Why Voting For COICA Is A Vote For Censorship

from the explaining dept

Last week, we listed out the 19 Senators who "voted for censorship." These were the 19 members of the Senate Judiciary Committee who voted in favor of COICA (Combating Online Infringement and Counterfeits Act). That story got an awful lot of attention, and was widely linked from many different places. While we had linked to all of the details in the post, we had assumed that most of our regular readers we already familiar with COICA and why it's a bill about censorship. Of course, we hadn't been expecting quite so much traffic from those who were not as familiar with the bill or the debate, which resulted in a few complaints in the comments that the bill "has nothing to do with censorship, but is about stopping copyright infringement."

While I have no illusion that most of those who made such comments will ever come back and read this, it is important to make this point clearly, for those who are interested. There are many, many serious problems with the way COICA is written, but this post will highlight why it is a bill for censorship, and how it opens the door to wider censorship of speech online.

First off, the bill would allow the Justice Department to take down an entire website, effectively creating a blacklist, akin to just about every internet censoring regime out there. Now, it is true that there is a judicial process involved. The original bill had two lists, one that involved the judicial review, and one that did not (it was a "watch list," which "encouraged" ISPs and registrars to block -- meaning they would block them). However, everyone seems sure that the second list will not be included in any final bill. Even so, there are serious problems with the way the bill works. Case law around the First Amendment is pretty clear that you cannot block a much wider variety of speech, just because you are trying to stop some specific speech. Because of the respect we have for the First Amendment in the US, the law has been pretty clear that anything preventing speech, due to it being illegal, must narrowly target just that kind of speech. Doing otherwise is what's known as prior restraint.

Two very relevant cases on this front are Near vs. Minnesota and CDT vs. Pappert. Near vs. Minnesota involved striking down a state law that barred "malicious" or "scandalous" newspapers from publishing -- allowing the state to get a permanent injunction against the publications of such works. In most cases, what was being published in these newspapers was pure defamation. Defamation, of course, is very much against the law (as is copyright infringement). But the court found that barring the entire publication of a newspaper because of some specific libelous statements barred other types of legitimate speech as well. The court clearly noted that those who were libeled still have libel law to sue the publisher of libel, but that does not allow for the government to completely bar the publication of the newspaper.

The Pappert case -- a much more recent case -- involved a state law in Pennsylvania that had the state Attorney General put together a blacklist of websites that were believed to host child pornography, which ISPs were required to block access to. Again, child pornography is very much illegal (and, many would argue, much worse than copyright infringement). Yet, once again, here, the courts tossed out the law as undue prior restraint, in that it took down lots of non-illegal content as well as illegal content.

While much of the case focused on the fact that the techniques ISPs were using took down adjacent websites on shared servers, the court did also note that taking down an entire URL is misguided in that "a URL... only refers to a location where content can be found. A URL does not refer to any specific piece of static content -- the content is permanent only until it is changed by the web site's webmaster.... The actual content to which a URL points can (and often does) easily change without the URL changing in any way." The argument was that taking down a URL, rather than focusing on the specific, illegal content constituted an unfair prior restraint, blocking the potential publication of perfectly legitimate content (the court here noted the similarities to the Near case):
Additionally, as argued by plaintiffs, the Act allows for an unconstitutional prior restraint because it prevents future content from being displayed at a URL based on the fact that the URL contained illegal content in the past.... Plaintiffs compare this burden to the permanent ban on the publication of a newspaper with a certain title, Near v. Minnesota, 283 U.S. 697 (1931), or a permanent injunction against showing films at a movie theater, Vance v. Universal Amusement Co., 445 U.S. 308 (1980). In Near, the Court examined a statute that provided for a permanent injunction against a "malicious, scandalous, and defamatory newspaper, magazine or other periodical." ....

There are some similarities between a newspaper and a web site. Just as the content of a newspaper changes without changing the title of the publication, the content identified by a URL can change without the URL itself changing.... In fact, it is possible that the owner or publisher of material on a web site identified by a URL can change without the URL changing. .... Moreover, an individual can purchase the rights to a URL and have no way to learn that the URL has been blocked by an ISP in response to an Informal Notice or court order.... Despite the fact that the content at a URL can change frequently, the Act does not provide for any review of the material at a URL and, other than a verification that the site was still blocked thirty days after the initial Informal Notice, the OAG did not review the content at any blocked URLs....
One of the complaints we've heard is that such past prior restraint cases do not apply here since "copyright infringement is illegal." But, both defamation and child pornography also break the law. The point is that in all of these cases, there are existing laws on the books to deal with that specific content, which can be handled that way. Adding this additional layer that takes down an entire publication is where it stretches into clear censorship.

The other argument that says COICA is not censorship is that it states that it is only directed at sites "dedicated to infringing activities" that have "no demonstrable, commercially significant purpose or use other than" infringement. However, what supporters of COICA hate to admit is that "dedicated to infringing activities" is very much in the eye of the beholder, and the same folks who support COICA -- such as the MPAA and the RIAA -- have a very long and troubled history of declaring all sorts of new technologies as "dedicated to infringing activities." The VCR, cable TV, the DVR and the MP3 player were all lambasted as being dedicated to infringing activities with no demonstrable, commercially significant purpose, when each was introduced. In hindsight, supporters of COICA like to ignore this, and insist they always knew that each of those technologies could have perfectly legitimate non-infringing uses. But that's only because they were allowed to go forward after a series of legal fights. With COICA, no such chance would be given. It's easy to declare something as dedicated to infringing activities if you're unwilling to see how it can be useful.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    A Dan (profile), Nov 22nd, 2010 @ 9:55am

    The VCR, cable TV, the DVR and the MP3 player

    I would have included perennially-appearing YouTube in the list, too, since it's the sort of website that would actually have been banned with this legislation (and a lot of people know about it).

     

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  2.  
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    Matthew Weber, Nov 22nd, 2010 @ 9:57am

    Government Sucks

    These associations like the MPAA and RIAA won't be happy until the internet is killed and buried. They don't think any technology is good, and that we should all be listening to music on our Sony Walkmans again like we did in the 80s.

     

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    Anonymous Coward, Nov 22nd, 2010 @ 10:08am

    The other argument that says COICA is not censorship is that it states that it is only directed at sites "dedicated to infringing activities" that have "no demonstrable, commercially significant purpose or use other than" infringement. However, what supporters of COICA hate to admit is that "dedicated to infringing activities" is very much in the eye of the beholder, and the same folks who support COICA -- such as the MPAA and the RIAA -- have a very long and troubled history of declaring all sorts of new technologies as "dedicated to infringing activities." The VCR, cable TV, the DVR and the MP3 player were all lambasted as being dedicated to infringing activities with no demonstrable, commercially significant purpose, when each was introduced.

    Are the sites in question not in fact "dedicated to infringing activities"? Can you make the case that they are not?

    And I don't really follow your logic. What do those other technologies have to do with websites that are in fact dedicated to infringement? Sounds like a red herring to me.

     

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    Jay (profile), Nov 22nd, 2010 @ 10:16am

    McCarthyism for the new millenium

    Basically, this entire thing has been a test of free speech for quite some time. The absurdity in believing a few web sites can be determined to have no purpose other than infringement is just saddening.

    It didn't work for Hollywood in the 1950s, why should it work for the rest of the world now?

     

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    Hephaestus (profile), Nov 22nd, 2010 @ 10:17am

    Today in the news ....

    "The VCR, cable TV, the DVR and the MP3 player were all lambasted as being dedicated to infringing activities with no demonstrable, commercially significant purpose, when each was introduced."

    Today in the news ... apple.com was blacklisted due to the new iPod having the ability to hold 64 gigabytes of infringing content.

     

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    Dark Helmet (profile), Nov 22nd, 2010 @ 10:19am

    Re:

    "What do those other technologies have to do with websites that are in fact dedicated to infringement? Sounds like a red herring to me."

    Simple, actually. These industries in the past have mis-labeled those technologies as being "dedicated to infringement". If there were laws covering those products similar to COICA, those technologies might never have been allowed to exist because of that mislabeling. Which is really, REALLY bad. A world w/o mp3 players or DVRs, just because a single industry was so short-sighted.

    And, in case you have to ask, more and more legitimate uses of bittorrent and filesharing sites are coming about, including everything from open source software to patches/updates to software to the distribution of user-generated content like OCReMix. The 1st amendment does not allow you to take a shotgun approach to limiting speech, which is what COICA does....

     

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    Designerfx (profile), Nov 22nd, 2010 @ 10:21am

    Re: Government Sucks

    yup. change is hard, but they are bleeding out money faster every day. at the rate they are going nobody (even ignorant folk) will want to associate with the MPAA/RIAA in 5 years.

     

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  8.  
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    Mike Masnick (profile), Nov 22nd, 2010 @ 10:21am

    Re:

    Are the sites in question not in fact "dedicated to infringing activities"? Can you make the case that they are not?


    So you are saying we would be better off had the VCR, cable TV, the DVR and the MP3 player all banned soon after they were introduced, since all were dedicated to infringing purposes, in the broad definition of the entertainment industry?

    And I don't really follow your logic. What do those other technologies have to do with websites that are in fact dedicated to infringement? Sounds like a red herring to me.

    Point being that all sorts of things that are declared -- without doubt as you do here -- to be "dedicated to infringing activities," turn out to be huge opportunities for the copyright holders to grow and expand their markets. And, if they were shut down through an abusive process that goes against the law, the long run harm would be to those copyright holders.

    Logic is an important skillset. I would suggest looking to see if you can take a class on it in the future. It would likely be helpful in understanding some important concepts.

     

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  9.  
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    Jeremy7600 (profile), Nov 22nd, 2010 @ 10:28am

    Re:

    Ask the Yes Men or Nina Paley if they don't find The Pirate Bay "useful" to them.

    In fact, The Yes Men Save the World was distributed to me, with clear approval from the people who created the content, via TPB.

    Also, Sita Sings the Blues was also distributed to me via TPB. Nina Paley comments on this site, and has a facebook page, you can even ask her yourself if she approves of this method.

    How can 2 works be distributed legitimately on a site that is only dedicated to infringing?

    Oh, and TPB could be replaced with any tracker that serves these two movies, not just TPB itself.

    Not to mention myriad flavors of Linux being distributed this way.

    Guess I just made they case that they are not. Do I get a cookie?

     

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    Anonymous Coward, Nov 22nd, 2010 @ 10:29am

    Re: Re:

    I'm still not following the argument. How is a website a technology? It's not the technology that is being questioned here, it is the application of a technology. Bittorrent sites are perfectly fine and should not be bothered as long as they are legal, but bittorrent sites conspicuously dedicated to infringement will be. It is not the technology that is the problem, it is a specific, illegal use of that technology. To use the analogy of the MP3 player, it is not the MP3 player in general that is being challenged here, but rather it is one specific usage of MP3 players that is the problem. I think the two are being conflated to try and make some point that doesn't really work.

    And what does someone's past claim about some past technology being "dedicated to infringing activities" have to do with whether or not these websites in question are in fact dedicated so? Let's look at a specific example. Is thepiratebay.org dedicated to infringing activity or not? If not, what is the argument?

     

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    Anonymous Coward, Nov 22nd, 2010 @ 10:37am

    Re: Re:

    So you are saying we would be better off had the VCR, cable TV, the DVR and the MP3 player all banned soon after they were introduced, since all were dedicated to infringing purposes, in the broad definition of the entertainment industry?

    No, of course not. I don't agree that those were in fact dedicated to infringing purposes when compared to something like thepiratebay.org. And I just don't follow the leap in logic from talking about those technologies to talking about a specific application of a different technology here.

    Point being that all sorts of things that are declared -- without doubt as you do here -- to be "dedicated to infringing activities," turn out to be huge opportunities for the copyright holders to grow and expand their markets. And, if they were shut down through an abusive process that goes against the law, the long run harm would be to those copyright holders.

    Logic is an important skillset. I would suggest looking to see if you can take a class on it in the future. It would likely be helpful in understanding some important concepts.


    But were those things in fact dedicated to infringing activities? Whether the answer is yes or no, and I think it's no, what does that have to do with a website like thepiratebay.org? Are they not in fact dedicated to infringing activities? I think you're trying to make this logical leap that just doesn't work in an effort to make a point that just doesn't hold water. Seems like a real stretch to me that ignores the simple truth that websites like thepiratebay.org are in fact dedicated to infringement.

     

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    Anonymous Coward, Nov 22nd, 2010 @ 10:41am

    Re: Re:

    How can 2 works be distributed legitimately on a site that is only dedicated to infringing?

    If a small percentage of the IP "shared" on thepiratebay.org is legit, does that negate the large percentage of IP that isn't? I don't think so.

     

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    nasch (profile), Nov 22nd, 2010 @ 10:46am

    Re:

    Are the sites in question not in fact "dedicated to infringing activities"? Can you make the case that they are not?

    What sites? There is no list yet.

    What do those other technologies have to do with websites that are in fact dedicated to infringement?

    First, if there is NO content on the web site that is not infringing, then it's fine as far as the 1st Amendment goes. Good luck finding any such site. Second, even if that were the case, there is still no need for this law. Existing laws already cover copyright infringement and provide for takedown and damages.

     

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    Andrew, Nov 22nd, 2010 @ 10:46am

    Piracy is not free speech

    You are wrong as usual, Mike. The supreme court already ruled on this 25 years ago, when it refused to allow a bookstore to “use the First Amendment as a cloak for obviously unlawful” activity.

    If a website has 10% legal content and 90% illegal content, the entire domain can appropriately be shut down. In the same way, a bookstore that sold 10% copies of Harry Potter and 90% child porn would appropriately be shut down as well.

    You can't hide behind the "free speech" to protect sites like The Pirate Bay. The Pirate Bay can always open a legal site to exercise its true freedom of speech should it choose. As long as it makes its primary business violation of American IP rights, it has no justifiable reason to exist in American households.

    If you want to make an argument to protect piracy, you'll have to do better than that.

     

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    Gabriel Tane (profile), Nov 22nd, 2010 @ 10:49am

    Re: Re: Re:

    "If a small percentage of the IP "shared" on thepiratebay.org is legit, does that negate the large percentage of IP that isn't? I don't think so."


    But that's the whole point... we're not talking about the small good negating a larger bad. We're talking about the unconstitutionality of blocking ANY of those good just to stop the bad.

    It's against the applied-interpretation of the Constitution, as demonstrated by case law (read post), for the government to block an entire publication (website) just to stop the illegal portion of that publication.

     

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    Chris in Utah (profile), Nov 22nd, 2010 @ 10:50am

    Re: Re: Re:

    Yet we still dumped the tea off those boats of the crews trying to make a living as well. Funny how that happens.

     

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    Andrew, Nov 22nd, 2010 @ 10:51am

    Re: Re: Re:

    No, a small percent of legal content on The Pirate Bay does not protect it from the large percent of illegal content.

    The American Supreme Court already ruled on this in ARCARA v. CLOUD BOOKS, INC, 1986.

    They ruled that the legal sale of books on at that bookstore "did not shield it from enforcement of the closure" for other crimes they were committing on the premises.

    That is The Supreme Court's opinion, not mine. Like other piracy apologists, this website's editorial is just grasping at straws.

     

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    Mark Murphy (profile), Nov 22nd, 2010 @ 10:53am

    Re: Re: Re:

    If a small percentage of the IP "shared" on thepiratebay.org is legit, does that negate the large percentage of IP that isn't? I don't think so.


    And therein lies the problem.

    Using an advanced technique known as "math", you can see that there are a spectrum of percentages, from 0% of material that you deem is infringing to 100% of material that you deem is infringing. You clearly feel that sites with less than 100% of material that you deem to be infringing are "dedicated" to infringement. No doubt others feel the same way.

    If COICA has some objective determination for what is "dedicated" (and, for that matter, "infringing"), I am unaware of it. The MPAA and kin will happily argue that this threshold is as close to 0% as they think they can get away with. Heck, they would love it if the percentage were exactly 0%, and that every Web site owed them protection money or would be shut down by Justice.

     

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    Gabriel Tane (profile), Nov 22nd, 2010 @ 10:54am

    Re:

    "And I don't really follow your logic. What do those other technologies have to do with websites that are in fact dedicated to infringement? Sounds like a red herring to me."

    It's not a red herring.

    The mention of those technologies is to illustrate a documented history of action taken by the industries that would utilize this law. In the past they have used the language of "dedicated to infringing activities" to condemn things they don't like. Can a VCR have a legitimate non-piracy use? How about watching home movies of your kid's graduation? So you see how they applied that label to a device INCORRECTLY just because they didn’t like it?

    If we give these industries a law that says "you tell us what is 'dedicated to infringing activities with no demonstrable, commercially significant purpose'" and they'll again stretch the imagination to make sure everything they don't like is included in that definition.

     

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  20.  
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    Andrew, Nov 22nd, 2010 @ 10:54am

    Re: Re: Re: Re:

    Wrong.

    In ARCARA v. CLOUD BOOKS, INC., 478 U.S. 697 (1986), the Supreme Court ruled that it was entirely constitutional to block legal first amendment freedoms to enforce the greater law.

    They stated that the important government interest in preventing illegal conduct permitted “incidental limitations on First Amendment freedoms,” and noted that the bookstore owner was free to open a new store dedicated only to bookselling.

    Similarly, if The Pirate Bay wants to open a new website dedicated only to legal torrents, they can do so.

     

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    Chris Rhodes (profile), Nov 22nd, 2010 @ 10:55am

    Re: Piracy is not free speech

    Piracy is not free speech

    He didn't say it was. (Reading is overrated, I know.)

    The supreme court already ruled on this 25 years ago, when it refused to allow a bookstore to “use the First Amendment as a cloak for obviously unlawful” activity.

    Got a link? I'd like to read it for myself.

     

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    Chris in Utah (profile), Nov 22nd, 2010 @ 10:56am

    Re: Piracy is not free speech

    Easy to do the 90% of content you see is uploaded by "users" not the "site". Can you justify going after a tool? As for the other 10%, let's hear it for embracing a new technology!

     

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    Andrew, Nov 22nd, 2010 @ 10:56am

    Re: Re: Piracy is not free speech

     

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    Andrew, Nov 22nd, 2010 @ 10:57am

    Re: Re: Piracy is not free speech

    When the site moderates all content to remove malware, fakes, and refuses to remove illegal content even when duly notified, they are taking responsibility for it. The American courts have made that quite clear as well.

     

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    Andrew, Nov 22nd, 2010 @ 11:00am

    Re: Re: Re: Re:

    You must have a very idealistic world view if you believe all legal cases must be 100% black or 100% white before a judge should be allowed to render a verdict. Being a judge is never that easy. But they manage every day. It is their responsibility, based on the criteria in the bill, to draw the line. They do this every day they hold a gavel.

     

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    HrilL, Nov 22nd, 2010 @ 11:01am

    Re: Re: Re:

    thepiratebay.org is not dedicated to infringement... Many content creators openly use thepiratebay.org to promote their works. Even your example of a site that you claim is dedicated to infringement is clearly not dedicated to such.

    The simple point Mike is making is that had their been law in place to block technologies/devices/sites/published works before these things came to market they would have been stopped in their tracks and blocked from market completely. Because the copyright industry would have labeled them as "dedicated to infringement"

     

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    RobShaver (profile), Nov 22nd, 2010 @ 11:02am

    VCR: Evil Infringement Engine

    When the VCR was first introduced there was no pre-recorded tapes. It's only use was to record programming from the television ... copyrighted programming. So it was, indeed, dedicated to infringing and the TV channels objected and sued.

    Here's one version of that history.

    "[T]he United States Court of Appeals for the Ninth Circuit, which held Sony liable for contributory infringement. The court also held that the Betamax was not a staple article because its main purpose was copying. It went on to suggest damages, injunctive relief and compulsory licenses in lieu of other relief."

    The Supreme Court nearly agreed with the Ninth Circuit but eventually reversed in a 5 to 4 decision. Had Universal City Studios, Inc. prevailed I believe that all the devices mentioned would have never been allowed to exist.

    So now you're arguing pretty much the same argument that would have prevented them from being legal.

    Read your history. It is repeating.

    Peace,

    Rob:-]

     

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    Tails, Nov 22nd, 2010 @ 11:03am

    Re:

    Even if you ignore the new technologies. Sites like YouTube, Mp3Tunes, and RapidShare likely would have been affected by this ruling and all these sites are legal even though the MPAA/RIAA has decided that they are "dedicated to infringing activities".

    I understand the vitriol directed at the pirate bay by some, but innovation, personal freedom, and privacy should not be disregarded in an effort to stop real copyright infringement.

     

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    Anonymous Coward, Nov 22nd, 2010 @ 11:07am

    Re: Re: Re: Re:

    Andrew,

    You are mixing apples and oranges. The ARCARA v CLOUD BOOKS, INC, 1986 ruling wouldn't apply here.

     

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    Chris in Utah (profile), Nov 22nd, 2010 @ 11:08am

    Re: Re: Re: Piracy is not free speech

    That's called a feature of a tool something a company does to drive customers too it.

    A site is not responsible for the users actions. Let alone personal use verses commercial. Do you really want an army of lawyers sitting viewing the 36hours of content uploaded to youtube every minute? Let alone sharing sites?

     

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    Mark Murphy (profile), Nov 22nd, 2010 @ 11:08am

    Re: Re: Re: Re: Re:

    It is their responsibility, based on the criteria in the bill, to draw the line.


    And only anonymous fools want laws that force judges to "draw the line". The rest of us would like something that we can work with, so we can actually understand when we are and are not in violation of the law.

    Next, you'll argue that concrete speeding limits should be removed, with the police and judges allowed to arrest and jail anyone moving, based upon how they feel like they want to "draw the line" that morning.

     

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  32.  
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    Richard Kulawiec, Nov 22nd, 2010 @ 11:10am

    Unintended consequences of fiddling with things beyond their comprehension

    Attempting to censor domains/messages/web sites/content/etc. because it is alleged to be offensive/illegal/pirated/etc. has proved to be a near-impossible task even for totalitarian regimes who won't hesitate to imprison or execute in the process of achieving their goals. Not only will it fail to work, but it will carry unintended consequences -- as some of those regimes have discovered.

    That's a feature, not a bug. Much of the reason that the underlying protocols and services on the 'net are structured as they are is that doing so makes them resistant to the whims of clueless bureaucrats -- such as the 19 Senators who voted for COICA.

    That's why I signed the EFF's Open Letter (http://www.eff.org/deeplinks/2010/09/open-letter), not that it seems to have done any good. (Apparently the aggregate several thousand years of experience embodied in the signatories of that letter does not outweigh the propaganda spouted by the professional liars who work for the RIAA and MPAA.)

    It would be instructive to ask each of those 19 Senators if they understand how DNS resolvers work, why DNSSEC is being rolled out, what the role of a DNS RPZ is, and for that matter, what the role of a static hosts file is/can be. I'd be shocked if any them could provide anything remotely resembling a coherent response. (And I'm sure they'd be shocked if, once they were brought up to speed on all this, it was pointed out to them that there are numerous ways to bypass their proposed blacklist, many of which require only a few minutes and a couple lines of typing.)

    What we are witnessing is evolution in progress. The old keepers of content are obsolete, and they know it. They realize that their time has come and gone, and the only thing in their future is...extinction. Rather than accepting this with some grace and dignity, they are determined to do as much damage to society as possible -- under the guise of protecting their business models. But the future is coming, inexorably, and there is no place for them in it -- they have sealed their own fate with stupidity, greed and arrogance.

     

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    Andrew, Nov 22nd, 2010 @ 11:10am

    "The point is that in all of these cases, there are existing laws on the books to deal with that specific content, which can be handled that way"

    Please explain to me what the existing laws on the books are to address a pirate server hosted in Pakistan/Iran/N.Korea/etc. or any country that does not believe in enforcing American IP rights.

    In such cases, blocking is the only approach that can be applied. Unless you are arguing for the abolition of IP enforcement.

     

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    Free Capitalist (profile), Nov 22nd, 2010 @ 11:12am

    Re: Re: Re: Re: Re:

    You must have a very idealistic world view if you believe all legal cases must be 100% black or 100% white before a judge should be allowed to render a verdict. Being a judge is never that easy. But they manage every day. It is their responsibility, based on the criteria in the bill, to draw the line. They do this every day they hold a gavel.

    True, and this is basically how we determine if something is "infringement" or not, with a judge and jury. Infringement most definitely is "not black and white", and yet COICA wants relegate the early determination to industry and DOJ representatives. Censor first, justify later. Sounds "a bit" like a setup to me.

     

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    MRK, Nov 22nd, 2010 @ 11:12am

    Considering how often the DMCA is used for censorship, you cannot reasonably think that COICA would not be used in the same manner. If COICA becomes law, Wikileaks would be blacklisted within days.

     

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  36.  
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    Miles (profile), Nov 22nd, 2010 @ 11:13am

    Re: Re: Re: Re:

    Like other piracy apologists, this website's editorial is just grasping at straws.
    Then allow me to speak from the other side of the coin. I don't pirate. I buy. I'm a web developer by trade. The DMCA has killed much of what I do because I can no longer create software to allow people to back up their digital products. This line of software, when operational, was worth $250/mo. for me, income wise. I couldn't live on it, but it was helpful.

    In 1997, this income was lost. What the hell did I ever do to deserve this treatment? My software backed up legitimate purchases, ALLOWABLE by US copyright law. Now, I'm screwed because some dicks in Hollywood think backing up purchased software is piracy?

    Fast-forward to 2010, where this very law stripping me out of $250/mo. income is being used to stifle free speech by take down notice abuse, which is supposed to be their system to fight copyright infringement. Instead, it shuts down videos of dancing babies, stifles news about altered model images with waists smaller than their heads, NFL and MLB take down notices of fan sites over facts of the game (not covered by copyright, fyi), and many, many other forms of abuse.

    Now you sit and pretend COICA is about going after the few websites which aggregate copyright content by offering to people what our very own industry refuses to do because of fear of piracy? The irony is incredible.

    Sorry, but no way will I support the non-piracy apologists who refuse to open their eyes to the abuse copyright law has received in the past 100 years so they can feel better our industry continues legally price gouge people with $20 CDs, $25 DVDs, $30 books, and other artificially marked-up products.

    I've done my tenure paying these outrageous prices. I shall not pay it again by following the law only to have MY rights stripped which takes away income I used to pay for their goods.

    If you can't see why I'm upset over these laws, I can only hope they one day strip you and your family of income you've come to rely on. Maybe then you'll understand.

     

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    Chris in Utah (profile), Nov 22nd, 2010 @ 11:14am

    Re: VCR: Evil Infringement Engine

    I remember my history. Mothers with is always a faithful friend... "Don't come here with those shoulda coulda woulda's!...."

     

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  38.  
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    Anonymous Coward, Nov 22nd, 2010 @ 11:14am

    Re: Re: Re: Re:

    It's against the applied-interpretation of the Constitution, as demonstrated by case law (read post), for the government to block an entire publication (website) just to stop the illegal portion of that publication.

    The caselaw mentioned in the post is far from conclusive. What about all the caselaw that holds otherwise, including the caselaw on the constitutionality of in rem actions, for example?

     

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    Andrew, Nov 22nd, 2010 @ 11:15am

    Re: Re: Re: Re: Re: Re:

    Another example illustrating how judges draw the line is child pornography. It is accepted in American courts that not all nude child photography is child pornography, and not all clothed child photography is not child pornography.

    How do the judges decide what is an innocent family photograph, and what is child sexual exploitation?

    There is no "speeding limit". There is no quantitative cutoff. This is how law enforcement works every day. It is almost universally in shades of gray.

    That is reality. You are obviously an idealist who would like to pretend otherwise. But judges spend the overwhelming majority of their time rendering verdicts in the gray, not the black or white. That is what they are paid to do.

     

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    Chris in Utah (profile), Nov 22nd, 2010 @ 11:15am

    Re: Re: VCR: Evil Infringement Engine

    Mothers wit*

     

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  41.  
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    Anonymous, Nov 22nd, 2010 @ 11:16am

    Re: Re: Re: Re: Re: Re:

    Not all trials need a jury. Most don't. Under COICA, all blocks would have to be considered by a judge. The attorney general doesn't bypass the judge.

     

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  42.  
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    Anonymous Coward, Nov 22nd, 2010 @ 11:18am

    Re: Re:

    If we give these industries a law that says "you tell us what is 'dedicated to infringing activities with no demonstrable, commercially significant purpose'" and they'll again stretch the imagination to make sure everything they don't like is included in that definition.

    I think that's a little too much doom & gloom for my taste. The fact is, the AG already has the power to bring in rem actions against websites. If the power is not being abused now, I'm not inclined to think it'll be abused later. Sounds like FUD to me.

     

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  43.  
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    Chris in Utah (profile), Nov 22nd, 2010 @ 11:19am

    Re: VCR: Evil Infringement Engine

    P.S. Shall we take computer away for being able to copy said anything?

     

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    Andrew, Nov 22nd, 2010 @ 11:20am

    Re: Re: Re: Re: Piracy is not free speech

    The YouTube defense is out of date. They now employ Audible Magic fingerprinting to auto-filter infringement. It does a very good job, and like all fingerprinting, it keeps getting better. UStream and Justin.tv are also now working on fingerprinting. As are the porno tubes.

    These websites are proving you can operate a user generated site without manually watching 36 hours of content every minute, and without letting piracy over-run the system.

    In the case of The Pirate Bay, it isn't even that complex. They were WILLFULLY hosting trackers to illegal content, even once notified.

    I don't see how that is at all defensible.

     

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  45.  
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    Free Capitalist (profile), Nov 22nd, 2010 @ 11:22am

    Re:

    Please explain to me what the existing laws on the books are to address a pirate server hosted in Pakistan/Iran/N.Korea/etc. or any country that does not believe in enforcing American IP rights.

    In such cases, blocking is the only approach that can be applied. Unless you are arguing for the abolition of IP enforcement.

    And here you illustrate the post-COICA type of scenario that would unravel years of progress made by having the U.S. acting as the "trusted gatekeeper" for IANA and hosting the 'root' servers.

    DNS is a globally used technology because everyone agrees to use it and it is trusted, mostly, to be managed fairly.

    If the U.S. throws away it's credibility on COICA, Internet commerce of all kinds will be stifled by the fragmentation of what was once a universal technology.

     

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  46.  
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    Anonymous Coward, Nov 22nd, 2010 @ 11:26am

    Re:

    Considering how often the DMCA is used for censorship, you cannot reasonably think that COICA would not be used in the same manner. If COICA becomes law, Wikileaks would be blacklisted within days.

    Sounds like FUD to me. Is wikileaks dedicated to copyright infringement? Can't the AG bring an in rem action against them already, without COICA? What possible reason is there to think the AG would use the power later if he's not using it now?

     

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    RikuoAmero (profile), Nov 22nd, 2010 @ 11:27am

    What about this

    For those saying an infringing website should be shut down, think about this.
    I am a member of a website forum dedicated to the discussion of anime, movies, cartoons and TV shows. There are also seperate sections for discussions on other topics and even sections to upload fanart.
    However, there is a section where members post links to cyberlocker websites for infringing material.
    Now under COICA that web site would be shut down. In trying to block the copyright infringement (which there already is a law for), the members of this site would lose a place to make speech.
    As for COICA possibly saying if a site has X% infringing material, how can you count it? The number of links? How many different versions of the file are shown? The website does not store the material on their own servers, these are links posted by users. There is no way to mathematically determine the percentile infringement on the site.
    There are members on the site who do not engage in infringement yet discuss various topics with those who do. Should they lose this site because of what the infringers do?

     

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  48.  
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    Gabriel Tane (profile), Nov 22nd, 2010 @ 11:27am

    Re: Re: Re:

    You're losing me with the In Rem... I understand (I think) what that means, but I'm not sure how you're applying it here.

    The AG may have legal power to go after websites, but there are still the 1st Amendment protections on the content that is legal expression. What the COICA would do is allow someone OTHER than the AG to determine that something is NOT legal expression and then take down the entire website to stop that (now questionably-labeled) illegal expression.

    Is it doom & gloom to say that there’s going to be a smoke-filled, dimly lit back room where power-brokers are discussing which sites to take down next because they’re saying things that go against their shadowy agenda? Absolutely. But have we not seen in the recent past where the RIAA and MPAA have taken actions that are morally- (and, some would argue, legally-) questionable in the name of preserving their business model?

     

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  49.  
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    Jay (profile), Nov 22nd, 2010 @ 11:28am

    Re: VCR: Evil Infringement Engine

    It sure as hell didn't repeat well for Napster or P2P.

    But I'm happy with Bittorrent now so s'all good.

     

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  50.  
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    Gabriel Tane (profile), Nov 22nd, 2010 @ 11:28am

    Re: Re: Re: Re: Re:

    Let me know what that case law is, and I'll go read it and tell you what I think.

     

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    Prashanth (profile), Nov 22nd, 2010 @ 11:29am

    Re: Re:

    Yes, you do get a cookie. A cookie from the RIAA that you will NEVER BE ABLE TO REMOVE! MWAHAHAHAHAHA!
    (That was my lame attempt at a joke. I'll try not to do that again.)
    Also, has anyone noticed that Ron Wyden actually did stop the bill (meaning the members of Congress can't vote on it until the next Congress convenes)? (Yay!)

     

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    Andrew, Nov 22nd, 2010 @ 11:30am

    Re: Re:

    In other words, there are currently no laws to address illegal content hosted in lawless foreign nations.

    Rather than enforce a lawful Internet in America, you would prefer to reduce all Internet laws to the lowest common denominator to match the most lawless country in the world?

    "Race to the bottom"?

     

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    Andrew, Nov 22nd, 2010 @ 11:32am

    Re: What about this

    No that is not true. Under COICA, they would be temporarily blocked, be notified, have the opportunity to remove the illegal cyberlocker section, and then if they do so, be re-allowed.

    COICA allows for websites to correct the illegal aspects of their websites and be unblocked.

    If they decide their piracy is more important than their free discussions, that will be their choice to make, not the Attorney General's.

     

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    Free Capitalist (profile), Nov 22nd, 2010 @ 11:33am

    Re: Re: Re: Re: Re: Re: Re:

    Under COICA, all blocks would have to be considered by a judge.

    Leaving habeus corpus in tact, "I'm sure"? Also, I thought a judge has to review the block within days of it being enacted, not before it was enacted. Either way, there is no due process if they can curtail your 1st amendment rights before giving you a chance to respond.

    The only way to make this fair is to give the accused a window to respond before the censor goes up, and to make public all blocking activity. Unfortunately this would not work for the "key stakeholders".

     

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    Chris in Utah (profile), Nov 22nd, 2010 @ 11:35am

    Re: Re: Re: Re: Re: Piracy is not free speech

    It's not out of date, the average user doesn't even know what content ID is. Its like saying you infringed so were not hosting because apparently... Trust the Machination of Audible Magic know what fair use is! /sarc

    Proof? where?

    Willfully? Yes.. please tell me they can track everything!

    I sure do hope the wind caught your #1 this time.

     

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    Mike Masnick (profile), Nov 22nd, 2010 @ 11:35am

    Re: Re: Re: Re:

    The American Supreme Court already ruled on this in ARCARA v. CLOUD BOOKS, INC, 1986.

    Defenders of COICA censorship hang their hat on Arcara v. Cloud Books solely because they have not read the decisions and prefer to assume it means something it does not.

    The court in Arcara was clear that the book store was being closed because the activities (prostitution) had nothing to do with expression. In cases, where the "illegal activity" has to do with expression -- as in the cases I cited above -- Arcara does not apply.

    This has been explained many times over, so I find it amusing when people still think Arcara has any relevance here.

     

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  57.  
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    Free Capitalist (profile), Nov 22nd, 2010 @ 11:36am

    Re: Re: Re:

    Rather than enforce a lawful Internet in America, you would prefer to reduce all Internet laws to the lowest common denominator to match the most lawless country in the world?

    I think you missed the point. COICA dismantles years of international cooperation that leaves us with a universal name technology. When the trusted gatekeeper can no longer be trusted, the gate will be abandoned.

    For the Internet users, this means that instead of everyone being able to look up names from a global source, there will be myriad systems in play, each needing to be configured individually and being run by a national, regional or partisan interest. This spells "very bad" for commerce.

     

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    Chris in Utah (profile), Nov 22nd, 2010 @ 11:41am

    Re: Re: What about this

    Yes, and lets see how arbitrary the cause is shall we? and see how many request we can send in to keep this site locked up for? Lets see how far we can interrupt a business.

    Rather than say.. oh going to said site and providing a warrant to release evidence.

     

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    TPBer (profile), Nov 22nd, 2010 @ 11:42am

    TPB who?

    This whole thing is beyond funny now as TPB is deemed the crown jewel of all sharing.

    FYI TPB is the least used among those who share these days. It is nothing but one giant advert. It is nothing more than nuisance to use, and the torrents are barely legit as well as the reviews are lies.

     

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    Andrew, Nov 22nd, 2010 @ 11:43am

    Re: Re: Re: Re: Re: Re: Piracy is not free speech

    1) YouTube, like many other sites, is employing and refining fingerprinting technology to auto-filter infringement, demonstrating you do not need to spend 36 hours a minute watching user-generated video to fight piracy.

    2) The Pirate Bay knew of infringement, yet made no effort to remove it, responding to requests only with disdain, though they did make the effort to remove fake files, spam, and malware.

    The Internet is changing. Maybe you just need to learn to "adapt"?

     

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  61.  
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    Anonymous, Nov 22nd, 2010 @ 11:46am

    Re: Re: Re: Re:

    That's not true. Under COICA, all domain rulings must be filed by the Attorney General and be approved by a judge in court.

     

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  62.  
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    Bruce Ediger (profile), Nov 22nd, 2010 @ 11:47am

    Re: Re:

    Is wikileaks dedicated to copyright infringement?

    I don't know, how do I look at Wikileaks' content and determine infringement?

    What's that? Nobody determines "infringement" except by a trial with a judge and jury? How quaint! Now do I program that algorithm into a COICA blacklist? You've got to be specific, I'm just a big ol' dumb programmer, almost a tradesman, not in management at all, and cetainly not lawyer caliber.

     

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    Andrew, Nov 22nd, 2010 @ 11:49am

    Re: Re: Re: Re: Re: Re: Re: Re:

    All blocks are public.

    "The Attorney General shall inform the Intellectual Property Enforcement Coordinator of all court orders issued under this section directed to specific domain names associated with Internet sites dedicated to infringing activities. The Intellectual Property Enforcement Coordinator shall post such domain names on a publicly available Internet site, together with other relevant information, in order to inform the public."

     

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  64.  
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    Mike Masnick (profile), Nov 22nd, 2010 @ 11:49am

    Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    1) YouTube, like many other sites, is employing and refining fingerprinting technology to auto-filter infringement, demonstrating you do not need to spend 36 hours a minute watching user-generated video to fight piracy.

    But did so for business reasons, rather than being compelled to under the law.

    2) The Pirate Bay knew of infringement, yet made no effort to remove it, responding to requests only with disdain, though they did make the effort to remove fake files, spam, and malware.

    The law in Sweden at the time did not require it to remove such content, so not sure of your point.

     

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  65.  
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    Bruce Ediger (profile), Nov 22nd, 2010 @ 11:49am

    Re: Re: What about this

    Wait a minnit! You're censoring stuff without prior judicial review? That's damnably un-American. Here in Real America, we respect Freedom of Speech. Even if we don't like what's being said, that respect is what sets us, Real America, apart from kingdoms, emirates and sultanates.

    I won't stand for this un-American sleaze being bandied about.

     

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  66.  
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    Andrew, Nov 22nd, 2010 @ 11:51am

    Re: Re: Re: What about this

    Okay, well in that case, how does American law enforcement go to a site hosted in Russia with a warrant to release evidence?

     

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  67.  
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    Andrew, Nov 22nd, 2010 @ 11:53am

    Re: Re: Re:

    How do you hold an American trial with a judge and jury for a person that is not an American citizen and is not hosting their website in America?

     

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    TPBer (profile), Nov 22nd, 2010 @ 11:58am

    Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Mike he really has absolutely no point. Ignorance seems to prevail, and he as well as others think that the whole world revolves around US law.

     

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  69.  
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    Andrew, Nov 22nd, 2010 @ 11:58am

    Re: Re: Re: Re:

    You are speculating on the ramifications of DNS fragmentation, but still not answering the question. How do you enforce a lawful Internet in America, if you have no mechanism to block or shut down illegal content hosted in lawless nations?

    Is the solution to just allow the most lawless nation in the world to set the standard for what is allowed online in all countries?

     

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  70.  
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    Gabriel Tane (profile), Nov 22nd, 2010 @ 12:00pm

    Re: Re: Re: Re: Re:

    Forgive me for dipping back into a bit of FUD (interesting acronym... hadn't read it before today)... but what's to stop the age-old political practice of greasing the palm?

    If we allow legislation that can be exploited thusly, how have we really helped anyone except those who can pay their way to a benefit?

     

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  71.  
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    Mike Masnick (profile), Nov 22nd, 2010 @ 12:01pm

    Re: Re: Re: Re: Re:

    Is the solution to just allow the most lawless nation in the world to set the standard for what is allowed online in all countries?

    The alternative seems worse, does it not? The most authoritarian nations in the world set the standards of what's acceptible on the internet? I prefer the other way.

     

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  72.  
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    Anonymous Coward, Nov 22nd, 2010 @ 12:01pm

    Re: Re: Re: Re:

    You cannot have art without piracy. You can have art without law though.

    Think about it.

     

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  73.  
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    Andrew, Nov 22nd, 2010 @ 12:03pm

    Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    But did so for business reasons, rather than being compelled to under the law.
    Irrelevant. They are proving, counter to the repeated piracy apologist claims, that it is possible to reasonably filter piracy on user-generates sites without manually reviewing every byte of data.

    Similar fingerprinting could be used by cyberlockers to cut down infringement dramatically.

    The law in Sweden at the time did not require it to remove such content.
    Thank you for illustrating exactly why COICA is necessary.

     

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  74.  
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    Andrew, Nov 22nd, 2010 @ 12:11pm

    Re: Re: Re: Re: Re: Re:

    "The most authoritarian nations in the world set the standards of what's acceptible on the internet"

    If a Swede wants to open a Swedish website on Swedish servers according to Swedish law, they will still absolutely have that right.

    Each country has a right to determine its own laws for what is permissible and what is not. American jurisdiction includes American ISPs, American registrars, and American citizens.

    What other countries do with their own jurisdictions is up to them.

     

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  75.  
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    Anonymous Coward, Nov 22nd, 2010 @ 12:12pm

    Re: Re: (even ignorant folk)

    (even ignorant folk)
    lol,
    well when the ignorant folk all jump ship in 5 years, fortunately MPAA/RIAA still be able to buy ignorant congressmen.

     

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  76.  
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    Chris in Utah (profile), Nov 22nd, 2010 @ 12:15pm

    Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Redefining fingerprinting technology to the point they know what fair use is: may prevent that very fingerprinting to shut the site down for the football jersey I wore in my facebook pictures. Wooops, lets hear it for Darwinism of tech!

    Even the courts have issues determining what is and is not fair use. Want to see locking any content to stop, wait, determine, ad nausem to any technology? I've yet to see very many injunctions preventing any tech not to develop, let alone distribute it service.

     

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  77.  
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    Gabriel Tane (profile), Nov 22nd, 2010 @ 12:15pm

    Re: Re: Re: (even ignorant folk)

    "well when the ignorant folk all jump ship in 5 years, fortunately MPAA/RIAA still be able to buy ignorant congressmen."

    Well, they'll be able to buy knowledgeable congressmen too... those are just a bit more expensive.

     

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  78.  
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    RikuoAmero (profile), Nov 22nd, 2010 @ 12:16pm

    Re: Re: What about this

    Ah but you clearly haven't thought this all the way through.
    First off, there is also a chatbox. What if a user posts a link there? Should that be taken down?
    Second, how can you tell if the link is actually infringing? I could post megaupload.com/infringingfile.part1.rar. What if its something else entirely?
    Third, the law is already bad enough with the DMCA. The DMCA has notice & counter-notice, where to avoid an expensive lawsuit, many people would take down content, even if its not infringing.
    Fourth, the problem of blocking. That's what is being discussed here. So, the concept of guilty before being proven innocent. I say your website has infringing content: therefore its immediately blocked. You eventually prove it doesn't. Next week, I do the same thing again: again, your site is blocked.

    Lastly, "If they decide their piracy is more important than their free discussions". I don't like what you're implying with that sentence. Its the users posting links, not the site owners/moderators. Also, even a murderer doing life in prison is still entitled to free expression: they can send and receive mail.

    Really lastly, COICA talks about foreign websites, which surely must be insane. Think about, the entire site of Youtube has been blocked in countries such as Turkey, because of one video. Do you truly want the US to jump on that bandwagon?

     

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  79.  
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    Andrew, Nov 22nd, 2010 @ 12:17pm

    Re: Re: Re: Re: Re:

    Piracy is not "free expression". Arcara holds. Piracy is not freedom of speech.

    Legally distributing free speech materials does not shield you from the legal consequences of promoting and enabling illegal piracy.

    The same conclusion was reached in every American P2P trial to date. If not, we'd still have Limewire, Kazaa, Napster, and numerous American torrent sites.

     

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    that_id (profile), Nov 22nd, 2010 @ 12:17pm

    Re:

    Are the sites in question not in fact "dedicated to infringing activities"? Can you make the case that they are not? =========================== Easy, same way that I don't have to prove that I'm not a murderer. Guilt has to be proved, not innocence.

     

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  81.  
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    Chris Rhodes (profile), Nov 22nd, 2010 @ 12:18pm

    Re: Re: Re: Piracy is not free speech

    Asking you for a link to backup something you yourself asserted is not failing to "do my homework". It's a big internet out there, and if you're going to start lobbing bombs you should really have something to back you up.

    Also, I notice that the case you cite has already been demolished by Mike in this very comment section. So . . . anything else you'd like to pull out of your ass?

     

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  82.  
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    Chris Rhodes (profile), Nov 22nd, 2010 @ 12:22pm

    Re: Re: What about this

    So basically a new DOS attack, but only for use by the government and their big business contributors. Great.

     

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    TDR, Nov 22nd, 2010 @ 12:25pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Andrew, might I ask, how are they proving this? Where is the empirical, non-entertainment industry evidence? How do you determine what is infringing and what is not? I want a complete and detailed explanation of this supposed "magic wand" that you speak of that supposedly is able to tell the difference between infringing files and non-infringing ones. Now.

     

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  84.  
    identicon
    Anonymous Coward, Nov 22nd, 2010 @ 12:30pm

    Re: Re: Re: Re:

    You don't. Other countries are allowed to have their own laws or lack of them. Doesn't mean the only alternative is to "break" the internet or strip rights that already exist in THIS country or demand that American taxpayers foot the bill for what is the job of rightsholders who should have known the job was dangerous when they took it.

     

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  85.  
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    nasch (profile), Nov 22nd, 2010 @ 12:33pm

    Re: Re: Re: Re: Re: Re:

    Wow, they just keep repeating the same thing over and over.

     

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  86.  
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    Chris in Utah (profile), Nov 22nd, 2010 @ 12:38pm

    Re: Re: Re: Re: What about this

    [i]Each country has a right to determine its own laws for what is permissible and what is not. American jurisdiction includes American ISPs, American registrars, and American citizens. What other countries do with their own jurisdictions is up to them.[/i] Need I respond? Arguing for the sake of ACTA. Gigity.

     

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  87.  
    identicon
    Anonymous Coward, Nov 22nd, 2010 @ 12:39pm

    Re: Re: Re:

    Radio stations started as criminals too are they not analogue to the Pirate Bay more or less?

    File sharing is not about "piracy" is about connections, people don't use it to acquire things the quality is poor but above all they don't want the hassle of administering anything, most people don't have enough space in their computers to keep permanently everything they download and that is very telling, because the way people use the file sharing thing is to record and play things and forget about them, just like people have been using the VCR for ages, just like Tivo etc, are you saying those things are illegal?

    VCR in most cases are only used to copy TV shows but that is somehow ok, but somehow if you try to show that to anybody is not ok?

    Will the industry try to forbid cellphones with music players? you see the memory on those things confirms that the majority are using it for piracy because I doubt everyone will put tens of thousands of dollars to fill it up.

    MP3 players can only be used with illegal content, because I doubt people are using their iPods legally when it costs 30K to fill it up.

    Why are you not questioning that?

     

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  88.  
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    Anonymous Coward, Nov 22nd, 2010 @ 12:43pm

    Re: Re: Re: Re:

    I think the pirate bay is all legal and is fair use.

    A lot of countries see it that way so again, what illegal content exactly.

     

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  89.  
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    Anonymous Coward, Nov 22nd, 2010 @ 12:47pm

    Re: Re: Re: Piracy is not free speech

    The site didn't do it all, the users did the monitoring, and cleaning, because I know for a fact that 4 people can't do it on their own, not even with automated tools that don't exist.

     

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  90.  
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    Karl (profile), Nov 22nd, 2010 @ 12:49pm

    Re: Re: Re:

    It's not the technology that is being questioned here, it is the application of a technology.

    No, it is neither. It is the "dedicated to infringing activity" standard. If that standard would have prevented entire swaths of technological innovation (as it would have), it is a bad standard.

    Is thepiratebay.org dedicated to infringing activity or not?

    It is not. It is hosting a platform for users. Those users may use the platform to infringe, or they may not.

    On the other hand, most people who support this bill would say that it is. And that's the problem.

    Blocking TPB would also block all of the non-infringing content being distributed by users of that site (of which there is a lot - probably not the majority, but still a lot).

    That is against the First Amendment. Since - despite your earlier claims - anti-infringement law must be written in deference to the First Amendment, this law will be unconstitutional.

    Assuming it's ever passed, of course. That's not very likely at this point.

     

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  91.  
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    Anonymous Coward, Nov 22nd, 2010 @ 12:52pm

    Re: Re: Re: Re: Re: Re: Re:

    Yah right, just like the wiretapping thing that saw people just bypassing the formalities to be more "efficient".

     

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  92.  
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    Andrew, Nov 22nd, 2010 @ 12:52pm

    Re: Re: Re: Re: Re: Re: Re:

    Yes, Nasch, the American courts do keep repeating the same thing over and over. Having a small percent of legal content on a network does not protect that network from liability if they also openly facilitate or promote piracy.

    The courts have been very consistent on that. All the way from Arcara to Limewire.

     

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  93.  
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    Anonymous Coward, Nov 22nd, 2010 @ 12:53pm

    Re: Re: Re:

    What?

    Not being abused are you kidding me?

     

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  94.  
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    Anonymous Coward, Nov 22nd, 2010 @ 12:57pm

    Re: Re: Re:

    Lawless like Canada and Spain?

     

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  95.  
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    Karl (profile), Nov 22nd, 2010 @ 1:01pm

    Re: Re: Re:

    If a small percentage of the IP "shared" on thepiratebay.org is legit, does that negate the large percentage of IP that isn't?

    When talking about the First Amendment, the answer is "yes."

     

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  96.  
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    Anonymous Coward, Nov 22nd, 2010 @ 1:01pm

    Re: Re: What about this

    That is not true, the text of that law says it has to try and inform via private or public means it doesn't say it has to anywhere, and with international websites it will be abused since the law doesn't require it to do it on the country in question, one could just publish a note in any journal and that would suffice, is there text saying they need to contact authorities in other countries to have them relay that information?

     

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  97.  
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    Anonymous Coward, Nov 22nd, 2010 @ 1:03pm

    Re: Re: Re: Re: What about this

    That is why countries have armies for.

    That is why Americans don't pass laws for Russians and Russians don't make laws for Americans.

     

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  98.  
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    Andrew, Nov 22nd, 2010 @ 1:04pm

    Re: Re: Re: Re: Piracy is not free speech

    The case has not been demolished. It has been supported and validated by every major case of P2P legislation that has followed in America.

    For example, the Supreme Court upheld this in 2006 with MGM vs. Grokster in stating:

    "When a widely shared product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, so that the only practical alternative is to go against the device’s distributor for secondary liability on a theory of contributory or vicarious infringement. One infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise the right to stop or limit it."

    Kazaa, like in Arcara 1986, claimed their service could also be used for legal first amendment purposes. But, also like with Arcara, this did not outweigh their illegal activities and they were found guilty.

    You cannot incidentally use the 1st amendment as a shield for blatantly illegal offenses.

     

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  99.  
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    Anonymous Coward, Nov 22nd, 2010 @ 1:05pm

    Re: Re: Re: Re: Re:

    Are you suggesting people start gearing up for war over copyrights?

     

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  100.  
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    Karl (profile), Nov 22nd, 2010 @ 1:05pm

    Re: Re: Re: Re: Re: Re: Re:

    Another example illustrating how judges draw the line is child pornography.

    Your post is ironic, considering that the Pappert case was specifically about child pornography.

    Blacklisting sites that are "dedicated to child pornography" is unconstitutional. Why would blacklisting websites that are "dedicated to copyright infringement" be any different?

     

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  101.  
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    Free Capitalist (profile), Nov 22nd, 2010 @ 1:05pm

    Re: Re: Re: Re: Re: Re: Re:

    If a Swede wants to open a Swedish website on Swedish servers according to Swedish law, they will still absolutely have that right.

    So much for going after the terror-fringement sites in Pakistan, then?

     

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  102.  
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    Anonymous Coward, Nov 22nd, 2010 @ 1:06pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Are you saying that if I put a backup of my DVDs on a cyberlocker that is infringement?

    F. you!

     

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  103.  
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    Anonymous Coward, Nov 22nd, 2010 @ 1:07pm

    Re: Re: Re: Re: Re: Re: Re:

    That is not what you said and expressed.

    "How do you hold an American trial with a judge and jury for a person that is not an American citizen and is not hosting their website in America?"

    So which is it, you want to force American law to the world or you want to do it locally.

     

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  104.  
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    Anonymous Coward, Nov 22nd, 2010 @ 1:16pm

    Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Fingerprinting doesn't work.

    It will also flag all legitimate content.
    Besides it can't decode streams on the fly, so if people start encoding data in different forms fingerprinting is useless. I don't think you know that you can make video to be encoded differently do you.

    Here go watch He-Man on youtube(legally) LoL

    http://www.youtube.com/show/heman

    Then you can go out and keep saying "I am the power" LoL

     

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  105.  
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    Anonymous Coward, Nov 22nd, 2010 @ 1:21pm

    Re: Re: Re: Re: Re: Piracy is not free speech

    When the definition of "infringement" changes to a way you don't like I want to see you argument then LoL

     

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  106.  
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    harbingerofdoom (profile), Nov 22nd, 2010 @ 1:29pm

    Re: Re: Re: Re: Re:

    you really want to point at an "adult book store" that had prostitution going on onsite as your defense of your point of view?

     

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  107.  
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    Karl (profile), Nov 22nd, 2010 @ 1:31pm

    Re: Re: Re: Re: Re:

    This case is significantly different than Arcara v. Cloud Books. In that case, the illegal activity (prostitution on the premises) "manifests absolutely no element of protected expression." And the law in question (against closing a "public health nuisance") did not "single out" anyone "engaged in First Amendment protected activities for the imposition of its burden."

    Neither is true here. Speech is, by default, protected; infringement is an exception to that protection. So, even infringing speech "manifests" an "element of protected expression."

    And this law only applies to those who are (potentially) "engaged in First Amendment protected activities." That is, the law intentionally blocks expression, and nothing else.

    To show how important the First Amendment is: In Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, the Court struck down an ink tax as unconstitutional under the First Amendment, because "the tax had the effect of singling out newspapers to shoulder its burden."

    If a tax on ink is a Free Speech violation, you can damn well bet that blacklisting an entire website (for any reason) is unconstitutional.

     

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  108.  
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    Anonymous Coward, Nov 22nd, 2010 @ 1:33pm

    Re: Re: Re: Re:

    No, it is neither. It is the "dedicated to infringing activity" standard. If that standard would have prevented entire swaths of technological innovation (as it would have), it is a bad standard.

    Um, no, clearly the target is a particular application of technology, and not the technology in general. This is why Mike's analogy holds no water.

    It is not. It is hosting a platform for users. Those users may use the platform to infringe, or they may not. On the other hand, most people who support this bill would say that it is. And that's the problem. Blocking TPB would also block all of the non-infringing content being distributed by users of that site (of which there is a lot - probably not the majority, but still a lot). That is against the First Amendment. Since - despite your earlier claims - anti-infringement law must be written in deference to the First Amendment, this law will be unconstitutional. Assuming it's ever passed, of course. That's not very likely at this point.

    To deny that thepiratebay.org is dedicated to infringing activities is a pretty remarkable feat of logic. You can pretend it's the users and not the site, but that is not how the law views it, so that opinion carries no weight in a court of law. The test isn't whether you can find some non-infringement on the site. The test is whether the infringement is a substantial part of that site.

    And of course copyright laws must be written in deference to the First Amendment. I never said otherwise. In fact, I stated that such laws must pass certain levels of Court scrutiny to be valid. I also said that once a right is granted by copyright, it is a right that can be enforced just like any other right. And your right to free speech does not trump my rights under copyright. In that sense, they are equal.

     

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  109.  
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    Jason, Nov 22nd, 2010 @ 1:38pm

    Re:

    "Are the sites in question not in fact "dedicated to infringing activities"? Can you make the case that they are not?"

    Demur. It's doesn't matter if they are or are not "dedicated to infringing activities." If the only other purpose they have is to say, "Hello, World!" then that speech is protected and taking the sites down would constitute prior restraint.

    The whole verbiage of "no demonstrable, commercially significant purpose or use other than" is nothing but a smoke screen because even if there were (which notion is generally a fat load of bull) "no demonstrable, commercially significant purpose or use" there is still protected speech that must not be subject to prior restraint. You don't just get to say, "Well, the site calls itself piratewhatever.com and 80% of the content is or probably is pirated, so shut down the domain," and the reason you don't get to do that is you don't get to excercise prior restraint because we have the right to say it. Sue people after the fact, but you don't get to shut them up.

     

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  110.  
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    Gabriel Tane (profile), Nov 22nd, 2010 @ 1:38pm

    Re: Re: Re: Re: Re:

    "And of course copyright laws must be written in deference to the First Amendment. I never said otherwise. In fact, I stated that such laws must pass certain levels of Court scrutiny to be valid. I also said that once a right is granted by copyright, it is a right that can be enforced just like any other right. And your right to free speech does not trump my rights under copyright. In that sense, they are equal."

    But if they are equal, where's the fairness or constitutionality of blocking and entire site worth of speech just to stop the part that infringes on your (copy)right? If my Right to Free Speech does not trump your Copy Right, your Copy Right does not trump my Right to Free Speech (except where my speech DIRECTLY infringes your CR).

     

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  111.  
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    Karl (profile), Nov 22nd, 2010 @ 1:52pm

    Re: Re: Re: Re: Re: Re:

    Piracy is not "free expression".

    What you call "piracy" is potentially free expression. (Just as libel or child pornography are potentially free expression.) For that reason alone, Arcara does not hold.

    Legally distributing free speech materials does not shield you from the legal consequences of promoting and enabling illegal piracy.

    This law has nothing to do with "legal consequences." The government can still take action against the site. Rights holders can still take the site to court.

    But whether guilty of that or not, the government cannot just blacklist their site without running afoul of the First Amendment.

    The fact that you are harping on TPB actually proves you wrong. TPB has significant non-infringing uses, uses which are without question protected under the First Amendment. So if you are blocking it, you are blocking protected speech.

    Any law which blacklists The Pirate Bay in its entirety is in violation of the First Amendment. It is censorship. For any COICA-like law to pass, it must target sites that are not like TPB: sites that do not have any potentially non-infringing uses. (And even in that case, I'm guessing it would still be ruled unconstitutional.)

     

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  112.  
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    Jaws4theRevenge (profile), Nov 22nd, 2010 @ 1:52pm

    Proving what about content filtering?

    1)Think of a song
    2)Search for it on YouTube
    3)Tadaa!

    Content filtering is a sham.

     

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  113.  
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    nasch (profile), Nov 22nd, 2010 @ 1:55pm

    Re: VCR: Evil Infringement Engine

    It's only use was to record programming from the television ... copyrighted programming. So it was, indeed, dedicated to infringing and the TV channels objected and sued.

    Recording a TV show is not copyright infringement!

     

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  114.  
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    Anonymous Coward, Nov 22nd, 2010 @ 1:56pm

    Is Andrew working for the MPAA or the RIAA?

     

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  115.  
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    Marcus Carab (profile), Nov 22nd, 2010 @ 2:02pm

    Re: Re: Re: Re: Re:

    "I also said that once a right is granted by copyright, it is a right that can be enforced just like any other right. And your right to free speech does not trump my rights under copyright."

    No. However, your copyright emphatically does NOT trump someone else's right to free speech either. Thus it is not acceptable to shut down any amount of legal speech in order to eliminate infringing speech - even a substantial about of infringing speech. That's prior restraint, and the beginning of a very steep and very slippery slope.

    For example: The test is whether the infringement is a substantial part of that site.

    Well, where's the line? 90%? 50%? 20%? The moment you draw that line, you can basically guarantee it will be pushed lower and lower. That's exactly why the first amendment rules out prior restraint entirely - because it recognizes there is no amount of legal speech that is acceptable to sacrifice in the interest of eliminating illegal speech.

     

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  116.  
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    nasch (profile), Nov 22nd, 2010 @ 2:02pm

    Re: Re: Re: Re: Re: Re: Re:

    Andrew at 11:10 AM: Please explain to me what the existing laws on the books are to address a pirate server hosted in Pakistan/Iran/N.Korea/etc. or any country that does not believe in enforcing American IP rights. In such cases, blocking is the only approach that can be applied.

    Andrew at 12:11 PM: If a Swede wants to open a Swedish website on Swedish servers according to Swedish law, they will still absolutely have that right.

    Weird.

     

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  117.  
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    Gabriel Tane (profile), Nov 22nd, 2010 @ 2:06pm

    Re:

    he actually pops up under different names for different threads. He was JPJ (to rushed to look back at the actual name) and apparently Joe at one time. Because he sticks to his points, I hesitate to call him a Troll, but I (highly) question his logic and arguing skills.

     

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  118.  
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    Gabriel Tane (profile), Nov 22nd, 2010 @ 2:07pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    'weird' is not the word I would apply.

     

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  119.  
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    TPBer (profile), Nov 22nd, 2010 @ 2:08pm

    Re:

    Yes, he could not make it as a TSA groper so he was made a MPAA manager

     

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  120.  
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    nasch (profile), Nov 22nd, 2010 @ 2:17pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    I used that one because I wasn't sure what else to think. Trolling? Not thinking about what he's writing? Drunk? I have no idea. But it's definitely weird.

     

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  121.  
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    nasch (profile), Nov 22nd, 2010 @ 2:20pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Andrew at 12:03 PM: "The law in Sweden at the time did not require it to remove such content."
    Thank you for illustrating exactly why COICA is necessary.


    Andrew at 12:11 PM: If a Swede wants to open a Swedish website on Swedish servers according to Swedish law, they will still absolutely have that right.

    WTF? Which is it, Andrew?

     

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  122.  
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    nasch (profile), Nov 22nd, 2010 @ 2:30pm

    Re: Re: Re: Re: Re: Piracy is not free speech

    According to WP, the owner of Kazaa settled, so that doesn't imply anything about any legal issue. Unless you have other information that indicates there was an actual judgment in that case.

     

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  123.  
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    Chris Rhodes (profile), Nov 22nd, 2010 @ 2:32pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    He could be a troll. But then again, I think your average person hold thousands of incompatible opinions and philosophies in his head at any given moment without stopping to examine them.

    As evidence, witness the Tea Party and their "Keep big government out of my Medicare and Social Security!" nonsense.

     

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  124.  
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    nasch (profile), Nov 22nd, 2010 @ 2:45pm

    Re: Re:

    Andrew = John Paul Jones?? Ick, and I wasted my time arguing with him.

    Because he sticks to his points, I hesitate to call him a Troll, but I (highly) question his logic and arguing skills.

    The problem is, he sticks to his points no matter what. Not fun or productive to debate someone like that.

     

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  125.  
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    Almost Anonymous (profile), Nov 22nd, 2010 @ 2:48pm

    Re:

    """Please explain to me what the existing laws on the books are to address a pirate server hosted in Pakistan/Iran/N.Korea/etc. or any country that does not believe in enforcing American IP rights."""

    The law of "chill out dude." The cat's out of the bag, the genie is out of the bottle, Pandora's box is opened, pick your damn cliche, but the end result will be the same: you can't put the egg back into Humpty Dumpty's shell. As stupid as COICA is, it won't really affect anything if it passes, it will just make the US look hypocritical and stupid.

     

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  126.  
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    Anonymous Coward, Nov 22nd, 2010 @ 2:50pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Similar fingerprinting could be used by cyberlockers to cut down infringement dramatically.


    Password-protected files and uncommon file formats trivially bypass fingerprinting in that case (a practical example is that antivirus makers tell you, when sending a virus sample to them, to use .zip files encrypted with a well-known password, to both bypass any virus filtering and reduce the chance of the sample being accidentally executed). Youtube has the advantage that all the content is in a well-known file format (they even recode it automatically for you).

     

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  127.  
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    Anonymous Coward, Nov 22nd, 2010 @ 2:55pm

    Re: Re: Re: Re: Re: Re: Re:

    And then destroy the most beautiful thing of the internet, the international cooperation of people from the whole world.

    I am not from the USA, I am not even a native English speaker. Yet here I am, commenting on an English-speaking site, about a USA law, with people from all over the world. This would not be possible with an Internet fragmented by national boundaries.

     

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  128.  
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    Richard Kulawiec, Nov 22nd, 2010 @ 2:58pm

    Fascinating (well, somewhat...except for the troll) legal debate, but...

    As I'm fond of saying in situations like this:

    The avalanche has already started. It is too late for the pebbles to vote.

    It does not matter if any of these legal precedents hold. It does not matter if COICA passes. [1] It does not matter if the legal thugs who work for the MPAA/RIAA/etc. send out millions of letters. It does not matter if websites are shut down. None of it matters.

    None of it matters because none of it will stop the inevitable. The Internet has been engineered to resist tampering and manipulation by governments, corporations and everyone else -- and while it's certainly not immune to temporary, localized disruption, the long-term, large-scale trend will continue. It can't be and it won't be stopped.

    Blacklist domain names? Others will be registered. Blacklist the registrant? Others will be used. Blacklist those too? Subdomains. Blacklist those too? Rapidly-updating DNS. And those too? IP addresses. And so on. Keep in mind "the web" != "the Internet". (Although I'm sure for many newbies it certainly does.) There are many other ways to exchange bits, and bits will will be exchanged. No government will be allowed to stop this. And any mere corporation is helpless -- as it should be.

    So you can prattle on all day about how this court decision or that court decision supports your futile attempt to stave off the future that you so obviously fear, but all your arguments are moot. The issue has already been decided, by code, and it will not be reversed. You can either come to grips with this and welcome a future in which knowledge and culture are freely shared, or you can waste your life as feebly as you would trying to stop a runaway freight train by standing in front of it. Choose.

    [1] It does not matter to this issue. It will certainly have many unintended side effects which will negatively impact other aspects of Internet functionality.

     

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  129.  
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    Anonymous Coward, Nov 22nd, 2010 @ 3:02pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    BUT COPYRIGHT INFRINGEMENT!!!

     

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  130.  
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    Anonymous Coward, Nov 22nd, 2010 @ 3:05pm

    Re: Fascinating (well, somewhat...except for the troll) legal debate, but...

    Art: 1
    Law: 0

     

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  131.  
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    The eejit (profile), Nov 22nd, 2010 @ 3:06pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    And what if the IPEC is less than impartial? The AG has their own, private list.

    Think about it for a second, and you'll see the major flaws an inefficiencies in a time of austerity.

     

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  132.  
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    TPBer (profile), Nov 22nd, 2010 @ 3:09pm

    Re: Fascinating (well, somewhat...except for the troll) legal debate, but...

    Whats really fascinating is that I get 24Mb down and 3 up for only 60/mo

     

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  133.  
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    Adrian Lopez, Nov 22nd, 2010 @ 3:11pm

    Re: Re: Re: Re: Re: Re: Re:

    "Not all trials need a jury. Most don't. Under COICA, all blocks would have to be considered by a judge."

    Under COICA there would be no trial, but the website would be taken down just the same.

     

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  134.  
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    Karl (profile), Nov 22nd, 2010 @ 3:11pm

    Re: Re: Re:

    Andrew = John Paul Jones??

    I don't think so. I think he's an entirely different Mike-obsessed hater.

    Hint: JPJ never mentions case law.

     

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  135.  
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    Adrian Lopez, Nov 22nd, 2010 @ 3:13pm

    Re: Re: Re:

    "I think that's a little too much doom & gloom for my taste. The fact is, the AG already has the power to bring in rem actions against websites."

    If it's really quite as easy as you're implying, why then have COICA at all?

     

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  136.  
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    The eejit (profile), Nov 22nd, 2010 @ 3:14pm

    Re: Re: Re: Re: Re:

    You mean America?

     

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  137.  
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    darryl, Nov 22nd, 2010 @ 3:39pm

    Oh Mike, Allways on the side of the criminals !!

    Ofcourse, for Mike when patents, copyright, or the internet is concerned there is no crime. And Mike has to take on the appoligist role for criminals.

    So what are we supposed to do Mike ?? just ask them nicely to remove a single ling to an infringement. So someone has to watch that web site all the time to make sure that link does not go back up ?

    No Mike, luckly the real world does not work that way, No not at all.

    So if the cops find a crack house, full of drug dealers, dealers in death.. so what do they do ? do they only bust the 10 year old kid that is selling on the day, or do they shut down the hourse, and make everyone leave it.. they close down the drug house..

    Its also illegal to profit from crime, so if you have links on your web page that are illegal, you profit from that link because people come to you and click that link.

    Therefore you are profiting from crime, which is itself an equal crime.

    So Mike, stop trying to appoligise for the criminals, stop trying to downplay what that do for your own gains..

    It makes you look little more and a crime supporter, promoting crime as something honorable to do..

    And critising law enforcement for trying to curtail and stop crime.

    Crime, sadly, Mike, you cant see that exists at all.. what a joke..

     

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  138.  
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    Robert Shaver, Nov 22nd, 2010 @ 4:01pm

    Oh Darryl, always on the side of Hitler.

    Oh Darryl, always on the side of Hitler.

    Just remember that everything Hitler did was perfectly legal at the time and everything the USA founding fathers did was ilegal at the time.

    Peace,

    Rob:-]

     

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  139.  
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    Anonymous Coward, Nov 22nd, 2010 @ 4:04pm

    Re: Oh Mike, Allways on the side of the criminals !!

    Yeah! We should just cut the hands off of those who engage in piracy and ship them all to an island.

    Or throw them all in prison.

    CRIME!

     

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  140.  
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    CrushU, Nov 22nd, 2010 @ 4:25pm

    Arcara Ruling

    Was curious, looked it up.

    Taken from http://supreme.justia.com/us/478/697/
    "Held: The First Amendment does not bar enforcement of the closure statute against respondents' bookstore. United States v. O'Brien, supra, has no relevance to a statute directed at imposing sanctions on nonexpressive activity, and the sexual activities carried on in this case manifest absolutely no element of protected expression. The closure statute is directed at unlawful conduct having nothing to do with books or other expressive activity. Bookselling on premises used for prostitution does not confer First Amendment coverage to defeat a statute aimed at penalizing and terminating illegal uses of premises. Pp. 478 U. S. 702-707."
    Emphasis mine.

    The emphasized part is why this ruling has nothing whatsoever to do with COICA. This ruling was specifically for the non-expressive illegal activity. In order for it to be COICA-relevant, the bookstore would've had to be closed for having illegally obtained copies of books.

    Expressive activity includes videos on youtube, files on piratebay, and blogs on... uh, lots of places. Therefore, Arcara doesn't apply. If a site was not just hosting content, but was also doing something illegal besides an expressive work, then Arcara would apply. (I'm having trouble thinking of something a site can do that's illegal that has nothing to do with Intellectual Property laws... Making and selling counterfeit goods, maybe? Providing information on how to hack?)

     

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  141.  
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    Karl (profile), Nov 22nd, 2010 @ 4:35pm

    Re: Arcara Ruling

    I'm having trouble thinking of something a site can do that's illegal that has nothing to do with Intellectual Property laws...

    None of the examples you mentioned would work; those are also (potentially) protected speech, so Arcara doesn't apply in these cases, either.

    It would apply if the site was selling drug paraphernalia or illegal weapons, or (as in Arcara) being used to solicit prostitution. It would be relevant, for example, if someone actually decided to prosecute Craigslist.

     

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  142.  
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    Mike Masnick (profile), Nov 22nd, 2010 @ 4:52pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Thank you for illustrating exactly why COICA is necessary.

    Because US law must be more important than Swedish law? I don't follow...

     

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  143.  
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    Mike Masnick (profile), Nov 22nd, 2010 @ 5:01pm

    Re: Re: Re: Re:

    Hint: JPJ never mentions case law.

    Actually, JPJ did bring up Arcara over the weekend, but I do think JPJ and Andrew are different people, just from their tone. I could be wrong, but I don't know for sure.

     

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  144.  
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    Mike Masnick (profile), Nov 22nd, 2010 @ 5:05pm

    Re: Oh Mike, Allways on the side of the criminals !!

    No Mike, luckly the real world does not work that way, No not at all.

    Hi Darryl. Simple question, which I'll assume you won't answer. Do you deny the rulings in Near v. Minnesota and CDT v. Pappert. After all you, claim that "the real world does not work that way." Since the case law suggests that it, in fact, does work that way, I'm trying to figure out where you're coming from. Do the cases I named not exist? Figment of my imagination?

    Or, perhaps, is the topic a bit more nuanced then you make it out to be?

     

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  145.  
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    Anonymous Coward, Nov 22nd, 2010 @ 5:12pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    "Yes, Nasch, the American courts do keep repeating the same thing over and over."

    So why do we need another law - seems they must be doing the job just fine under EXISTING law?

     

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  146.  
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    Anonymous Coward, Nov 22nd, 2010 @ 5:17pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Oh man... a website full of links to infringing content... they will have to blacklist themselves by legal definition!

     

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  147.  
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    abc gum, Nov 22nd, 2010 @ 5:28pm

    Re: Re:

    "What sites? There is no list yet."

    My reaction also, but the more I thought about it the more I realized that there probably is a list which has been agreed upon in secret.

     

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  148.  
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    Anonymous Coward, Nov 22nd, 2010 @ 5:31pm

    Re: Re: Oh Mike, Allways on the side of the criminals !!

    Do you deny the rulings in Near v. Minnesota and CDT v. Pappert. After all you, claim that "the real world does not work that way." Since the case law suggests that it, in fact, does work that way, I'm trying to figure out where you're coming from.

    I'm not really too sure how applicable those cases are here since neither involved a domain name that had been seized under federal forfeiture laws.

     

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  149.  
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    Anonymous Coward, Nov 22nd, 2010 @ 5:37pm

    I propose the following...

    1. Let COICA, ROIKA and whatever other acronyms would like to be... passed into USA law.

    2. Promote root DNS servers on each continent, large Island and Kangaroo breeding area.

    3 Unplug those evil IP dis-respecting undersea cables to the USA.

    Dont want the internet USA? Good. Now get off my lawn.

     

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  150.  
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    Anonymous Coward, Nov 22nd, 2010 @ 6:05pm

    The Pappert case -- a much more recent case -- involved a state law in Pennsylvania that had the state Attorney General put together a blacklist of websites that were believed to host child pornography, which ISPs were required to block access to. Again, child pornography is very much illegal (and, many would argue, much worse than copyright infringement). Yet, once again, here, the courts tossed out the law as undue prior restraint, in that it took down lots of non-illegal content as well as illegal content.

    I think the fact that really distinguishes the Pappert case is that there the sites being blocked hadn't been seized by the federal government in a civil forfeiture proceeding first. That case dealt with close to two million websites being blocked, none of which had been seized by the feds upfront. I don't really think the court's First Amendment analysis there really would apply here. The websites being blocked there hadn't been adjudicated to be instrumentalities of criminal activity.

     

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  151.  
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    Any Mouse, Nov 22nd, 2010 @ 6:25pm

    Re: Re: Re: Piracy is not free speech

    You keep pointing to this case, which has been debunked over and over, again. Hell, it was debunked in this particular article!

     

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  152.  
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    Any Mouse, Nov 22nd, 2010 @ 6:27pm

    Re: Re: Re: Re: Re: Piracy is not free speech

    And you keep pointing at Pirate Bay, a site, I would remind you, that is NOT hosted in the United States, and complies with the laws of the country where it is based. You cannot apply our laws to sites from other countries.

     

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  153.  
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    Any Mouse, Nov 22nd, 2010 @ 6:43pm

    Re: I propose the following...

    Yes, because such actions would make everyone else as big a douchebag as our government is being. Punishing the class for the teacher's actions? Shame on you.

     

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  154.  
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    anonymous, Nov 22nd, 2010 @ 7:08pm

    Re: Re: Piracy is not free speech

     

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  155.  
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    anonymous, Nov 22nd, 2010 @ 7:24pm

    Re: Re: Re: Re: Re:

    Are you saying you never peek at IP addresses, Mike?

     

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  156.  
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    James, Nov 22nd, 2010 @ 7:42pm

    COICA Violation of 1st Amendment

    I have a suggestion, since it looks like the bill, if it were to get passed, would wind up in at the Supreme Court and be overturned, why don't we have an amendment that says ANY Senator that casts a vote for ANY law that is found unconstitutional is automatically ejected from the Senate and forfeits ANY and ALL retirement from their service in Congress.

     

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  157.  
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    anonymous, Nov 22nd, 2010 @ 8:01pm

    Re: Re: Re: Re: Re: Re:

    Arcara v Cloud works perfectly. Go ask a lawyer.

    Infringement isn't freedom of expression.

     

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  158.  
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    anonymous, Nov 22nd, 2010 @ 8:06pm

    Re: Re: Re: Re:

    No, it isn't. If it were, Pirate Bay (or someone exactly like them) would have some of their servers here in the US.

     

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  159.  
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    anonymous, Nov 22nd, 2010 @ 8:17pm

    Re: Re:

    No. If that were true, then they wouldn't have to be based outside of the US.

    Criminal activity isn't "speech".

    Go ask a lawyer.

     

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  160.  
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    anonymous, Nov 22nd, 2010 @ 8:26pm

    Re: VCR: Evil Infringement Engine

    You're using a logical fallacy. The tech isn't on trial here. There is no attempt to outlaw bit torrent. A website is at issue, and it isn't a piece of software.

    A piece of hardware or software itself being accused of being used for infringing is different than a person or group of people being accused of dedication to infringement. You can't sue a VCR or put an MP3 in jail.

     

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  161.  
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    Ryan Diederich, Nov 22nd, 2010 @ 8:30pm

    If Andrew or anyone makes another reference to the Arcara case, my head might just explode.

    Dont you see the fundamental difference between that case and this one?

    Arcara ACQUIRES the content themselves, they choose it, they promote it, they sell it.

    File sharing sites do not ACQUIRE the content, they are simply a place for people to post the content.

    If Arcara had been a shop full of bulletin boards, with random people posting child pornography, would the shop still be liable? To what extent? Wouldnt you go after the person who posted the content, rather than the place it was posted?

     

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  162.  
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    nasch (profile), Nov 22nd, 2010 @ 8:51pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    +1 for lol

     

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  163.  
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    nasch (profile), Nov 22nd, 2010 @ 8:53pm

    Re: Re: Oh Mike, Allways on the side of the criminals !!

    We should just cut the hands off of those who engage in piracy and ship them all to an island.

    Or throw them all in prison.


    Throw the hands in prison? What good would that do?

     

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  164.  
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    Content Worker, Nov 22nd, 2010 @ 9:05pm

    You Are Kidding Right?

    Why not go to megaupload.com or many of the thousands of other sites dedicated to infringing and see if you can figure out what constitutes an infringing site.

    If a liquor store repeated sold to underage customers, it would be shut down. even if most of if business was with legal customers. If a pawn shop knowingly sold stolen goods it would likewise be shut down.

    Just once I'd like to see the professional apologists and excuse-makers offer up an effective proposal to take these criminal infringers out of the game. They steal the work of others and profit on it themselves. How do you defend that?

     

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  165.  
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    nasch (profile), Nov 22nd, 2010 @ 9:30pm

    Re: Re: Re: Piracy is not free speech

    He said "[copyright] infringement IS expression" not "infringement is free speech". The former is (or should be) obvious. The latter implies, to me anyway, "infringement is protected speech", which is a different matter, because not all expression/speech is protected.

     

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  166.  
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    Dani (profile), Nov 22nd, 2010 @ 10:15pm

    "Outing" the Senators!! Spreading this around in this context without explanation is plain irresponsible. As you reported, most of these Senators previously were against censorship...so how come this vote? Plain and simple, this committee is voting to take forward for discussion and amendments. Many would never support this into law as is, this is how our gov works. When first reading this, emotions jump to anger. Now take a step back, this is democracy in action!! Write your reps and tell them you are against it!!

     

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  167.  
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    Mike Masnick (profile), Nov 22nd, 2010 @ 10:19pm

    Re: Re: Re: Re: Re: Re: Re:

    Arcara v Cloud works perfectly. Go ask a lawyer.


    I have asked many. And they all seem to agree with me. Funny that.

    Infringement isn't freedom of expression.


    No one claimed that infringement is protected under freedom of expression. They're saying that blocking legitimate expression just to block infringement is not allowed under the First Amendment.

     

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  168.  
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    Mike Masnick (profile), Nov 22nd, 2010 @ 10:20pm

    Re: Re: Re: Re: Re: Re: Re:

    Arcara v Cloud works perfectly. Go ask a lawyer.


    I have asked many. And they all seem to agree with me. Funny that.

    Infringement isn't freedom of expression.


    No one claimed that infringement is protected under freedom of expression. They're saying that blocking legitimate expression just to block infringement is not allowed under the First Amendment.

     

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  169.  
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    Chris in Utah (profile), Nov 22nd, 2010 @ 10:24pm

    Re:

    Except oops.. Orin hatch is mine. Lawlz

     

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  170.  
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    Mike Masnick (profile), Nov 22nd, 2010 @ 10:24pm

    Re: Re: Re: Piracy is not free speech

    um, yeah, he did.


    Reading comprehension fail.

    I said that it's *expression*. Not *free speech*. Do you not understand how there can be expression that is not protected? But the Arcara ruling is clear that it does not apply to issues of expression, which this case is about. I am not saying (as you seem to have falsely read) that copyright infringement is protected speech. I'm saying that it is is a form of expression, however, and thus is judged under a First Amendment review, which was not afforded in Arcara since the activity was not expression.

    For someone who mocks us and says "talk to a lawyer," I would suggest, with all due respect, that you do so yourself, as your interpretation of the case is quite wrong.

     

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  171.  
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    Mike Masnick (profile), Nov 22nd, 2010 @ 10:25pm

    Re: Re: Re: Re: Re: Re:

    Are you saying you never peek at IP addresses, Mike?


    Never said that, but frankly it's a pain, so I rarely do. Besides it's usually quite easy to tell who's who from what they write. I guess, however, here you're admitting that Andrew and JPJ are one and the same?

     

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  172.  
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    marak (profile), Nov 22nd, 2010 @ 10:32pm

    Stupid law, as mentioned above wont work(as peeps will just start using work arounds for any blacklist.) And yay, mike accidently double posted, i dont feel so bad now when i do that :P

     

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  173.  
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    anonymous, Nov 23rd, 2010 @ 12:02am

    Re: Re: Re: Re: Re: Re:

    It's not about a percentage of content.

    For example, let's take a random California music message board. You're not supposed to post links to illegal files on it. When someone does, the site admins quickly remove it, and if the person continues doing it, they're banned. This is a very common situation. That site is not dedicated to infringing activity, is it?

    A site that consistently hosts or links to infringing files, and makes no effort to remove them, could be considered dedicated to infringement.

     

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  174.  
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    anonymous, Nov 23rd, 2010 @ 12:07am

    Re: Re: Re: Re: Re: Re: Re: Re:

    I've asked lawyers also. They disagree with you.

    Since you host this blog, why don't you do a piece about lawyers that don't think Arcara v Cloud works in this discussion?

     

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  175.  
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    anonymous, Nov 23rd, 2010 @ 12:16am

    Re: Re: Re: Re: Re: Re: Re:

    For any COICA-like law to pass, it must target sites that are not like TPB: sites that do not have any potentially non-infringing uses.

    nah. If that were true all the American file sites would still be up.

     

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  176.  
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    anonymous, Nov 23rd, 2010 @ 12:39am

    Re: Re: Re: Re: Piracy is not free speech

    I am not saying (as you seem to have falsely read) that copyright infringement is protected speech. I'm saying that it is is a form of expression, however, and thus is judged under a First Amendment review

    *freedom of expression* and *freedom of speech* are considered synonymous.

    In order for you to get away from that pesky Arcara v Cloud, you have to say piracy is expression/free speech.

    It isn't.

     

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  177.  
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    anonymous, Nov 23rd, 2010 @ 12:44am

    Re: Re: Re: Re: Re: Re: Piracy is not free speech

    And vice versa.

    Swedish law should not apply to the US.

     

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  178.  
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    anonymous, Nov 23rd, 2010 @ 12:51am

    Re: Re: Re: Oh Mike, Allways on the side of the criminals !!

    Neither of the cases he likes to cite have any bearing on this issue.

    If they did, Grokster, Limewire, etc. would have used them as a defense.

    I have no idea why he keeps bringing them up.

     

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  179.  
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    Mike Masnick (profile), Nov 23rd, 2010 @ 12:52am

    Re: Re: Re: Re: Re: Piracy is not free speech

    *freedom of expression* and *freedom of speech* are considered synonymous.


    Let me try this once again: *expression* does not automatically mean *freedom of expression*.

    Get it yet? Or must we dumb it down even further? Let me be precise: in the two examples I posted above, they involved *expression* -- defamation and child porn -- neither of which people are free to state without consequences. That is an example of expression, but is not allowed as "free expression."

    This is what I said. Copyright infringement is expression. But it is not necessarily allowed as "freedom of expression."

    The reason Arcara does not apply is because -- AS IS STATED DIRECTLY BY THE COURT -- the Arcara ruling only applies for crimes that have *nothing to do with expression*. They didn't say "freedom of expression," but "expression."

    Will you still misunderstand this?

     

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  180.  
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    anonymous, Nov 23rd, 2010 @ 1:07am

    Re: Arcara Ruling

    Under your theory, a website would have to state what its primary function was; what would Pirate Bay say? Let's say they said "we facilitate helpful and legal bit torrent files". The judge would then bring up the piracy aspect, and say that it had nothing to do with legal files or other expressive activity.

    Arcara works perfectly.

     

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  181.  
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    anonymous, Nov 23rd, 2010 @ 1:14am

    Re:

    In your example, that shop would be guilty of posting child pornography.

    If someone slapped up some child porn on a bulletin board and the shop owner removed it, he is not liable.

    If he allows multiple people to come in and post child porn and leaves it up, he most certainly is liable.

    You've just constructed an excellent analogy to what is going on here.

     

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  182.  
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    anonymous, Nov 23rd, 2010 @ 1:24am

    Re: Re: Re: Re: Re:

    Arcara works perfectly here.

    That's why there will be no court challenge to COICA.

     

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  183.  
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    Mike Masnick (profile), Nov 23rd, 2010 @ 1:25am

    Re: Re: Arcara Ruling

    Under your theory, a website would have to state what its primary function was; what would Pirate Bay say? Let's say they said "we facilitate helpful and legal bit torrent files". The judge would then bring up the piracy aspect, and say that it had nothing to do with legal files or other expressive activity.

    Arcara works perfectly.


    Must we teach you everything about the law? (1) It has nothing to do with "primary function". (2) If asked, Pirate Bay would say they're a way to find torrent files -- they would not designate legal or illegal, as they have no way of knowing. (3) If the judge brought up piracy, they would point out that, again, they as a site have no way of knowing whether the files are legit or not.

    I'm not sure how that changes anything. Arcara does not apply since Arcara -- as stated -- does not apply to cases involving expression.

    It's funny to watch you try to sing and dance here, but it's not moving the discussion along, as you seem to have a fundamental misunderstanding of the First Amendment, prior restraint, and the ruling in Arcara.

    Of course, in the end, it won't be up to some ignorant anonymous commenter, but a judge, and I'm pretty sure that judge will understand the prevailing precedents here. Arcara will not be among them.

     

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  184.  
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    anonymous, Nov 23rd, 2010 @ 1:38am

    Re: Re: Re: Re: Re: Re: Piracy is not free speech

    I see you're at the point where you have to attempt semantical gymnastics.

    Cloud Books attempted to make a defense based on the First Amendment, and their freedom of expression. This is why the judge said their activity had "nothing to do with expression."

    Piracy isn't expression. Or an example of freedom of expression. Or an example of freedom of speech. Your entire defense of the pirate sites is that they have protection under the First Amendment. They don't. Arcara demonstrates it perfectly.

     

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  185.  
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    anonymous, Nov 23rd, 2010 @ 2:00am

    Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    YouTube started filtering after they were sued by Viacom. By "business decision" perhaps you mean they knew they were breaking the law and would lose the appeal if they did not clean their house.

     

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  186.  
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    Mike Masnick (profile), Nov 23rd, 2010 @ 2:14am

    Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    I see you're at the point where you have to attempt semantical gymnastics.


    No, I'm just explaining the law to you. The only one attempting semantical gymnastics is you. But each time you do, it only exposes another layer of ignorance. I will try one more time and then I will leave you to your ignorance in this thread. I have explained, in detail, why you are wrong, and others can see that. No need to repeat myself.

    Cloud Books attempted to make a defense based on the First Amendment, and their freedom of expression. This is why the judge said their activity had "nothing to do with expression."

    No. Read the case. The court said -- correctly -- that prostitution had nothing to do with expression, and thus, their other claims had no First Amendment issue.

    Piracy isn't expression.

    And this is where you are wrong, and pretty much every court says you're wrong. It may not be *legal*, but it is a form of expression -- just as defamation and posting child porn are. Both are examples of illegal expression, but still expression. Thus, if the "crime" involves expression, you must do a first amendment analysis (a la Near of Pappert) to determine if it's okay to block publications. Arcara does not apply, because Arcara -- as is quite clearly stated in the ruling, no matter how many times you ignore it -- does not apply to cases in which the "crime" involves expression.

    Or an example of freedom of expression. Or an example of freedom of speech.

    The thing is, no one said that piracy is an example of freedom of expression. That's your own fantasy claim here, in order to try to support your unsupported position that infringement is not expression. It is.

    Your entire defense of the pirate sites is that they have protection under the First Amendment. They don't.

    No. My argument is not a defense of the sites, but a discussion of this law, which is unconstitutional based on Near and other prior restraint rulings. As is quite clear to anyone who reads the ruling and has a basic modicum of understanding of First Amendment law, Arcara has no bearing on COICA since it talks about a specific situation that has nothing to do with expression (prostitution).

    This has been explained to you. Your failure to understand appears to be based on your false belief that saying that infringement is "expression" means we're saying infringement is allowed as "freedom of expression." No one is saying that in this case (others may argue it elsewhere). The point is that the law is clear: if you are dealing with an expressive medium -- websites or newspapers, for example -- then prior restraint is not allowed. Any effort to stop the law breaking, which no one denies is law breaking, must narrowly target the actual illegal content. This is what the law says, and it is why COICA is unconstitutional.

    I've explained it as clearly as possible. You are making fundamental mistakes in your analysis, which I have detailed here. I don't know what to say other than I suggest you go back and talk to the "lawyers" you claim you spoke with and suggest they actually read Arcara again.

     

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  187.  
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    anonymous, Nov 23rd, 2010 @ 2:41am

    Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Post an exact example of a case or law that states piracy can be considered a form of expression.

     

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  188.  
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    Gabriel Tane (profile), Nov 23rd, 2010 @ 3:53am

    Re: Re: Re: Re:

    Go read the post that this one is following up (link in post above). JPJ cited the exact same case law (Arcara v Cloud Books). And he has the same "nope, I'm right you're wrong... because I say so :p" argument style. This iteration of JPJ is more restrained in his name-calling, I will give him that. Maybe it's JPJ 2.0, now with language filter.

     

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  189.  
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    darryl, Nov 23rd, 2010 @ 4:10am

    Where are your facts Mike.. Oh thats right there are none

    Post an exact example of a case or law that states piracy can be considered a form of expression

    YES, DO THAT MIKE !

    We are all war many examples, and some proof that you actaully know anything..

    Otherwise, its just bullshit isn't it Mike !!!

     

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  190.  
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    Mike Masnick (profile), Nov 23rd, 2010 @ 4:34am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Post an exact example of a case or law that states piracy can be considered a form of expression.


    Oh so easy. However, let's make a deal. When I do that, you have to admit that you were incorrect in stating otherwise. I mean, there are long legal treatises on the subject (sitting on my desk even), with plenty of citations. But I want you to say that if I do your basic research for you, you'll admit you were wrong.

     

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  191.  
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    Mike Masnick (profile), Nov 23rd, 2010 @ 4:38am

    Re: Where are your facts Mike.. Oh thats right there are none

    YES, DO THAT MIKE !

    We are all war many examples, and some proof that you actaully know anything..


    Darryl, same deal to you. Last week I pointed out 3 posts where you made direct factual errors and asked you to respond. You did not. Earlier today I asked you a direct question to which you have not responded. So I'll ask again, when I do post case law noting that infringement is a form of speech, will you admit you were wrong?

     

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  192.  
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    martyburns (profile), Nov 23rd, 2010 @ 5:29am

    Re: I propose the following...

    The kangaroo breading area is a continent silly.

     

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  193.  
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    Anonymous Coward, Nov 23rd, 2010 @ 5:56am

    Re: Re: Re: Re: (even ignorant folk)

    actuly the dumb one were on sell, at 3% off

     

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  194.  
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    Anonymous Coward, Nov 23rd, 2010 @ 6:05am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    "According to Napster, Inc., the requested injunction would impose a prior restraint on its free speech, as well as that of its users and the unsigned artists that depend upon its service . . .

    In the event that Napster, Inc. cannot separate the infringing and non-infringing aspects of its service, its First Amendment argument still fails. Courts will not sustain a First Amendment challenge where the defendant entraps itself in an "all-or-nothing predicament." Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1406 (9th Cir.) (enjoining entire book that included parody in style of Dr. Seuss poem because defendant proceeded with book production after onset of litigation), cert. dismissed, 521 U.S. 1146, 118 S.Ct. 27, 138 L.Ed.2d 1057 (1997). Even if it is technologically impossible for Napster, Inc. to offer such functions as its directory without facilitating infringement, the court still must take action to protect plaintiffs' copyrights. See, e.g., Orth-O-Vision, Inc. v. Home Box Office, 474 F.Supp. 672, 686 n. 14 (S.D.N.Y.1979)."

    -A&M Records, Inc. v. Napster Inc., 114 F. Supp. 2d 896, 922-23 (ND Cal. 2000), aff’d, A&M Records, Inc. v. Napster Inc., 284 F. 3d 1091 (9th Cir. 2002).

     

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  195.  
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    Anonymous Coward, Nov 23rd, 2010 @ 7:07am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    LOL! Game, set, match. Too easy.

     

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  196.  
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    Marcus Carab (profile), Nov 23rd, 2010 @ 7:07am

    Re: Re: Re: Re: Re: Re: Re:

    I think you need to review the definition of "dedicated", and maybe learn a little bit about prior restraint.

    You can whine all you want, but it's pretty simple: YOU CAN'T CENSOR PROTECTED SPEECH. Thus only if a site has absolutely NO protected speech on it could it arguably be blocked. That's what "dedicated" means.

    Sorry, anon, but you are just plain wrong about this, and whether you know it or not you are actively opposing the very basics of free speech. It's a real shame (and quite baffling) that you would prefer live under a government censorship regime.

     

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  197.  
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    Anonymous Coward, Nov 23rd, 2010 @ 7:16am

    Re: Re: Re: Re: Re: Re: Re: Re:

    You can whine all you want, but it's pretty simple: YOU CAN'T CENSOR PROTECTED SPEECH. Thus only if a site has absolutely NO protected speech on it could it arguably be blocked. That's what "dedicated" means.

    Sorry, anon, but you are just plain wrong about this, and whether you know it or not you are actively opposing the very basics of free speech. It's a real shame (and quite baffling) that you would prefer live under a government censorship regime.


    That's not what it means. Do you just make this stuff up? Tell that to Napster, Grokster, and that ilk.

     

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  198.  
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    Anonymous Coward, Nov 23rd, 2010 @ 7:31am

    There are some nice quotes from the Pappert case that Mike's talking about. That case actually helps the COICA side. Start with this one:

    "However, they are administrative prior restraints as that term has been interpreted by the Supreme Court. According to the Court, "only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). Thus, if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint."

    Well, since COICA involves civil forfeiture proceedings, which are adversarial, then according to the Supreme Court, it's NOT prior restraint.

    See the difference? In Pappert there were about 400 child pornography websites they wanted to block. These websites were not adjudicated to be illegal. In trying to block the 400 sites, they ended up blocking over a million sites. That's where the First Amendment became involved.

    That won't be a problem with COICA because each site will be adjudicated to be illegal.

    As the judge pointed out in Pappert:

    "These cases require a court to make a final determination that material is child pornography after an adversary hearing before the material is completely removed from circulation. Under the Act, a judge is only required to make a finding of probable cause, he can make this determination ex parte, and there is no requirement that the publisher or distributor receive notice or an opportunity to be heard."

    Again, the problem in that case was that the child pornography websites were not adjudicated in an adversarial hearing. That's not the case in COICA.

     

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  199.  
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    Gabriel Tane (profile), Nov 23rd, 2010 @ 7:48am

    Re:

    ""However, they are administrative prior restraints as that term has been interpreted by the Supreme Court. According to the Court, "only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). Thus, if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint."

    Well, since COICA involves civil forfeiture proceedings, which are adversarial, then according to the Supreme Court, it's NOT prior restraint."


    So... you're saying that the fact that the COICA creates an adversarial proceeding is the how this would not be prior restraint?

    What happened to the argument that copyright is not expression and that blocking whole websites that may contain copyrighted materials would not in and of itself be prior restraint?

    Sounds to me like you're now saying that the only reason this isn't prior restraint is because the COICA procedures create the exception that your quoted case-law specifies. So if not for the fact that the COICA creates adversarial procedures, would this be prior restraint?

     

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  200.  
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    Anonymous Coward, Nov 23rd, 2010 @ 8:10am

    Re: Re:

    So... you're saying that the fact that the COICA creates an adversarial proceeding is the how this would not be prior restraint? What happened to the argument that copyright is not expression and that blocking whole websites that may contain copyrighted materials would not in and of itself be prior restraint? Sounds to me like you're now saying that the only reason this isn't prior restraint is because the COICA procedures create the exception that your quoted case-law specifies. So if not for the fact that the COICA creates adversarial procedures, would this be prior restraint?

    I think the simple answer is that once a site is adjudicated in an adversarial proceeding to be an instrumentality of illegal activity and seized by a federal court, there are no prior restraint problems.

     

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  201.  
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    Karl (profile), Nov 23rd, 2010 @ 8:11am

    Re: Re: Re: Re: Re:

    Um, no, clearly the target is a particular application of technology, and not the technology in general.

    You missed the point entirely. It is the standard that is questionable. Applying that standard would have shut down entire technologies. Whether it does or not in this case makes no difference: if the same standard could have been used to eliminate those technologies (and it could have), then it is a bad standard.

    To deny that thepiratebay.org is dedicated to infringing activities is a pretty remarkable feat of logic.

    TPB does not host content, nor does it endorse any content. I'm not saying the site is not guilty of contributory infringement. But being guilty of contributory infringement, and "dedicated to infringement," are two different things.

    Even after Grokster and Napster were successfully sued, they were not forced to shut down. Their domain names were not surrendered. The government did not force third-party businesses (DNS registrars and advertisers) to stop doing business with them. They were not "blacklisted."

    Being found liable in a civil suit does not mean you lose your free speech rights.

    It's amazing you keep harping on TPB. COICA's creators even say that sites must have "no demonstrable, commercially significant purpose or use other than" infringement. TPB clearly does have demonstrable, commercially significant purposes or uses other than infringement. If TPB is blacklisted through COICA, then the bill is going beyond even what its supporters claim it should do.

    I stated that such laws must pass certain levels of Court scrutiny to be valid.

    ...while simultaneously ignoring the fact that when laws that were almost exactly like this one were passed, they did not pass Court scrutiny. For good reason: they were unconstitutional under the First Amendment.

    Techdirt already brought up Near vs. Minnesota and CDT vs. Pappert (the latter law being nearly identical to this one). You should also read Reno v. ACLU and Ashcroft v. ACLU, which struck down COPA as being unconstitutional. Taken together, all those decisions make it incredibly unlikely that this bill would not be found unconstitutional as well.

    And your right to free speech does not trump my rights under copyright.

    My free speech rights also do not trump laws against libel, or laws against child pornography. Yet in both those cases, the laws were found to be "prior restraint" of free speech.

    No matter what your stand on piracy, this is simply a horrible law.

     

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  202.  
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    Imjust Saying, Nov 23rd, 2010 @ 8:18am

    Villagers, grab your torches

    I don't think it goes nearly far enough. Let's burn all the paper, chip up the pencils and melt all the pens, so that no classmates copy off my 8-year-old's spelling test.

     

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  203.  
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    Karl (profile), Nov 23rd, 2010 @ 8:27am

    Re: Re: Re:

    But were those things in fact dedicated to infringing activities?

    According to the Ninth Circuit Court of Appeals: yes.

    The Supreme Court's decision in Sony was a close one. Had it swung the other way, consumer videotape technology would still be considered "dedicated to infringing activities." Technological progress would be arrested, and the movie studios would have lost out on a significant source of revenue.

    How can you not see that this is the same situation?

     

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  204.  
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    Anonymous Coward, Nov 23rd, 2010 @ 8:28am

    Re: Re: Re: Re: Re: Re:

    You missed the point entirely. It is the standard that is questionable. Applying that standard would have shut down entire technologies. Whether it does or not in this case makes no difference: if the same standard could have been used to eliminate those technologies (and it could have), then it is a bad standard.

    Nope. You are making this out to be something it's not. The technology is not what COICA is going after. It is going after specific usages of those technologies that are illegal. Mike's analogy simply fails.

    TPB does not host content, nor does it endorse any content. I'm not saying the site is not guilty of contributory infringement. But being guilty of contributory infringement, and "dedicated to infringement," are two different things.

    TPB is dedicated to infringement. Period.

    Even after Grokster and Napster were successfully sued, they were not forced to shut down. Their domain names were not surrendered. The government did not force third-party businesses (DNS registrars and advertisers) to stop doing business with them. They were not "blacklisted."

    Really? Those sites were shut down.

    Being found liable in a civil suit does not mean you lose your free speech rights.

    We're talking about sites being adjudicated as instrumentalities of illegal activity. The operators of the sites don't lose their free speech rights, but they lose their site.

    It's amazing you keep harping on TPB. COICA's creators even say that sites must have "no demonstrable, commercially significant purpose or use other than" infringement. TPB clearly does have demonstrable, commercially significant purposes or uses other than infringement. If TPB is blacklisted through COICA, then the bill is going beyond even what its supporters claim it should do.

    If COICA goes after them, they will have their day in court... if they show up.

    ...while simultaneously ignoring the fact that when laws that were almost exactly like this one were passed, they did not pass Court scrutiny. For good reason: they were unconstitutional under the First Amendment.

    Techdirt already brought up Near vs. Minnesota and CDT vs. Pappert (the latter law being nearly identical to this one). You should also read Reno v. ACLU and Ashcroft v. ACLU, which struck down COPA as being unconstitutional. Taken together, all those decisions make it incredibly unlikely that this bill would not be found unconstitutional as well.


    Those cases are distinguishable.

    My free speech rights also do not trump laws against libel, or laws against child pornography. Yet in both those cases, the laws were found to be "prior restraint" of free speech.

    And as I've pointed out in this thread, it's not prior restraint if there is an adversarial proceeding. That language comes right out of CDT v. Pappert which you cited.

    No matter what your stand on piracy, this is simply a horrible law.

    To each his own.

     

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  205.  
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    Anonymous Coward, Nov 23rd, 2010 @ 8:33am

    Re: Re: Re: Re:

    According to the Ninth Circuit Court of Appeals: yes.

    The Supreme Court's decision in Sony was a close one. Had it swung the other way, consumer videotape technology would still be considered "dedicated to infringing activities." Technological progress would be arrested, and the movie studios would have lost out on a significant source of revenue.

    How can you not see that this is the same situation?


    Websites that are in fact dedicated to infringement are not the same as a technology that can be used for infringement. The analogy just doesn't work.

    Did Sony set up shop where they sold Betamax machines preloaded with all the first-run movies they could get their hands on? No. That would be more analogous though.

     

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  206.  
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    Anonymous, Nov 23rd, 2010 @ 8:41am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    It's becoming obvious that all these Techdirt guys do is make up bogus legal claims. Apparently they think their readers are dumb enough to buy it without question.

     

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  207.  
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    Gabriel Tane (profile), Nov 23rd, 2010 @ 8:46am

    Re: Re: Re:

    Ok... I do see your point there. But let me ask this, and I apologize for 'not doing my homework', but I'm at work and can't spend all day reading legal interpretation. So I'd like to rely on your (and other's) interpretation on this: Does the adjudication taht sets up the adversarial proceeding happen before or after the site's take-down under the COICA?

     

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  208.  
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    Anonymous, Nov 23rd, 2010 @ 8:46am

    Re: Re: Re: Re:

    The analogy doesn't work.

    1. It compares inanimate objects to actual animate action.

    2. The examples Mike uses were suggestions or projections of an imaginary possible scenario, whereas pirate sites are already actively guilty of infringement.

     

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  209.  
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    Anonymous Coward, Nov 23rd, 2010 @ 8:54am

    Re: Re: Re: Re:

    Ok... I do see your point there. But let me ask this, and I apologize for 'not doing my homework', but I'm at work and can't spend all day reading legal interpretation. So I'd like to rely on your (and other's) interpretation on this: Does the adjudication taht sets up the adversarial proceeding happen before or after the site's take-down under the COICA?

    I think in a typical in rem action, the AG presents probable cause to a federal judge, the judge decides if the evidence is sufficient to issue a seizure warrant. If the warrant is issued, then the court seizes the domain name. Public notice is issued, and any parties claiming interest in the domain have 20 days to respond. If there's no response, then the court can make the seizure permanent.

    This falls under 18 U.S.C. 983 and CAFRA, the Civil Asset Forfeiture Reform Act of 2000, if you want to do some research on the ins and outs.

     

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  210.  
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    Anonymous, Nov 23rd, 2010 @ 8:54am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Yup, game over indeed.

    Mike, are you finally going to admit you're wrong?

     

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  211.  
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    Anonymous Coward, Nov 23rd, 2010 @ 8:57am

    Re: Re:

    Copyright infringement and child pornography are the same thing.

     

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  212.  
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    Anonymous, Nov 23rd, 2010 @ 9:04am

    Re: Re: Where are your facts Mike.. Oh thats right there are none

    Quit squirming, Mike.

    Post an exact example of a case or law that states piracy can be considered a form of expression

     

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  213.  
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    Anonymous Coward, Nov 23rd, 2010 @ 9:13am

    Re: Re: Re: Where are your facts Mike.. Oh thats right there are none

    I doubt he will. I equally doubt he will admit that he's wrong. Such is his way.

     

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  214.  
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    Karl (profile), Nov 23rd, 2010 @ 9:39am

    Re: Re: Re: Re: Re: Re: Re:

    You are making this out to be something it's not.

    No, you are the one making this out to be something it's not. We're talking a bad standard. You're focusing only on the circumstances in which that bad standard is applied.

    Applying that same standard would shut down legitimate technology. It doesn't matter whether the standard is actually being used against technology or not: the standard is bad.

    Now, we're also talking about the reasoning behind adopting that standard. And the reason the standard is being proposed, is exactly the same reason it was proposed before: to shut down uses of technology that rights holders don't like.

    Since you want to get technical: Videotape recording is a technology. Home taping is a "use" of technology. What rights holders were trying to shut down - then as now - is a "use" of that technology. (If Sony never made a consumer video recorder, I doubt anyone would have sued.)

    So, it's exactly the right analogy.

    TPB is dedicated to infringement. Period.

    Well, now we know what your opinion is. You don't like them, so they're guilty. Nice to know.

    Really? Those sites were shut down.

    Nope. Because they didn't have enough to pay damages, most chose to go out of business (Napster is still around). But none of their assets were seized by any government agency.

    Unlike Sony BMG. I guess Sony's domain name should be blacklisted under COICA?

    And as I've pointed out in this thread, it's not prior restraint if there is an adversarial proceeding. That language comes right out of CDT v. Pappert which you cited.

    The text of CDT v. Pappert shows how you are being misleading:
    The Act and Informal Notice process are not prior restraints in the traditional sense. They do not prevent speech from reaching the market place but remove material already available onthe Internet from circulation. [...] However, they are administrative prior restraints as that term has been interpreted by the Supreme Court. [...]

    In Fort Wayne Books v. Indiana, 489 U.S. 46 (1989), the Court held that a finding of probable cause by a state court was not sufficient to allow seizure of material "presumptively protected by the First Amendment."

    In other words, the AG would contact a judge, the defendants would be allowed to state their defense before the judge, and only after this hearing was held would the state have the right to take action.

    COICA does not do this. It allows the AG to contact a judge, issue a "blacklist," and only afterwards are the defendants allowed their day in court. According to Fort Wayne Books v. Indiana, this constitutes "administrative prior restraint."

    And is unconstitutional.

    Nice try, though.

     

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  215.  
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    Anonymous Coward, Nov 23rd, 2010 @ 9:52am

    Re: Re: Re: Re: Re: Re: Re: Re:

    In Pappert there were no adversarial proceedings. With COICA there are. Big difference.

    Under COICA the judge issues a seizure warrant, which is temporary, and after interested parties have a chance to intervene, made permanent if that is appropriate.

    These in rem actions already exist and are already used. Nothing about them is unconstitutional. Nice try, though.

     

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  216.  
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    Karl (profile), Nov 23rd, 2010 @ 9:55am

    Re: Re: Re: Re: Re:

    Websites that are in fact dedicated to infringement are not the same as a technology that can be used for infringement.

    The Pirate Bay is also "a technology that can be used for infringement." Remember, they don't offer or endorse any content themselves: their users do.

    And, as I said above, Universal was trying to shut down a use of technology as well. The analogy is perfect.

    Did Sony set up shop where they sold Betamax machines preloaded with all the first-run movies they could get their hands on?

    Talk about a bad analogy. The Pirate Bay doesn't sell any content at all. They don't "pre-load" anything. They don't even promise access to specific infringing material, the way Grokster did (and many other sites currently do).

    They provide a technological service for users, exactly in the same way a VHS recorder does.

    They are a torrent version of Rapidshare or Megaupload. Sites which, incidentally, would also make it onto the "blacklist" I'm sure.

     

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  217.  
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    Anonymous Coward, Nov 23rd, 2010 @ 10:02am

    Re: Re: Re: Re: Re: Re:

    A website is not a technology. TPB is most certainly dedicated to infringement. Blah, blah, blah. Find someone else to debate, Karl.

     

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  218.  
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    Karl (profile), Nov 23rd, 2010 @ 10:23am

    Re: Re: Re: Re: Re: Re: Re:

    A website is not a technology. TPB is most certainly dedicated to infringement. Blah, blah, blah.

    A manufacturer of VHS or cassette tape is "dedicated to infringement," like a website. TPB is not solely dedicated to infringement. Blah, blah, blah. I win!

    See how that works?

    Find someone else to debate, Karl.

    But it's so fun! I learn a lot when people bring up case law. Hell, before this thread started, I had not read the Fort Wayne Books v. Indiana ruling. And before the weekend, I hadn't read the Arcara reading either.

    Knowing the details of why you're lying has been very educational. Keep up the good work.

    I should also note the irony of someone who has a personal mission to malign Techdirt, to then tell me to "find someone else to debate." Perhaps you should take your own advice?

    ...But you're right, I've got better things to do. See you later!

     

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  219.  
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    Anonymous Coward, Nov 23rd, 2010 @ 10:30am

    Re: Re: Re: Re: Re: Re: Re: Re:

    Have a great holiday.

     

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  220.  
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    Mike Masnick (profile), Nov 23rd, 2010 @ 10:34am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    -A&M Records, Inc. v. Napster Inc., 114 F. Supp. 2d 896, 922-23 (ND Cal. 2000),

    That does not state that infringing speech is not speech. It just says that the infringing speech is not protected by the First Amendment. You are confusing "speech" with "protected speech," which I already explained are two separate issues. I mean, it's not like we covered this already above... oh wait, we did. Both defamation and child porn are speech, but not protected speech. The specific commenter insists that copyright infringement is not speech at all. That is false and easily shown as false.

    As I stated, I have plenty of case law in front of me that states -- unequivocally -- that infringing on copyright is still speech, which is what the original commenter asked for.

    I'm still waiting to see if he will state that, once I post it, he will admit he's wrong, or if he has no intention of admitting he is wrong once I prove he's wrong.

     

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  221.  
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    Mike Masnick (profile), Nov 23rd, 2010 @ 10:37am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Yup, game over indeed.


    Only if you changed the rules of the game. You did not ask for proof that infringement is protected speech. We were discussing whether or not Arcara applies. It does not, because the illegal activity is speech, and Arcara does not apply in those circumstances.

    You then said that infringement is not a form of speech.

    I said that's wrong, and you asked for a case law cite. I'm ready and willing to provide it, but I am saying before I educate you and your little friend, that I want you to admit up front, that you will apologize for being wrong when I show you that infringement is still a form of speech.

    I'll wait.

     

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  222.  
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    Anonymous Coward, Nov 23rd, 2010 @ 10:40am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Laws are stupid.

     

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    Anonymous Coward, Nov 23rd, 2010 @ 11:01am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    I'll wait

    I'm still waiting for you to explain how Pappert applies to COICA, the difference being that with COICA there is an adversarial proceeding, whereas under Pappert the court said the problem was the lack of an adversarial proceeding. The court took it one step further and quoted Supreme Court language that indicates that if there is an adversarial proceeding, then prior restraint is not a problem. Love to hear you explain that.

    I can read Arcara if you want and tell you how you're wrong about it too. Just let me know. Pappert first though, please.

     

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    Gabriel Tane (profile), Nov 23rd, 2010 @ 11:46am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Mike, they're going to keep dancing around the offer all day long. I hope you're not holding your breath on that one.

     

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    Mike Masnick (profile), Nov 23rd, 2010 @ 11:50am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    I'm still waiting for you to explain how Pappert applies to COICA

    Karl already explained it quite clearly. Pappert does not say that any adversarial proceeding suffices, and the setup of the proceeding under COICA does not suffice. This was clearly laid out by numerous constitutional law professors in a discussion a few weeks ago. You should keep up.

    This discussion is separate from that, and the original request was from someone else, rather than you, I believe.

    If you would like to be involved in this discussion -- as appears to be the case from your silly "game set match" comment, which you will soon regret, I will make the same deal to you as well. Will you admit that you are wrong, once I present the "specific case law" as presented, that infringement is a form of speech (which is why Arcara does not apply, as stated by the court).

    A simple "yes, I will admit I was wrong" will suffice. If you cannot do that, you have admitted that you are not interested in debating honestly, and I will treat this discussion accordingly.

     

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    Anonymous Coward, Nov 23rd, 2010 @ 12:03pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Karl already explained it quite clearly. Pappert does not say that any adversarial proceeding suffices, and the setup of the proceeding under COICA does not suffice. This was clearly laid out by numerous constitutional law professors in a discussion a few weeks ago. You should keep up.

    Perhaps you yourself can explain it to me rather than saying somebody else already did.

    Here's the quote:

    "However, they are administrative prior restraints as that term has been interpreted by the Supreme Court. According to the Court, "only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). Thus, if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint."

    The problem in Pappert was that there was no judicial determination in an adversary proceeding. Under COICA, there is an adversarial proceeding. How does the adversarial proceeding under COICA not suffice? Please explain.

    If you would like to be involved in this discussion -- as appears to be the case from your silly "game set match" comment, which you will soon regret, I will make the same deal to you as well. Will you admit that you are wrong, once I present the "specific case law" as presented, that infringement is a form of speech (which is why Arcara does not apply, as stated by the court).

    A simple "yes, I will admit I was wrong" will suffice. If you cannot do that, you have admitted that you are not interested in debating honestly, and I will treat this discussion accordingly.


    Sure. I'll admit right now that I may have misunderstood what was being debated between you two and my "game, set, match" comment could very well have been in error. No problem, Mike. Unlike you, I can full well admit when I'm wrong. If you would just concede one point in a debate, I'd actually respect you.

     

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    Marcus Carab (profile), Nov 23rd, 2010 @ 12:06pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Actually, I'm pretty sure you're the one just making stuff up.

    Grokster and, more recently, Limewire, were shut down for "inducing" infringement, which is a non-legislative standard introduced in the Grokster ruling. Let's have a look at the key part of that ruling:

    "We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."

    It has nothing to do with quantity or proportion of infringing material, or any sort of standard of "dedicated to infringing activities". Instead, it put in place a new and entirely separate standard based on "advertising or inducing" infringing uses to determine if a tool is liable.

    Now, in that ruling, there was discussion about the bearing that non-infringing uses should have. But there was no majority opinion reached on that issue, which leaves us with opposed rulings from Ginsburg/Kennedy/Rehnquist on one side and Breyer/Stevens/O'Connor on the other side. In other words, the court has said nothing conclusive about all this "dedicated" stuff you are making up, so you can it give up now.

     

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    Anonymous Coward, Nov 23rd, 2010 @ 12:07pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Mike,

    Since when do readers have to admit they are "wrong" before you will defend your positions? You've moved on from the original poster, and now demand that others who wish to see your support admit they were "wrong" as well.

    How can someone be wrong before they have even seen your "evidence"? Do you really believe that Supreme Court jurisprudence is so clear that your evidence will prove your interpretation is the only valid perspective? Please.

    We are here to learn and teach one another, not to force readers to accept our interpretations as gospel.

     

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    Marcus Carab (profile), Nov 23rd, 2010 @ 12:13pm

    Re: Re: Re: Re: Re: Re: Re:

    "TPB is dedicated to infringement. Period."

    So you have absolutely nothing to say to back that up? Or is "Period" supposed to be a compelling argument?

    Right off the top of my head, here's a search showing several hundred completely legal torrents. THESE ARE PROTECTED SPEECH, NO MATTER WHAT OTHER SPEECH IS SITTING NEXT TO THEM. Can you please explain to me how a law that squashes all that legal speech is acceptable under the first amendment? For that matter, can you please explain how it's acceptable to YOU as a presumably freedom-loving human being? Seems to me like you either don't understand the core concept of "rights", or you do and you are just paying them lip service because you have no real interest in other people.

     

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    Marcus Carab (profile), Nov 23rd, 2010 @ 12:13pm

    Re: Re: Re: Re: Re: Re: Re: Re:

     

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    Anonymous Coward, Nov 23rd, 2010 @ 12:26pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    So you have absolutely nothing to say to back that up? Or is "Period" supposed to be a compelling argument?

    I think it's fairly self-evident.

    Right off the top of my head, here's a search showing several hundred completely legal torrents. THESE ARE PROTECTED SPEECH, NO MATTER WHAT OTHER SPEECH IS SITTING NEXT TO THEM. Can you please explain to me how a law that squashes all that legal speech is acceptable under the first amendment? For that matter, can you please explain how it's acceptable to YOU as a presumably freedom-loving human being? Seems to me like you either don't understand the core concept of "rights", or you do and you are just paying them lip service because you have no real interest in other people.

    I think the test is simply whether the site is substantially dedicated to infringement or not. It matters not that you can find some non-infringing material on the site. It's not an all or nothing test. Whether or not a law impermissibly violates the First Amendment depends on a few factors. Look up "intermediate scrutiny" or "strict scrutiny" if you want to learn more.

     

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    Marcus Carab (profile), Nov 23rd, 2010 @ 12:27pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    It's funny - every legal claim I've ever seen on Techdirt is the tip of a deeply-linked iceberg that allows me to fully explore the relevant rulings and standards myself. Every legal claim you ACs in this thread have made seems to be you shouting out the names of recognizable rulings in the hopes that nobody will bother examining the actual details (which, it seems, you haven't even done yourselves)

     

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    Anonymous, Nov 23rd, 2010 @ 12:28pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    If you have a specific and valid cite that says piracy is expression like I asked for, yes, of course I will obviously admit that I was wrong.

    So let's see it.

     

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    Marcus Carab (profile), Nov 23rd, 2010 @ 12:43pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Firstly, it seems clear to me that this would fall to strict scrutiny. Under strict scrutiny, it would almost certainly fail the "narrowly tailored" and "least restrictive means" standards - blacklisting whole websites that have significant non-infringing uses like TPB is broad and highly restrictive.

    Now, intermediate scrutiny certainly seems like it might allow for regulating TPB or certain other sites. But that's just your straw-man: we aren't talking about applying judicial scrutiny to TPB or any one site, we are talking about the new regulations and standards proposed by COICA.

    COICA enables significant government censorship powers that very clearly fail strict scrutiny and would likely fail intermediate scrutiny (assuming that were even accepted as the proper standard)

     

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    Anonymous Coward, Nov 23rd, 2010 @ 12:48pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    How did you determine that strict scrutiny was the appropriate test? Isn't COICA content-neutral regulation?

     

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    Marcus Carab (profile), Nov 23rd, 2010 @ 1:00pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Because COICA is so broad, it seems to me that it involves regulation of commercial speech for reasons "unrelated to the preservation of a fair bargaining process".

    I admit there is room for debate there, but I don't see how COICA passes intermediate scrutiny either. Once again, it is extremely broad and can theoretically apply to any website, which means it is fully capable of eliminating "adequate alternative channels of communication" - an immediate fail of intermediate scrutiny.

     

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    Anonymous Coward, Nov 23rd, 2010 @ 1:02pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    This was clearly laid out by numerous constitutional law professors in a discussion a few weeks ago. You should keep up.

    I just read through what I presume is the discussion you are talking about, and you're right, they do bring up the issues I'm talking about. I think your mistake is in thinking that what's said in that paper is the end of the discussion, and in fact, I think a lot of the points made are rebuttable.

    In fact, this is a mistake I think you often make--you find a paper that you agree with and then you think that paper is the final word on the subject. Rarely is that how things really work though.

     

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    Mike Masnick (profile), Nov 23rd, 2010 @ 1:11pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Perhaps you yourself can explain it to me rather than saying somebody else already did.


    I would just be repeating what Karl pointed out. And you would dismiss it. Not sure I see the point. You have interpreted it to mean that any adversarial hearing is good enough, but as Karl noted, that's not what Pappert says. Furthermore, nothing in Pappert states that "well, gee, if there's an adversarial hearing, the rest is all hunky dory." It was one element.

    Sure. I'll admit right now that I may have misunderstood what was being debated between you two and my "game, set, match" comment could very well have been in error. No problem, Mike. Unlike you, I can full well admit when I'm wrong. If you would just concede one point in a debate, I'd actually respect you.

    Cool. I'm more than willing to concede when I am wrong as well. In fact, I do so quite frequently. Not sure why you feel compelled to claim otherwise, but, such is your nature.

     

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    Anonymous Coward, Nov 23rd, 2010 @ 1:16pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Precisely right. Mike sees things in black and white -- you either agree with his beliefs and positions, or you are wrong (and generally talked down upon). If you're looking for a forum of hot topics, this is the place to be. If you are looking for a community with healthy debate and open-minded commentators, this is not.

     

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    Mike Masnick (profile), Nov 23rd, 2010 @ 1:18pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Since when do readers have to admit they are "wrong" before you will defend your positions?

    I defend my positions all the time. However, the commenters who I asked this of (and no, I was not asking them to admit they were wrong, but to say that they will admit they were wrong if I prove them wrong) are all long term commenters here who have a history of never being willing to admit they made a statement that was wrong. To me, that smacks of intellectual dishonesty, and it suggests they were not here to have an actual discussion. If that's the case, it serves no purpose to "defend my position" to those who are not interested in actually having a discussion on the topic.

    I'm more than willing to defend my position to those who legitimately want to discuss and/or debate it.

    How can someone be wrong before they have even seen your "evidence"?

    I'm not asking them to say they were wrong. I wanted them to say they would admit to being wrong if I proved them wrong. The burden is still on me to do so. I just wanted to see if they would be willing to admit they were wrong before I presented the evidence. Once they have done so, and I present the evidence proving that they are wrong, then I can see if they live up to their word.

    We are here to learn and teach one another, not to force readers to accept our interpretations as gospel.


    Indeed. Most of us are, and I love talking with those who are -- even those who disagree with me. What I find wasteful is when people are not interested in actually learning or teaching, but in being intellectually dishonest. The commenters I asked all have a history of such activities. Having them state up front that they will admit they are wrong if I prove them wrong puts up a standard that hopefully drives the overall discussion forward.

     

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    Mike Masnick (profile), Nov 23rd, 2010 @ 1:21pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    I think it's fairly self-evident.


    And you have just perfectly encapsulated why COICA is censorship. It was "self-evident" to those in the entertainment industry that using the VCR to record TV programs was "dedicated to infringing activity." It was "self-evident" that using an MP3 player to listen to music ripped from CDs was "dedicated to infringing activity."

    Except it wasn't self-evident. It was wrong.

    That you believe you can simply claim it is "self-evident" that a search engine like TPB is "dedicated to infringing activity" without backing it up with any evidence is exactly the problem we are discussing.

     

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    Mike Masnick (profile), Nov 23rd, 2010 @ 1:26pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    If you have a specific and valid cite that says piracy is expression like I asked for, yes, of course I will obviously admit that I was wrong.

    So let's see it.


    Thanks. I'm not sure if you are actually the original commenter or not, but I will assume you are. There are numerous case law citations that note that copyright infringement is a form of speech.

    I'll kick off with one, and see if you will admit your error:

    Sony Music Entm't, Inc. v. Does 1-40, 326 F. Supp. 2d 556, 564

    Arguably, however, a file sharer is making a statement by downloading and making available to others copyrighted music without charge and without license to do so. Alternatively, the file sharer may be expressing himself or herself
    through the music selected and made available to others. Although this is not 'political expression' entitled to the 'broadest protection' of the First Amendment, the file sharer's speech is still entitled to 'some level of First
    Amendment protection.'


    Again, no one has said that infringement is protected speech. In most cases, it is not. But you claimed that infringement was not speech at all and not relevant to a First Amendment analysis. That is incorrect.

     

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    Mike Masnick (profile), Nov 23rd, 2010 @ 1:32pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    just read through what I presume is the discussion you are talking about, and you're right, they do bring up the issues I'm talking about. I think your mistake is in thinking that what's said in that paper is the end of the discussion, and in fact, I think a lot of the points made are rebuttable.

    Fair enough. I'm glad you read it. I do not think it is the end of the discussion, but I believe they make many relevant arguments. You disagree. In teh end, a court will decide.

    In fact, this is a mistake I think you often make--you find a paper that you agree with and then you think that paper is the final word on the subject. Rarely is that how things really work though.

    I find it odd that this statement comes from the guy who, just hours before made the statement: "TPB is dedicated to infringement. Period."

    I would suggest, with all due respect, that if you review your comments on this site, that you have a much greater history of making such "final word" statements on this site without evidence to back it up. It does seem a bit like the pot calling the kettle black for you to suggest that I do so.

    I also believe it is inaccurate. In this very thread, I noted earlier that, in the end, a judge will decide this, not us. I have no illusion that my interpretation of these cases is absolutely going to prevail. It may not. Courts make bad rulings all the time. I am simply explaining why I believe it's clear to me that COICA fails the basic tests concerning prior restraint, and why cases such as Arcara are not relevant.

     

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    Anonymous Coward, Nov 23rd, 2010 @ 1:39pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Fair enough. Have a great holiday, Mike. I'm signing off for some much needed family time... and then exams are on... be back around Christmas, perhaps with some much needed better attitude. :)

     

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    Mike Masnick (profile), Nov 23rd, 2010 @ 1:44pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Precisely right. Mike sees things in black and white -- you either agree with his beliefs and positions, or you are wrong (and generally talked down upon). If you're looking for a forum of hot topics, this is the place to be. If you are looking for a community with healthy debate and open-minded commentators, this is not.

    I do not believe that is an accurate criticism. I quite regularly get into interesting discussions with those who disagree with me, and they are perfectly reasonable and pleasant.

    Where I believe your confusion may stem from, is that there are a small number of commenters on the site who have a history of deliberately misstating positions or attacking those who do actually have more knowledge on a subject than they do. In such cases, I may respond in kind.

     

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    Mike Masnick (profile), Nov 23rd, 2010 @ 1:47pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Fair enough. Have a great holiday, Mike. I'm signing off for some much needed family time... and then exams are on... be back around Christmas, perhaps with some much needed better attitude. :)

    Enjoy the holidays. I look forward to future conversations on the merits and details of these issues.

     

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    Marcus Carab (profile), Nov 23rd, 2010 @ 1:50pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    Funny perception. I can say personally that, if it weren't for the amazing community here, Techdirt would still just be another blog that I occasionally peeked at.

    There can be no doubt that it is sometimes united by common opinions on certain issues - but it certainly isn't lacking in "healthy debate" and "open-minded commentators". Nearly everything you have said in this thread has been met with a thoughtful, well-reasoned and thoroughly-cited response - that shows people are listening and responding to you. Just because you can't convinced anyone doesn't mean the community is closed-minded.

     

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    Gabriel Tane (profile), Nov 23rd, 2010 @ 2:03pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    What? No admission of being wrong yet?

     

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  249.  
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    hmm, Nov 23rd, 2010 @ 2:26pm

    compensation

    How about a compromise?

    MPAA etc sign legal-binding documents that say if they deliberately wrongfully blacklist an innocent site they will immediately and without delay give the person running that site $10 billion dollars......

    Betcha they wouldn't dare do that...because they fully intend to target first things like TPB...then craigslist...then ebay (if it won't pony up some protection money)...then amazon.....the list is endless

     

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    Anonymous, Nov 23rd, 2010 @ 3:19pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    I admit that you have indeed produced a legal opinion that piracy can be considered speech.

    I don't agree with it, of course, and I believe that it barely qualifies, as even the judge himself qualified his statement with the word "arguably". Had Sony lost the case, and the 1st Amendment defense been cited as a one of the reasons, I believe a higher court would have overturned it and not agreed with Chin's opinion.

    Perhaps that day is still to come.

    I will have more to say about Near and Arcara later when I have some more time.

     

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    Richard Davis, Nov 23rd, 2010 @ 3:32pm

    Are you kidding Mr. Mike 'i make my money from ads so let me steal'

    First Mike, you look here: http://filesharingtalk.com/nzbs/

    Next, I hate you asshole bloggers who get paid from advertising but come down on the content industry for attempting to protect their content? When is TechDirt offering free advertising slots?

    Tell the trust you dick, you take the money you make from your ads, by hard drives with your FIOS line and steal steal steal. There is no other reason to make the arguments you make which are starting to look blatantly guilty. Outside of YouTube, yours and the EFF arguments are nothing but piracy excuses because you people all are the ones stealing at home.

    Cut the bullshit.

     

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  252.  
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    Mike Masnick (profile), Nov 23rd, 2010 @ 3:39pm

    Re: Are you kidding Mr. Mike 'i make my money from ads so let me steal'

    First Mike, you look here

    Why? I'm not sure what you are trying to point out?

    Next, I hate you asshole bloggers who get paid from advertising but come down on the content industry for attempting to protect their content? When is TechDirt offering free advertising slots?

    I'm not sure I understand your argument? First of all, we only make a small fraction of our revenue from ads, but the basis of your comment seems to be that in suggesting that you learn how to use free *as a part* of your business model, it means you can't make money.

    We have never argued that. Our argument has always been to learn how to embrace free as a part of your business, where it's appropriate. We follow those principles. The content is free, but we sell a scarcity (attention) via advertising. That doesn't negate what we say, it confirms what we say.

    And we don't seek to "protect" our content. In fact, you're free to do what you want with it, so again, I do not understand your argument here, other than you appear to be making assumptions that don't mak esense.

    Tell the trust you dick,

    I'm not sure what that means.

    you take the money you make from your ads, by hard drives with your FIOS line and steal steal steal.

    First, I believe you mean "buy" not "by" and you are wrong on almost every account. The money we make from ads goes to pay our bandwidth bill mainly. I don't have FiOS and I don't "steal." I also don't download music or movies. I don't even have any bittorrent clients or other such software on my computer.

    Cut the bullshit.

    No offense, but I would suggest that making a bunch of bad assumptions and then arguing that I'm the one "bullshitting" is quite an odd position for you to take.

    Somehow I doubt you'll come back to defend yourself, but, if you do, please think before you falsely accuse.

     

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    Mike Masnick (profile), Nov 23rd, 2010 @ 3:44pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    I admit that you have indeed produced a legal opinion that piracy can be considered speech.

    Heh. Not quite admitting that you were "wrong," but I'll take it. Thanks, by the way. I appreciate your willingness to stand behind your word.

    I don't agree with it, of course, and I believe that it barely qualifies, as even the judge himself qualified his statement with the word "arguably". Had Sony lost the case, and the 1st Amendment defense been cited as a one of the reasons, I believe a higher court would have overturned it and not agreed with Chin's opinion.

    That is certainly not the only such reference. If you are interested in further examples or studies of free speech and copyright two books I recommend at "Copyright's Paradox" by Neil Netanel (who at times may agree more with you than me, but has plenty of useful info) and "No Law" by David Lange and Jefferson Powell. There are some other works as well, but those two are probably the most useful in understanding the intersection of the First Amendment and copyright law.

     

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    Dustin Townsend, Nov 23rd, 2010 @ 7:02pm

    Piracy is not an issue with technology...

    Where so many people get this wrong is thinking that piracy is something that comes from technology, therefore concluding that the only way to stop piracy is to restrict a certain new technology in a way that may fit the needs of a certain special interest/ (in the case political donors).

    Piracy is actually a byproduct of a breakdown/failure in the marketplace. We must consider why do people pirate certain things? It is usually because those things are not available to them in a manner that is acceptable to them. In other words if it is easy to get a desired product from pirating it, but hard to get a desired product from the marketplace, we have a failure.

    If we consider music. People wanted to listen to a song on their computer or MP3 player, but at the time when napstep came out the only real way to do this was drive to the store and pay top dollar for a CD that they may only want one song from, then put it in their computer and convert to MP3. This problem was solved by using something like napster. Instead of the music industry trying to correct the problem in the marketplace they spend millions (may be billions!) on lobbyist to get new laws passed - which gives us stores like the woman that was fined six figures for downloading music (she had never downloaded music, her son did) and people having their property seized by "federal agents".

    The moral of the story is: if you are a big company, you don't want to have to change to adapt to a changing marketplace. It is more profitable if you can just try and pay the government to put their boot on the throat of the market. It can really only last so long and that is why we always have new laws that are trying to address the same issues.

    This issue is bigger than piracy and it is bigger than first amendment. What it comes down to is large content providers (Google, ATT, Time Warner, others) what to make the internet more like TV. Where the cost to enter is expensive and out of reach to the majority of people and organizations. If we continue down this path (this bill and others in the net neutrality bag of tricks) then one day the internet will be limited to certain sites.

     

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    Anonymous, Nov 23rd, 2010 @ 9:50pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    You're making far too much of a stink about the word "dedicated", but perhaps when the bill is rewritten they can simply rely on the verbiage used in the Napster, Grokster, and Limewire decisions. All of these sites, I might add, were shut down and unable to use the First Amendment to prevent it.

    If Demonoid and Pirate Bay were in the US, not only would they be blocked, they'd be shut down. Since they are outside the US, blocking them will have to do.

     

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    Anonymous, Nov 23rd, 2010 @ 10:07pm

    Re: Re: Re: Re: Re: Re:

    The Napster case blew away this nonsense already:

    "" The federal district judge denied Napster's motion for summary judgment and rejected its contention that it was a "mere conduit" service provider and therefore exempt from copyright infringement liability under the "service provider safe harbor" provisions of the Digital Millennium Copyright Act (DMCA). The court noted the interactivity between the users and Napster and found that Napster had "actual or constructive knowledge" of the infringing activity. The District Court ruled that the "law does not require knowledge of 'specific acts of infringement'and rejected Napster's assertion that, because they could not distinguish between infringing and non-infringing files, they did not have knowledge of copyright infringement. The Ninth Circuit upheld this analysis, accepting that Napster had "knowledge, both actual and constructive, of direct infringement."
    the Ninth Circuit found that, "Regardless of the number of Napster's infringing versus noninfringing uses," the question could be resolved on the basis of whether "Napster knew or had reason to know of its users' infringement of plaintiffs' copyrights."
    We agree that if a computer system operator learns of specific infringing material available on his system and fails to purge such material from the system, the operator knows of and contributes to direct infringement. ""

     

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    Anonymous, Nov 23rd, 2010 @ 10:26pm

    Re: Re: Re: Re: Re:

    Context and exact quotes are everything.

    Mike believes that piracy can be considered expression. Using the same logic, (and Chin's) so could prostitution.

    But, the line before the one Mike paraphrased from Arcara v Cloud:

    "the sexual activities carried on in this case manifest absolutely no element of protected expression."

    So while Mike might have been right that Chin described piracy as "arguably expression", it isn't protected expression.

    This is why Arcara works.

     

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    Mike Masnick (profile), Nov 23rd, 2010 @ 10:59pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    You're making far too much of a stink about the word "dedicated", but perhaps when the bill is rewritten they can simply rely on the verbiage used in the Napster, Grokster, and Limewire decisions. All of these sites, I might add, were shut down and unable to use the First Amendment to prevent it.

    This is not true. Napster, Grokster and Limewire all were given injunctions requiring them to stop infringement from occurring. In the end, all shut down because they could not find ways to do so.

    That is different than being shut down. The distinction is rather important.

    If Demonoid and Pirate Bay were in the US, not only would they be blocked, they'd be shut down. Since they are outside the US, blocking them will have to do.

    In both cases, I imagine they would lose lawsuits and be required to come up with ways to stop users from using the tool to infringe, but they would not technically be "shut down." Again, the distinction is important. A government block is quite different from a requirement to clean up or face civil penalties.

    And it is this distinction that matters quite a bit.

     

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    Mike Masnick (profile), Nov 23rd, 2010 @ 11:03pm

    Re: Re: Re: Re: Re: Re:

    Mike believes that piracy can be considered expression. Using the same logic, (and Chin's) so could prostitution.


    It is not what I believe. It's established that infringement is a form of expression. Prostitution is not a form of expression. Using the same logic does not help, because there is no expression in prostitution.

    So while Mike might have been right that Chin described piracy as "arguably expression", it isn't protected expression.

    A nice try, but not quite. Read that again. It says *ABSOLUTELY NO ELEMENT* of protected expression. That's where your argument fails. While infringement overall may not be protected, there absolutely are elements of the websites in question that are elements of protected expression. Many of them are forums, where there is discussion. That is protected expression. The HTML code itself is protected expression.

    This is why Arcara is simply not applicable. Relying on Arcara is a mistake.

     

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    Anonymous, Nov 24th, 2010 @ 2:50am

    Re: Re: Re: Re: Re: Re: Re:

    Read that again. It says *ABSOLUTELY NO ELEMENT* of protected expression.

    Indeed it does, but it is not speaking of Cloud Books the entity, but specifically referring to the illegal activity in that case, prostitution. In our case, infringement.

    And similarly, there is "absolutely no element" of protected expression in piracy.

    Once again, context is everything.

    It is not what I believe.

    Mike, less than 24 hours ago on this thread you wanted to put me through a song and dance about how piracy was expression and would I admit it when faced with evidence. I did.

    there absolutely are elements of the websites in question that are elements of protected expression. Many of them are forums, where there is discussion. That is protected expression. The HTML code itself is protected expression.

    I'm not quite sure why you chose to state the obvious here, but yes Mike, we all know that there are examples of protected speech occurring on websites. Duh.

    But as this case so aptly demonstrates, the prescence of legal behavior amidst illegal behavior... does not exonerate illegal behavior.

    Arcara gets the last word:

    "every civil and criminal remedy imposes some conceivable burden on First Amendment protected activities."

    Happy Thanksgiving

     

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    Anonymous, Nov 24th, 2010 @ 3:55am

    Re: Re: Re: Re: Re: Re: Re:

    On the subject of what is expression; reading Mike's post I thought he was being literal when he said, "It is not what I believe."

    That was incorrect, he does indeed believe it. My misreading.

    Yet he doesn't believe prostitution could be considered expression.

    Wouldn't the same concepts apply? A woman could say she is protesting gender inequality by being a prostitute, etc.

    Any action can conceivably be defined as expressive.

    Sort of like the "define art" question...

     

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    Gabriel Tane (profile), Nov 24th, 2010 @ 5:32am

    Re: Re: Re: Re: Re: Re: Re: Re:

    "Yet he doesn't believe prostitution could be considered expression.

    Wouldn't the same concepts apply? A woman could say she is protesting gender inequality by being a prostitute, etc."


    But the much-contested Arcara v. Cloud Books state that prostitution is not a form of expression, which is why prior restraint does not apply. Sure, an argument could be made that prostitution is a form of expression... Cloud Books tried that. But the judges disagreed. And ultimately, isn't that where we establish such definitions? Isn't that the reason such cases are cited in discussions like these? To establish the definitions of the terms under discussion?

     

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    Anonymous Coward, Nov 24th, 2010 @ 6:08am

    Not so fast...

    Mike,

    Assuming that a court is presented with a COICA challenge, and agrees that the infringing acts taking place on the sites constitute expression to some degree, let's continue the conversation:

    In the Sony case you cite, the judge determines the activity qualifies as speech for purposes of a First Amendment analysis, but this doesn’t end the court’s inquiry. The judge goes on to conclude one paragraph later, “the First Amendment does not bar disclosure of the Doe defendants' identities.”

    In fact, in Verizon v. RIAA, 257 F. Supp. 2d 244 (the case that Sony relies upon in finding the activity to be speech), the Court considered a similar First Amendment challenge to the DMCA, with the plaintiff (on behalf of its users) arguing that the Act constituted an act of prior restraint and a violation of the their privacy. Unlike the court in Sony, the Verizon court found only a right to “anonymous expression” online which encompassed the plaintiff’s activity. It made no difference, however, as the court quickly rejected the petitioner’s claim:

    “Verizon concedes, as it must, that there is no First Amendment defense to copyright violations. The Supreme Court ... has made it unmistakably clear that the First Amendment does not shield copyright infringement. In other words, the First Amendment is not a license to trammel on legally recognized rights in intellectual property. Indeed, copyrights serve as important incentives to encourage and protect expression: the Framers intended copyright itself to be the engine of free expression.” (internal citations and quotations omitted)

    Thus, even where some degree of expression is recognized, courts have taken a close look at the competing interests at stake, and generally rejected claims of First Amendment violations in the context of copyright infringement. One important query may be whether there is sufficient judicial process to justify the government’s actions. See Blount v. Rizzi, 400 U.S. 410 ("it is vital that prompt judicial review on the issue of obscenity—rather than merely probable cause—be assured on the Government's initiative before the severe restrictions in [the statute] are invoked."). However, the DC Circuit has held that this ruling, “does not apply outside of the obscenity realm.”

    In determining whether COICA is constitutional, a court would likely consider (a) the nature of the plaintiff’s expression, (b) the degree of First Amendment protection which should be afforded to such expression, (c) the nature of activity that the government seeks to regulate – ie., content neutral regulation vs. content specific regulation, and (d) the scope of judicial process required by the regulation.

    It is hard to say which way a court would come out on this issue. However, the analysis is more complicated than simply cherry-picking quotes from certain cases and concluding First Amendment naturally trumps any competing interests (as some in the comments have done).

     

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    Gabriel Tane (profile), Nov 24th, 2010 @ 6:25am

    Re: Not so fast...

    You make a good argument here... but all it's showing is that copyright infringement is not protected speech and is therefore not afforded First Amendment protection. Something Mike has stated he agrees with.

    What the whole point of ALL of this was is this:

    1) Copyright violation (piracy) is a form of expression, albeit illegal.
    2) Any law that stops legal expression in its effort to stop illegal expression is unconstitutional on the basis of prior restraint.

     

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    Anonymous Coward, Nov 24th, 2010 @ 7:37am

    Re: Re: Not so fast...

    Gabriel,

    I am suggesting that the cases stand for the proposition that copyright infringement may be protected speech to some degree, but that the speech is outweighed by the interests of the copyright owner and the unlawfulness of the speech undertaken by the speaker.

    In other words, in my opinion, the courts have accepted that file sharing is protected speech for the sake of argument, only to hold that the right is trumped by copyright considerations. As far as I can tell, no court has ruled otherwise.

    Moreover, your contention that "Any law that stops legal expression in its effort to stop illegal expression is unconstitutional on the basis of prior restraint" is overly broad. Napster made the same argument and lost:

    "According to Napster, Inc., the requested injunction would impose a prior restraint on its free speech, as well as that of its users and the unsigned artists that depend upon its service . . . In the event that Napster, Inc. cannot separate the infringing and non-infringing aspects of its service, its First Amendment argument still fails."

    While it may be true that the court orders in Grokster, Napster, and Limewire did not shut the sites down, per se, that did not prevent the services from raising First Amendment defenses to the court's action. The services argued that the court's ruling would have the effect of shutting them down, thus constituting prior restraint. As discussed above, this argument was entertained and rejected.

     

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  266.  
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    Anonymous, Nov 24th, 2010 @ 8:00am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    But the much-contested Arcara v. Cloud Books state that prostitution is not a form of expression

    mmm, no, it doesn't.

    not really sure where you picked that up. And prior restraint is not an issue here.

     

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  267.  
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    Gabriel Tane (profile), Nov 24th, 2010 @ 8:22am

    Re: Re: Re: Not so fast...

    I must be reading things different... everything I've read over looks like courts agree that while copyright infringement is a form of expression, it does not gain First Amendment proctection since it violates legal Copyright:
    "“Verizon concedes, as it must, that there is no First Amendment defense to copyright violations. The Supreme Court ... has made it unmistakably clear that the First Amendment does not shield copyright infringement. In other words, the First Amendment is not a license to trammel on legally recognized rights in intellectual property. Indeed, copyrights serve as important incentives to encourage and protect expression: the Framers intended copyright itself to be the engine of free expression.” (internal citations and quotations omitted)"


    "In the event that Napster, Inc. cannot separate the infringing and non-infringing aspects of its service, its First Amendment argument still fails."

    Which does this come from again? I read it as saying that if Napster could have spearated it's infringing and non-infringing aspects of it's service, the First Amendment argument could have succeeded. And again, I believe the argument was that the action of shutting down the whole service would have been prior restraint on the un-infringing portions of the service which would qualify for First Amendment protection.

    I'd like to read the whole thing to get the full context. Although I'm unlikely to read it today as I'm only around for another 45min.

     

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  268.  
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    Gabriel Tane (profile), Nov 24th, 2010 @ 8:35am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    "mmm, no, it doesn't."


    from: http://supreme.justia.com/us/478/697/
    "Held: The First Amendment does not bar enforcement of the closure statute against respondents' bookstore. United States v. O'Brien, supra, has no relevance to a statute directed at imposing sanctions on nonexpressive activity, and the sexual activities carried on in this case manifest absolutely no element of protected expression."

    "sexual activities carried on in this case manifest no element of protected expression"

    So are you saying that the word "protected" being in there causes the case to show that prostitution is an expression, just not a protected expression? I read the part of the sentence before that: “[case] has no relevance to a statute directed at imposing sanctions on nonexpressive [sic, sp] activity…” as saying that the prostitution was the non-expressive activity. So that's how I read that and where I 'picked it up'.

    "And prior restraint is not an issue here."

    From the actual blog post this thread is discussing:
    "First off, the bill would allow the Justice Department to take down an entire website, effectively creating a blacklist, akin to just about every internet censoring regime out there. Now, it is true that there is a judicial process involved. The original bill had two lists, one that involved the judicial review, and one that did not (it was a "watch list," which "encouraged" ISPs and registrars to block -- meaning they would block them). However, everyone seems sure that the second list will not be included in any final bill. Even so, there are serious problems with the way the bill works. Case law around the First Amendment is pretty clear that you cannot block a much wider variety of speech, just because you are trying to stop some specific speech. Because of the respect we have for the First Amendment in the US, the law has been pretty clear that anything preventing speech, due to it being illegal, must narrowly target just that kind of speech. Doing otherwise is what's known as prior restraint."

    I'd say that qualifies these discussions as being about prior restraint. At least the discussions that are actually about the subject and not misdirection, personal attacks and the many other logical fallacies I've seen tossed around here. The core issue: yeah, it's prior restraint.

     

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    Anonymous Coward, Nov 24th, 2010 @ 8:45am

    Re: Re: Re: Re: Not so fast...

    Gabriel,

    The case is A&M Records, Inc. v. Napster Inc., 114 F. Supp. 2d 896, 922-23 (ND Cal. 2000).

    Have a nice holida.

     

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    Gabriel Tane (profile), Nov 24th, 2010 @ 8:49am

    Re: Re: Re: Re: Re: Not so fast...

    Thanks.

    You too!

     

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  271.  
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    Marcus Carab (profile), Nov 24th, 2010 @ 9:20am

    Re: Re: Re: Re: Re: Re: Re:

    We agree that if a computer system operator learns of specific infringing material available on his system and fails to purge such material from the system, the operator knows of and contributes to direct infringement

    You are being very misleading. The appelate court did NOT concur with the district court that the law does not require knowledge of specific acts - it overturned that and explicitly stated that specific knowledge is what eliminates the Betamax protections.

    So, once again, this deals with specific, narrowly targeted content and actual knowledge, followed by a failure to remove the content. Once those things are demonstrated, the quantity of non-infringing content ceases to matter and the site can found liable for infringement (which does not shut them down or blacklist them, it merely opens them to civil or potentially criminal proceedings).

    Sounds fine... in fact, that process already exists in law. It's called DMCA, and it already gives us the notice-and-takedown procedure. COICA goes way, way, way beyond that, and would essentially obliterate the very test you are quoting, by making it unnecessary to demonstrate "knowledge or reason for knowledge" and "specific infringing material".

     

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    Anonymous, Nov 24th, 2010 @ 9:22am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    With regard to what you wrote about prostitution, that differentiation is exactly how Mike was approaching the word piracy.

    I'm aware that the blog mentions prior restraint. That doesn't mean that it is actually relevant in this discussion.

    If it was, Napster, Grokster and Limewire would have used it to defend themselves.

     

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  273.  
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    Anonymous, Nov 24th, 2010 @ 5:01pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    I wasn't the one arguing about quantity, you were.

    The US can't take foreign sites to court. The only redress is to block the sites.

     

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    Anonymous Coward, Nov 24th, 2010 @ 9:19pm

    Re: Piracy is not free speech

    it is my right to use and distribute any content i have purchased in any way i see fit.or are you saying i have to pay for a new box..which is all we are really talking about...for the same content i purchased on vhs just so i can watch it on my computer...according to this law thats exactly what they expect....wake up people it is just the medium they are using now...it will change again and you will all buy it now cause you cant get it anywhere else

     

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    Marcus Carab (profile), Nov 25th, 2010 @ 7:09am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Pardon? No, you're the one whose argument seems to be that as long as there is "a lot" of pirated material on a site, it is now dedicated to infringing and should be blocked with no thought given to protected speech. You're the one obsessed with quantities who fails to realize that freedom of speech--and indeed all rights--have to deal in absolutes as well, or they cease to have meaning.

    You seem to have run out of logical backflips for this debate.

     

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    nasch (profile), Nov 25th, 2010 @ 7:55am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    The US can't take foreign sites to court. The only redress is to block the sites.

    Why do you think US laws should apply to foreign sites? If Saudi Arabia controlled the domain servers, would you approve of them revoking any domains they found objectionable?

     

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  277.  
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    nasch (profile), Nov 25th, 2010 @ 8:00am

    Re: Re: Piracy is not free speech

    it is my right to use and distribute any content i have purchased in any way i see fit.

    I don't know if you haven't been paying attention or what, but copyright law says otherwise.

    it will change again and you will all buy it now cause you cant get it anywhere else

    That seems very unlikely. Almost everything is available somewhere else, it just may not be legal.

     

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  278.  
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    Melle, Nov 25th, 2010 @ 8:43pm

    Re: Re: Re:

    The thing is, thepiratebay.com is absolutely no different than google or yahoo or any other search engine. It is simply a catalog of where to get files.

    The act if infringement rests in the person searching for and downloading illegal files and the person making those files available for illegal download. Not in the website/search engine that points to them.

     

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  279.  
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    nasch (profile), Nov 26th, 2010 @ 8:38am

    Re: Re: Re: Re:

    The act if infringement rests in the person searching for and downloading illegal files and the person making those files available for illegal download.

    Actually if I'm not mistaken downloading is legal, it's uploading that's copyright infringement.

     

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  280.  
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    Anonymous Coward, Nov 28th, 2010 @ 9:52am

    Re: Re: Re: Re: Re:

    Actually if I'm not mistaken downloading is legal, it's uploading that's copyright infringement.


    You are mistaken. That's why the RIAA sued those who downloaded songs (like Jamie Thomas-Rasset)... and won in numerous court cases.

     

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    nasch (profile), Nov 28th, 2010 @ 2:54pm

    Re: Re: Re: Re: Re: Re:

    Has there ever been a case of someone found liable for downloading music, but not distributing it? Note that I'm talking about a court judgment, not a settlement. All the famous cases I'm aware of have involved both.

     

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    Gabriel Tane (profile), Nov 28th, 2010 @ 9:46pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Don't know if you're still around to read this after the long weekend...

    That was not the differentiation Mike was talking about. Look... Mike is saying that piracy is expression but not protected expression. The court case was saying that prostitution is not expression (protected or otherwise). Therefore, since piracy is expression, you cannot block protected speech in the effort to block piracy. Since prostitution is not expression, the same defense of prior restraint would not apply.

    And I disagree with you on the prior restraint... just because it did not result in a positive ruling in the past does not make it irrelevant to this discussion. Remember, those cases were settled, not ruled upon... there was no appeal to try the prior restraint argument higher up. While I see how it looks for the argument of prior restraint in those past cases, that is not proof that it failed then, nor that it fails here.

     

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    Anonymous Coward, Nov 30th, 2010 @ 12:07pm

    thanks for the lesson karl

     

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    Drew, Nov 30th, 2010 @ 4:19pm

    Re: Re: Re: Arcara Ruling

    I don't think Pirate Bay is like the shop full of bulletin boards where people are putting child porn in the shop. I feel it's more like a shop full of bulletin boards telling you where to find child porn. The site itself isn't holding on to a copy of the files, it is simply holding a way to get the files, much like a shop full of bulletin boards is only holding a piece of paper that directs you to the thing you are looking for. If a person posts a torrent labeled "puppies.torrent" there might not actually be puppies in the file you are asking the peers for, just like if you were to post a note in a shop that said "For puppies go to 123 Fake Street and ask for the package" there might not be a puppy in the package you are asking the residents at 123 Fake Street for.

    Correct me if I'm wrong but this is just my take on it.

     

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    Derek, Dec 1st, 2010 @ 4:39am

    Re: Re: Re: Re: Re:

    Lets just say that your right, and that any site deemed "illegal" must pass before a judge. With the list of sites that will be under the microscope, and the list WILL be a very long one, plus the fact that under the new bill said sites may be shut down before passing in front of a judge, how long will the innocent be punnished? Are they simply casualties of war? Lots of the supporters of this nonsence like to argue the grey area of the law, without giving due credit to those found innocent within that grey. In this case, does a few bad apples ruin the entire bunch? All for the greater good, or much more for the pocket books of a select few? I have an idea, how about the attorney general get off his rump and simply exercise the power he has already been granted, rather than pass said responsibility onto those who would rather have that power?

     

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  286.  
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    Anonymous Coward, Dec 3rd, 2010 @ 10:21am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Hi Gabriel,

    Just remembered this thread, sorry for the delay.

    Therefore, since piracy is expression, you cannot block protected speech in the effort to block piracy.

    I don't think this conclusion follows in any way from the evidence. In my opinion, the courts have held that even if piracy is speech, it's not protected speech (you admit as much above), and that the speech is greatly outweighed by copyright considerations. The Napster case stands for the proposition that (1) where there is protected speech (forums, chat rooms) and unprotected speech (infringement) occurring on a service, and (2) the effect of a court order would be to effectively shut down ALL speech on the site, the First Amendment will not bar a court order. And the court did just that in Napster and LimeWire, where the defendants argued that they not only had forums and chat rooms, but, in the case of LimeWire, a legitimate music service as well. While these cases might not be a perfect match, they are much more instructive than cases about newspapers -- comparing mp3fiesta.com to the New York Times seems to be more than a stretch.

     

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    nasch (profile), Dec 3rd, 2010 @ 1:19pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    From WP: "Napster contended that the injunction violated the company's First Amendment rights because it was overbroad. While the Ninth Circuit rejected this argument due to the lack of a fair use defense, they did order a stay of the injunction and agreed that the injunction was overbroad because "it places on Napster the entire burden of ensuring that no 'copying, downloading, uploading, transmitting, or distributing' of plaintiffs' works occur on the system."[1] Recognizing that Napster's system simply indexed files with imperfect file names and did not automatically verify copyright ownership, the court found that it was the plaintiffs' burden to notify Napster of any infringing files on the system, which Napster would then remove."

    So the injunction was removed, the service was not shut down, and the plaintiff was required to notify Napster of specific infringing files. That's how I read that anyway.

    And Limewire settled, so there was no court finding there.

     

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    Anonymous Coward, Dec 3rd, 2010 @ 8:11pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    With respect to the Napster case on appeal, the Ninth Circuit ruled, in relevant part:

    "We, however, briefly address Napster's First Amendment argument so that it is not reasserted on remand.   Napster contends that the present injunction violates the First Amendment because it is broader than necessary.   The company asserts two distinct free speech rights:  (1) its right to publish a “directory” (here, the search index) and (2) its users' right to exchange information.   We note that First Amendment concerns in copyright are allayed by the presence of the fair use doctrine.  There was a preliminary determination here that Napster users are not fair users.   Uses of copyrighted material that are not fair uses are rightfully enjoined.

    With respect to LimeWire, you are mistaken. The company did not settle in any way with the labels. Judge Kimba Wood issued a permanent injunction against the service on October 26, 2010. For more information see the article here.

     

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    Anonymous Coward, Dec 3rd, 2010 @ 8:24pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    So the injunction was removed, the service was not shut down

    This is also incorrect. If you wish to read the original opinion, you can read it here. The lower court modified the injunction, and the Ninth Circuit later upheld a permanent injunction against Napster, saying "We affirm both the modified preliminary injunction and the shut down order." 284 F.3d 1091.

    Relevant to this discussion, however, you will note that services that offered completely protected speech (e.g., chat rooms, forums, legal music, public domain works) were SHUT DOWN in their entirety because of the illegal activity they facilitated. Courts do not look favorably upon websites and services that host, link to, or facilitate copyright infringement. And these courts have seen through the First Amendment smokescreen.

     

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    Joshua, Dec 5th, 2010 @ 8:42am

    Re: Re: Re:

    No, of course not. I don't agree that those were in fact dedicated to infringing purposes when compared to something like thepiratebay.org. And I just don't follow the leap in logic from talking about those technologies to talking about a specific application of a different technology here.

    The parallel between the VCR, the MP3 player, and the Pirate Bay is so obvious to me that I'm having trouble seeing how anybody could miss it. Hell, I remember Jack Valenti saying that home taping was killing music, at the same time I was calling in requests to my local radio stations so that I could tape the songs off the air. I didn't think of myself as a "pirate." My parents just didn't buy me music, and I was too young to get a job to buy it myself. One of the first things I bought with "my own money" when I got my first job was a CD player and a couple of CDs.

    If you think that the rhetoric about the VCR was any less hysterical than the rhetoric about TPB, you're wrong. I have to wonder if you may just be young enough that you missed it. I can imagine that, to someone who grew up in a world where the entertainment industry had embraced the VCR, the direct parallel between it and TBP may not be obvious.

     

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    mike (profile), Dec 5th, 2010 @ 1:20pm

    We wouldn't even have Walkmans either!

    The Sony Walkman, as iconic as it was, might not have ever existed if RIAA had its way. The audio cassette was in their view "dedicated to infringing activities." Never mind that in later years the record industry made millions of dollars selling "cassingles" which made it possible for them to phase out production of 45RPM records. The record companies could only see the cassette as a tool for making and distributing illegal copies of their records.

     

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    Anonymous Coward, Dec 7th, 2010 @ 9:21am

    Re:

    I use torrent sites all the time for non-infringing activity (like finding Linux distros, hard-to-find free software, and large archives of public domain material). A torrent tracker cannot, in fact, be "dedicated" to infringement. It is dedicated to hosting torrent tracker files. What those files link to is entirely determined by the users. Any site which responds to DMCA takedowns is demonstrably *not* dedicated to infringement, and most of them do - yet still come under attack under current laws which this only intends to extend.

    The fact that similar legislation ("SHIELD") was created in direct response to the recent Wikileaks release and is being billed as an "anti-wikileaks" legislation is another obvious point about it being all about censorship and control, and not copyright, since government documents cannot enjoy copyright protection.

    And a final comment, fuck copyright law anyway. It's holding back the progress of all humanity and damaging the profitability of content creators to the benefit solely of publishers, patent traders, and the politicians they bribe.
    http://levine.sscnet.ucla.edu/general/intellectual/against.htm

     

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    Roger, Dec 7th, 2010 @ 6:22pm

    So Where is the Bill?

    Mike has an axe to grind. Does anyone have a link to the actual bill in Thomas. You would think that such a link would be readily available from this page. Maybe Mike does not want anyone to read for themselves because they might disagree with his predrawn conclusions.

    Roger

     

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  294.  
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    Mike Masnick (profile), Dec 7th, 2010 @ 11:01pm

    Re: So Where is the Bill?

    Mike has an axe to grind. Does anyone have a link to the actual bill in Thomas. You would think that such a link would be readily available from this page. Maybe Mike does not want anyone to read for themselves because they might disagree with his predrawn conclusions.

    Either that or I posted the damn bill when it first came out in all its glory and I assume most people are smart enough to find it and probably don't want me reposting it every single time:

    http://www.techdirt.com/articles/20100921/04000411090/patrick-leahy-against-internet-censor ship-in-other-countries-but-all-for-it-at-home.shtml

    But, apparently, you never considered that and just assumed the worst. Funny.

     

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    Jan, Dec 8th, 2010 @ 9:26am

    I was reading this discussion and it is almost all the time around the 1st Amendment - whether the infringement is expression or not, whether various precedents are applicable or not etc....

    I'm European, so I don't much understand the US legal system but I would respectfully add a bit other view:
    I think this issue is also practically about the seizures of the domains (which mostly are at least partly used as an instrument for somebody exercising the rights to free speech and press regardles if they're "dedicated" to infringing copyrights or not) before there is a due process of law (or very possibly completely without it if the domain owner would not have sufficient means to defend himself) which would determine if the owner of the domain indeed infringed copyrights or not. (term "due process of law" http://www.usconstitution.net/consttop_duep.html)

    Isn't the argument that this seizures is in rem action untrue and in fact it would be clearly action against the right to due process of law and so action in personam par excellence, because only a person can hold the constitutional unalienable rights to not be deprived from liberty and property without due proces of law?

    Isn't such a seizure directly illegal, because it is directly interdicted by the 5th Amendment? Isn't the 5th Amendment interdiction of somebody being deprived of the liberty and property -without the due process of law - directly applicable and superseding any existing or potential law abridging this principle?

    Isn't USA clearly, whether hypocritically or not, as it's doctrine promoting the freedom including freedom of speech and inalienability of right of any person, whether US citizen or other to not be deprived from the life, liberty and property without due process of law and without just compensation if such property is taken for public use? Isn't the USA considering the regimes which don't recognize or abridge such rights being enemies of the USA? So if one had taken Oath to support the US Constitution and then wittingly helps to institute such "legal" orders which would using 3rd parties or directly abridge the above constitutional rights - wouldn't the one then be "giving aid and comfort" to the enemies of USA commiting 14th Amendment sec. 3 and possibly 18 USC §241 offenses?

    How could the federal govt. give an extensive immunity to the 3rd parties against civil and criminal liabilities if they shut-down domains on a blacklist not confirmed by due process of law - opening so large door to possible misuse of such powers against i.e. a bussiness or political competitor, against right to freedom of speech, freedom of press, right to private property...with -important to say in case of internet site - immediate effect?

    Isn't an institution of such immunities constituting an abridgement of the right to petition the Government for a redress of grievances? Wouldn't it be imanently unjust if the government or 3rd parties could effectively blacklist or seize somebody's property prior to due process of law, the defendant would need to prove something if he would like the government or 3rd parties to lift such a seizure and blacklisting clearly being in personam action because baring the person from enjoing the property of his domain to use it for exercising rights and liberties and then he even couldn't sue the government and the 3rd parties even if there would be clear his rights and liberties were violated? Would there still be a legally consistent state or is this a giant leap into a dictature?

    To not seize a domain prior it is by due process of law determined if indeed serves to copyright infringement, not just allegedly serves to the same, poses no absolute risk to anybodys life, freedom or property, because even if the alleged infringement would consist of alleged stealing a copy of somebodys intelectual property, it would not steal it in its entirety, because its owner would still have the original and whatever number of copies of it, commercial rights to it and right to sue those who infringed the rights to it would be not affected...whereas if somebody's domain would be seized without prior due proces of law or without it at all the owner of it would be deprived from this his property (most probably used i.e. for exercising 1st Amendment rights either by himself or by 3rd parties) in its entirety, and the property possibly even used for public purposes without just compensation - as in the cases where the DHS law enforcement already seizes the domains and uses them for publishing its threatening and intimidating copyright infringement notices. Isn't it clear that the danger of dammages arising when a copy of copyrighted material would be stollen by 3rd parties is incomparably much smaller and even controversial (some even suggest that even illegal diseminating of somebodys copyrighted materials often serves for its promotion) than an imminent danger the attorneys or the 3rd parties would misuse this powers to shut down inconvenient internet sites for utilitary reasons, violating so possibly multiple constitutional rights -if not having enforceable civil or criminal liabilities if doing so? Isn't this danger incomparably much wider and potentially having dire consequences in form of further erosion of the basic rights and liberties in USA?

     

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    SueZe, Dec 10th, 2010 @ 10:12am

    Re: "dedicated to infringement"

    I can make the case. They are file SHARING sites. There are lots of reasons someone might use them, other than sharing copyrighted material.

    I may have multiple people working on a project and want them to have access to files we are all working on... and vice versa.

    I might be a TEACHER and want to share lesson plans, and other info, with my students online.

    I might be an Activist... and have written material about my "cause" that I want to easily distribute.

    I might be a writer or musician and want to get some of my work out there for free, in order to build my fan base and market.

    ...aHA!

    See THAT is the reason the record LABELS don't like these file sharing sites. Many INDIVIDUAL artists (especially indies) actually LOVE them.

    Technology is allowing artists, who previously were at the mercy of record labels, publicists, and lopsided distribution deals, to do their own recording, marketing AND distribution.

    Now, I can record a CD of my music... and take the "singles" and just throw them out there for FREE. People who like them... can come back to my site to buy the whole CD. They can buy a hard copy, or a download copy for less $.

    I can make money selling a CD for $5 to $10.. as there is no profit built in for a record label. Will I get rich? Probably not. However there are thousands of talented artists out there that don't have a shot at the brass ring (it's a crapshoot), but who would love to just make a decent living doing what they love.

    By doing my OWN distribution, I create a residual income stream, and also build my bookings for live performances. I might even get lucky and my music gets in the hands of someone looking to score a movie... or wanting music for a commercial.

    The thing is... Technology has changed the recording and movie industry... but the "suits" are too lazy to keep up and revise their business models accordingly. They want to keep doing business the way they have for 70+ years and expect the rest of society to put blinders and shackles on so they can.

    There will always be copyright issues. But, again, there are ALREADY laws in place to address that.

     

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    Brendan (profile), Dec 13th, 2010 @ 10:52pm

    Re: Re: Re: Re: Re: Re:

    wow what a blatant lie. the charges in those cases were both about the "making available" (uploading) aspect.

     

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    Melius, Dec 15th, 2010 @ 9:57am

    Re: The VCR, cable TV, the DVR and the MP3 player

    Youtube.com should be banned for allowing copyrighted material to be published without the express written consent of the copyright holder.

    Either use youtube legally or get busted. I'm for it.

     

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  299.  
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    Melius, Dec 15th, 2010 @ 10:01am

    Re: Government Sucks

    How can you state that the government 'don't think any technology is good'? You completely miss the point. The point is to rightfully pay copyright holders for the use of their work. It is time people were reminded, forcefully if need be, that music is not free, movies are not free, etc and that if you choose to steal someone's copyrighted material you should pay... dearly.

     

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    nasch (profile), Dec 15th, 2010 @ 10:26am

    Re: Re: The VCR, cable TV, the DVR and the MP3 player

    1st Amendment says otherwise. And anyway, since when do we ban something because it allows someone else to do something illegal? Can you think of any other examples of that happening?

     

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    Anonymous Coward, Jan 7th, 2011 @ 11:17pm

    Re: Re: Re:

    YES

     

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    coolobserver, Jan 14th, 2011 @ 4:00am

    Re: Re: Re:

    You need to wake up because with our current elected officials and the current administration, doom and gloom is the order of the day. Our constitutional rights are being chiseled away (Patriot act chiseled 1st, 2nd and 4th amendment rights.) Health care act (1st, 4th). The strongest individual rights Americans have that protect us from the government and the majority are 1st (free speech), 2nd (right to bear arms), 4th (right to security in our person and our papers). Once these goes we are living in a dictatorship. You should be afraid in a way that gets you to react to the malaise around us.

     

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    nasch (profile), Jan 14th, 2011 @ 7:47am

    Re: Re: Re: Re:

    How does the health care act diminish 1st and 4th Amendment rights?

     

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    A.J. Venter, Jan 19th, 2011 @ 10:45pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Piracy is not free speech

    More along the lines of "They believed that the cost of defending the lawsuit would exceed the cost of implementing filtering".
    That's how businesses think. Google has a legal requirement to care about their shareholder value - NOT about protecting the rights of their users - that is the job of those users's governments.
    I don't particularly LIKE how the (US) law about corporations work but I can't fault a corporation for following it.

    The reality is that the filters have no way of recognizing legal, legitemate use of protected works fair use is always a rather gray area and where copyright holders claim violation it usually takes a judge and jury to decide - until a particular type of use is decided it's usually very hard to tell upfront. This is actually a problem of US copyright law which the Berne convention has perpetuated to most other countries. It is much harder excercise your fair use rights when you don't have clear guidelines on what they cover.
    By now we know that backing up copies of stuff you purchased is a protected fair use (despite attempts by software and music companies to pretend you only bought a license and it doesn't apply - court decisions have consistently found that this is false and in fact later Microsoft EULA's specifically include permission to make a backup copy because the courts FORCED them to include this statement). We know that a film school lecturer renting a DVD and showing it in class for his students to study is generally considered to be exercising a fair use (despite it technically being against copyright's restriction on public display) but many things are a lot more subtle. At which point does a parody or a filk song become protected fair use ?
    Usually - we rely on the fact that companies won't sue over it, if they do it takes a judge and jury to make a call about the specific case (and it's understood to be prescedent only the most limited sense possible - for identical cases).

    So fair use is really complex, lawyers struggle with it - judges have difficulty with it. In South Africa a company made a T-Shirt with a parody of a beer company logo that made a joke (that was also very good social/political comentary). The Beer Company sued for trademark and copyright infringement. The T-shirt company won the case, the Beer Company won the first appeal, then the T-Shirt company won an appeal to a higher court...
    The first appeal decided that since the subject of the parody wasn't the creator of the item being parodied that the parody protection in fair use didn't apply - the higher appeals court didn't agree. Judges struggle with this !

    And you think we can write a piece of software to do it ?

    Youtube sold out user's ability to use it in any fair use protected ways - legal uses - because it's not their job to protect the rights of their users but to protect their bottom line. U.S. Legal Precedent gives them NO right to act any other way. It was cheaper to settle and sacrifice the ability to let users do fair use publication than to defend the ability for users to do so.

    That's your business decision in a nutshell.

     

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  305.  
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    Simon Jester, Jan 20th, 2011 @ 1:43pm

    Re: Re: Re: Re: What about this

    @andrew

    "Okay, well in that case, how does American law enforcement go to a site hosted in Russia with a warrant to release evidence?"

    How does american law enforcement go to Amsterdam and prevent an american from doing drugs there would be a good analogy and the answer is THEY CAN'T

    What this bill does would be the same as prohibiting american's from travelling to Amsterdam because they sell drugs there.

     

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  306.  
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    Soundguy4film, Jan 21st, 2011 @ 7:08am

    Re:

    Dude are you stupid those technologies were called out as methods of infringement and fought svere litigation before becoming the modern day tools they are today. Finally are you really ao narrow sighted that you cannot understand how prior restraint works against free speech and that even if the web sites are dedicated to infringing activities we have no right to stop them doing other things, just the infringing.

     

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    jchance, Jan 27th, 2011 @ 1:34pm

    The people who support legislation like this are missing the point!

    People are missing the point of how this is an illegal law they were trying to pass. It would be like a state trying to prosecute an individual for a crime not taking place within it's boarders. Let me put it in a way that the mentally inept supporting it will understand.

    If an individual has sex with a minor who is 14 and the age of consent in the state is 14, which there are plenty of states that this is legal age, and the state they are from is 16 for consent or even 18, their state of residence then tries to prosecute them for the crime. They were never in the state together never mind had sex in it. That is an illegal prosecution and would not hold up and I am not promoting sex with a minor using this example, just proving a point.

    What this law would have done is no different because it would allow for the prosecution of crimes legal in another country under US law. It does not matter that it is on the Internet. The activity is taking place elsewhere. That is fascism like the Nazis committed in Germany or the scummy activities of countries like the Communist regimes of the former Soviet Union and China have and are committing today.

    The only difference is that it is corporations running things when the US is supposed to be a government of the people, by the people, and for the people, not corporations. It is why the Founding Fathers made corporations limited and they were illegal except for rare cases that involved things like public works projects with the fact the corporations had to be dissolved after completion of the works project.

    They were never intended to gain the power or lobby they have except the Rockefeller, Ford, Rothschild, and other elitist families bribed them into permanent existence with government officials in order to protect themselves from their own illegal activities causing them to rot in jail for the rest of their lives.

    Sony for example, one of the biggest supporters of the DMCA and this law when it was pending, is one of the biggest criminal organizations on the face of the planet and profits daily from it's illegal activities.

    A prime example of this being the ATSC standard in which it bribed all the members of the Grand Alliance to put AC3 Dolby Digital into the standard. In doing so every American has been forced to pay licensing and royalties on every television, ATSC converter box, and any other related technology. When it came out those in the FCC it has obviously bribed and those in congress as well covered it up and swept it under the rug.

    So lets say Sony has lost some money from "illegal" downloads, which 99.995% fall under the right to fair use considering downloading a TV episode because one missed it first run and didn't get to record it is just that. What about the billions if not possibly trillions of dollars illegally extorted by them through the ATSC standard from the people?

    Don't you think that illegal gain far exceeds any losses they may have incurred? What about Sony's illegal use of the DMCA to kill competition or opposing view points to it, along with all the other corporations who have used it for the same purpose? How about the fact Sony of America, like Toyota of America is controlled by foreign interests in Japan and with that illegally lobbying as foreign nationals?

    How about the fact with Sony owning CBS illegally covered up the DMCA and had it's news agencies lying to the people about what it entailed while adding the provisions to US law regarding encryption or any other copyright protection scheme in secret. How about how it then used the encryption provisions to falsely stimulate the sales of HDTV's after most upgraded when it introduced HDCP to the HDTV standards?

    In the 1980's when the people still had a voice in congress and there was a free press, there was an overwhelming objection to Sony buying Columbia Pictures and Television because everyone back then knew something like this illegal takeover of congress though lobbyists and PAC's would happen and the people would only suffer while loosing their rights.

    If Sony wants to see people go to jail for right to fair use, what about all of those involved in it's illegal influence in the US government or the criminal activities it has perpertrated? Shouldn't they be rotting in a cell next to the average citizen worrying about being anally raped by a big guy named Bubba in the showers?

    For it's activities, all of Sony's assets should be seized, restitution should be paid to everyone who owns an HDTV, computer monitor, video card, or any other device where AC3 or HDCP was illegally leveraged, and yet you don't hear people bringing all of this up. Maybe people should because if they did, then Sony might tell the others to back off because they could loose everything owned in the US and have their goods banned from being sold here being a criminal organization. No individual or corporation is supposed to be able to profit from criminal activities, yet Sony has made billions if not trillions over the years from it's illegal activities.

    With that, what is good for the goose, is good for the gander, and Sony should be held to the same laws we are expected to be held to along with all the other companies involved in the draconian BS!

     

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  308.  
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    Anonymous Coward, Jan 31st, 2011 @ 7:28pm

    Re: Re: Re: Re: Re: Piracy is not free speech

    In the case of The Pirate Bay, it isn't even that complex. They were WILLFULLY hosting trackers to illegal content, even once notified.

    I don't see how that is at all defensible.


    Ummm, US law does not apply outside the US. Even in the US paper money is officially counterfeited even though the constitution is clear only gold and silver can be used. It's clearly illegal yet it still goes on, just one glaring example I'm sure you can shoot it with holes if you try hard enough.

    It is clear in the constitution congress must declare war, when is the last time they did that?

    Do as I say not as I do.

     

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    Anonymous Coward, Feb 17th, 2011 @ 6:10pm

    they need to find something else to do with there lives.the internet is a rolling ball of fire that cant be put out,and all its doing is getting bigger.there will be a war if the internet is censored,a revolution that im sure obama doesnt want to be apart of.congress will not pass this becuase they probably all download movies,music,etc from the internet all the time.pfft they probably go on youtube and go do some "infringing activitys" all the time.and im sorry to say that im from Delaware...i didnt vote for that idiot chris coons.

     

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  310.  
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    thewilliemac, Feb 21st, 2011 @ 2:45am

    Re: Re: Re:

    Here's a thought, you're not following the logic because you are lacking logic... Do you work for the US government?

    the CBC [Canadian Broadcasting Corporation - a state run, state funded broadcasting company] posted a torrent a couple years back on torrent sites as a test to see how it would work. No infringing on anyone, they did it themselves. Try and wrap your tiny mind around that.

     

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  311.  
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    thewilliemac, Feb 21st, 2011 @ 2:49am

    Re: Re: Re: Re: Re:

    boo hoo. it's the internet, you evolve or you die. clearly, you were not the fittest. oh, and maybe if you didn't charge ridiculous amounts of money for some lines of code, you wouldn't have priced yourself out of business.

     

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  312.  
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    Anonymous Coward, Apr 8th, 2011 @ 7:42pm

    Re: Re: Re:

    Regardless of whether or not Thepiratebay.org is dedicated to infringing activities, the Government will not stop simply at websites like that. With this bill they could essentially run the internet how they want, shutting websites down on a whim. You can argue the legality of it all you want, but the second list is basically saying, "We dont like this site, so you shouldnt either, btw... want some funding?"

     

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  313.  
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    the wood, Apr 26th, 2011 @ 6:47am

    Re: Re: Re:

    lol the you must be living under a rock.. it being abused. the whole fact of the matter this whole thing is about greed + money . why the fud people have to pay $20 for a cd when the cd probably would cost $12 without the greedy markup to pay for the $3000 Prada bag or $300000 maybach?

     

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  314.  
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    long live freedom, Apr 26th, 2011 @ 7:13am

    Re: Re:

    dude are you an ass? they not blocking part of the site ( the part that might have pirated stuff) they blocking the whole site.. it a witch hunt clear and simple..:) the industry has to face the fact that cd and even dvd ect ect are being outdated and people are tired about supporting their greed with these ridiculous prices and mostly crappy stuff the make... apple did a god job by putting song for 99 cents and allowing you to listen b4 you buy.. they should do the same for movies ect ect as well. the industry better learn to adapt quick bcuz they way the doing it now they digging their own grave

     

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  315.  
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    Anonymous Coward, Apr 26th, 2011 @ 7:17am

    Re: Piracy is not free speech

    so selling stuff at inflated prices is legal?.. when you that a good hard look the industry made this whole mess due to their greed.. karma is a bitch eh :)

     

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  316.  
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    c, Jan 19th, 2012 @ 8:40pm

    RE

    I don't understand why everyone seems to have a problem understanding why this would be a bad Idea? In lamens terms-- If there is already laws that protect people or companies or anyone for that matter from copyright infringement then why go the extra mile and pass a bill like this when in fact this could shut down the whole entire internet just in order to weed out those who break the law? THIS IS RIDICULOUS.There are a number of things they could do instead one being start shutting these sights down one at a time until people know not to commit copyright infringement. Heck the FBI conducts thousands of internet stings every year from sexual crimes all the way to drug crimes or illegal selling of bodily organs point being this can be stopped without passing this bill. They (The Government) just want to cover their behinds in order to do what they want without being held accountable for it! Lastly and before I say this let me make clear I am in no way saying that I condone or stand behind copyright infringement but the people who complain about copyright infringement the most (The Entertainment Business) by no means are hurting for money,they make entirely way too much money and its been proven that none of this even really affects sales of cd's, movies, etc. I know how to fix it all 1st off STOP paying these people so much money,and raise the rate of pay for the people who deserve it like teachers,law enforcement,doctors-- Blue Collar workers the Backbone of society! After that take some of this wasted money and build the economy back up and put the real criminals in jail like Car Dealerships who borrow millions of dollars to cover their butts and make the taxpayers pay their bills or the crooks we have running the country and taking people out of their homes and putting them in the streets! I know none of this has anything to do with the latter but the point here is there is so much wrong with this country and we the "People" put these crooks in total control of our lives and let them use us like puppets on a string. Until we start doing something and making a stand then Little things like this bill are going to be one step closer to doing away with our freedom all together. Someday someone is going to have to ban together and stand up for our rights!

     

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