Anthony Falzone over at the Stanford Center for Information and Society points out a couple of places where people can speak out about this — see his posting at here, the petition at whitehouse.gov, and the EFF’s “Write Your Congressperson” page
UPDATE 2: Thanks to Ryan Radia and others, who pointed out that this posting inadvertently conflates the two bills (SOPA and Protect IP) now floating around in the House and Senate, respectively, regarding the due process problems raised by the bills. SOPA has corrected some of Protect IP’s more egregious due process problems — eliminating the express invitation for court’s to issue orders based on ex parte hearings. So in a sense my post is focusing on the worst aspects of each bill — which is fair enough, I think, given that we could well end up with the worst aspects of each. I also happen to think that as a practical matter, the due process concerns are still alive in SOPA, which allows courts to enter “TROs, preliminary injunctions, and permanent injunctions in accordance with Rule 65 of the FRCP” against domain names after an in rem proceeding; given that the actual defendants are very likely to be overseas and not subject to in personam jurisdiction, this is likely to lead to a profusion of suits in which no true adversary proceeding is really possible as a practical matter.
Orin Kerr says:
David, if you have the time and inclination, I’d love to hear your thoughts in response to this post.
November 4, 2011, 1:16 pmanon says:
Yes, actually, we do. All of the time. It’s called a warrant. But this has already been pointed out to you last time you raised this issue and you ignored it. I assume the same thing will happen here.
November 4, 2011, 1:17 pmrob bob says:
I generally agree with the objections to this law, but cutting pirates from 10 million to 5 million would actually help them because a significant number of those 5 million will go out and buy the product instead of pirating.
The whole issue of IP over media seems like a pretty intractable problem to me. I don’t see how they can ever let me the consumer do what I want to do with my legally purchased product and still protect their revenue. After all, it does cost a lot of money to make great films. On the other hand, I think maybe they could cut a lot of costs in the acting department if Americans can get over their celebrity fetish.
I’ll admit I’ve pirated. And on those occasions I have often wished I could just click a button to voluntarily send along a few dollars in appreciation. Like dropping money in the street musician’s hat.
November 4, 2011, 1:34 pmLe Poisson says:
“That is, it’s an independent violation of law to keep the prosecutors from “confirming” that you’re violating the law”
The same as if you’re pulled over for a suspected DUI and decline to blow. The penalty for refusing to blow is often harsher than it would be for a conviction.
Just another slippery slope, and we’re picking up speed.
November 4, 2011, 1:41 pmrob bob says:
So in the proposed law, after the “arrest”, is there a further proceeding to determine the merits?
November 4, 2011, 1:45 pmrob bob says:
Also, isn’t an arrest typically in the interest of public health and safety? We arrest people because we suspect them of being guilty of crimes, and we need to bring them in and have a bail posted so they do not elude our grasp. These websites can be shut down in the manner suggested at any time.
November 4, 2011, 1:53 pmTodd says:
Does anyone know which legislators are on record as against these proposals or are actively working against it? It would be good to support them as well as try to rally public opinion against the law. After all, an election year is coming up.
November 4, 2011, 2:06 pmTodd says:
Does anyone know which legislators are on record as against these proposals or are actively working against it? It would be good to support them as well as try to rally public opinion against the law. After all, an election year is coming up.
November 4, 2011, 2:08 pmChris Rhodes says:
Citation?
“Hmm, my torrent search only turns up 50 places to get this file instead of 100. Better go buy from a record company!”
Cart before the horse. Actors make so much money precisely because of copyright’s monopoly grant. Removing copyright would lower actors’ salaries because the studios would have to be more competitive with alternative means of distribution (i.e. thepiratebay). In a sense, we have to get over our “ideas are property” fetish before they can cut the costs of their acting departments.
November 4, 2011, 2:13 pmChris Rhodes says:
Citation?
“Hmm, my torrent search only turns up 50 places to get this file instead of 100. Better go buy from a record company!”
Cart before the horse. Actors make so much money precisely because of copyright’s monopoly grant. Removing copyright would lower actors’ salaries because the studios would have to be more competitive with alternative means of distribution (i.e. thepiratebay). In a sense, we have to get over our “ideas are property” fetish before they can cut the costs of their acting departments.
November 4, 2011, 2:15 pmChris Rhodes says:
Citation?
“Hmm, my torrent search only turns up 50 places to get this file instead of 100. Better go buy from a record company!”
Cart before the horse. Actors make so much money precisely because of copyright’s monopoly grant. Removing copyright would lower actors’ salaries because the studios would have to be more competitive with alternative means of distribution (i.e. thepiratebay). In a sense, we have to get over our “ideas are property” fetish before they can cut the costs of their acting departments.
November 4, 2011, 2:16 pmJollious Caesar says:
Would this law criminalize password-protecting a site? Wouldn’t the mere requirement of entering a password prevent prosecutors from confirming their suspicions about the site by viewing its content?
November 4, 2011, 2:16 pmChris Rhodes says:
Citation?
“Hmm, my torrent search only turns up 50 places to get this file instead of 100. Better go buy from a record company!”
Cart before the horse. Actors make so much money precisely because of copyright’s monopoly grant. Removing copyright would lower actors’ salaries because the studios would have to be more competitive with alternative means of distribution (i.e. thepiratebay). In a sense, we have to get over our “ideas are property” fetish before they can cut the costs of their acting departments.
November 4, 2011, 2:23 pmChris Rhodes says:
*sigh*
I’m going to start calling this the Schrodinger’s Comment System.
Are the VC server hamsters alive in their box or dead?
November 4, 2011, 2:30 pmThe Star Chamber aimed at the Internet [Darleen Click] says:
[...] process? We don’t need no stinkin’ due process The IP bills that Congress now has before it — the Senate version of which is known as [...]
November 4, 2011, 2:37 pmrob bob says:
Each individual downloader is a pirate. Not just the small number of people who originally upload things.
Apparently you think that the law won’t decrease the number of pirates at all. I don’t really know, I was just pointing out that if it does it will affect sales. But anything that makes it even a little more difficult, or resets the learning curve, will have an appreciable effect on the number of downloaders.
November 4, 2011, 2:48 pmrumpelstiltskin says:
Oh lord, are people still advancing this idiocy? Are you just ignorant or are you are being willfully disingenuous?
Illegal downloads don’t affect sales in the slightest. Torrenting shows/music/movies is already sufficiently inconvenient that, and legal downloads through itunes/hulu/netflix sufficiently cheap that nobody who has the money to spare is downloading illegally.
Anyone who is downloading illegally is either (1) too poor to purchase the content in the first place, (2) too poor to purchase a TV, (3) lives in a foreign country where the official content isn’t sold or isn’t compatible with their hardware, (4) a political-type who inherently believes hollywood is evil/“information wants to be free”/whatever.
In any of those cases, the downloader is NEVER going to buy the content. I am so tired of this stupid “lost sales” canard. There is ample evidence that it is false and simply no evidence that it is true.
November 4, 2011, 3:09 pmAJK says:
Yes.
November 4, 2011, 3:11 pmcaptain_slow says:
This is another case where technology has made the standing law somewhat obsolete. Or at least, the assumptions that offered unwritten boundaries to historical copyright law are no longer there, so we are trying to fit a new legal framework.
I was the co-owner of a record label for about 5 years during the beginning of the real digital media boom. We grappled with this issue.
In the past, reproducing copyrighted work in a form that could easily be distributed en masse was at least somewhat difficult, and even when this effort was undertaken it came at the cost of quality of the reproduction. Now the media is directly distributed in a form that is readily reproduced with virtually zero effort in pristine form, and can be distributed worldwide at virtually zero cost or effort.
I don’t think the media companies’ present positions are viable in the long term. They are flailing while in the process of dying, IMHO.
I think this is much like counterfeiting. There was a time when making copies of music, books, or films in quantity were as difficult as counterfeiting US currency is today. The law wasn’t so much the deterrent, the difficulty or cost/benefit ratio made it implausible. But in the “digital age”, such barriers do not constrain ready worldwide distribution of commonly-available media. Frankly, the media companies are going to have to figure out a new way to make revenue. The law is only going to bail them out for so long.
November 4, 2011, 3:22 pmM. Gross says:
This law would have essentially no effect on Peer-to-Peer systems, which are the main form of piracy in this day and age. Really, they’re going to shut down torrent aggregators? Have they ever observed there are essentially none left in US jurisdictions?
In a world of Tor and other easily usable proxy services, having an ISP ban access to a website is meaningless. ISPs aren’t really gatekeepers in this day and age, they can’t stop customers from gaining access to websites via tunneling even if they’re so inclined.
Unless they plan on banning the encrypted internet communication that makes anonymous tunneling possible, they’re accomplishing little if anything.
November 4, 2011, 3:26 pmcaptain_slow says:
Of course, you are correct. There is another category besides these, which is those who are simply not committed to buy the product to begin with.
In any case, the people downloading/pirating movies/films/books are doing so because they desire to acquire the material for some reason but are unwilling to purchase it. In the absence of the available media to download, they simply will not buy it. Downloading or pirating this stuff is not an alternative to buying it any more than listening to the radio, watching movies on TV, or checking out books from the library are alternatives to buying those products.
Usually there is some impediment beyond price that makes it likely that a person will download it rather than buying it, as you pointed out.
And furthermore you never hear any discussion about the conversion of non-buyers to potential customers resulting from the downloading, due to exposure without cost to new material.
November 4, 2011, 3:32 pmdarleen click says:
So, if I’m a restaurant owner and am suspected of paying some of my cooks cash under the table — my business is shut down by government order, and my bank accounts are frozen before I ever get to court?
Help me out here ... so, if I own a website that is my business and my income that is suspected of infringing, I’m not arrested, but my business is closed and my income shut off without me ever going to court to defend myself?
November 4, 2011, 3:32 pmanon says:
Darleen, if there’s probable cause to believe you’re running some sort of fraudulent business, they could get a search warrant and take away the things your business needs to survive. They wouldn’t have to arrest you to seize your property as evidence. And all of this would happen before you were ever able to go to court.
November 4, 2011, 3:46 pmdarleen click says:
I also like the bit about being in violation of the law, not for actually infringing but for keeping people out who just want to check and make sure you are NOT infringing.
Cuz, I have a great way to cut down on undiscovered crime — we all must provide copies of our house keys to our local police departments and never bar them from rummaging through our homes to make sure we are law-abiding.
I mean, if you don’t have anything to hide, why should you object? The local government only has your best interests at heart ...
November 4, 2011, 3:47 pmGuest12345 says:
Rather than emphasizing “suspected” you should be thinking “caught in the act.” Kind of like someone caught sitting on a pile of broken window glass, hunched over in a Mercedes Benz trying to hot-wire the vehicle. They’ll be stopped from doing what they are doing and brought before a judge. If they have a legit reason to be hot-wiring said MB, then they’d be allowed to do so. Similarly a person who walks into a police station with a couple of hand guns and starts shooting will be shot dead, without a trial.
Do you believe that if the appropriate agency catches you paying your kitchen staff under the table, your business would not be shut down and, if you appear to be a risk, your assets not frozen — all without a prior trial? But you will have a chance to plead your case in court. Do you think that a website operator wouldn’t be presented with the same opportunity to defend themselves after the infringing activity is stopped? If found innocent, they’d be allowed to return to their work. I don’t see the problem here.
November 4, 2011, 3:47 pmdarleen click says:
However, such search warrant is specific about what is to be “taken away”. Even the [politically motivated] raid on Gibson Guitar didn’t shutdown the business forever.
November 4, 2011, 3:50 pmElemenope says:
Unless they plan on banning the encrypted internet communication that makes anonymous tunneling possible, they’re accomplishing little if anything.
For Pete’s sake, Stop. Giving. Them. Ideas!
November 4, 2011, 4:01 pmrob bob says:
Really? Do you have any support for that? I was under the impression that torrenting is rather easy and becoming more and more popular all the time as the young grow up and the population becomes more technologically proficient.
November 4, 2011, 4:03 pmAlso, can you point to any service where I can legally purchase a movie for download and local storage? Particularly in 1080p or at least 720p, at a suitable bitrate, with 8 channel or at least 6 channel sound. I don’t think anything close to this exists, although I’ll admit I’m not up to date with all the services available so I’d like to be proven wrong.
As far as streaming services, a streaming service of such quality isn’t even really possible at the vast majority of internet speeds. But even if it was, streaming is still an obvious major limitation.
Don’t try to say that these would be rare demands confined to videophiles or something. Large 1080p TVs are common these days. This is simply a demand for anything close to blu ray quality.
rb1971 says:
This is simply false. There is not a zero percent difference here. I personally know at least one relatively wealthy person that canceled their cable television to Torrent all of their video content — and that could otherwise pay.
The plural of anecdote may not be data, but your assertion is just incorrect.
November 4, 2011, 4:06 pmNumber 2 says:
Are you sure you are interpreting this clearly, Mr. Post? It read it as an attempt to prevent websites from intentionally turning a blind eye to violations that may be occurring on their websites, not as an attempt to force websites to allow prosecutorial incursion.
Still, the law stinks. It strikes me as a classic case of an old, tried and true legislative tactic: an interest group and its allies proposing something so outrageous that when they get what they really want, it will seem “reasonable” when it really is not.
November 4, 2011, 4:06 pmrb1971 says:
Not true, this has been an argument advanced in favor of fair use, and discussed in at least some cases by the IFPI (sort of an EU RIAA).
I also disagree with the current US copyright laws, and the steps the RIAA has taken to enforce them, but making blanket incorrect assertions does not advance the reform ball.
November 4, 2011, 4:09 pmPatty Shundynide says:
Assuming the bill is not unconstitutional on its face, this sounds improbable. Wouldn’t this run afoul of overbreadth doctrine? What if the infringing domain hosts a forum, blog or comment threads discussing the subject matter being infringed (as they usually do). Now that I think about it, have there been any First Amendment challenges to the DMCA?
November 4, 2011, 4:09 pmrb1971 says:
I rent a lot of movies through my AppleTV/iTunes combo. They have HD content, and I think but am not certain Dolby 5.1 sound or better.
November 4, 2011, 4:10 pmMLS says:
The provision is not being fairly presented, as is also true of the provision cited in part here from the Senate bill.
Clearly, the House provision relates to two portions of the DMCA, and the Senate provision generally tracks the language of Universal v. Sony.
I fear that Mr. Post is taking poetic license and somewhat disingenuous liberties in his comments.
November 4, 2011, 4:13 pmGuest12345 says:
You’re full of crap. And to demonstrate this I’ll make a bet with you. The stakes are I pay you $10,000 if I lose, you (the person posting as rumpelstiltskin) never posts here again if you lose. And the challenge will be for me to find someone who will agree to state that they previously illegally downloaded material and, after receiving a DMCA notice, has since switched to acquiring content through legal means.
Of course I already have multiple examples of this happening. So I feel very safe in making this challenge.
I’d also like to point out some of the other inconsistencies in your post. For example the idea that people too poor to afford any content so they must resort to downloading illegally. The fact is, that most people are too poor to legally purchase all of the content that they download illegally. It is trivial to start up a bit torrent client, go to a tracker/index site, download torrents for:
a) the first two seasons of Glee and all their music releases
b) the entire Beatles catalog
c) a site rip of <porn site du jour>
d) ten thousand science fiction & fantasy ebooks
e) ISO of <software application>
f) ISO of <zero day game>
All of that in ten minutes. Then load those torrents into their client and go to bed. A week later they have over $20,000 in content sitting on their hard drive. And you could repeat that month after month. Most of us could never afford to spend $20,000 per month on content. However that doesn’t mean that we are too poor to purchase any content. Someone who cannot buy $20,000 of movies/books/software, but does own a computer probably can afford $20, or $50, or $100 each month. The claim that people are too poor to afford any content and thus they must pirate it is absurd. Just like 90%+ of the US population are tax cheats by not paying their state use tax, most people will take something for free if they think they can get away with it and they can rationalize it (such as “I’m not doing anything wrong if I don’t take some physical object.”)
Also the idea that there are people who believe that “information wants to be free” are full of shit. What they really mean is “other people’s information should be free to me.” Show me someone who publishes every piece of information about themselves and then I might begin to consider the possibility that someone holds the “information wants to be free” belief.
November 4, 2011, 4:16 pmrob bob says:
It does not seem to me that this law requires anything close to probable cause.
November 4, 2011, 4:27 pmAlan Gunn says:
Another possibility is that this is a milker bill, proposed in order to generate contributions from interested parties, and not with any intention that it be passed. Anybody know?
November 4, 2011, 4:28 pmrob bob says:
It looks like availability is limited and further limited for actual downloading. Maxes out at 720 and most importantly, bitrates are a fraction of blu ray.
November 4, 2011, 4:32 pmrb1971 says:
Maybe so. I never upgraded from DVD to BluRay, and for general entertainment I don’t find I need the best possible quality (i.e., if the quality of the video far exceeds the quality of the script, I was probably better off not watching the film in the first place). At some point, I got old enough that I can’t tell the difference. (Get off my lawn!)
November 4, 2011, 4:46 pmFub says:
Only if you try to post a comment. Until then their state is undefined.
But these proposed laws are worse jokes than that one.
The proposed statutes will be much like the DMCA on steroids and devoid of any right even to contest the takedown.
So, say copyright holders begin making the same abusive and bad faith claims as they do in the DMCA takedown notices described by EFF here.
How many domains will disappear with no recourse by owners, even though those owners have done nothing unlawful?
Once either proposal become law, the question will not be “if”, but “when”. Politically connected backers are doubtless already licking their chops to take down en masse the domains of their political adversaries, critics, commercial competitors and even uninvolved innocents, just to show the rest of us who is boss.
November 4, 2011, 5:00 pmPatty Shundynide says:
Or not. “The lesson we take from Broadrick and its progeny is that a facial freedom of speech attack must fail unless, at a minimum, the challenged statute ‘is directed narrowly and specifically at expression or conduct commonly associated with expression.’” Roulette v. City of Seattle, 97 F. 3d 300, 305 (9th Cir. 1996).
“Under Roulette, defendant’s facial attack on the DMCA necessarily fails. By its terms, the statute is directed to any technology, product, service, device, component, or part thereof,’ that circumvents usage control restrictions. The statute is not directed ‘narrowly and specifically at expression or conduct commonly associated with expression.’ Software as well as hardware falls within the scope of the Act, as does any other technology or device. Accordingly, an overbreadth facial challenge is not available.” United States v. Elcom Ltd., 203 F. Supp. 2d 1111, 1133 (N.D. Cal. 2002).
Bummer.
November 4, 2011, 5:04 pmrumpelstiltskin says:
Learning to torrent is harder than learning to use itunes. Use torrents involves more steps than itunes. Whenever you torrent you have weed through fake torrents to find the real one. This may be relatively easy task, but on itunes or netflix this is a step that doesn’t exist at all.
Torrents also don’t offer streaming or easy transition to additional devices, which itunes does. (Yeah, there’s an app that lets you play .avi files on your iphone, but that’s another step you have to do that native itunes files don’t have to go through).
The trade-off, of course, is that itunes and netflix cost money, while torrents do not.
This supports my argument, not yours. If people aren’t going to buy the lower quality being sold, and pirate it so they can get the higher quality video/sound they want, then it’s not a lost sale. They weren’t going to buy the lower quality product anyway. No lost revenue.
It’s actually a win/win: the rights holder doesn’t have to pay to produce and deliver the higher quality format, and the consumer gets access to the higher quality format.
This is woefully outdated information. netflix has been offering 1080p streaming for almost 2 years. itunes offers high definition downloads (and the choice of buying standard definition for cheaper, usually, too) as well.
Even if you were right, it would support my side, not yours. If the format isn’t being sold, it’s not a lost sale, now is it?
November 4, 2011, 5:10 pmrumpelstiltskin says:
Not everything is available on blu ray, anyway.
November 4, 2011, 5:12 pmPatty Shundynide says:
Although in the case of DMCA-on-steroids it could be argued that domains are “commonly associated with expression,” and that the bill is “directed narrowly and specifically” at internet domains, making an overbreadth challenge available.
November 4, 2011, 5:15 pmChris Rhodes says:
That’s a switch-up. Said person would not have to proactively publish everything about themselves to be consistent; they would simply have to not object to having everything published by someone else.
And if you want to see an example of such a person, I submit myself for consideration. I believe copyright is an immoral concept, but I also don’t believe I have a right to privacy (outside of privacy afforded as a mere side-effect of physical property rights, or by voluntary contract).
November 4, 2011, 5:17 pmcaptain_slow says:
You are right about this, but the conclusion you draw is not supported by the evidence.
Just because they CAN and DO download $20K worth of media does not mean THEY WOULD HAVE BOUGHT that same $20K worth of media if it were not available to download for free.
And in actuality, they likely will not actually use that $20K worth of material either.
The reality is that there are glaring gaps in content delivery mechanisms, many of which enforced by anachronistic copyright practices by content providers, which are filled by illicit downloads. That’s not to excuse the broad downloading of stuff with no intent to ever legitimately consume anything, but I think that’s probably the fringe and not the mainstream.
I could list many examples of reasonable use of “pirated” media by legitimate users who routinely consume such media in the conventional way, which illustrate real demands for enhanced content delivery. The technology supports it but unfortunately the DMCA or anachronistic practices by content providers restrict it.
November 4, 2011, 5:18 pmcaptain_slow says:
Bingo.
This is certainly not totally kosher.
But the thing is, if I desire content in some format/time/place/device/etc. that technically supports it but the owner of that content has chosen to restrict, then either I am not going to purchase ANYTHING, or I am going to have to resort to piracy.
I want to watch my DVR content on my Android tablet while on an airplane. But I can’t actually download content from my DVR to my tablet. So the TV show that sits right there on my DVR can be downloaded illegally to my tablet to watch on the plane... while it’s illegal, it’s hard to say that the content owner didn’t intend me to watch that program. I mean, I recorded it right there in my house on a perfectly legal DVR over a legal service. The point is for me to watch it. But due to technological restrictions and perhaps even direct protective action of the copyright holder, I won’t be able to watch it at all, legally.
November 4, 2011, 5:24 pmrumpelstiltskin says:
I’ll pay each person you find $100 to withdraw their statement. I think I’ll still come out ahead.
Until they get my c-note.
I have you right where I want you, then.
Yes. Thank you for arguing my point for me, which is that every download is not a lost sale.
A week? That’s a pretty slow connection.
Also, I’d say they have $0 worth of content on their hard drive, since that’s how much they paid for it, and that’s the marginal cost of copying it.
It does mean that there was not $20,000 in lost sales, then, doesn’t it?
Based on.... what? What if the computer was from when he had a job? What if got it from a scholarship? What if he bought it for $100 at a pawn shop? What if he actually got it retail, for, say, $300? That doesn’t mean he can afford $50/mo.
November 4, 2011, 5:33 pmUno Hu says:
This law propounds an interesting notion, one that more and more of the country seems to be accepting of. But it’s so awkward to do it one little piece at the time. It would be so much better to pass a bill declaring that permitting power is delegated to the Secretary of (maybe) the Interior, and that a permit must be obtained for any and ever action or speech. We keep creeping closer and closer to “. . . whatever is not specifically permitted is forbidden.” let’s just go for it in one jump. A commenter on another web site opined that we aren’t in the U.S.S.R. yet. My response was, not yet, but close; at least we don’t yet have the Lubyanka and the Gulag. Is there no end . . . no end . . . to the “good” our leaders are willing to do to us?
November 4, 2011, 5:36 pmGuest12345 says:
In a culture that already provides you privacy protections saying you don’t mind of someone else publishes your data is a cop out. Do you think your doctor would release your medical records to me if I asked? No he wouldn’t because it’s not you that he has to worry about punishing him. Do you think that Experian will give me your credit report? No they won’t. In US society, it’s easy to say “I don’t care, but I won’t publish” knowing full well that those who have that data will also not publish due to the threats they face from the government.
November 4, 2011, 5:42 pmGuest12345 says:
rumpelstilkskin, I’m not quoting you because you’ve posted a substantial and detailed response. I see is that you’re changing your position. Your initial claim was that piracy does not affect sales “in the slightest.” Now you are saying “not all piracy is a lost sale.” Those are two very different positions. For you to claim that my post supports your position, well that is true as long as you change to my position. Welcome to my side of the argument. :)
As far as the challenge goes, by offering to pay my witnesses a fee to change their statements you are admitting you’ve already lost.
November 4, 2011, 5:51 pmrb1971 says:
Repackaging content you’ve already paid for once (for example, taking your cable DVR and downloading to another device) is very different in kind than obtaining content you’ve never paid for. There will be few people that will criticize the first act, and in some (many?) cases the law will even be on your side — for example, burning CDs that you have rightfully purchased to your home computer, then uploading that music to your device is fair use.
If you’re trying to jump from that analogy to the fact that you should be able to then take content you don’t want to pay for, watch the landing.
November 4, 2011, 6:16 pmDavidka says:
This frightening article barely touches the surface of this horrible legislation. Something this broad could easily be used by the government to destroy the livelihoods or speech of people it dislikes. All it would need is an attorney to go into the court of a sympathetic judge and claim there was a lot of infringing material on a particular site and the site operator was turning a blind eye to it.
I can just imagine how the B.O. administration and the Muslims would use such a law to stifle criticism of Islam.
November 4, 2011, 7:11 pmarch1 says:
“tak[e] deliberate actions to avoid confirming a high probability of the use of the [website] to carry out acts that constitute a violation of [the copyright or trademark statutes].“
Lay English user here, but I don’t see how you get from this to the possibility of the owner violating the statute if there’s no infringing material on the site. It seems to me that a possible interpretation is that the owner is only in violation if
a) there appears to be a high probability that the webside is used to carry out “acts that constitute...”, and
b) the website is in fact used to carry out such acts (after all, one can’t act to “avoid” something that’s already impossible, and confirming a falsehood is already impossible), and
c) the website owner, knowing b), and knowing that others know a), acts to prevent those others from learning b).
That said, unless the rest of the statute (or possession of a law degree) somehow clarifies the many ambiguities (e.g. as to what is being confirmed, how high is high, high in whose judgement and under what circumstances and using what methodology, etc.), the law strikes me as incredibly vague.
November 4, 2011, 8:06 pmIspep Teid says:
You mean “deliberate attempts to prevent prosecutors from uncovering naughtiness”?
November 4, 2011, 8:08 pmfozzy says:
I remember back in the old days, Congressmen had to take an oath to support and defend the constitution. I think the oath now reads, “I will vote for the laws that lobbyists tell me to and all constitutional matters will be left up to unelected judges.”
November 4, 2011, 10:46 pmChrisTS says:
I’m with Number 2, MLS, and Arch1:
there is either (a) some serious misreading of the quoted text at work in the post or (b)there is something elsewhere in the bill that grounds the interpretation DP gives the quoted bit. (It might be that the bill is horrendously ill-written, but DP still cannot claim that the bill says what it does not say.)
The quoted text tells us that a person who takes steps to prevent others from confirming “high probability” of misuse is acting illegally.
The quoted passage actually puts some constraints on the government’s making a claim of guilty ignorance/connivance: the site owner has to be shown to have taken deliberate steps to prevent confirmation of illegal activity.
And it certainly does not – clearly – indicate that one is liable for taking steps to prevent investigation into possible illegal activity in the absence of such activity.
November 4, 2011, 11:50 pmgecko says:
Nearly all the damage the Corporations are allegedly doing is through and with the Government but how many of the Occupy hippies are calling for less government intrusion?
November 5, 2011, 3:27 amChris Travers says:
Certainly piracy is a problem which entrenches monopolopies. At least as far as software goes, a significant number of pirates would but competing products. I therefore see piracy of things like software as a crime less against the software vendor but against the marketplace. It’s like a demotic version of a Sherman Act violation or something.
However, this being said, we have due process for a reason. Taking that away to enforce private control over all kinds of things strikes me as pretty amazing. I’d hope this would get struck down pretty quickly.
Here’s an interesting question. Is the attorney acting in a law enforcement capacity when bringing such a request to the court without due process? If so, might such a request be outside the bounds which qualified immunity protects?
November 5, 2011, 4:24 amChris Travers says:
As far as service goes, one question:
Don’t we already have a mechanism for suing unknown individuals? Isn’t it called a “John Doe Lawsuit?” I mean, domain hosting and internet connections cost money, right? So one could start a lawsuit and use subpoenas of upstream information to obtain sufficient information to provide service, right?
Why the need to seize domains? Or is this specifically an issue with *international* domains outside US jurisdiction? If so, what’s to keep the rest of the world from simply setting up alternate domain name systems, which presumably US persons could easily use absent some sort of Great Firewall built in this country? (Though watching Australia, I am not ruling that out.)
November 5, 2011, 4:51 amChris Travers says:
The Distributist Review has folks at many of these rallies specifically pamphletting on the idea of shifting power to local levels and reducing government power (aside from discouraging corporations from being large).
November 5, 2011, 4:54 amChris Rhodes says:
“Either they agree with me or they are lying” is not a falsifiable position, making your argument useless to anyone who wants a reasonable debate. I assure you that, even if I would rather they not be released, that don’t believe I have a right to keep my medical records or credit reports private.
If you choose to believe that I am lying, then there’s nowhere to go from here.
November 5, 2011, 4:56 amThe River Temoc, in Winter says:
Also, what is Senator Klobuchar’s dog in this fight? Why is she so eager to sponsor this bill?
November 5, 2011, 7:41 amArmy of Davids says:
Then there’s Chris Dodd as the new number one lobbyist for Hollywood.
A sure sign of competency, transparency and integrity to the process. (sarcasm...in case it isn’t obvious)
November 5, 2011, 10:27 amInstapundit » Blog Archive » DAVID POST: How About Occupy Hollywood? “One of the obvious dangers of the Internet Age is that we… says:
[...] POST: How About Occupy Hollywood? “One of the obvious dangers of the Internet Age is that we’ll be so distracted by [...]
November 5, 2011, 10:45 amSol says:
We did exactly that with the BBC Life on Mars: Learned about it from a friend who had torrented it, watched the first bits of it from torrented versions, then bought and watched the DVDs when they were finally released in region 1 versions.
November 5, 2011, 10:47 ampmorem says:
I think you grossly underestimate how pervasive and essential encrypted internet traffic is.
Shut that down and everything grinds to a halt. You wouldn’t even have to bother turning off the lights.
November 5, 2011, 12:30 pmJohn Regan says:
A less scholarly but perhaps more entertaining take from a columnist in Canada. A coincidence, or maybe he just reads Volokh:
http://fullcomment.nationalpost.com/2011/11/05/rex-murphy-forget-wall-street-occupy-hollywood/
November 5, 2011, 1:44 pmWow says:
In view of the general pattern of malicious arrests and prosecutions that we’ve been seeing on almost a daily basis in this country for several years now, I think it’s clear that this legislation will be enacted despite the vague murmurs of protestation we’re hearing from EFF and a few other organizations.
Who really cares about EFF anyway? Everyone knows that the ACLU has retreated from its principled stance, and is no longer willing to defend certain deeply unpopular forms of speech. That goes for many law professors too. Just as freedom of speech allows them to argue for limiting speech, so does democracy allow Congress to enact this law.
Part of the problem revealed by this event, is the general shoulder-shrugging and “objectivity” of the legal and academic communities in face of the horror of a developing reality. In many ways, this is simply a professional habit. I learn of these abuses in “neutral” reports almost daily in the newspaper, and what could I possible do to stop any of them from happening? Go in the street and shout at the rooftops? And I think everyone is thinking more or less the same thing.
And after all, when a kid is sentenced to 8 years in jail for putting an inflatable doll in a bathroom stall, it gives us something to blog about, not so? The system as a whole is still informed by “deeply cherished values” that we can lecture our students about, not so?
The line separating democracy from fascism is very thin indeed; the effect of little steps is cumulative and before we know it, we will all be quite a bit closer to the other side of the line. But it’s not really a big deal, because we’ll be used to it by then.
November 5, 2011, 2:02 pmWow says:
In view of the general pattern of malicious arrests and prosecutions that we’ve been seeing on almost a daily basis in this country for several years now, I think it’s clear that this legislation will be enacted despite the vague murmurs of protestation we’re hearing from EFF and a few other organizations.
Who really cares about EFF anyway? Everyone knows that the ACLU has retreated from its principled stance, and is no longer willing to defend certain deeply unpopular forms of speech. That goes for many law professors too. Just as freedom of speech allows them to argue for limiting speech, so does democracy allow Congress to enact this law.
Part of the problem revealed by this event, is the general shoulder-shrugging and “objectivity” of the legal and academic communities in face of the horror of a developing reality. In many ways, this is simply a professional habit. I learn of these abuses in “neutral” reports almost daily in the newspaper, and what could I possible do to stop any of them from happening? Go in the street and shout at the rooftops? And I think everyone is thinking more or less the same thing.
And after all, when a kid is sentenced to 8 years in jail for putting an inflatable doll in a bathroom stall, it gives us something to blog about, not so? The system as a whole is still informed by “deeply cherished values” that we can lecture our students about, not so?
The line separating democracy from fascism is very thin indeed; the effect of little steps is cumulative and before we know it, we will all be quite a bit closer to the other side of the line. But it’s not really a big deal, because we’ll be used to it by then.
November 5, 2011, 2:05 pmWow says:
In view of the general pattern of malicious arrests and prosecutions that we’ve been seeing on almost a daily basis in this country for several years now, I think it’s clear that this legislation will be enacted despite the vague murmurs of protestation we’re hearing from EFF and a few other organizations.
Who really cares about EFF anyway? Everyone knows that the ACLU has retreated from its principled stance, and is no longer willing to defend certain deeply unpopular forms of expression. That goes for many law professors too. Just as freedom of speech allows them to argue for limiting speech, so does democracy allow Congress to enact this law.
Part of the problem revealed by this event, is the general shoulder-shrugging and “objectivity” of the legal and academic communities in face of the horror of a developing reality. In many ways, this is simply a professional habit. I learn of these abuses in “neutral” reports almost daily in the newspaper, and what could I possible do to stop any of them from happening? Go in the street and shout at the rooftops? And I think everyone is thinking more or less the same thing.
And after all, when a kid is sentenced to 8 years in jail for putting an inflatable doll in a bathroom stall, it gives us something to blog about, not so? The system as a whole is still informed by “deeply cherished values” that we can lecture our students about, not so?
The line separating democracy from fascism is very thin indeed; the effect of little steps is cumulative and before we know it, we will all be quite a bit closer to the other side of the line. But it’s not really a big deal, because we’ll be used to it by then.
November 5, 2011, 2:13 pmWow says:
Sorry for the duplicate comments. The machine was taking forever to load so I clicked “reload” a few times. I would try and remove them, but apparently too much time has lapsed.
November 5, 2011, 2:17 pmGiant Frog says:
The “Submit Comment” button is connected to the hammer by a series of gears and pulleys.
November 5, 2011, 2:54 pmjoshua says:
This is my new favorite analogy for opposing govt monitoring even if you have nothing to hide (Patriot Act, TSA, etc). Thanks.
November 5, 2011, 6:19 pmMDT says:
rumpelstiltskin,
Anyone who is downloading illegally is either (1) too poor to purchase the content in the first place, (2) too poor to purchase a TV, (3) lives in a foreign country where the official content isn’t sold or isn’t compatible with their hardware, (4) a political-type who inherently believes hollywood is evil/“information wants to be free”/whatever.
I should like to meet the person who is “too poor to purchase a TV,” but has a modern computer and a fast Internet connection.
November 5, 2011, 6:33 pmMissed me, Hollywood wants another special law, EU=PU, Cartoons. | On the North River says:
[...] How About Occupy Hollywood? [...]
November 5, 2011, 11:58 pmAnonymous Coward says:
You’re describing a majority of college students. A computer and internet access is required for school and so is acquired by whatever means necessary, but a cable TV subscription is not in the budget and whatever dorm-like place you live in probably doesn’t have room for a TV antenna.
November 6, 2011, 3:17 pmDavid Post: Occupy Hollywood (and stop SOPA) « westervillebarassociation.com says:
[...] David Post’s critique аt thе Volokh [...]
November 6, 2011, 3:24 pmMy New Favorite Analogy For Opposing Privacy Intrusion « Philosophy « PostLibertarian says:
[...] privacy invasions that are done in the name of security, courtesy of darleen click commenting on a Volokh post about intellectual property: I have a great way to cut down on undiscovered crime — we all must provide copies of our house [...]
November 7, 2011, 8:15 amcaptain_slow says:
First of all, in this example, it is not downloading data FROM my DVR. The DVR maker, in compliance with the copyright holders of the material, has made it impossible for me to do and this would be illegal even if were to work out the technical details of decrypting the data on the DVR’s hard drive. So the law restricts the manufacturer of the DVR from providing me a service that most of us would consider to be “fair use”. In fact, I pay more for the DVR because it has to have this encryption and copy protection on it.
In my example, in order for me to do something totally reasonable, I MUST make use of what we are calling “piracy”. Strictly, and technically, illegal. You think the courts would be on my side, but they are not.
Let me stretch it a little further.
Let’s say that I am on the plane during the live broadcast of the last game of the NBA finals. This game is not on some cable network that would necessitate me to have paid for a subscription and thereby passively providing to pay for a license of the content. But it’s broadcast free and clear on public airwaves in thousands of localities around the USA. No DVR or subscription required.
When I land, it’s the next morning in Europe. So I find the pirated version of the game on a torrent site and download it to watch in the hotel.
It would have been totally legal for me to record this game as it was freely broadcast live. But I happened to be stuck on a plane during that time. So how is it now illegal for me to download someone else’s recording, which they made legally? While it’s perfectly legal to make that recording and watch it, it is not legal for me to use your recording or for you to post such a recording. In fact, it’s not even legal for you to acquire that recording off of the hard disk in a DVR. And if you recorded it via the S-video on your (government-provided) HDTV tuner directly onto a video capture device, then even though it was not ever encrypted and there was no technical hurdle for you to overcome, you still break the law to post this recording.
So, is it immoral, theft, etc. to acquire that recording to watch it? Clearly the NBA wanted me to watch it. The TV station broadcast it for that express purpose. But it’s illegal for me to do so because, even though they want you to consume the media, the owners of the copyrights are so afraid you will somehow deprive them of revenue that they restrict their own market and make criminals out of their own customers.
If you followed this small step, then how about another one? There are thousands of movies that get broadcast on these TV stations, free and clear. If it is “fair use” for me to get a recording of the game, then is it not “fair use” to similarly get a recording of those movies? What’s the limit to “time shifting” or “place shifting”? Must I only be able to fairly acquire that content within 12 hours of when it was broadcast? Or a week? How much?
Well if you follow that leap, well then virtually all of the recorded music that these RIAA types are interested in protecting is now or has been in heavy rotation of airplay over free, unencrypted and totally unrestricted FCC-licensed air broadcast. Well if it’s fair use for someone who is on an airplane during such time as the broadcast of the NBA finals to go get a recording of that and watch it later, then how is it not fair use to get a copy of those songs that played on the radio during that same time?
You see, the problem is that these copyright holders fully intend for you to consume their product passively. They want you to hear the songs on the radio and they want you to watch the game on TV. They want to use the free availability of this media as a promotional tool for something they can sell you. The problem is, the thing they want to sell you now takes almost identical form to that which they are giving you for free. At the invention of the Production Copyright, making a record was expensive and exclusive. There was no way for you to acquire a recording of Sam & Dave or Elvis unless you bought the record. It was technically implausible for you to get it any other way. And there was no way for you to give away your copy without losing access to it. But today, it is technically trivial to both acquire these perfect reproductions and to share them. The law does not fit the product as it has evolved today.
And I say this after running a record label for a few years and encountering this issue every day.
I say, you can’t allow for what we all know is “fair use” as a matter of common sense (well, common to me) while also restricting excessive or egregious overuse, because the mechanics of both are identical. What we have chosen to do is to restrict “fair use”, and then passively allow virtually everyone to violate the law, hoping to let a very bad law snag the bad actors and hope it will be blind to those with good intentions.
November 7, 2011, 10:43 amcaptain_slow says:
Actually this happens all the time. I firmly believe that the content owners (copyright holders, media companies) know this and do not want to stop it from happening. But for the life of me I can’t figure what they think they are accomplishing with the law as it is. Frankly I think the media business of the 50s which has survived until now is in the final throes of death, and they are flailing about legally trying to preserve something. But they simply do not understand the market, and they do not have valuable capital that will sustain them into the emerging media market.
November 7, 2011, 10:51 amStop Online Piracy Act: Putting the extra in extraterritoriality | TechnoLlama says:
[...] evidence. One need only be accused to have his/her domain seized. As David Post comments in the Volokh Conspiracy: “Here’s the Internet we get after this becomes law. The prosecutor walks into a courtroom [...]
November 14, 2011, 6:20 amWhy SOPA Threatens the DMCA Safe Harbor says:
[...] on any website that allows users to post content.” Temple Law Professor David Post, writing at the Volokh Conspiracy, observed that the bill might make it a “violation of law to keep the prosecutors from [...]
November 18, 2011, 6:56 pm