Hide Techdirt is off for the long weekend! We'll be back with our regular posts tomorrow.

Senator Leahy Ignores Serious First Amendment Concerns With COICA

from the let's-define-this-more-clearly dept

As expected, Senator Patrick Leahy, who continues to be Hollywood’s favorite Senator, has made it clear that he’s going to reintroduce the COICA censorship bill, and he appears to be completely ignoring the very real First Amendment concerns that people have been raising by saying:

“There’s no First Amendment right that protects thieves. It protects speech.”

Seeing as he’s a Senator, it would help if he were familiar with the law. As such, he would know that (1) copyright infringement is not “theft,” and (2) yes, the First Amendment protects all kinds of speech, even speech made by criminals and (3) the Free Speech issues that many of us are concerned with are the takedowns of legitimate non-infringing content, which we’ve seen happen repeatedly by Homeland Security — which is the type of program Leahy is looking to expand with COICA.

It’s immensely frustrating that someone like Senator Leahy would flat-out mislead over these very serious concerns. Though, of course, I have some ideas why. Perhaps the fact that Time Warner and Walt Disney are the two largest contributors to his campaign, and Vivendi (owners of Universal Music), General Electric (until recently owners of Universal Studios) and Viacom are not far behind has something to do with it…

Filed Under: , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Senator Leahy Ignores Serious First Amendment Concerns With COICA”

Subscribe: RSS Leave a comment
Thomas (profile) says:


have never worried much about whether bills could pass constitutional muster anyway. With corporations now allowed to contribute as much as they want to “campaign contributions”, more and more Congressmen are owned by corporations. There are no honest Congressmen anymore; all are owned to one degree or another by special interest groups and vote the way they are paid to vote by their owners.

And with federal judges now coming from entertainment industry lobbyists, the chance that the law would survive challenges is becoming quite high. Just wondering when the Supreme Court justices will start accepting “gifts” to rule in favor of things that are clearly against the constitution?

r says:


Will somebody please show these non-representative representing #ucks the god damned door!

How in #uck’s sake do a bunch of millionaires and tidily well protected/elevated from the less than 80K/yr masses equate to “representatives”!?

The only effing thing they effing represent is effing money and where it effing comes from.. #uckin A!

Term limits are the only way to eradicate the leeches the (what the hell) party “platforms”. Vote!? Pah – my state was overridden with effing money from who knows effing where and elected a straight-up ass munch for governor.

#uck it – censor, dictate, rule. The quicker it will crumble.

Ron Rezendes (profile) says:

Time to take a little action, at least....

Mike, how about offering up letters we can forward to our elected officials on some of these topics – especially this one.

I followed a link from an earlier story and sent the following to both of my Senators (Boxer & Feinstein)here in CA:

Dear Senator Feinstein,

I am a constituent and I am writing to express my strong and sincere disappointment that Congress voted in February to reauthorize the three expiring USA PATRIOT Act provisions without any reforms.

Now that Congress has three more months to consider the issue of PATRIOT Act renewal and reform, I urge you to stand up for my civil liberties by opposing further PATRIOT renewal and demanding the passage of meaningful reforms such as those contained in the JUSTICE Act of 2009 (H.R. 4005, S. 1686). The JUSTICE Act not only contained critically important new checks and balances to prevent abuse of the three expiring PATRIOT provisions, but also proposed many meaningful reforms to a wide range of permanent PATRIOT powers. The JUSTICE Act also began to address some of the serious civil liberties problems with the FISA Amendments Act of 2008, which broadly enhanced the government’s authority to spy on your international phone calls and emails without warrants and may ultimately be more dangerous to civil liberties than anything in PATRIOT.

I respectfully ask that Congress not waste the next three months, but instead spend that time giving PATRIOT reform the attention it deserves. When it comes to fixing the serious problems with PATRIOT, including the broad National Security Letter authority that has been the subject of widespread and well-documented abuse, Congress had delayed too many times and for too long. It’s time for Congress to stop kicking the can on this issue and stand up for my constitutional rights. Please, don’t make the same mistake twice: oppose PATRIOT renewal without reform, and support the passage of powerful reforms like those in the JUSTICE Act.

Ronald Wayne Rezendes Jr.

Ron Rezendes (profile) says:

Re: Re: Time to take a little action, at least....

I’d simply ask that if you feel the way I do – take the 3-5 minutes to copy and paste this to your congressperson(s) and ask others to do the same. If we, as a group, don’t do anything then we become just as culpable as the opposition for the current state of affairs.

That’s easy for them to do with only a handful, but if there were a truckload of them, they become harder to ignore.

It actually requires effort on their part to ignore you. Even more effort to ignore lots of us.

There will come a time when these people will ask “Why is this (not being re-elected, etc.) happening to me?” and the answer is – “You ignored the very people you were there to serve.”

Give them something to ignore – in great quantity preferably! The burden is now on them because even a million TD posts with the same content isn’t part of how our government works. Contacting your representative is exactly how it is SUPPOSED to work. If you don’t contact them, then you should have no expectations for them to do what you believe is the right thing, unless you believe they are somehow mind readers and they have fortunately chosen you out of their thousands of constituents to use their mind reading abilities on.

If you prefer to do nothing and bitch about that lack of action then you have become a willing non-participant to that which brings you your own unhappiness.

Together, we can object loudly to our representatives!

If you want to cry and lament about hopeless it is to fight these abusive industries, then please go do it quietly in the corner as far from me as possible.

Ron Rezendes (profile) says:

Re: Re: Time to take a little action, at least....UPDATE

Update: So, I did at least receive a reply from Senator Boxer, here it is in full:

Dear Mr. Rezendes:

Thank you for contacting me regarding S.193, the USA Patriot Act Sunset Extension Act. I appreciate this opportunity to respond to your comments.

This bill would extend three provisions through 2013 that allow the government to seek orders from a federal court to obtain physical materials related to a terrorism inquiry, obtain roving wiretaps on suspected terrorists, and apply for orders from a special court to conduct surveillance on “lone wolf” terrorists who do not associate themselves with any organization. S.193 would also provide additional oversight to protect Americans from unwarranted privacy intrusions.

S.193 was approved by the Senate Judiciary Committee on March 10, 2011. Be assured that I will keep your views in mind when this legislation comes before the full Senate.

Again, thank you for writing to me. Please do not hesitate to contact me in the future about this or any other issue of importance to you.

Barbara Boxer

United States Senator

While I may not necessarily agree with the reply at least my letter was received and read by someone.

Ron Rezendes (profile) says:

Re: Re: SECOND UPDATE: Senator Feinstein's Reply

Senator Feinstein also sent me this reply today. For those of you who doubted that the letter I sent would even be read, you missed the mark on this one, both of my senators replied to my letter. However, I’m sure my views can easily be dismissed if I am one of but a few to share them with my elected officials. I again ask you to simply take a couple of minutes to send an email to your representatives in Congress to let them know how you feel. Without your input, they will simply not have your point of view as part of any decision making process. If only a few vocal people actually do this it may not make any difference at all, but if thousands or tens of thousands were to provide similar views it may be possible to at least have your point considered.

Here was the Senators reply:

Dear Mr. Rezendes:

I received your letter and want to thank you for sharing your views about the USA PATRIOT Act. I recognize that this is an important issue to you, and I welcome the opportunity to share my point of view with you.

Three provisions of the USA PATRIOT ACT ? known as “roving wiretaps,” “lone wolf,” and “business records” ? are currently set to expire on May 27, 2011. It is important to note that all three of these authorities can only be used after being approved by a federal judge. For your information, these provisions do the following:

o Roving wiretaps ? before this authority was established, warrants could only be issued for a specific phone number. In the modern age of telecommunications, terrorists were able to evade surveillance simply by switching phones, which is easily done with throwaway cell phones. Thus, the “roving wiretap” authority simply authorizes a judge to issue a surveillance order that is specific to the suspect terrorist, rather than specific to a particular phone number.

o Lone wolf ? the lone wolf provision allows for court-ordered surveillance of foreigners who engage in international terrorism but for whom an association with a specific international terrorist group has not yet been determined.

o Business records ? finally, the business records section allows the government to obtain business records relating to a suspected terrorist if it receives a warrant from the Foreign Intelligence Surveillance Court.

As Chairman of the Senate Select Committee on Intelligence, I have seen how the United States intelligence and law enforcement agencies have used these expiring provisions and I have come to believe without them, they would lack important tools to protect this nation. The United States remains a target for terrorists, and good surveillance is critical to prevent attacks. For this reason, I have introduced legislation, the “FISA Sunsets Extension Act of 2011” (S. 149), to extend the three expiring provisions until December 31, 2013.

As you may be aware, Senator Patrick Leahy (D-VT) has also introduced legislation to extend the expiring provisions until December 31, 2013. In addition, Senator Leahy’s bill, the “USA PATRIOT Sunset Extension Act of 2011” (S. 193) would amend the law to improve congressional oversight of these three provisions and impose a sunset on the National Security Letters section of the PATRIOT Act.

On March 10, 2011, I voted for the “USA PATRIOT Sunset Extension Act of 2011” when the Senate Judiciary Committee, on which I serve, approved the bill by a vote of 11 to 7. I voted for this bill because it would provide appropriate oversight over PATRIOT Act authorities and civil liberty protections, while also giving intelligence and law enforcement agencies the certainty and predictability they need to safeguard national security.

Again, thank you for taking the time to contact me. Please know I will keep your thoughts in mind as this debate continues. If you have any additional comments or questions, please do not hesitate to contact my Washington, D.C. office at (202) 224-3841.

Sincerely yours,

Dianne Feinstein
United States Senator

Nigel (profile) says:

Actually Mike......

Copyright infringement is “theft” – it’s stated pretty simple in the law books. Putting the word in quotations won’t take that fact away. It’s obvious that most of the people that oppose this really oppose the government taking away their ability to steal property, which is understandable. When you’ve spent the last decade able to enjoy the fruits of someone elses labor without having to adequately compensate them it’s a bit of a shock to not be able to do that anymore.

Mike Masnick (profile) says:

Re: Actually Mike......

Copyright infringement is “theft” – it’s stated pretty simple in the law books.

Must we really?

“The phonorecords in question were not “stolen, converted or taken by fraud” for purposes of [section] 2314. The section’s language clearly contemplates a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods. Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple “goods, wares, [or] merchandise,” interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.” — the Supreme Court

It’s obvious that most of the people that oppose this really oppose the government taking away their ability to steal property, which is understandable.

Why do you say that? I don’t steal property. Why would you defame me and claim that I do? I oppose this — as do many people — because it’s a clear violation of prior restraint and due process. I am FINE with lawsuits being filed and due process being allowed.

I am NOT fine with the gov’t randomly picking websites on the industry’s say-so, and having them censored and blocked from access. That is a First Amendment violation. That’s not stopping “theft.” In the last few months alone, domain seizures took down blogs that were not infringing. It took down 84,000 websites that were not violating the law.

This is classic textbook prior restraint.

When you’ve spent the last decade able to enjoy the fruits of someone elses labor without having to adequately compensate them it’s a bit of a shock to not be able to do that anymore.

I haven’t. Why would you claim that I have when I have not “enjoyed the fruits” of anyone’s labor without compensating them.

It’s really disgusting how those who seek gov’t protectionism defame and lie about people concerned about the basic concepts in our constitution like free speech and due process.

Anonymous Coward says:

Re: Re: Actually Mike......

You really gave your agenda away with this post.

It’s really disgusting how those who seek gov’t protectionism defame and lie about people concerned about the basic concepts in our constitution like free speech and due process.

Do you have the verbiage of the bill to be introduced?

No, you don’t. Yet you’re already attacking it and saying it does things you have no idea it does.

What is disgusting is your blatant piracy apologism and your cowardly refusal to admit that it is your agenda.

And your Supreme Court quote is prior to the music piracy era. So I’ll help you with a more recent quote:

“Unlawful copying is no less an unlawful taking of property than garden-variety theft.” –
The Supreme Court

Anonymous Coward says:

Re: Re: Re: Actually Mike......


What is disgusting is your blatant piracy apologism and your cowardly refusal to admit that it is your agenda.

Nope disgusting is you dude, really.
You would defend a rapist if he came out in favor of copywrong.


Do you have the verbiage of the bill to be introduced?

What the old one is not good enough to tell people where that thing is going?
We all know that crap will turn out bad.

But that is not the point the point here is that you are an idiot trying to stop the sun from shinning.

You think Mike is an piracy apologist? Are all the academics that came out to the same conclusions too? Are all those business people implementing business models that don’t depend on a granted monopoly to succeed apologists of piracy too?

Want proof?

Define piracy without criminalizing the entire population on earth if you can.

Jay (profile) says:

Re: Re: Re: Actually Mike......

“Do you have the verbiage of the bill to be introduced? “

It’s been out since last year.

“Yet you’re already attacking it and saying it does things you have no idea it does.”

It’s quite obvious who DIDN’T read the damn thing…

“What is disgusting is your blatant piracy apologism and your cowardly refusal to admit that it is your agenda.”

Says the AC who doesn’t log in, and criticizes people for nothing other than their own bottle of hatorade. Bravo.

“And your Supreme Court quote is prior to the music piracy era. So I’ll help you with a more recent quote:”

Let me help you with a quote that changed the world of copyright:

” Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses….

When one considers the nature of a televised copyrighted audiovisual work … and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact … that the entire work is reproduced … does not have its ordinary effect of militating against a finding of fair use.”

ACs never win,
Try again.

velox says:

Re: Re: Re:3 Actually Mike......

“Unlawful copying is no less an unlawful taking of property than garden-variety theft.”

Just to be clear, that was Justice Breyer writing for himself regarding the writ of certiorari in the Grokster case. (For the non-lawyers who aren’t up on their Latin here, that’s the initial document the Court issued saying they would accept the case). He was not writing the opinion of the Court as this quote was not part of the Grokster decision.

Ron Rezendes (profile) says:

Re: Actually Nigel...P.Y.H.O.O.Y.A...

Let’s take the legal definitions (courtesy of Law.com)of both because neither mentions the other so I will just add you to the group of those who really just talk out of their ass because that’s where their head rests. Theft involves TAKING something and infringement involves USING something, there is quite a bit of difference which I doubt you can see from in there.

n. the generic term for all crimes in which a person intentionally and fraudulently takes personal property of another without permission or consent and with the intent to convert it to the taker’s use (including potential sale). In many states, if the value of the property taken is low (for example, less than $500) the crime is “petty theft,” but it is “grand theft” for larger amounts, designated misdemeanor or felony, respectively. Theft is synonymous with “larceny.” Although robbery (taking by force), burglary (taken by entering unlawfully) and embezzlement (stealing from an employer) are all commonly thought of as theft, they are distinguished by the means and methods used and are separately designated as those types of crimes in criminal charges and statutory punishments.
See also: burglary embezzlement larceny robbery

n. 1) a trespassing or illegal entering. 2) in the law of patents (protected inventions) and copyrights (protected writings or graphics), the improper use of a patent, writing, graphic or trademark without permission, without notice, and especially without contracting for payment of a royalty. Even though the infringement may be accidental (an inventor thinks he is the first to develop the widget although someone else has a patent), the party infringing is responsible to pay the original patent or copyright owner substantial damages, which can be the normal royalty or as much as the infringers’ accumulated gross profits.
See also: copyright patent plagiarism royalty trademark

Anonymous Coward says:

Re: Actually Mike......

Would you call the people from MIT thieves too?

Open Music Model


The Open Music Model, or OMM, is an economic and technological framework for the recording industry proposed in 2003, based on research conducted at the Massachusetts Institute of Technology, which asserts that the only long-term viable system for the digital distribution of music is a subscription-based peer-to-peer system free of digital rights management (DRM) software.

I don’t think you fully apreciate the inevitability of the situation here.

What you call “piracy”(or ANY consumption of imaginary property without payment) is going nowhere but up and there is little you can to stop it, as everyone today is a pirate according to your standards.

Everyone who lends, share or copy(i.e. video recording of TV shows, time shifting, place shifting, backups, streaming and so forth) is a thief today, that means the entire population on earth and that is just absurd.

G Thompson (profile) says:

Re: Actually Mike......

Having a fair few legal tomes I have nover ever seen the tort of ‘Copyright Infringment’ equated with the tort of ‘theft of property’ whether in a civil, criminal or even administrative law context.

Please by all means cite these books, or any caselaw (USA ,common law countries, with even some EU too if you like [NOT Asiatic]) whatsoever where a court has even allowed the word theft to be used by either side in a legal sense.

That means not colloquially, not ‘in lay terms’, but in law!

Oh and “adequately compensate’ is a very ambiguous term since what the market thinks is adequate, what a reasonable person thinks is adequate, and what the seller thinks is normally very very different.

arthur says:

Re: Actually Mike......

The right to (steal) property . . . that is not physical. If you (steal) a book that is physical, then it can NOT be purchased by someone else. If someone (steals) a ebook, then that is not really theft, is it? The original copy is where it was at the beginning, correct? What if a person who HAS bought a ebook, or a CD, or an audiobook, or gotten them from the library, where you can get such items without having to pay for them, wants to loan that item to a person? Is that (theft)?

Anonymous Coward says:

The shills have one purpose. That is to disrupt the conversion and prevent fruition of any developed ideas that might go against the lord and master of their realm.

When boxed by reasonable objections, strawmen armies come out in force, suddenly the shill has lock finger and can’t answer, or there is this huge stopper in each ear while s/he closes his eyes and hollers “NaNaNa” at the top of the lungs.

You won’t get good responses other than the boxed ideas given from the pulpit of the news releases and ridiculous studies.

The better answer for the shill goes back a ways. It’s called, “Don’t feed the trolls”.

Anonymous Coward says:

Is COICA really the problem, or is it seen instead as an embarkation of US law in a problematic direction (i.e., a “slippery slope”).

At this point in time there is much gnashing of teeth in some circles over current seizure authority. Obviously, expanding that authority will cause some to gnash teeth down to the gumline.

Perhaps now might be a good time to stand back for a moment and consider what it is that underlies the need perceived in other circles for such an expansion. Importantly, the members of these other circles comprise more than just the much maligned industry associations known as the MPAA, the RIAA, the BSA, and a few other associations of similar scope. These members also include numerous small businesses who quite rationally believe that parties outside the US are engaged in wrongful conduct directed at the US market. For example, a point repeatedly presented here is that in the case of counterfeit goods consumers are not easily fooled. While this may certainly be the case in the sale of $10 “Rodex” watches, and $20 LV knockoffs, it cannot be denied that there are goods being proferred to US consumers where counterfeits and originals are not so easily distinguished. The goods look identical, the prices are virtually identical, and yet when such counterfeits are received by the purchasers they are in for a rude awakening and with virtually no recourse to rectify the fraud perpetrated against them.

Anonymous Coward says:

Re: Re:

Also explain why the laws we already have are not sufficient to deal with counterfeits already, what changed?

People selling through the internet?

Mail fraud is rampant since forever and nobody did nothing to protect the public and laws where sufficient but somehow now on behalf of companies suddenly you want to use the public as an excuse, why?

Even with strong evidence to the contrary, that we should be lowering the bar for luxury goods that have nothing to do with safety and security?

Jailhouse Frocks: Locating the Public Interest in Policing Counterfeit Luxury Fashion Goods
∘ David S. Wall and Joanna Large (2010)
∘ This article seeks to locate the public interest in policing counterfeit luxury fashion goods by separating it out from the broader debate over safety-critical counterfeits such as aircraft parts. Meaning to stop wasting resources trying to protect something that doesn’t need protections like luxury fashion goods.

Counterfeiting is not a problem for the public, it is a problem for companies, companies that wouldn’t blink to through the public under the bus and you want people to support them in detriment of their rights granted by the constitution? why?

velox says:

Re: Re:

You make some good points about COICA, and indeed the slippery slope issue is extremely concerning to many.

I’d like to point out that when it comes to those situations where the “counterfeit” goods look and feel just like the originals, what is happening is that the company that is contracted to produce the goods is delivering the agreed upon number of goods, and then proceeding on to make a few more… what shall we call them– “original counterfeits?” … which they can sell on their own for additional profit. They sell the items through back alley vendors for less than the usual price, but still make a better profit margin than they do with their up-front business. This activity has been repeated in multiple countries in Asia over several decades, so its not anything new.

So in considering COICA, why again do we need a more stringent and invasive criminal law directed at private American citizens?
And why isn’t this more appropriately a matter that pertains to contract law?

Anonymous Coward says:

Re: Re:

When I see civil rights being ignored by financial interests it makes me wonder why do we bother?

People probably don’t care about privacy, the 4th amendment, the 1st amendment or any of those things anymore.

I just think this is a great disrespect to the people who fought hard to bring those things and actually make them have meaning, it saddens me, that some people would give up so easily.

Maybe people deserve to have no rights they don’t want to fight for it anymore, those other people will strip us all of any rights that gets in their way of controlling and monopolizing everything, they have zero respect for us and society and have the nerve to say it is for our benefit when it clearly its not, why the laws now are inadequate when they were perfect until know? Why academics and highly paid consultants say we don’t actually need more enforcement but less?

I think we need a new form of government because this one may be beyond repair.

Anonymous Coward says:

Actually people like Senator Leahy actually has a better understanding of the constitution because he knows that it’s originally written for the bourgeoisie like him not for the lower classes like us.

This is what people don’t realize and I would wish that people would stop looking at the constitution as if it’s some holy document.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...