There are a few things that this isn’t: it isn’t the official copy of the code, and lawyers would be ill-advised to cite it alone. It isn’t up-to-date – the council is fast-moving and this is just a snapshot. In time we’ll fix these problems too.

Stretching the ancient doctrine of trespass to chattels to apply to Internet activities has been an experiment in law-making. Unfortunately, I think the experiment has failed completely. The CFAA and state computer crime laws initially were designed to restrict hackers from breaching computer security—a sensible objective that, as I discuss below, should be preserved. The expansion of these laws to cover all sending or receiving of data from an Internet-connected server hasn’t worked...

Indeed, because legal doctrines already overlap so extensively, we almost never see an online trespass to chattels claim asserted on a standalone basis. Instead, an online trespass to chattels claim is usually just one of numerous legal violations asserted against the defendant. These doctrinal overlaps mean we usually don’t need online trespass to chattels either to supplement the more squarely applicable claims or to act as a “gap-filler” to plug the rare and narrow holes left by the other legal doctrines.

1) Repeal most provisions of the CFAA (that don't relate to government-run computers) and preempt all analogous state laws, including state computer crime laws and common law trespass to chattels as applied online. Note: without dealing with analogous state laws, reforming the CFAA is an incomplete solution.

2) Retain only the (A) restrictions on criminal hacking, which I would define as the defeat of electronic security measures for the goal of fraud or data destruction (and some of these efforts are already covered by other laws like the Electronic Communications Privacy Act), and (B) restrictions on denial-of-service attacks, which I would define as the sending of data or requests to a server with the intent of overloading its capacity.

3) Eliminate all civil claims for this conduct, so that only the federal government can enforce violations.

4) Specify that any textual attempts to restrict server usage fail unless the terms are presented in a properly formed contract (usually, a mandatory click-through agreement).

"I intend to work in a bipartisan, bicameral fashion to restore users' ability to unlock their phones and provide them with the choice and freedom that we have all come to expect in the digital era,"

"Consumers shouldn't have to fear criminal charges if they want to unlock their cell phones and switch carriers... Enhanced competition among wireless services is the surest way to increase consumer welfare."

1. Carriers can't actively stop consumers with technological means (unlikely).
2. Carriers can't stop consumers (but which doesn't address manufacturers or others like the DOJ going after you for criminal charges).
3. Facilitate the unlocking by providing the codes upon request? Would they have to give the codes even if you are in contract to not unlock? Doesn't permit mean you are required to period?

The other notable phrase is that "if our laws, frameworks and practices stand in the way of us getting all those benefits [of openness], then maybe they need to be changed". That's of a piece with her earlier frank comments about copyright being "a tool to punish and withhold, not a tool to recognise and reward," and her call for "flexibility in the system, not the straitjacket of a single model."

Given the stony silence from just about everyone in positions of power regarding Aaron Swartz's suicide, it's good that at least one politician had the decency to offer her condolences and admit that there's something seriously wrong with today's approach to sharing knowledge. It would be even better if more of her colleagues came to a similar realization and expressed it with equal honesty.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

At regular intervals—too short for it to even be amusing anymore—we now hear that debates over Internet regulation would be more productive if only people would get it through their thick skulls that the Internet is not some special free-for-all zone. There’s no reason it can or should remain magically exempt from the rules that apply everywhere else (we are reminded) and it is absurd and mysterious that some people (we are assured) believe otherwise.

This is a fair point. But what about all these hippy-dippy Real World anarchists who think meatspace can remain immune to the rules any well-managed virtual community understands to be essential? How is it, for instance, that citizens are physically capable of injuring each other, regardless of whether they’ve opted in to player-versus-player? And what fool designed it so that my image is visible to all other users in the same city, even if we aren’t friends? You’ve even apparently got to jump through a bunch of hoops to get something called a “restraining order” just to implement a simple user block!

What will actually make debates over Internet regulation more productive is universal recognition that the first paragraph is exactly as dumb as the second. (Possibly more so, since the second at least hints at some interesting possibilities.) You cannot implement an analogy. The rules that you’d want to apply if you could make it so just by wishing are not always the rules it is wise or feasible to attempt to actually put in place, once you’ve factored in the probable efficacy of that attempt and its unintended side-effects. Both of these, alas, are determined by annoyingly stubborn “facts” about the nature of the technological context in which you want to enforce the rules.

The Free Internet Act: To promote prosperity, creativity, entrepreneurship and innovation by preventing the restriction of liberty and preventing the means of censorship. FIA will allow internet users to browse freely without any means of censorship, users have the right to free speech and to free knowledge; we govern the content of the internet, governments don't. However enforcements/laws must also be put into place to protect copyrighted content.

"The idea is to aim high," the thread reads. "This is the same strategy employed by SOPA/ACTA pushers. We are aiming absurdly high, so that we can back down and reach a compromise."

1. 1982: Piracy and Counterfeiting Amendments Act: Increased criminal penalties for infringing records, tapes and films from $25k & 2 years in jail to $250,000 and 5 years in jail. Also... made it so that first-time offenders could get the maximum.
2. 1984: Record Rental Amendment of 1984: Outlawed music rentals (have you ever wondered why there were no Blockbusters or Netflixes for music?)
3. 1990: Copyright Remedy Clarification Act: Allowed copyright holders to sue states for copyright infringement (before that, states could claim sovereign immunity)
4. 1990: Computer Software Rental Amendments Act: Outlawed software rentals
5. 1992: Audio Home Recording Act: Mandated DRM on certain digital audio devices (mainly DAT), added a royalty on such devices.
6. 1994: Uruguay Round Agreements Act: Not only did it seize works out of the public domain and put them under copyright (this was what was challenged in the recent Golan case), but it made it a criminal offense to bootleg concerts (audio or video).
7. 1995: The Digital Performance Right in Sound Recordings Act: Created a new "performance" right for copyright holders concerning digital "performances."
8. 1996: Anticounterfeiting Consumer Protection Act of 1996: Expanded racketeering laws to include criminal copyright infringement, as well as "trafficking" in computer software, documentation or packaging, as well as trafficking in movies or audiovisual works. Also let the government seize property associated with these activities (precursor to domain seizures...).
9. 1997: No Electronic Theft (NET) Act: Decreased the threshold for what counts as criminal infringement (such as taking out the monetary profit requirement).
10. 1998: Sonny Bono Copyright Term Extension Act: You should know this one. Expanded copyright terms by 20 years.
11. 1998: Digital Millennium Copyright Act (DMCA): Again, you may have heard of it. Created anti-circumvention rules and the notice-and-takedown system for online infringement, among many other things.
12. 1999: Digital Theft Deterrence and Copyright Damages Improvement Act of 1999: Massively increased statutory damages for infringement
13. 2004: Intellectual Property Protection and Courts Amendments Act: Set up penalties (civil and criminal) for counterfeit labels, documentation and packaging in association with copyrighted goods (yes, separate from the content itself). Also lowered the bar to show willful infringement.
14. 2005: Family Entertainment and Copyright Act: Criminalizes recording of movies in theaters and also lets theaters detain people merely suspected of recording in theaters. Criminalizes releasing a work online before it's been officially released (if it's "being prepared" for commercial distribution).
15. 2008: Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act: Increased civil penalties for infringement. Increased government seizure & forfeiture powers (which is how the government currently justifies its questionable domain seizures) and created a job in the White House to focus on greater enforcement.

The Senators stressed that the Cybersecurity Act of 2012 in no way resembles the Stop Online Piracy Act or the Protect Intellectual Property Act, which involved the piracy of copyrighted information on the internet. The Cybersecurity Act involves the security of systems that control the essential services that keep our nation running—for instance, power, water, and transportation.

• Stop the apocalyptic rhetoric. The alarmist scenarios dominating policy discourse may be good for the cybersecurity-industrial complex, but they aren’t doing real security any favors.
  
  
• Declassify evidence relating to cyber threats. Overclassification is a widely acknowledged problem, and declassification would allow the public to verify the threats rather than blindly trusting self-interested officials.
  
  
• Disentangle the disparate dangers that have been lumped together under the “cybersecurity” label. This must be done to determine who is best suited to address which threats. In cases of cybercrime and cyberespionage, for instance, private network owners may be best suited and have the best incentives to protect their own valuable data, information, and reputations.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

That main issue, we're told over and over again, is "piracy" and specifically "rogue" websites. And, let's be clear: infringement is a problem. But the question is what kind of problem is it? Much of the evidence suggests that it's not an enforcement problem and it's not a legal problem. Decades of evidence from around the globe all show the same thing: making copyright law or enforcement stricter does not work. It does not decrease infringement at all -- and, quite frequently, leads to more infringement. That's because the reason that there's infringement in the first place is that consumers are being under-served. Historically, infringement has never been about "free," but about indicating where the business models have not kept up with the technology.

Thus, the real issue is that this is a business model problem. As we've seen over and over and over again, those who embrace what the internet enables, have found themselves to be much better off than they were before. They're able to build up larger fanbases, and to rely on various new platforms and services to make more money.

And, as we've seen with near perfect consistency, the best way, by far, to decrease infringement is to offer awesome new services that are convenient and useful. This doesn't mean just offering any old service -- and it certainly doesn't mean trying to limit what users can do with those services. And, most importantly, it doesn't mean treating consumers like they were criminals and "pirates." It means constantly improving the consumer experience. When that consumer experience is great, then people switch in droves. You can, absolutely, compete with free, and many do so. If more were able to without restriction, infringement would decrease. If you look at the two largest contributors to holding back "piracy" lately, it's been Netflix and Spotify. Those two services alone have been orders of magnitude more successful in decreasing infringement than any new copyright law. Because they compete by being more convenient and a better experience than infringement.

I found myself profoundly disturbed by something that seems to me to go to the root of the problem in Washington: the failure to correctly diagnose the problem we are trying to solve, but instead to accept, seemingly uncritically, the claims of various interest groups. The offending paragraph is as follows:

"Let us be clear—online piracy is a real problem that harms the American economy, and threatens jobs for significant numbers of middle class workers and hurts some of our nation's most creative and innovative companies and entrepreneurs. It harms everyone from struggling artists to production crews, and from startup social media companies to large movie studios. While we are strongly committed to the vigorous enforcement of intellectual property rights, existing tools are not strong enough to root out the worst online pirates beyond our borders."

In the entire discussion, I've seen no discussion of credible evidence of this economic harm. There's no question in my mind that piracy exists, that people around the world are enjoying creative content without paying for it, and even that some criminals are profiting by redistributing it. But is there actual economic harm?

In my experience at O'Reilly, the losses due to piracy are far outweighed by the benefits of the free flow of information, which makes the world richer, and develops new markets for legitimate content. Most of the people who are downloading unauthorized copies of O'Reilly books would never have paid us for them anyway; meanwhile, hundreds of thousands of others are buying content from us, many of them in countries that we were never able to do business with when our products were not available in digital form.

History shows us, again and again, that frontiers are lawless places, but that as they get richer and more settled, they join in the rule of law. American publishing, now the largest publishing industry in the world, began with piracy. (I have a post coming on that subject on Monday.)

Congress (and the White House) need to spend time thinking hard about how best to grow our economy - and that means being careful not to close off the frontier, or to harm those trying to settle it, in order to protect those who want to remain safe at home. British publishers could have come to America in the 19th century; they chose not to, and as a result, we grew our own indigenous publishing industry, which relied at first, in no small part, on pirating British and European works.

If the goal is really to support jobs and the American economy, internet "protectionism" is not the way to do it.

It is said (though I've not found the source) that Einstein once remarked that if given 60 minutes to save the world, he would spend 55 of them defining the problem. And defining the problem means collecting and studying real evidence, not the overblown claims of an industry that has fought the introduction of every new technology that has turned out, in the end, to grow their business rather than threaten it.

If Congress and the White House really want to fight pirates who are hurting the economy, they should be working to rein in patent trolls. There, the evidence of economic harm is clear, in multi-billion dollar transfers of wealth from companies building real products to those who have learned how to work the patent system while producing no value for consumers.

This new proposed law is a terrible way to try to solve [infringement]. Its passage would only drive the culture further yet from any respect for the rule of law as it applies to intellectual property. But if Big IP hasn’t figured out yet that it is cultural acceptance of legal norms, not fear of punishment, that makes a free society a law-abiding one -- if Big IP doesn’t understand what the de facto attitude of consumers regarding copyright has already become, and where it is already going -- then heck, maybe at this point the law professors and the rest of us should just let Congress already go ahead and give them enough rope.

As long as the employee has knowledge of the employer's limitations on that authorization, the employee "exceeds authorized access" when the employee violates those limitations. It is as simple as that.

So it seems to me that under the majority’s reading of the statute, whenever any employer anywhere in the world puts any clear restriction of any kind on any computer -- computer including anything with a microchip, and even perhaps just a thumb drive — it is now a crime if the employee breaks the restriction. Sheesh, be careful out there, people. Whatever you do, don’t get on the wrong side of any Assistant U.S. Attorneys. And don't tick off your boss.

And so, another “license” is paid up, and copyright lawyers use it as proof to politicians that licenses are paid and the system works. It’s circular reasoning at its most insidious.

The danger here lies in the difference of perspective: lawyers and politicians regard court proceedings as having zero cost, as basically being a correspondence or a negotiation. In the reality entrepreneurs live in, however, the court cost of a monopoly lawsuit can easily hit a million euros.

So the next time the monopoly laws need revision and redrafting, the politicians go to the monopoly lawyers with demonstrated understanding of the substance matter. Politicians note that the lawyers have been correct in their predictions that license money would start to flow, and take it as proof the system works; they can’t see or know money is flowing for all the wrong reasons.

And so, the monopoly lawyers get to expand and revise those laws yet again, when it was nothing but a legalized extortion racket from the start. The cycle continues.

Increase the Guideline range for intellectual property offenses committed by organized criminal enterprises/gangs;

Increase the Guideline range for repeat intellectual property offenders.

Ensure that, in appropriate circumstances, infringement by streaming, or by means of other similar new technology, is a felony;

Authorize DHS (including its component CBP) to share pre-seizure information about, and samples of, products and devices with rightholders to help DHS to determine whether the products are infringing or the devices are circumvention devices; and

Give law enforcement wiretap authority for criminal copyright and trademark offenses.

Finally, we recommend creating a right of public performance for copyright owners for sound recordings transmitted by over-the-air broadcast stations

In California, State Sen. Joe Simitian has reintroduced a bill that would fine cyclists $20 for texting. In Oregon, State Rep. Michael Schaufler wants to fine cyclists $90 for wearing headphones or earbuds. In Virginia, lawmakers are considering whether to broaden such a ban to include any handheld communication device.

And in New York, a bill before the legislature's transportation committee would ban the use of electronic devices while crossing streets.

This is the second time State Sen. Carl Kruger has introduced this legislation to stem what he calls "tuning in and tuning out."

"Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice."

Blumenthal also seems sadly ignorant of the state of video games and retail. "In the face of continued industry inaction--enabling unattended children to buy such games--states must preserve their critical right to protect children," he stated.

The problem with Blumenthal's argument is that the industry has not been in a state of inaction, as the ESRB has long assigned ratings to games, giving an accurate idea of the content included in them, and has made serious efforts when it comes to community and parental outreach to make sure the ratings are both understood and used. Chains such as GameStop and even Walmart actively check the ID of customers buying M-rated games.

"Our city is going bankrupt and we are using our tax dollars to pay these guys to stare at appliances all day," he said. "How do I get a job like that?"

These comments will focus on the language in the Consolidated Text that we believe the U.S. government has endorsed. While the United States probably could comply with these provisions of the Consolidated Text without amending the U.S. Copyright Act, these provisions are inconsistent with U.S. law in several significant, troubling respects. The common thread of these inconsistencies is that the Consolidated Text does not reflect the balance in U.S. copyright law. This lack of balance is at odds with the Obama Administration's policy concerning balanced international copyright law

Although the existing statutory damages framework has a chilling effect on innovation and follow-on creativity, its negative impact in the U.S. is somewhat mitigated by the existence of strong exceptions such as the fair use doctrine. Other countries, however, do not have these exceptions. And the U.S. in ACTA has not demanded the adoption of these exceptions. In other words, the U.S. seeks the export of our strong enforcement mechanisms but not our strong exceptions.

This asymmetric export of our laws could be particularly harmful to U.S. Internet companies as they attempt to expand their operations overseas. For example, U.S. courts have treated the copying of copyrighted material by search engines as permitted by fair use. In contrast, courts in Europe have found Google and other search engines liable for copyright infringement for engaging in similar activities. If ACTA is adopted, and European countries enact statutory damages, the potential exposure of U.S. search engines will increase exponentially for conduct considered lawful in the U.S. They will be liable not just for the actual damages they cause, but the level of damages set by statute. Under current U.S. law, if a company is held liable under a direct or secondary liability theory for infringements by thousands of consumers, the resulting damages (up to $150,000 multiplied by thousands of works deemed infringing) could easily bankrupt the company. Raising the possibility of similar, ruinous damages for conduct considered lawful in the U.S. would simply hinder U.S. businesses' ability to operate abroad.

There are numerous problems with these two clauses of footnote 47. First, they suggest that inducement is a different test from contributory infringement; that is, they imply that there are three theories for third party infringement under copyright -- vicarious liability, inducement, and contributory infringement. However, Grokster makes clear that inducement is not separate and distinct from contributory infringement.

Finally, article 2.18.3 lacks the balance present in U.S. third party liability law. Article 2.18.3 makes third party liability mandatory. In contrast, exceptions to such third party liability are only permissive: "the application of third party liability may include consideration of exceptions or limitations...."

1. The first name or initial and last name.
2. A postal address.
3. A telephone or fax number.
4. An email address.
5. Unique biometric data, including a fingerprint or retina scan.
6. A Social Security number, tax identification number, passport number, driver's license number, or any other government-issued identification number.
7. A Financial account number, or credit or debit card number, and any required security code, access code, or password that is necessary to permit access to an individual's financial account.
8. Any unique persistent identifier, such as a customer number, unique pseudonym or user alias, Internet Protocol address, or other unique identifier, where such identifier is used to collect, store, or identify information about a specific individual or a computer, device, or software application owned or used by a particular user or that is otherwise associated with a particular user.
9. A preference profile.
10. Any other information that is collected, stored, used, or disclosed in connection with any covered information described in subparagraphs (A) through (I).

1. medical records, including medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional;
2. race or ethnicity;
3. religious beliefs;
4. sexual orientation;
5. financial records and other financial information associated with a financial account, including balances and other financial information; or
6. precise geolocation information.