Lamar Smith Out Of Touch With The Internet: Still Thinks It's Just Google That Opposes SOPA

from the time-to-wake-up-to-reality dept

It's really quite stunning to watch Lamar Smith pull out really out-dated talking points as he gets more and more desperate to defend SOPA, as he discovers that all the vaunted "support" that the US Chamber of Commerce promised him there was for the bill melts away. We've already gone through Smith's detailed "defense" of the bill and pointed out that nearly all of it was based on either false or misleading research. And what's worse is that Smith obviously knows this: he specifically cherry picks studies to support his position. In fact, he uses studies produced by lobbyists over the ones produced by the government, when the government ones show that the entire basis for SOPA is faulty. The only reason to do that is because you know the actual facts don't support your position.

His latest move is to pretend that the only opposition to SOPA comes from Google.
There is nothing that would require Internet service providers or bloggers to "censor" the Internet.

Since there is no basis for their complaints, one wonders what the bill's critics are really worried about. Perhaps they don’t want to be held accountable for directing consumers to illegal websites. We know that’s the case with Google.
There's so much wrong in just that little section, it's really quite incredible. First of all, the first statement is an outright fabrication. The entire point of the bill is to censor parts of the internet. Smith is trying to pretend that because the censorship is about stopping infringement, it's not censorship, but that's simply false. The government telling internet sites that they have to block access to other websites is -- undeniably -- censorship. If Smith were being intellectually honest, he would admit that and then we could have a nice discussion on whether or not this form of censorship makes sense. But, instead, he pretends that it's not censorship.

As for the next sentence, there is a very real basis for the complaints, and pretending there isn't is just ridiculous. Yes, it's true that some people have exaggerated some of the claims, but part of the problem here is actually Smith himself. His first version of SOPA was so bad and contained so many awful things that many people still think his latest version contains those things. Perhaps if he had taken the time to invite people who actually understand the internet to the table, he wouldn't be fending off the complaints of his original bill at this time.

But that also leaves out that there are, still, tremendous legitimate concerns with the bill, and that explains the widespread outrage.
  • The online security concerns are extremely real and legitimate. Every single credible technology and security expert has agreed on this point. To date, Smith has been unable to find a single independent security expert to back up his side of the argument. He's found two or three think tank "policy analysts" who don't understand the technology issues in play (and it's amusing to watch them run for the hills any time a real DNS engineer shows up), but there has yet to be a single credible technologist to say that provisions in the bill for blocking sites won't do harm to years of careful work on internet security.
  • The State Department remains horrified at the message this bill sends to the rest of the world, as they are trying to push the concept of internet freedom to country's with oppressive governments. Even if the purpose of the blocking in the US is quite different, the bill alone gives foreign repressive regimes the perfect blueprint for repressing free speech in a way that the US can't protest: just say you're going after infringement, and the US can't complain.
  • The threat of collateral damage against legitimate sites is extraordinarily real. It's so real we have clear evidence of it happening at home, in the case of Dajaz1.com. Or with the death of Veoh. Or with the very fact that SOPA supporters continue to claim that RapidShare is one of the key sites they seek to kill via SOPA, despite it being declared legal in both the US and Europe.
  • Finally, there's the fact that all of the evidence suggests that SOPA won't actually help to either stop infringement or to get people to pay more for content. Considering the widespread collateral damage, when all of the evidence suggests that the bill itself won't actually help solve the specific problem it's supposedly targeting, isn't that a cause for a concern?
But rather than address any of those (or many other legitimate) concerns with the bill, Smith falls back on the talking point he was given at the beginning of this: the only company who doesn't want this is Google and that's because Google profits from illegal activity. Neither statement is accurate.

First of all, hundreds upon hundreds of companies have come out against the bill -- including supposed "supporters" on the list that Smith's own staff at the House Judiciary Committee put out, claiming they supported the bill. The idea that these are all driven by Google is hilarious. On top of that, Smith is being downright insulting to the hundreds of thousands of people who have written and called Congress to express their displeasure with the bill. They weren't doing so because Google wants to profit from illegal activity online, but because they're legitimately worried about the bill.

Certainly, back over the summer when Hollywood told Smith he had to take the bill away from Rep. Goodlatte and put in all of their favorite concepts to censor the internet, the most vocal opposition had come from Google. But since then, pretty much the entire tech industry has risen up to point out the problems of the bill. And, even worse for Smith, so have many in the creative community. We have movie and TV stars, along with best selling authors. We've seen more and more in the creative community itself speak out against this bill, because they recognize that they use and rely on the internet as well.

The truth is that the remaining "support" for the bill has been reduced to a few big (but shrinking) companies in a legacy industry who have chosen not to adapt to changing times. And while all of this is happening, the people in that same industry who aren't tied down looking at the past are adapting and making tons of money.

The basic fact of the situation is that Lamar Smith is wrong in almost everything he argues here. He's wrong about what the bill is. He's wrong about whether or not it's needed. He's wrong about the impact of the bill. He's wrong about the opposition. He's wrong about the criticism. The public is recognizing most of this. Smith's decision to double down on the old story that this is just about Google is a sign of a sad politician lashing out because his plan to help his biggest campaign contributors is being seen for what it is: a government hand out to a few Hollywood fat cats too lazy to adapt... and all done at the expense of the one part of the economy that has continued to grow and to shine: the internet.


Reader Comments (rss)

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    MAJikMARCer (profile), Dec 30th, 2011 @ 11:19am

    Is Lamar an AC?

    Anyone else find it odd that Lamar Smith's comments/arguments are almost word for word what many of the ACs spout on here? No real debate, just "If you oppose SOPA you support piracy!"

     

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      MrWilson, Dec 30th, 2011 @ 11:26am

      Re: Is Lamar an AC?

      "No real debate, just 'If you oppose SOPA you support piracy!'"

      And they're absolutely correct...but only because IP maximalists define exercising your freedom of speech as "piracy."

       

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        Anonymous Coward, Dec 30th, 2011 @ 11:33am

        Re: Re: Is Lamar an AC?

        Well, there's very little anyone can say today that hasn't at some point been said before - so in a way, everything that is said as "speech" is also copyright infringement.

         

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          MrWilson, Dec 30th, 2011 @ 3:52pm

          Re: Re: Re: Is Lamar an AC?

          Fortunately, much of what has been said was said was said a long time ago and is in the public domain or else teaching a language would be very difficult.

           

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      el_segfaulto (profile), Dec 30th, 2011 @ 11:38am

      Re: Is Lamar an AC?

      I seriously doubt Lamar Smith has the intellectual or technological ability to browse the internet, however that doesn't mean that one of his flunkies isn't astroturfing on his behalf. When will the people in his district vote the Luddite out!?

       

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        Anonymous Coward, Dec 30th, 2011 @ 11:53am

        Re: Re: Is Lamar an AC?

        That's assuming the district isn't full of fellow Luddites. And/or he hasn't supplicated them with pork and other localized goodies from his time in office.

         

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        Capitalist Lion Tamer (profile), Dec 30th, 2011 @ 12:03pm

        Re: Re: Is Lamar an AC?

        I seriously doubt Lamar Smith has the intellectual or technological ability to browse the internet

        My guess is that at some point a well-meaning younger relative changed his home page to Google while upgrading him from IE 5 and so in Lamar's mind, Google is the internet.

         

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        Jay (profile), Dec 30th, 2011 @ 12:50pm

        Re: Re: Is Lamar an AC?

        He's had bad competition.

        The district is horribly gerrymandered for a Republican nominee. Since he's close to my district, I've been paying attention.

        Elaine Henderson is the Democratic nominee. There is NO information about her.

        Richard Mack is a former sheriff who is an Oathkeeper Libertarian Republican. I'm sure he'd find this unconstitutional, but no one can get to him.

        Then we have the Libertarian third party candidate, James Arthur Strohm... We won't get into the discussion on him. For the most part, the problem remains that some candidates just aren't that strong on certain issues. This is what's occurring in TX 21.

         

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          TtfnJohn (profile), Dec 30th, 2011 @ 6:01pm

          Re: Re: Re: Is Lamar an AC?

          Not much point in running against someone in a district so badly gerrymandered that you could run someone who died in 1378 BCE as a republican and he'd probably win,


          Hmmm, someone check Smith's birth certificate?????

           

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      gorehound (profile), Dec 30th, 2011 @ 1:35pm

      Re: Is Lamar an AC?

      Lamar Smith is a true worthless human being and we all can hope he will be Voted out of Office in 2012.And he should also be investigated for Ethics Violations.I am not a thief and I will not steal.No one has the right to open up the door of censorship in my Country.The supporters of SOPA/PIPA are a bunch of corrupt asses to push such an unconstitutional thing on the whole nation.

       

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    AC, Dec 30th, 2011 @ 11:24am

    Job Security

    People need to be more sympathetic to Lamar Smith's situation. He's trying to make sure he has a job waiting for him after his public service (can we still call it that?) is complete.

     

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      Anonymous Coward, Dec 30th, 2011 @ 11:31am

      Re: Job Security

      Indeed, with the economy so shitty, even congresspeople have to be thinking ahead in these times of uncertainty.

       

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      Loki, Dec 30th, 2011 @ 11:48am

      Re: Job Security

      He's trying to make sure he has a job waiting for him after his public service (can we still call it that?) is complete.

      No, I don't think we can still call it that. I'm not sure what to call what they do now, but it certainly isn't public service.

       

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      Bryan, Jan 3rd, 2012 @ 11:57am

      Re: Job Security

      WTF? He can take his job and shove it. How about the American people hang him for treason? I mean, he is essentially trying to subvert and the internet and high tech industry in America. Sounds like a nazi to me.

       

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    Ima Fish (profile), Dec 30th, 2011 @ 11:30am

    "Lamar Smith Out Of Touch With The Internet: Still Thinks It's Just Google That Opposes SOPA"

    He knows what he's up against. It's just, in my humble and totally subjective opinion, that criminals will say anything to finish the job.

     

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    abc gum, Dec 30th, 2011 @ 11:33am

    Living In The Past

    We'll go walking about
    while others shout of SOPA's disaster.
    Oh, we won't give in,
    let's go living in the past.

     

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    :Lobo Santo (profile), Dec 30th, 2011 @ 11:39am

    Betrayal!

    trea·son/ˈtrēzən/
    Noun:
    The crime of betraying one's country, esp. by attempting to kill the sovereign or overthrow the government.
    (emphasis mine)

    By definition, aren't congressman & senators who pass bad laws--especially when a majority of their constituents are against them--technically guilty of treason?

    Maybe we can get somebody to prosecute them under that particular train of reasoning...

     

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      Travis, Dec 30th, 2011 @ 4:56pm

      Re: Betrayal!

      As someone who served in the military and remembers the oath (I,____________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, quoted from http://www.cnrc.navy.mil/dep/oath.htm), Yes. He has declared war on the Constitution and the citizens of the USA.

       

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      Nick, Jan 3rd, 2012 @ 6:59pm

      Re: Betrayal!

      You can't charge someone with a criminal offense. A criminal offense has to be prosecuted by the state.

      You can report the crime, but no prosecutor will take this case for fear of accidentally falling out a window, or the brakes on his family's car suddenly not working.

       

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    Loki, Dec 30th, 2011 @ 11:41am

    If Smith were being intellectually honest,

    What??? We're talking about a man (like a lot of people in Congress) whose record shows will say whatever anyone who pays him the most money wants him to say. The man wouldn't know honesty, intellectually or otherwise, if it was a brick that landed on his head.

     

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    The Devil's Coachman (profile), Dec 30th, 2011 @ 11:46am

    Lamar Smith is a pandering sack of monkey shit

    and he panders to whoever gives him the most money.

     

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    codeslave (profile), Dec 30th, 2011 @ 11:49am

    Extortion racket

    Lamar Smith thinks that only Google opposes SOPA because that was the entire point of the legislation - to get Google to start dumping piles of money into campaigns in order to get the legislation killed. They see Google's market cap and start salivating. Of course, Google isn't playing that game and Hollywood et al does, "giving" more than a twelve times more to Congress than the tech sector. That's how Congress works - propose something odious and rake in the cash to get it killed. "You's got a nice Internet here, shame if anything was to happen to it."

     

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    Anonymous Coward, Dec 30th, 2011 @ 11:59am

    "Perhaps they don’t want to be held accountable for directing consumers to illegal websites. We know that’s the case with Google."

    Wow, talk about trying to midread a quote (AGAIN!). Mike, he isn't saying Google is the only opposition, only that Google doesn't want to be "held accountable for directing consumers to illegal websites".

    Fuck me, you are truly a knob at times.

     

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      Rikuo (profile), Dec 30th, 2011 @ 12:14pm

      Re:

      Great job you did there in this debate. By calling Mike a knob simply because he may have made a mistake is sure to win you loads of support here.

      To make it clear, don't bother saying something along the lines of "you're a Mike fanboy". I'm not. I do respect and admire Mike, but if he is wrong, well, then he is wrong.

      Now, next time you feel he may have come to the wrong conclusion, play nice. Say something like "Hey Mike, I think you may have read a bit too much into this quote" and give your reasons why.

      And no, I won't fuck you. I doubt Mike will either.

       

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        Anonymous Coward, Dec 30th, 2011 @ 12:41pm

        Re: Re:

        Honestly, Mike is being a knob. A true dickhead, seeming intent on totally misrepresenting what was said.

        If you choose to not read the quote, and instead to just take Mike's word for it, that's up to you.

        As for for "fuck me", it's an anglo saxon explenitive. Sorry if you don't understand it.

         

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          Rikuo (profile), Dec 30th, 2011 @ 12:47pm

          Re: Re: Re:

          Hmm...I think you meant say "expletive" and not exlenitive. You may want to try using Firefox, it comes with a spell-checker (I don't know if the other browsers use this as well). And of course I understood it, I'm a born and bred English-speaker.
          I don't care about the quote. I care about the quality of debate here in the comments. What you're doing is NOT debate. How is someone supposed to take what you say seriously when all you can say is "Mike is wrong about this quote because he's a dickhead!"

           

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          hothmonster, Dec 30th, 2011 @ 1:23pm

          Re: Re: Re:

          When you say Mike are you talking about yourself? Because this shit is just too self-referential, now I see why people that Mike was posing as an AC. Is that you Mike? Are you schizofrantic or bipolar or something?

          " A true dickhead, seeming intent on totally misrepresenting what was said."

          fucking priceless

           

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          abc gum, Dec 30th, 2011 @ 1:33pm

          Re: Re: Re:

          Name calling adds so much to the argument, how could you be wrong?

           

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      Anonymous Coward, Dec 30th, 2011 @ 12:31pm

      Re:

      "Fuck me, you are truly a knob at times."

      Well, considering you're such a pussy...

       

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      Dave, Dec 30th, 2011 @ 12:54pm

      Re:

      "he isn't saying Google is the only opposition"

      Sorry, I must've missed the part where he detailed all the other opponents...

       

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    Anonymous Coward (profile), Dec 30th, 2011 @ 12:04pm

    The internet has been all over Lamar Smith for MONTHS, since killing the Paul legalization bill. (smith is the head of the committee it went to and the one who made the call that it would never get a hearing). Nothing i've seen his name attached to since gives me any indication that Lamar is aware of anyone whose name isn't on a large check.

     

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    average_joe (profile), Dec 30th, 2011 @ 12:12pm

    First of all, the first statement is an outright fabrication. The entire point of the bill is to censor parts of the internet. Smith is trying to pretend that because the censorship is about stopping infringement, it's not censorship, but that's simply false. The government telling internet sites that they have to block access to other websites is -- undeniably -- censorship. If Smith were being intellectually honest, he would admit that and then we could have a nice discussion on whether or not this form of censorship makes sense. But, instead, he pretends that it's not censorship.

    You both just define the word "censorship" differently. Your definition is broad and his is narrow. It's not an issue of "being intellectually honest" for either of you. It seems like a silly point for you to get personal on since from my point of view you are both correct--the word simply has two different meanings.

     

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      Rikuo (profile), Dec 30th, 2011 @ 12:21pm

      Re:

      Censor:
      1. an official who examines books, plays, news reports, motion pictures, radio and television programs, letters, cablegrams, etc., for the purpose of suppressing parts deemed objectionable on moral, political, military, or other grounds.
      7. to delete (a word or passage of text) in one's capacity as a censor.

      From dictionary.com

      Doesn't matter what justification you give yourself, if you're the government and you go about deleting content from the internet (or blocking access to it, to be more precise), its censorship. Now, there are times when censorship can be called for: for example, during World War II, the UK didn't allow the broadcasts of weather reports, so as to hamper in some way German bombing runs.
      The reason Mike is going apeshit about the first line is because if you were to ask a random person on the street "Is it okay to censor websites upon accusation", the word censor would ring alarm bells in the person's mind. If you were to word it differently "Is it okay to block access to certain websites upon accusation", the result would be different.

       

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        Anonymous Coward, Dec 30th, 2011 @ 12:33pm

        Re: Re:

        .."if you were to ask a random person on the street "Is it okay to censor websites upon accusation", the word censor would ring alarm bells in the person's mind. If you were to word it differently "Is it okay to block access to certain websites upon accusation", the result would be different."

        The response would be different.

        The result would be the same...censorship.

         

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          abc gum, Dec 30th, 2011 @ 1:35pm

          Re: Re: Re:

          "The response would be different."

          Many would ask about the lack of due process, even though there is little they can do about it.

           

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      abc gum, Dec 30th, 2011 @ 12:27pm

      Re:

      "You both just define the word "censorship" differently."

      Yeah, that's it - a misunderstanding.
      There are many versions of the english language to choose from, it is simply a matter of how to deceive such that it can be disputed at a later date. Wordsmithing, yeah that's the ticket.

       

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      Vincent Clement (profile), Dec 30th, 2011 @ 12:27pm

      Re:

      Censorship is censorship. There is no broad or narrow definition. If the government does something that restricts your free speech, it's censorship.

      As usual, you completely miss the point of that paragraph: having a "discussion on whether or not this form of censorship makes sense".

       

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        average_joe (profile), Dec 30th, 2011 @ 1:21pm

        Re: Re:

        Censorship is censorship. There is no broad or narrow definition. If the government does something that restricts your free speech, it's censorship.

        Obviously there are different definitions. Mike is defining it broadly, as are you, to include any government restriction on speech. Smith is defining it narrowly to include only government restriction on speech based on the content of that speech, i.e., the ideas being conveyed. It's the difference between content-based and content-neutral regulation of speech, a distinction that has existed in First Amendment jurisprudence for years. It's silly to pretend like there's no difference between the two.

        Mike is using the broader definition because it allows him to call this "censorship," a word that carries with it strong negative connotations. Smith obviously is using the narrow definition to avoid that connotation. Neither one is incorrect, and it's simply a matter of which version (content-neutral vs. content-based) of regulation is being referred to.

         

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          Chronno S. Trigger (profile), Dec 30th, 2011 @ 1:31pm

          Re: Re: Re:

          Yes, let's nitpick over semantics when it's a bad law that can and will be used for both definitions.

           

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            average_joe (profile), Dec 30th, 2011 @ 1:49pm

            Re: Re: Re: Re:

            Yes, let's nitpick over semantics when it's a bad law that can and will be used for both definitions.

            It's not nitpicking. Mike is claiming that Smith is being intellectually dishonest for saying it's not censorship, and that's just silly. The difference between Mike's and Smith's definitions is critical, and if anything, Mike is the one capitalizing here by playing with words.

            An example: Say I want to go down to a local public park, stand on a soapbox, and talk about how terrible President Obama is. If there's a city regulation that prohibits people from talking negatively about the President in that park, that's a content-based restriction and that's censorship under Smith's or Mike's definition. On the contrary, if there's a city regulation that prohibits people from using the park at all from midnight to dawn every night for safety reasons, then that's a content-neutral restriction and that's only censorship under Mike's definition (and not Smith's).

            You can certainly define things broadly so that a time or place restriction like the one in my example is considered to be "censorship," but I think it's fair to say that such restrictions aren't commonly thought of as censorship. Censorship is more commonly thought of as the restriction on WHAT you can say, not WHERE & WHEN you can say it. Mike's pretending like the only meaning of censorship is ANY restriction on speech whatsoever, and while that's certainly one definition, it's not the only one. In fact, it's intellectually dishonest of Mike to say that Smith is intellectually dishonest for using a different definition.

            But this is Techdirt, so I expected nothing else...

             

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              Jay (profile), Dec 30th, 2011 @ 2:00pm

              Re: Re: Re: Re: Re:

              Censorship is more commonly thought of as the restriction on WHAT you can say, not WHERE & WHEN you can say it.

              Yes, let's nitpick the definition of censorship when SOPA actively encourages the censoring of platforms to speech.

               

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              Anonymous Coward, Dec 31st, 2011 @ 8:41am

              Re: Re: Re: Re: Re:

              Try harder troll.

               

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              Brendan (profile), Dec 31st, 2011 @ 8:18pm

              Re: Re: Re: Re: Re:

              Except that SOPA is content directed. So it is censorship. Where when and how doesn't matter, they are concerned with the what.

               

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                average_joe (profile), Dec 31st, 2011 @ 8:54pm

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

                Except that SOPA is content directed. So it is censorship. Where when and how doesn't matter, they are concerned with the what.

                SOPA doesn't target anyone's speech because of the idea or viewpoint contained therein, so it's not a content-based restriction.

                 

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                  Karl (profile), Dec 31st, 2011 @ 11:42pm

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

                  SOPA doesn't target anyone's speech because of the idea or viewpoint contained therein, so it's not a content-based restriction.

                  You might want to look at Andy Sellars' blog for info on your content-based claim:
                  http://andyontheroad.wordpress.com/2011/05/20/hart-response/

                   

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                    average_joe (profile), Jan 1st, 2012 @ 7:20am

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

                    I read that a while back. I see Sellars is quoting the book "No Law" and the Lemley/Volokh article, both of which are making normative arguments, not descriptive ones. And again, you won't find a single court opinion holding that copyright is a content-based restriction on speech because no court has ever held that. So when you see someone arguing that copyright is a content-based restriction, like Sellars is, you know they're telling you their view of what the law should be and not the law as it actually exists.

                    Sellars is clearly arguing that he thinks copyright SHOULD be considered to be a content-based restriction while recognizing that under the current jurisprudence it is not. That only confirms what I'm saying.

                     

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                  Brendan (profile), Jan 1st, 2012 @ 1:00am

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

                  Are you listening to yourself? Why are you artificially restricting to only ideas and viewpoints? Also plenty of potential copyright infringement absolutely is expressing ideas or viewpoints.

                  I don't really see how you justify to yourself that this would not be censorship. I. Read your posts about differing opinions on scope, and my conclusion is that your narrowed scope definition is bullshit to help you sleep at night.

                  Any and all suppression or removal of any and all forms of speec, by anyone, is censorship. The first amendment is supposed to mean the government cannot do this, in most cases. There are socially acceptable forms of censorship that we deem worth the trade off (direct threats, fire in theater, etc). That is still censorship, its just a form we accept.

                  Trying to argue otherwise is just clouding the discussion, which should be: do we consider censorship for enforcing copyright acceptable?

                   

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          abc gum, Dec 30th, 2011 @ 1:37pm

          Re: Re: Re:

          Is the broad/narrow word definition similar in scope to the high/low court?

          One definition of some, the other definition for all others.

           

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            average_joe (profile), Dec 30th, 2011 @ 2:07pm

            Re: Re: Re: Re:

            Not really. The difference is well settled. Simply put, if the regulation controls what you can say, then that's a content-based restriction and that's "censorship" under anyone's definition. If the regulation controls not what you say, but only where, when, or how you can say it, then that's "censorship" only under Mike's broad definition.

            Another example: Say I want to hold a rally in a public park and I want to use a sound system. If the city has a noise ordinance, then I can't amplify the sound above a certain level. Smith would reasonably say that's not "censorship," but Mike would say (whine) that it is. I think it's fair to say that most people would not agree with Mike that such a noise ordinance is "censorship."

             

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              Larry, Dec 30th, 2011 @ 2:46pm

              Re: Re: Re: Re: Re:

              Bore. You bore me. Obtuse for a reason I suppose but I'll be dammed if I can figure out why.

              Don't quite understand any of this do you? Yeah, freedom of assembly does NOT mean that you can assemble on my lawn or play music at 140db after 1000 at night (location dependent)

              The Bill of Rights don't really guarantee you anything. Rather, it JUST guarantees you (and me and us) that the fucking GOVERNMENT can't take said rights from you.

               

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                average_joe (profile), Dec 30th, 2011 @ 3:09pm

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

                But the government can and does restrict your exercise of free speech rights by controlling the time, place, or manner of it. In my example it was the government saying that you can't express yourself above a certain sound level. I think most people would agree that such restrictions aren't generally thought of as "censorship," but Mike is certainly entitled to define the term broadly so that it is. I'm not being at all obtuse. If you think the "fucking GOVERNMENT can't take said rights from you," you're just wrong. They can and do so all the time. Free speech does not mean speech that is completely free. It's not absolute, and it never has been.

                 

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                  TtfnJohn (profile), Dec 30th, 2011 @ 6:46pm

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

                  Telling me to turn down the megaphone isn't restricting my right to free speech. It might make it harder to hear me at the back but it doesn't stop me from saying what I want to say. Having a regulation saying I have to register to use that part of the park at a given time in the say is not censorship it's common sense so that two different groups don't show up at the same time. So I book my time like a good lad, say my peace and go home. No censorship, narrowly or broadly defined has occurred. Even if I have to turn down my megaphone.

                  Of course you're right where the speech become dangerous and criminal such as yelling fire in a crowed theatre but to equate that with ANYTHING under discussion here simply doesn't hold.

                  Smith wants the definition "narrowed" so that he can avoid the slippery slope argument. But that's a hard definition to hold to when even the right wing, normally copyright purist Heritage Foundation disagrees with that narrow definition and agrees with Mike's "wide" definition.

                  It's hard to see why you'd defend Smith unless, as I already know, you agree with him. That's cool. But there is no such animal as narrow or wide "censorship". It's censorship or it's not.

                  Even then, how it applies to Google, Bing, Yahoo or any other search engine is beyond me. They just index what's already there. Same way you can find places that offer "massages" in your yellow pages.

                  And it's not just Google that operators of these sites place ads on, it's Bing (Microsoft/Doubleclick) as well. So why's Smith not whining about them?

                  Or does he think ALL Web advertising is tied to Google somehow? (And do you?????)

                  If you want to recast the discussion it's one between justifiable censorship and censorship that's unjustified. The US Constitution and Bill of Rights starts from the presumption that censorship is always unjustified.

                  Now then. You and Rep. Smith convince me, and others, that it is in this case and stop with the diversionary semantics.

                  I suggest you get on it cause that's an argument you're both losing.

                   

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                  Anonymous Coward, Dec 31st, 2011 @ 8:48am

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

                  Quote:
                  But the government can and does restrict your exercise of free speech rights by controlling the time, place, or manner of it. In my example it was the government saying that you can't express yourself above a certain sound level.


                  That is exactly why people call it censorship, trying to dress it any other way is disingenuous, there are things people don't complain about it and the government can generally speaking get away with a lot and I mean a lot, they wait until something starts to get out of hand to back down, maybe that is a good thing since only the things that people really care about it and believe they can live without it are prioritized, but still it is censorship and people go to jail for it and break the law, so which makes it even more significant, because when a lot of people break the law and with full knowledge that it is against it, then you can't just pretend it is right because the law says so.

                  See the OWS, they broke a lot of city ordinances, they got a lot of people arrested, did it stop others from protesting in the lawn?
                  Nope.

                  You seem to believe that if the law says so it is the word of God or something, I feel sorry for you trying to change the minds of others to stop the certain backlash copyidiots will suffer eventually.

                   

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              Karl (profile), Dec 30th, 2011 @ 3:15pm

              Re: Re: Re: Re: Re:

              Smith would reasonably say that's not "censorship," but Mike would say (whine) that it is.

              Well, Mike hasn't said that yet.

              And, no, suppressing infringing speech (especially ex parte) is not a "time or place" restriction. It is suppressing speech because of its content. That may not make it truly "content based" in a Constitutional sense, but there's no way it's truly "content neutral," either.

              For example: generally speaking, "content neutral" restrictions are only constitutional if that same speech is allowed at other times or places; there has to be an alternate venue. That's not the case at all with laws against infringing speech.

              But, of course, you know all this. We've discussed it before, and I know that you've read the case law. That just means you're being disingenuous, because you want to insult Mike. Not really much of a surprise there.

               

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                average_joe (profile), Dec 30th, 2011 @ 3:26pm

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

                I've read the caselaw and actually understood it, unlike you. Sorry, Karl, but I'm up to going through it again with you.

                 

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                  Anonymous Coward, Dec 31st, 2011 @ 8:50am

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

                  I doubt it, more than once people had to correct you here.
                  That is not to say you are dumb, but that you like anybody else is subject to failure too.

                   

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              Travis, Dec 30th, 2011 @ 5:42pm

              Re: Re: Re: Re: Re:

              The problem with this legislation is that it doesn't specifically block infringing materials on a site, it blocks the entire site, or funding to a site (including any and all, no matter how significant, protected speech) without any due process. This is a clear and egregious violation of the 1st and 6th Amendments. This would Appear to be content-based, but would actually be content-neutral (using your own definition). All it would take to get a 100% original, protected speech site completely blocked from access by everyone in the world is a single accusation by someone who disagrees with the speech. For this legislation to pass even a cursory constitutional exam: it needs to be much more narrowly targeted, remove the "Private right of action" entirely, and include appropriate penalties (perjury at the very least, as suggested by a significant portion of the ABA) for those who try to abuse it.

               

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          Vincent Clement (profile), Dec 30th, 2011 @ 2:17pm

          Re: Re: Re:

          And you still miss - and avoid discussing - the main point of that paragraph. Let's not talk about the main issue - is this a valid form of censorship. Instead, let's talk about the broad versus narrow definition of censorship. Classic redirect.

           

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            average_joe (profile), Dec 30th, 2011 @ 3:04pm

            Re: Re: Re: Re:

            I'm not avoiding anything. I chose to focus on the issue of whether Mike is correct in claiming that Smith is being intellectually dishonest by saying it's not censorship. You're bringing up a separate topic. If you want to focus on that point, go right ahead. No need for redirection, just direct the conversation to that other point.

             

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              Anonymous Coward, Dec 31st, 2011 @ 8:52am

              Re: Re: Re: Re: Re:

              Than you are trying to cover for a liar(scumbag major Lamar) and should receive all the complements that society reserves for such people.

               

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          Karl (profile), Dec 30th, 2011 @ 2:24pm

          Re: Re: Re:

          Mike is defining it broadly, as are you, to include any government restriction on speech. Smith is defining it narrowly to include only government restriction on speech based on the content of that speech, i.e., the ideas being conveyed.

          Here's the problem: blocking speech because of accusations of infringement meets both definitions.

          Copyright is indeed tricky, legally speaking. It is not a "content-neutral" speech restriction, because its restriction depends entirely on the contents of that speech. Nor is it what is commonly defined as a "content-neutral" restriction in law, that is, a "time or place" restriction.

          On the other hand, the content itself isn't outlawed. In fact, it is encouraged; that's the theory behind copyright protections - to provide a financial incentive for creating more of such speech.

          There's a huge debate within legal circles about whether copyright is a content-based or content-neutral regulation. The Supreme Court never weighed in on the matter, so it's still being debated. I think it's somewhere in between, but much closer to content-based than content-neutral.

          But that is also why, if the speech is ultimately not infringing, yet is still blocked, it is censorship in the worst form of the word. It is blocking the exact form of speech that is not just allowed, but encouraged.

          And since the purpose of copyright is to encourage the greater use of those works, it is acting against the entire reason copyright exists in the first place. Putting works under copyright is supposed to encourage licensing, not injunctions. (That's why we have things like statutory licensing rates.)

          That point gets lost in all this talk about "piracy" and "rogue sites," but it's worth remembering.

           

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            average_joe (profile), Dec 30th, 2011 @ 3:44pm

            Re: Re: Re: Re:

            There's a huge debate within legal circles about whether copyright is a content-based or content-neutral regulation. The Supreme Court never weighed in on the matter, so it's still being debated. I think it's somewhere in between, but much closer to content-based than content-neutral.

            That's simply not true, and I see little point in going through it with you again. Let me just point you to a few things:
            To be certain, copyright's potential for burdening speech has long been recognized in U.S. case law, legislation, and commentary. Nevertheless, courts have almost never imposed First Amendment limitations on copyright, and most have summarily rejected copyright infringement free speech defenses. In almost every instance, courts have assumed that First Amendment values are fully and adequately protected by limitations on copyright owner rights within copyright doctrine itself. They have posited accordingly that “copyrights are categorically immune from challenges under the First Amendment.”
            Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 Stan. L. Rev. 1, 2-4 (2001).

            Now, you and I both know that the Supreme Court in Eldred said that the court of appeals went too far when they said that "copyrights are categorically immune" from First Amendment challenges. And then the Supreme Court went on to apply rational basis scrutiny to the CTEA. Not intermediate scrutiny, like they would have applied if the CTEA were content-neutral, and certainly not strict scrutiny, like they would have applied if the CTEA were content-based. So, yeah, the Court said that the CTEA doesn't get a free pass because it has to pass mere rational basis scrutiny (which is the most deferential review possible).

            Scholars certainly argue normatively that copyright should be considered to be content-based, but that's not a descriptive portrayal of how courts actually view the matter. You and others might think that copyright should be content-based, but what you can't do is point to a single court that has ever held is.

             

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              Anonymous Coward, Dec 30th, 2011 @ 3:58pm

              Re: Re: Re: Re: Re:

              I thank the gods that the internet is global.

               

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              Karl (profile), Dec 30th, 2011 @ 5:32pm

              Re: Re: Re: Re: Re:

              Scholars certainly argue normatively that copyright should be considered to be content-based, but that's not a descriptive portrayal of how courts actually view the matter. You and others might think that copyright should be content-based, but what you can't do is point to a single court that has ever held is.

              I sure can:
              When the RTC first approached the Court with its ex parte request for the seizure warrant and Temporary Restraining Order, the dispute was presented as a straight-forward one under copyright and trade secret law. However, the Court is now convinced that the primary motivation of RTC in suing Lerma, DGS and The Post is to stifle criticism of Scientology in general and to harass its critics. [...]

              Although the RTC may attempt to argue that "any public interest in obtaining information through media sources ... does not supersede the rights of a copyright owner," Emergency Motion at p. 44, copyright law, the First Amendment, and the fair use doctrine prove this is not always the case. [...]

              For the reasons mentioned above, RTC's Motion for Preliminary Injunction against defendants Lerma and Digital Gateway Systems is DENIED and defendant Lerma's Motion to Vacate the Writ of Seizure is GRANTED.
              - RTC v. Lerma

              So the court, in at least this case, acknowledged that copyright injunctions can be a content-based restriction, and thus unconstitutional under the First Amendment.

              There's also Suntrust v. Houghton Mifflin:
              In this case, we have found that to the extent Suntrust suffers injury from TWDG 's putative infringement of its copyright in GWTW, such harm can adequately be remedied through an award of monetary damages.   Moreover, under the present state of the record, it appears that a viable fair use defense is available.   Thus, the issuance of the injunction was at odds with the shared principles of the First Amendment and the copyright law, acting as a prior restraint on speech because the public had not had access to Randall's ideas or viewpoint in the form of expression that she chose.

              We VACATE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.[Emphasis mine.]

              So, copyright injunctions can be a prior restraint on speech, and a violation of the First Amendment - because it restricts the content of the speech ("Randall's ideas or viewpoint").

              Of course, this doesn't mean that all copyright cases are "content-based" in the First Amendment sense; but it does mean that they can be in individual cases.

              Furthermore, as you're aware, Eldred did not even consider the issue of whether new copyright laws must pass strict, intermediate, or rational basis scrutiny. They were only dealing with whether the extension to copyright laws which already had a hundred years of case law to bring it in line with the First Amendment, would need to pass additional strict, intermediate, or rational basis scrutiny:
              We recognize that the D. C. Circuit spoke too broadly when it declared copyrights “categorically immune from challenges under the First Amendment.” 239 F.3d, at 375. But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary. [Emphasis mine.]

              That is not the case with either PROTECT IP nor SOPA, which would grant the government unhindered powers to blacklist websites ex parte.

              And, as again I'm sure you know, such schemes are unconstitutional, even in cases of child pornography:
              The two filtering methods used by the ISPs to comply with the Informal Notices and the court order – IP filtering and DNS filtering – both resulted in overblocking. [...]

              Although there are strong arguments for the application of strict and intermediate scrutiny, the Court need not choose between the two because, even under the less demanding standard – intermediate scrutiny – the Act does not pass Constitutional muster. Under O’Brien, a regulation must further an important government interest unrelated to the suppression of free expression and the incidental restriction on First Amendment freedoms must be no greater than is essential to the furtherance of that interest. O’Brien, 391 U.S. at 377. The government has the burden of proving that the "regulation will in fact alleviate [the] harms [addressed by the regulation] in a direct and material way," Turner, 512 U.S. at 664, and it has not met that burden in this case. In addition, the Act suppresses substantially more protected material than is essential to the furtherance of the government’s interest in reducing child sexual abuse. [...]

              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 on the Internet from circulation. Alexander v. United States, 509 U.S. 544 (1993) ("The term 'prior restraint' describes orders forbidding certain communications that are issued before the communications occur.") 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 (U.S. 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. [...]

              Based on the decision in Bantam Books and Fort Wayne Books, this Court concludes the procedural protections provided by the Act are inadequate. 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. [...]

              For the foregoing reasons, plaintiffs' Motion for Declaratory Relief and Preliminary and Permanent Injunctive Relief is granted. Pennsylvania’s Internet Child Pornography Act, 18 Pa. Stat. Ann. Sec. 7621-7630 and the Informal Notice process used by defendant to implement the Act are declared unconstitutional.

              Please note that the material itself had no constitutional protection whatsoever (they agreed with Aliance v. FCC that "No Internet speaker has a right to engage in these forms of speech, and no Internet listener has a right to receive them"). Despite this fact, the Pennsylvania web-blocking scheme, which was even milder than the ones proposed in SOPA an PROTECT IP, was unconstitutional under the First Amendment.

              It was censorship. Just like these bills are censorship.

               

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                Anonymous Coward, Dec 30th, 2011 @ 9:03pm

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

                RTC v. Lerma *** So the court, in at least this case, acknowledged that copyright injunctions can be a content-based restriction, and thus unconstitutional under the First Amendment.

                I just read the whole RTC v. Lerma opinion, and not once is the First Amendment even mentioned. It makes no sense to give me this case as an example of a court holding that a copyright law is content-based under First Amendment analysis since the court never even mentions the First Amendment.

                There's also Suntrust v. Houghton Mifflin: *** So, copyright injunctions can be a prior restraint on speech, and a violation of the First Amendment - because it restricts the content of the speech ("Randall's ideas or viewpoint").

                Again, the court there did not find a copyright law to be content-based and thus subject to strict scrutiny. The reason the preliminary injunction didn't issue in that case is because there was no irreparable harm and the court found that the fair use defense had a likelihood of success. The court never said that copyright laws are content-based and subject to strict First Amendment scrutiny.

                Furthermore, as you're aware, Eldred did not even consider the issue of whether new copyright laws must pass strict, intermediate, or rational basis scrutiny. They were only dealing with whether the extension to copyright laws which already had a hundred years of case law to bring it in line with the First Amendment, would need to pass additional strict, intermediate, or rational basis scrutiny *** That is not the case with either PROTECT IP nor SOPA, which would grant the government unhindered powers to blacklist websites ex parte.

                The petitioner in Eldred asked the court to find that the CTEA was a content-neutral regulation of speech (not even a content-based regulation like you're saying), and the Court refused to find even that. Indeed, as long as a copyright law does not change the traditional contours of copyright protection, that law gets rational basis scrutiny. Not intermediate scrutiny, and certainly not strict scrutiny like you're saying they should get.

                I completely disagree with you that SOPA and PROTECT IP change the traditional contours of copyright protection. You're looking at cases where there's a solid fair use (or other) defense. The First Amendment analysis is different for that than for websites that are dedicated to infringement (with no viable fair use defense, i.e., consumptive infringement).

                Your long quote from Pappert doesn't apply. The problem in Pappert was that the procedural safeguards were inadequate. That's not the case with SOPA and PROTECT IP where the procedural safeguards are extensive.

                You might want to read Copyhype for info on your content-based claim: http://www.copyhype.com/2011/05/responding-to-sellars-copyright-and-content-based-regulations/

                 

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                  Karl (profile), Dec 31st, 2011 @ 6:01am

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

                  I just read the whole RTC v. Lerma opinion, and not once is the First Amendment even mentioned.

                  The judge mendtioned the First Amendment in the very passage I quoted! True, the judge overturned the order on the basis of "unclean hands." However, why they were "unclean" is very specific: it was a copyright claim that was designed "to stifle criticism of Scientology in general and to harass its critics." This is a classic content-based prior restraint.

                  [r.e.: Suntrust v. Houghton Mifflin] The court never said that copyright laws are content-based and subject to strict First Amendment scrutiny.

                  The court said that this particular injunction would be a prior restraint on expression. It's hard not to put that in the context of the First Amendment.

                  And, no, neither one said copyright law in general is content-based, which is why I specifically said they didn't. On the other hand, no court has ever said they are content-neutral, either. That includes the Supreme Court:

                  Indeed, as long as a copyright law does not change the traditional contours of copyright protection, that law gets rational basis scrutiny.

                  But whether that law does, in fact, change the traditional countours of copyright protection, may in fact necesitate deeper scrutiny than rational basis scrutiny. The court was focused on one very narrow issue; an extension to a law that already had passed over a century of First Amendment scrutiny. It's a mistake to think that it applies to any other change in copyright law - including procedural changes, which SOPA and PROTECT IP fundamentally alter.

                  It's also noteworthy to mention that the Supreme Court agreed to hear Golan v. Holder, where Congress put public domain works back under copyright. They would not do that unless they believed there was a significant First Amendment question that they didn't answer in Eldred. If even this law might change "the traditional contours of copyright protection," what does this say about a law that allows ex parte blacklisting of entire websites, protected expression and all?

                  I completely disagree with you that SOPA and PROTECT IP change the traditional contours of copyright protection. You're looking at cases where there's a solid fair use (or other) defense.

                  Under SOPA and PROTECT IP, you could not raise a fair use defense. Nor could you raise a DMCA defense, nor the defense that the content was in fact authorized. You could not raise any defense whatsoever before the sites were blacklisted.

                  That is certainly a fundamental change from traditional copyright cases, where by and large, the accused at least gets a judicial hearing prior to any injunctions or restraining orders.

                  Your long quote from Pappert doesn't apply. The problem in Pappert was that the procedural safeguards were inadequate.

                  SOPA and PROTECT IP have no more procedural safeguards than Pappert did. Furthermore, both cast the net much wider than Pappert, implicating not only ISP's, but search engines, advertisers, and financial providers. If the procedural safeguards in Pappert were inadequate, then the "safeguards" in SOPA and PROTECT IP are certainly inadequate as well.

                  You might want to read Copyhype

                  Hart is not the most reliable source on these matters. He is unabashedly pro-copyright, which makes his analysis suspect at best, and flawed at worst. His views are definitely in the minority among legal circles. It's also worth mentioning that he is not yet a practicing lawyer, and has never seen the inside of a courtroom, much less argued a copyright case before a judge or jury.

                  All of this is fairly well known. It's rather telling that he is your go-to guy on copyright issues, and not, say, Nimmer and Nimmer, Paul Goldstein, Eugene Volokh, Eric Goldman, Mark Lemley, or even Lawrence Lessig, all of whom have far more experience and knowledge than Hart.

                   

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                    average_joe (profile), Dec 31st, 2011 @ 6:47am

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

                    And, no, neither one said copyright law in general is content-based, which is why I specifically said they didn't. On the other hand, no court has ever said they are content-neutral, either.

                    Now you're moving the goal posts. I said: "You and others might think that copyright should be content-based, but what you can't do is point to a single court that has ever held is." To which you said: "I sure can." But then you didn't, and none of the cases you pointed to had a court saying that copyright was a content-based regulation of speech. And you're wrong in saying that "no court has ever said they are content-neutral, either." You might want to research that one.

                    what does this say about a law that allows ex parte blacklisting of entire websites, protected expression and all?

                    Can you point to the sections of SOPA and PROTECT IP that you think provide for ex parte blacklisting?

                    Under SOPA and PROTECT IP, you could not raise a fair use defense. Nor could you raise a DMCA defense, nor the defense that the content was in fact authorized. You could not raise any defense whatsoever before the sites were blacklisted. That is certainly a fundamental change from traditional copyright cases, where by and large, the accused at least gets a judicial hearing prior to any injunctions or restraining orders.

                    Again, what sections are you talking about? We'll take a look.

                    SOPA and PROTECT IP have no more procedural safeguards than Pappert did.

                    Huh? SOPA and PROTECT IP have tons of procedural safeguards that didn't exist in Pappert.

                    Hart is not the most reliable source on these matters. He is unabashedly pro-copyright, which makes his analysis suspect at best, and flawed at worst. His views are definitely in the minority among legal circles. It's also worth mentioning that he is not yet a practicing lawyer, and has never seen the inside of a courtroom, much less argued a copyright case before a judge or jury.

                    LMAO! His research is thorough and he backs up what he says with citations. And notably, you aren't even trying to rebut what he says. You're just attacking him personally. That's probably your best attack because you could NEVER hold your own against him on the merits.

                    All of this is fairly well known. It's rather telling that he is your go-to guy on copyright issues, and not, say, Nimmer and Nimmer, Paul Goldstein, Eugene Volokh, Eric Goldman, Mark Lemley, or even Lawrence Lessig, all of whom have far more experience and knowledge than Hart.

                    LOL! I'll use anybody as a source if they're writings are descriptive and not normative. Otherwise, they're just telling us their version of how the law should work in their alternate universe instead of telling us the status quo of the law in the real world. But again, you aren't rebutting anything Terry has said about content-based regulations, and you would be wise to read Terry's article and learn from it since it's extremely obvious how confused you are about it. I know you're smart and will pick it up quickly.

                     

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                      Karl (profile), Dec 31st, 2011 @ 5:27pm

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

                      Now you're moving the goal posts. I said: "You and others might think that copyright should be content-based, but what you can't do is point to a single court that has ever held is."

                      That may be a misunderstanding, but it is not moving the goalposts. You appeared to be saying that copyright has never been deemed to be a content-based restriction on speech, and I pointed to two cases where the courts said it was in those specific cases.

                      There are other court cases that have also ruled that specific laws related to copyright are content-neutral (e.g. CBS v. EchoStar). But these courts did not say that copyright laws in general are content-neutral.

                      The situation is that you have some cases where the courts said only those specific laws were content-neutral, and some cases where only those specific cases were content-based. This is the problem: copyright law in general does not really fit in either category. Certain laws and certain cases can be one or the other.

                      But you can't just apply the same level of scrutiny to every copyright law, and you certainly can't excuse SOPA or PROTECT IP merely by claiming they're copyright laws, and thus somehow exempt from some inconvenient level of First Amendment scrutiny.

                      Can you point to the sections of SOPA and PROTECT IP that you think provide for ex parte blacklisting?

                      What, seriously? All of them, basically. All of the actions the A.G. is allowed to take are done before the accused site has a chance to respond. It must serve notice to the allegedly rogue site, but that site does not have a chance to respond before it is blacklisted.

                      In SOPA (the Manager's Amendment), it's all covered in Sec. 102. In PROTECT IP, it's in Sec. 2. Pay attention to the phrase "On application of the Attorney General following the commencement of an action under this section." That is the point at which service providers, search engines, and financial transaction providers are required, under threat of liability and damages, to cut off the "rogue sites." At that point, the accused sites have not had any chance whatsoever to reply to the charges.

                      The only chance to reply is in Sec. 2(f) of PROTECT IP, or Sec. 102(d) of SOPA. Both of those state that motions to modify or vacate the blacklist orders may only occur "At any time after the issuance of an order under subsection (b)" (weirdly, and perhaps not coincidentally, it's the same subsection in both bills).

                      So, yeah, the whole shebang is done ex parte.

                      In fact, the whole process is pretty much identical to the Pennsylvania web-blocking scheme, except that it doesn't merely apply to ISP's, but to pretty much every internet-related business. Pay special attention to the court's reasoning in CDT v. Pappert, and then ask yourself: why wouldn't this also apply to SOPA and PROTECT IP?

                      His research is thorough and he backs up what he says with citations. And notably, you aren't even trying to rebut what he says.

                      I've personally argued on here with Hart before, and frankly, it's tiresome. For fuck's sake, the guy actually believes that Arcara applies to copyright cases, which is just insane. I could do it if you want, though. But a lot of it is just rehashing the same stuff I just said to you about things like the CTEA.

                      I'll use anybody as a source if they're writings are descriptive and not normative.

                      You can't have "descriptive" writings if you're writing about something no court has ever actually decided.

                      On a different note, happy New Year. I think one of my resolutions is going to be: stop wasting time arguing on the internet.

                       

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                        average_joe (profile), Dec 31st, 2011 @ 6:10pm

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

                        That may be a misunderstanding, but it is not moving the goalposts. You appeared to be saying that copyright has never been deemed to be a content-based restriction on speech, and I pointed to two cases where the courts said it was in those specific cases.

                        It is a misunderstanding. The court is those cases did not hold that a copyright law was content-based and subject to strict scrutiny. Those courts weren't even looking at the constitutionality of a copyright law. That's where you're misunderstanding things. I'm talking about a court considering the law itself, not somebody simply making a copyright claim of some sort.

                        The situation is that you have some cases where the courts said only those specific laws were content-neutral, and some cases where only those specific cases were content-based. This is the problem: copyright law in general does not really fit in either category. Certain laws and certain cases can be one or the other.

                        That's not what's happening. You need to distinguish between when the court is applying a copyright law, and when the copyright law itself is being challenged. When the court is applying a copyright law, they aren't considering it to be content-based like you're saying. "Content-based" analysis only makes sense when the law itself is being analyzed under the First Amendment. I hope that makes sense.

                        What, seriously? All of them, basically. All of the actions the A.G. is allowed to take are done before the accused site has a chance to respond. It must serve notice to the allegedly rogue site, but that site does not have a chance to respond before it is blacklisted.

                        I see what you're talking about. You're using the word ex parte incorrectly. Ex parte means the other side isn't even invited, not that they're invited and don't show up. Ex parte is when the other side is not given notice. With SOPA and PROTECT IP, the actions are governed by the Federal Rules of Civil Procedure and their own notice provisions. There is more than adequate notice provided for in each. If adequate notice is given and the other side doesn't show up, that's not an ex parte proceeding. It's all of the possibilities for notice and hearings that make the bills comport with the Due Process Clause and the First Amendment. That's what makes this nothing like Pappert. I don't care if you think these bills are unconstitutional, but the fact is you don't know what you're talking about and you're very confused about much of this.

                        So, yeah, the whole shebang is done ex parte.

                        No it's not at all, and you simply have no idea what you're talking about.

                        From Black's Law Dictionary: "ex parte, adj. (17c) Done or made at the instance and for the benefit of one party only, and without notice to any person adversely interested; of or relating to court action taken by one party without notice to the other, usu. for temporary or emergency relief"

                        You can't have "descriptive" writings if you're writing about something no court has ever actually decided.

                        You're right. That would be a predictive argument.

                        On a different note, happy New Year. I think one of my resolutions is going to be: stop wasting time arguing on the internet.

                        Happy New Year to you as well. Sounds like a good resolution. Good luck!

                         

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                          Karl (profile), Dec 31st, 2011 @ 7:26pm

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

                          You're using the word ex parte incorrectly. Ex parte means the other side isn't even invited, not that they're invited and don't show up.

                          Perhaps I am using the term wrong. That does not make it any more procedurally sound. This isn't a case where they're given a date to reply, and if that date passes, then they can be blacklisted.

                          The A.G. can send out notices to ISP's, search engines, financial transaction providers, and advertisers within hours or minutes of initiating the lawsuit. No opportunity is given for the sites to reply in any way, either to the courts or to the ISP's et al, until after the A.G. issues the blacklist orders. This is black-letter law in these bills.

                          It's not that they "don't show up," it's that they're not allowed to show up. Not before they're blacklisted, at least.

                          In this, it is exactly like the provisions in Pappert. Somehow I doubt that shooting an email to the accused sites would have made Pappert any less unconstitutional.

                           

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                            average_joe (profile), Dec 31st, 2011 @ 8:04pm

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

                            The A.G. can send out notices to ISP's, search engines, financial transaction providers, and advertisers within hours or minutes of initiating the lawsuit. No opportunity is given for the sites to reply in any way, either to the courts or to the ISP's et al, until after the A.G. issues the blacklist orders. This is black-letter law in these bills.

                            Looking at Section 103(b)(3) of SOPA 2.0: http://judiciary.house.gov/hearings/pdf/HR%203261%20Managers%20Amendment.pdf

                            It does say that "the court may issue a temporary restraining order, a preliminary injunction, or an injunction, in accordance with rule 65 of the Federal Rules of Civil Procedure." So you're right, there is in fact the possibility of ex parte action. I thought you were talking about the sections they cut out, so that's why I was asking what sections you were looking at... Anyway, yes a TRO is an ex parte proceeding. But the plaintiff cannot get that TRO unless they can show that waiting for notice and a hearing would cause them great harm. I doubt a TRO would issue in a regular case, and even if one does, it's only good for 14 days (with a chance to renew for another 14, I think).

                            If you think the possibility of a TRO means this violates the Constitution, then I'm just not seeing it. That's the same as finding one of the Rules themselves unconstitutional (which has never happened). And it's not like Pappert because the process there was insufficient. The blocking going on there wasn't happening in the adversarial conditions that these cases would be brought. Apples and oranges. Actions under SOPA and PROTECT IP have all the procedural safeguards of a standard federal civil trial. It's ludicrous to say that process is insufficient since that's the process all civil cases in federal courts get.

                             

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                              Karl (profile), Dec 31st, 2011 @ 11:54pm

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

                              Anyway, yes a TRO is an ex parte proceeding. But the plaintiff cannot get that TRO unless they can show that waiting for notice and a hearing would cause them great harm.

                              This goes far beyond what is allowed under Rule 65. The A.G. may issue blacklist orders to third parties, immediately after initiating the lawsuit, something that would never in a million years be allowed under Rule 65.

                              On the other hand, the lack of ability to allow accused websites to defend themselves are black-letter law in these bills. Moreover, the procedural safeguards from Rule 65 are directly contradicted in these bills, in the parts I've already quoted (2(f)/102(d)), which state as a matter of black-letter law that accused websites can only defend themselves after the blacklist orders have already been issued.

                              The references to Rule 65 is pretty obviously low-level procedural concerns; rules about where to send paperwork and so forth. Put it this way: if these bills pass, and the A.G. acted exactly as I said he would, do you honestly believe a judge would throw out the blacklist?

                               

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                                average_joe (profile), Jan 1st, 2012 @ 7:32am

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

                                This goes far beyond what is allowed under Rule 65. The A.G. may issue blacklist orders to third parties, immediately after initiating the lawsuit, something that would never in a million years be allowed under Rule 65.

                                You say that so confidently, but I suspect you haven't researched the point. Rule 65 can bind third parties. See Rule 65(d)(2)(C). I haven't read much about the extent of this, i.e., what exactly it means to be "in active concert or participation" with the defendant, but I don't think it's nearly as neat and simple as you think. I have a list of legal points to look up, and this is actually already on my list as something to learn more about. If you have specific information from caselaw that shows Rule 65 cannot bind payment processors and such, then I'd certainly like to hear the arguments. Maybe you're right!

                                http://www.law.cornell.edu/rules/frcp/rule_65

                                By the way, I see I was remembering it correctly: A TRO is for at most 14 days plus another 14 day extension for good cause. See Rule 65(b)(2).

                                 

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      honestly, Jan 2nd, 2012 @ 10:24am

      Re:

      *you both just define the word censorship differently*

      just like every other athoritarian douch AJ. your really bad at this you know that?

       

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    Karl (profile), Dec 30th, 2011 @ 12:19pm

    The new red-headed stepson

    It boggles the mind that Google, of all entities, should be the new whipping boy on Capital Hill.

    They are certainly wealthy, and certainly not without their problems. But by and large, they have made their money in a more moral fashion than nearly every other corporation on the planet. (Admittedly, that's not saying much.)

    They've done more to stimulate the economy than the entire entertainment industry, for one thing. Not only do they hire more workers (and pay them better), but they've enable far more independent industries that build off their services than anyone in the MPAA or RIAA.

    That includes artists themselves. YouTube alone has created an entire middle class of artists that could not have existed under the old industry models (see Maker for just one example). They've also gone consistently above and beyond what is required by law to prevent copyright infringement (e.g. the ContentID system).

    The only reason I can see for this, is that they are big enough to be a threat to IP maximalists. They are not afraid to stand up for their own, and ordinary citizens', rights against the legacy content industries, and they have enough money to make them angry.

    So, that industry paints them as "rogue," as a business that "makes money from piracy," and then tries to pay Congress to come down on them. You don't just see it in the comments here; you see diatribes against them on the RIAA's official blog, and Hilary Rosen has directly said Google profits from "rogue sites." It's really quite sickening.

    Even so, Congress shouldn't buy it. I'd like to think it's some type of simple ignorance, but I am starting to lean towards "codeslave's" viewpoint, that targeting them is simply a way for certain Congressmen to get them to bribe them - er, sorry, contribute to their campaigns.

    But above all else, it shows just how little SOPA and PROTECT IP are about "piracy." Google is not a pirate site, and they shouldn't have to shoulder a single dime to enforce others' copyrights. The fact that they are being singled out as an entity that should shoulder this burden, says a lot about the bills.

     

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      demented, Dec 30th, 2011 @ 7:38pm

      Re: The new red-headed stepson

      "YouTube alone has created an entire middle class of artists that could not have existed under the old industry models"

      And that's why the MAFIAA hates the Web. They hate that star making power and popularity are no longer theirs to control, and their cash no longer exclusively determines who gets watched.

      In short, it takes away some of their influence and control over the "sheep." And they will gladly kill our freedoms to get it back.

       

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      Anonymous Coward, Dec 30th, 2011 @ 8:38pm

      Re: The new red-headed stepson

      Google isn't the whipping boy of Capital Hill. It's the whipping boy of Lamar Smith.

      Perhaps Google isn't up to date with him in terms of brib...no, I mean "campaign contributions".

       

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    anonymous, Dec 30th, 2011 @ 12:53pm

    Smith is just a fucking moron! i doubt if he would know where his arse was if he was holding it with both hands! time for him to go, along with those that are in agreeance with him and definitely those who are behind this whole issue!

     

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    Anonymous Coward, Dec 30th, 2011 @ 12:56pm

    Jacobins,

    If SOPA indeed leads to censorship, that will not be concluded by the Techdirt peanut gallery, believe it or not. The courts will have to weigh in (and the sooner the better). We are ruled by law under the constitution, though I know that is an inconvenient fact for many here who prefer to ignore the legal rights of creators when it is convenient for you. Or is that just "innovation" in law? I suppose western civilization should adapt with the times...

    "he specifically cherry picks studies to support his position."

    Funny stuff, Mike.

     

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      Dave, Dec 30th, 2011 @ 1:26pm

      Re:

      Yeah, I'm pretty sure it's best to defeat an immoral law at the first step possible then to wait until later when you have bear the expense of litigating it.

      As for ignoring the rights of creators... we haven't been. We've been bending over backwards to try to accommodate them, but the vast majority of them are always going to be little twitter brats whining about getting the wrong color iPhone. The answer is the same as for the parents of the ingrates on twitter. *Start* ignoring them. Better yet, take away all their other toys, too.

       

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      abc gum, Dec 30th, 2011 @ 1:40pm

      Re:

      Based upon prior court rulings, I'm sure you are correct in your belief that the court will come up with the best decision possible - completely devoid of any bias.

      btw, you interested in the purchase of an antique bridge?

       

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      Anonymous Coward, Dec 30th, 2011 @ 1:42pm

      Re:

      What makes you think that the Internet is under the jurisdiction of your laws?

      In both a theoretical and a practical sense, it's not. Laws are merely obstacles to be engineered around as necessary and/or desirable. And they will be. You can rant and scream and carry on, you can pass bills and you can sue and you can do anything else you want: but those of us who built this network will continue with our work, and we will neatly undo any damage you temporarily inflict.

      Keep in mind that while your elected representatives are so pathetically stupid that they struggle with rudimentary science, math and tech concepts, we've been smart enough to design and build the largest and most successful engineering project in the history of the species. Do you really think we will allow this pack of idiots to impede us?

       

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    Jim Profit, Dec 30th, 2011 @ 1:19pm

    So it's censorship when the government does it, but when websites themselves do it, it's A-okay. I bet you're libertarian too...

    The fact is, the internet is a fucking travesty in it's current state. Nothing but bully moderators dictating who can post at their forums, craigslist con-artists, hackers, trolls, and retarded shit. All government would use the sopa act for is to hold websites legally responsible for the "terms of service" diatribe they spew. They want to act like it's a legally binding contract? Well now it is... no more pretending, no more "violation of terms of service" where facebook or sony can delete your account, and with it all the stuff you paid for.

    This "free market" game hasn't worked for a long time, and is just ripe with abuses, and I for one, am sick of it, and am not going to put up with it anymore. I will defend sopa to my last breath. And no pseudo intellectual ron paul buff is going to convince me otherwise. The only websites that have to worry about this act are big businesses like google, or crooked websites charging for pirated materials like pirate bay. (Charging a fee for freely copied material... that makes sense.)

    THAT's why the internet is roaring like a lion. Because big business is finally being threatened by the state. It's about damn time.

     

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      abc gum, Dec 30th, 2011 @ 1:43pm

      Re:

      Looking at the username, I'm guessing the post is parody.

       

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      Rikuo (profile), Dec 30th, 2011 @ 1:49pm

      Re:

      "Nothing but bully moderators dictating who can post at their forums, craigslist con-artists, hackers, trolls, and retarded shit"

      If that's the only thing you can see on the Internet, then you must be looking at the wrong sites. Take this site, Techdirt, for example. Not once has Mike said who can and cannot post here in the comments. So already, just by being here, your list has been dis proven.

       

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      Anonymous Coward, Dec 30th, 2011 @ 2:02pm

      Re:

      The problem is you are only seeing a small tunnel visioned part of the Internet.....and not even looking at it from other perspectives.

      There are several places on the Internet that are nothing more than a place where like-minded people can hang out and share stories/ideas/things they found. They don't do this for money, they don't do this for fame, it's nothing more than a place for friends that are far away to come together for a little down time between feeding the kids, work, school, homework....etc.

      Sometimes, we find silly, fun, entertaining things, and we share it with these friends. We comment on how silly, goofy, fun, crazy, scary...whatever.....the topic of the day is.

      The problem is you are lumping us in with people that actually do full on copyright infringement. These laws are trying to take the 'coffee shop gathering of friends' and lump us in with 'the guy on the corner with a trench coat full of bogus watches'.

      THAT is why we are fighting back.

      I'm sorry if big media hasn't figured out how to capitalize on social networking. That's not my problem.

      What is my problem is if you think that I am going to sit by and let you pass draconian laws that bypass the constitution, institute a 'guilty before proven innocent' system, and put in censorship in a free society, all to save an industry with a dying business model that refuses to adapt, think again.

       

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      Vincent Clement (profile), Dec 30th, 2011 @ 2:39pm

      Re:

      "The only websites that have to worry about this act are big businesses like google, or crooked websites charging for pirated materials like pirate bay."

      Ask the dead people sued by the entertainment industry for copyright infringement. Or ask Dajaz1 what they think about losing their website for over year without ever being found guilty of anything. Take those rose-colored glasses off.

      BTW, Pirate Bay doesn't have any material, so I'm not sure how it is charging for that material. Do you even know what the Internet is?

       

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    Anonymous Coward, Dec 30th, 2011 @ 1:56pm

    I can't help but to notice - the opponents of SOPA often cite sections of the actual bill in pointing out its many problems. while its supporters just say "does not" over and over and NEVER cite any language of SOPA in support of their positions. Now why would that be?
    I went to his website: http://lamarsmith.house.gov/
    Most of the press releases he cites were written by him.

     

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    Anonymous Coward, Dec 30th, 2011 @ 2:29pm

    Smith for Congress 2012

    He's up for re-election next year. Who is his challenger, and where can I send a campaign donation?

     

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    Jens, Dec 30th, 2011 @ 2:49pm

    First time I read the title I thought, "NO SHIT!" It's obvious he doesn't know anything about the internet, otherwise this retarded bill never would've been written.

     

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    Anonymous Coward, Dec 30th, 2011 @ 3:13pm

    I can't help but to notice - the opponents of SOPA often cite sections of the actual bill in pointing out its many problems. while its supporters just say "does not" over and over and NEVER cite any language of SOPA in support of their positions. Now why would that be?
    I went to his website: http://lamarsmith.house.gov/
    Most of the press releases he cites were written by him.

     

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    Anonymous Coward, Dec 30th, 2011 @ 3:17pm

    I did not realize that Rapidshare has been held by a US court to be "legal". Do you have a citation to the full opinion (not the pre-trial one regarding motions)?

     

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      Karl (profile), Dec 30th, 2011 @ 7:37pm

      Re:

      Do you have a citation to the full opinion

      A judge threw out the request for a TRO in Perfect 10 v. Rapidshare, holding that Perfect 10 did not have a likelihood of success on the merits of its case. They held that Rapidshare was not a direct infringer; was not a contributory infringer; and did not induce infringement. The only thing Rapidshare was dinged on, was for not registering a DMCA agent with the Library of Congress, so wasn't allowed to avail of the DMCA safe harbors (they had an agent, just not registered with the Library of Congress). But even without those safe harbors, they were not liable for infringement.

      The opinion is here:
      http://randazza.files.wordpress.com/2010/05/p10_rapidshare_tro.pdf

       

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        Karl (profile), Dec 30th, 2011 @ 7:39pm

        Re: Re:

        not registering a DMCA agent with the Library of Congress

        er, U.S. Copyright Office, sorry.

         

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          Anonymous Coward, Dec 30th, 2011 @ 8:53pm

          Re: Re: Re:

          In a way you were correct in that the Copyright Office is a unit of the Library of Congress, a setup that enjoys a rather unique status among federal agencies. It is the only one to my knowledge that is located within the legislative branch, and not the executive branch.

          PS - I am the AC who sent you a note complimenting you on your learning curve regarding copyright law.

           

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        Anonymous Coward, Dec 30th, 2011 @ 8:49pm

        Re: Re:

        This is the pre-trial decision on motions that I have already read. It does not declare that what Rapidshare is doing exposes it to no legal liability under copyright and unfair competition law. It only declares that at this stage the plaintiff has not provided sufficient facts during discovery to sustain its burden for securing a preliminary injunction. This is far from adjudicating that Rapidshare if free from all liability. Hence, this is why I asked my question for a citation to an opinion following a merits trial. My recollection is that a trial has not taken place. Hence, no trial decision has been forthcoming. If I am mistaken, then a citation to the trial decision so I can read it would be helpful.

         

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    demented, Dec 30th, 2011 @ 7:15pm

    "Lamar Smith is wrong in almost everything he argues here. "

    Well, that's what you get with a Luddite hick who can be easily bought for a few million.

    Honestly, the stuff he says NEVER CHANGES. It's like he's reading repeatedly from the same script... which he probably is. He never addresses any points except by insisting that everybody is wrong, and then blaming google.

     

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    Anonymous Coward, Dec 30th, 2011 @ 10:54pm

    it's time we the people use the Internet to review every law these idiot-sell-out politicians have before them, AND start writing the new ones ourselves. They have proven time and time and time that they always make things worse and more expensive for the citizens while they just don't give a hoot. Put on a suit and smile for the camera, aahhhh, how adorable isn't he? No he's a menace to the country and the economy, all of them. Who's going to start and run the website where the people write, edit, approve and demand enactment of laws??

     

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    PlateEaze (profile), Dec 31st, 2011 @ 7:33am

    A-L

    Can't we just tip both houses of congress over and empty them out? We've been bludgeoned for years now and clearly there is a problem. The bread is stale.

    Perhaps we start deleting those reps whose last names start with A-L this year and get M-Z next year? You know, today and tomorrow.

    What possible harm could come of it? I can't expect worse at this point.

     

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      demented, Dec 31st, 2011 @ 8:05am

      Re: A-L

      At this point, we could just choose random people with no special political knowledge, and it would turn out better.

       

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    grant avey, Dec 31st, 2011 @ 8:24am

    nuclear option

    SOPA is kind of like. If new York was overrun with cockroaches and we decided we needed to get rid of them, so we drop a nuke on NY. It doesn't kill the cockroaches but it does a whole lot of collateral damage.

     

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    Anonymous Coward, Dec 31st, 2011 @ 9:03am

    One 8.64*E+04 maybe we can all hope things will get better.

    SOPA is bad that is my 2*E-02 cents.

     

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    Justin Olbrantz (Quantam), Dec 31st, 2011 @ 11:26am

    Now This Is a Surprise

    Nintendo, Sony, EA back off of SOPA support

    I must say I did not see this coming.

    When even Nintendo, Sony, and EA, three of the biggest and nastiest anti-piracy crusaders in all of software, don't support SOPA, what does that tell you? Well, basically it tells you that SOPA has pretty much lost all tangible support from the software content industries, and as a result the situation has changed from copyright and patent industries vs. world to RIAA, MPAA, and big pharma vs. world.

     

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    Dora (profile), Dec 31st, 2011 @ 11:46am

    Have you thought of displaying a photo of Lamar Smith? Man LOOKS like he's arrogant, smug, and completely out of touch.

    Dora

     

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    Invisible_Jester89, Jan 2nd, 2012 @ 2:55pm

    Lamar Logic: Oppose SOPA = Support Piracy.

    Despite Microsoft, Apple, and plenty of other companies being totally against both piracy and SOPA.

    It must be nice living in crazyland. Here's your straitjacket and Prozac, Arkham Asylum's that way.

     

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    kenn, Jan 3rd, 2012 @ 2:34pm

    Letting something like SOPA pass is the equivalent of taking a step back in human progress. Future generations will fight more to overturn and break the system, in fact if SOPA passes I think it would be most of the world vs. the part of U.S. Congress who let it pass. U.N. even declares internet access a basic human right.

     

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    Adam, Jan 4th, 2012 @ 9:24am

    "The truth is that the remaining "support" for the bill has been reduced to a few big (but shrinking) companies in a legacy industry who have chosen not to adapt to changing times"


    This is the fundamental issue with copyright laws and anti piracy measures.

    The majority of companies that push them and try get laws passed are those who don't understand how digital distribution works, and as such, they lose sales because they're still living in the 90's.

    Even if SOPA/PIPA is passed - these companies will still die, there's some sad irony that it's the dying words of failed companies that are ruining it for those who have adapted and changed.

     

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    Ian Campbell (profile), Jan 8th, 2012 @ 7:54pm

    Statist politician

    Lamar Smith is a big-government Republican. He repeatedly blocks any attempts to reform the war on cannabis, possibly due to his ties to the Alcohol and Tobacco lobbies. As a person who prefers less government intervention, I fully oppose Lamar Smith. His sponsoring of the notorious SOPA (internet censorship) bill should mark him as a prime target for small-government conservatives in Texas looking to change the status quo.

     

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    Beckley, Jan 10th, 2012 @ 12:37pm

    I agree that SOPA is ridiculous, but I also wonder how it can be both so hard to enforce and so devastating. I get the argument about setting a bad global precedent on internet intervention, but domestically? I need to read up a bit more, I suppose.

     

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