Parade Of Strawmen Dominate House Hearing About Online Infringement

from the the-lies-told-to-congress dept

We’ve already mentioned how the House’s Hearing on: “Promoting Investment and Protecting Commerce Online: Legitimate Sites v. Parasites” turned into something of a bitchfest at Google for not waving a magic wand and stopping infringement. However, I also wanted to look at the prepared statements of the four participants, which seemed to overflow with ridiculous strawmen.

First up, we have esteemed and respected First Amendment lawyer Floyd Abrams, who (it is always said) defended the NY Times in the Pentagon Papers case many years ago. While Abrams is widely respected, it feels like lately he’s been getting quite sloppy in his thinking. Late last year, he published a piece trying to differentiate Wikileaks from the NY Times/Pentagon Papers situation, and was widely criticized for getting many of his facts wrong — undermining his entire argument.

Separately, various parties in the entertainment industry apparently hired Abrams to write a paper defending COICA and domain seizures as not violating the First Amendment. The entertainment industry and domain seizure supporters now point to that paper and stick their fingers in their ears every time anyone points out how domain seizures are, quite clearly, prior restraint. At the hearing, Abrams reprises this “there’s no violation” (pdf) claim, but once again the reasoning is tortured, at best, and built by setting up strawmen to knock down, initially, before a more balanced section later in his talk. From the beginning though, strawmen abound:

It is one thing to say that the Internet must be free; it is something else to say that it must be lawless. Even the Wild West had sheriffs, and even those who use the Internet must obey duly adopted laws…. Thus, it is no surprise that libel law routinely applies to material that appears on the Internet just as it does to other material…. Copyright law is no different. One current treatise succinctly notes, “[a]ll existing copyright protections are applicable to the Internet.”

Note the strawman? He seems to be claiming that critics of domain seizures are suggesting copyright law does not apply online. But that’s simply not true at all. Why make that claim other than to avoid the actual First Amendment issues raised?

The law could not be clearer, however, that injunctions are a longstanding, constitutionally sanctioned way to remedy and prevent copyright violations. That premise was explicit in the critical concurring opinion in the Supreme Court?s most famous prior restraint case, assessing publication of the Pentagon Papers in New York Times Co. v. United States. As Justice Byron White?s concurring opinion observed in that case, “no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another.”

Again, this is the same strawman. No one is arguing that copyright infringement cannot not be dealt with via injunctions. We’re arguing that non-infringing speech is being taken down without a proper injunction. Abrams does address some of these issues later in his talk, and even brings up the takedown of While he urges that Congress understand the tradeoffs, he doesn’t seem particularly troubled by the existing mistakes made in seizing domains.

Finally, at the end of his talk, he goes back to the strawmen. He brings up two arguments that he claims he hears from civil liberties groups, who he normally sides with, which he disagrees over. The first is that censorship by seizing domain names makes the US less credible in discussions with other countries who censor. Abrams dismisses this by saying it’s okay to censor this way because copyright infringement is not protected by the First Amendment. Again, he is missing the point in a big, bad and dangerous way. The concern people have is not about infringement being censored. After all, specific instances of infringement can be targeted. The concern is over the non-infringing speech that is also censored as a part of this. On top of that, he doesn’t seem to understand how these seizures are already being used by foreign nations who censor content. They are simply mimicking Abram’s defense here. When he says “copyright infringement is not free speech,” they just say “right, same thing here, speech promoting other political parties is not free speech.”

Abrams second “objection” that he’s heard from civil liberties groups is “that stealing is somehow less offensive when carried out online.” I’m not sure from whom he heard that, because I’ve never heard that argument made at all and I follow this stuff pretty closely. I’m guessing he’s conflating a few different issues. What many people will point out is that (1) infringement is different than theft and (2) infringement online has a very different impact than “theft” of the same content in the offline world and (3) there are different and much more effective ways to deal with infringement online (mostly by way of smarter business models). That’s a very different argument than the strawman Abrams presents in his testimony.

Moving on, we have our favorite strawman conflater, John Morton from Homeland Security’s Immigrations and Customs Enforcement unit, who also reprised various strawmen (pdf) in his statement. Morton’s specialty is in talking up the harm and danger of one specific type of trademark infringement, vaguely lump it together with unsubstantiated (or outright false) claims from industry representatives, and then pop out at the other end with a claim that stopping copyright infringement is necessary. It’s ridiculous when you break it down, but watch him do it here:

Criminals are attempting to steal American ideas and products and sell them over the Internet, in flea markets, in legitimate retail outlets and elsewhere

Okay. That’s about counterfeiting, which is trademark infringement. Check.

From counterfeit pharmaceuticals and electronics to pirated movies, music and software, IP thieves undermine the U.S. economy and jeopardize public safety.

Well, there’s a variety of different things there, and the claims that counterfeit movies, music and software jeopardize public safety has been shown nowhere, but it’s nice to see Morton lump them all together. The only area where there is a potential risk for safety is with counterfeit fake drugs, but Morton and ICE never seem to distinguish between grey market generic pills that are perfectly safe and helpful and actual fake drugs. Because, you know, that would show how small this issue really is.

American jobs are being lost, American innovation is being diluted and the public health and safety of Americans is at risk — and organized criminal enterprises are profiting from their increasing involvement in IP theft.

Almost nothing in the statement above can be supported by actual evidence. The claims of job losses have been debunked. The public safety issues are extremely limited to very specific cases, though Morton pretends it applies to everything he’s talking about, and outside of a very small set of trademark infringement, the claims of organized crime profiting from this stuff has also been totally debunked (the recent SSRC report had a nice section debunking this — and yet Morton still claims it’s true). He’s pushing past strawmen into lying.

From there he goes on to talk about the importance of enforcement (i.e, play up his own role), but really focuses mainly on copyright issues, which again, applies to almost none of what he set up in the intro to his speech. It’s the worst kind of strawman conflation out there. Morton goes on to highlight various enforcement efforts, including praising the domain seizues, insisting there’s no due process problems with taking down non-infringing speech with no notice to website owners, because they’re free to protest later through the courts. Basically, it’s the same strawman speech he’s given before, which responds to none of the serious questions raised by the massive technical and legal errors made by the staff working for him.

Those were the two key speeches that were problematic. GoDaddy also gave a presentation (pdf), which is basically all about how it is quick to respond to law enforcement and claims of illegal activity and suspended 150,000 websites last year. Odd that there don’t appear to be concerns that it may have done so overzealously, as is often accused. However, GoDaddy does point out that it has some concerns about COICA, and specifically with the DNS filtering aspects of it. And, finally, as already mentioned, Google explained why it’s not the enemy (pdf) but that wasn’t what the committee wanted to hear. All four speeches are embedded below.

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Companies: godaddy, google

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Comments on “Parade Of Strawmen Dominate House Hearing About Online Infringement”

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vivaelamor (profile) says:

Re: Re: Re: Re:

“And a freetard (still love that term! Don’t let it die)”

Heh. When I see Tim Shriver on TV pointing out that those who take part in the Special Olympics would like people to stop using retard as a pejorative, I can’t help but feel angry towards whoever decided that the word didn’t have enough bad connotations and coined a derivative. It’s like they were thinking ‘how can I be a hateful to two completely unrelated groups at once’.

vivaelamor (profile) says:

Re: Re: Re:3 Re:

‘I thought they had moved on to “mentally handicapped”. Idiot and moron used to be similar terms but have moved along in meaning….’

As far as I’m aware, the official term in America is still mental retardation and has never been mentally handicapped. Mentally handicapped was the official term in the United Kingdom, but that has changed to learning disability.

Anonymous Coward says:

it feels like lately he’s been getting quite sloppy in his thinking. Late last year, he published a piece trying to differentiate Wikileaks from the NY Times/Pentagon Papers situation, and was widely criticized for getting many of his facts wrong — undermining his entire argument.

So… he’s sloppy because Mike doesn’t agree with him? Nice. Also, his argument that 250k cables have been released is entirely true. Try to keep up Mike, some media outlets have had access to all documents since day one. Plus, again, you just link to yourself to try to explain your point… why not link to a non-biased source instead?

Anonymous Coward says:

Re: Re: Re:

And who’s trolling here exactly? Trolls calling other people trolls because they disagree? Or just because you like to draw attention to yourself? I say both.

You know trolling sir, others are allowed to express their views without being called trolls. That`s how this so-called community works. People give input, and others reply. I guess in your narrow brainwashed mind, you fail to understand that. So… keep trolling!

And that is, in fact, true that all 250k cables have been available to 8-10 news entities. But I guess that you can`t search google being as busy trolling as you.

Jay (profile) says:

Re: Re: Re:3 Re:

*smacks forehead*

From the articles by the AC:

“We have been publishing five articles every day both on print and on our website, and we will continue to do that,” Almlid added, stressing that Aftenposten would not make all documents available online, but that a cable could be partially published to go with an article.

From what Mike has said in the other article:

In fact, this was the key claim that many have used to condemn Wikileaks and to suggest that it’s neither a journalistic entity nor a whistleblowing entity. The problem is, this is false. To date, Wikileaks has only dribbled out approximately 2,000 of the cables and nearly every one has been in conjunction with various mainstream publications and do include redactions of sensitive info.

Maybe that number is larger now but seriously, access := all published.

crade (profile) says:

Re: Re:

but even the article you linked specifically says:
“refusing to say how his newspaper obtained all the classified cables, which WikiLeaks has not yet released

Plus it’s just a media outlet “claiming” to have access to them all (but haven’t released them either).

Lastly, if you go find any of the places that (unlike the article you linked to) did claim that Wikileaks did release all 250,000+ cables, which are not normally considered to be “biased” sources on this particular issue, they have pretty much to a one put out a correction to say they were wrong about saying that. Including the times article mike links to,,8599,2035994,00.html and the npr article here

So um… yeah

Mike Masnick (profile) says:

Re: Re:

So… he’s sloppy because Mike doesn’t agree with him? Nice. Also, his argument that 250k cables have been released is entirely true. Try to keep up Mike, some media outlets have had access to all documents since day one.

Huh? Media outlets having them is NOT the same thing as releasing them to the public, which is what Abrams was talking about. Your sentence above makes absolutely no sense.

Abrams specifically accuses Assange of making all of the cables “public,” which he did not. Giving them to the media is not making them public.

Jay (profile) says:

I find it truly amazing that people still believe this is all for the artists…

Can someone please explain how exactly all of these takedowns, due process loopholes, and heavier enforcement is supposed to lead to US economic prosperity?

Or do we have to listen to the same soundbite of the last 13 years that piracy is killing the industry?

LOOK AROUND PEOPLE! Insanity is going to the well to do the same thing! The DMCA hasn’t worked to “control” the net. Trade groups lobbying for more law hasn’t gotten results. What more can you do to show that the world has changed and you have to find your own place in it without calling customers thieves?

Hephaestus (profile) says:

Re: Re:

“Can someone please explain how exactly all of these takedowns, due process loopholes, and heavier enforcement is supposed to lead to US economic prosperity?”

Its not going to lead to prosperity. What it is going to do is lead to a fracturing of the DNS system, more encryption being used, new applications for infringement, less respect for copyright, serious lobbying from the tech sector, new infringement included search engines, and other stuff no one can predict.

“What more can you do to show that the world has changed and you have to find your own place in it without calling customers thieves?”

DOOMED I TELL YOU, DOOMED !!!! The only thing they can do is follow the path they are on. At one point they were the only game in town. They were a true monopoly with content, promotion, and distribution channels locked out. They have lost distribution to the internet. Promotion is being lost to apps and sites like uTorrent apps, VODO, FMA, Facebook, MySpace, Twitter, iTunes, etc. The only thing they have left is back catalogs and horrible reality shows. Add in the competition for peoples entertainment time and you have a huge failure waiting to happen. The only thing they can do is try to force this, past they long for, down the throats of consumers. It doomed to fail …

Nicedoggy says:

Will the government protect consumers who buy original products that are subpar in relation to their counterfeit parts?

Will the government bring back all of those jobs that were “outsourced”? and are the principal reason of unemployment in America today?

Will Mr. Morton bring safety to us all by taking out of the market very dangerous movie bootlegs?

Jay (profile) says:

Wait a minute...

It just hit me… Is this not the way that the US is going to go by giving private actors the right to censor?

I want you all to consider what has been going on within the US and court cases, namely how a private actor can’t take away your 4th amendment right because they aren’t the government.

Also, consider how our Representatives are pushing pretty hard for private business to use copyright laws to censor. So if Google becomes the police, the government is off the hook. The problem here then becomes exactly how to subsidize Google for the grunt police work.

Of course, this also begs the question of what exactly law enforcement’s role in such an internet will be. If it’s the same as it is now, we’re truly disappointing our forefathers and the image of liberty and freedom.

Anonymous Coward says:

No one is arguing that copyright infringement cannot not be dealt with via injunctions. We’re arguing that non-infringing speech is being taken down without a proper injunction.

You may be arguing this, but it doesn’t mean your interpretation is accurate or that Abrams’s logic is “sloppy.” As has been made clear in the comments on this site and at, there is absolutely nothing legally improper with the criminal seizure/forfeiture process (see Supreme Court Justice O’Connor’s quote here specifically upholding the lack of prior notice in seizure proceedings). Citing the legal opinions of Karl and Modplan (which are routinely shown to be fundamentally flawed), while rejecting the analysis of a respected First Amendment scholar is bizarre and unsettling. Until one of the mystery lawyers who agrees with you steps forward to provide some tangible analysis (not talking points) as to why these seizures do not provide sufficient legal process, the only “sloppy” analysis is your own.

Furthermore, you have not yet acknowledged that (as Abrams discusses in detail) COICA would specifically provide prior notice before an injunction is granted (see page 9 of his testimony). Let me say that again, COICA would grant notice to domain owners before the site is shut down. Never once mentioned on this site.

Finally, as for your proposition that Abrams’s arguments are aimed at “strawmen,” you seem to assume that if he is not addressing your specific criticisms and arguments (whatever they may be at the moment), that his points are somehow “sloppy” and impliedly irrelevant. I’ve read (and listened to) his testimony, and it seems very clear to me that he is making a larger point the importance of establishing a legitimate online marketplace, where rules of the physical world are enforced appropriately. He’s often making a more macro-level point, not addressing specific criticisms. When he does, he specifically notes as much (p. 11).

I suppose none of this matters, however, and that your next post will say that Abrams’s positions have been “thoroughly debunked.” Sigh.

Anonymous Coward says:

Re: Re:

My prognostication (in a humorous vein) is a post essentially as follows:

“His positions have been ‘thoroughly debunked’ and are biased given he is a ‘paid shill’ for the ‘money rich’ media cartels that have ‘bought Congress’ and demand keeping their roles as “gatekeepers’ in order to ‘stifle innovation and lay ruin to the growth of our cultural entitlement'”.

Nicedoggy says:

Re: Re:

Here is something for you to think about it.

– You are a piece of shit lawyer that would defend a terrorist if he came out in pro of copyright.

– You have an axe to grind and have no moral integrity as proved over and over in the forums here.

– The first red flag about COICA is that it doesn’t have no meaningful checks and balances, none, zero, nada, zilch and you call that legitimate oversight? When did you see the government fallow the rules if there was no penalties for not doing so?

– Second those arguments are only valid if anyone things the altruistic act of sharing is something to be criminalized and bad for society, further copyrights are ridiculous laws that produce absurd results like $75 trillion dollars claims, or more frightening the use of it to control usage of everyday items like printers that only work with “authorized” inks cartridges. Someday you piece of shit could woke up in a world where your TV doesn’t show “unauthorized” channels, your car wouldn’t accept “unauthorized” accessories, your washing machine would call the police because it sensed “unauthorized” clothes in it.

Nicedoggy says:

Re: Re:

Terry hart the incompetent from copyhype.


?In this case, of course, the film was not subjected to any form of ?final restraint,? in the sense of being enjoined from exhibition or threatened with destruction. A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition.?15 ?But seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film.?

Which is exactly the purpose of the COICA law that don’t want to preserve evidence, but stop the website from operating, didn’t Terry Hart noticed that little fact?


A seizure of all copies of the named titles is indeed more repressive than an injunction preventing further sale of the books.?

What is this crap that idiot ignores his own eyes and keep insisting that what others said was that it was legal?

And you piece of s. have the gal to point to that f. up analyzes?
Are you dumb?


But they are effective. Remember, the domains are seized because they are property that facilitate criminal conduct ?copyright infringement ? occurring due to the sites. The domain name provides an easy to remember address that attracts more visitors to these sites. They allow better search engine optimization for the sites ? in many cases pirate sites appear above sites offering the same content legitimately in search results. Most of these sites earn revenues from advertising ? Brian McCarthy, arrested last month after his domain was seized, made $90,000 in three years off his site, and Torrent-Finder, seized last November, made over $15,000 in one year from only one of its advertising providers ? so traffic and good search results are key to their success.

WTF! those earnings probably don’t even cover the cost of the servers anually, those people would make more money working a MacJob.


While a domain name can?t be ?destroyed? in the same sense as tangible property, a site owner can easily cancel the domain and get a new one if given a ?heads up? by ICE, destroying the connection between the domain name and the site where the infringement is occurring.
Finally, the infringement facilitated by the domain names causes irreparable and ongoing harm to copyright holders? First Amendment rights, adding to the need for seizing without a pre-seizure hearing.20

Irreparable damage?
Irreparable may be the brain used to come up with such bizarre fiction.

Without a heads up?
Right what is a seizure of a domain name to a guy that can promptly change his domain name in 15 min? Like almost all websites seized did?
That alone just shows how stupid that reasoning is, because the only thing ICE destroyed was the ability to people to defend themselves before something so radical without good reason.

Copyhype the place for idiots to go to get more idiotic ideas that defy not only common sense but reality, is like those people live in a alternate universe.

Anonymous Coward says:

I find this humorous that somehow turning off websites will create jobs.

Once a sound engineer does his job with recording, he will not be paid again unless it comes around to be remastered. He’s paid one time for one job. When that’s done, unless he has another job waiting, that is the end of the money.

This same sort of setup faces each and every one of those that work to produce a recording whom is a worker in some sort of service.

Once that recording is done, no one but the labels get any more money on that recording. There is no job increases in this, unless it is a new job.

So show me where this new economy that will bloom with all these American jobs are being lost, if they were to be recovered?

Nicedoggy says:

COICA can’t be about domain seizures that is just stupid, it yields nothing meaningful.

The true purpose of the law must be to seize “PROPERTY”, so they can go after copyright infringer’s and seize their homes, cars and the cloth on their backs to show them that the law is serious.

There are no safeguards on the stupid law for people to get a chance to defend themselves and even worst there is no way to redress any harm that is done on purpose or accidentally, if you get harmed you may have no way of being compensated for that and the government can just keep screwing up all they want, because nothing will ever happen to them, therefore there is no incentive to do it right or to not abuse it.

I’m starting to think that domain names is just a decoy for the real reasons behind all of this.
It is a misdirection to make us look at something that seems ridiculous and stupid and not to pay attention to the real purpose which is to create the framework for something much more scary.

Rikuo (profile) says:

I’ve heard many people say that so called “pirate” websites make thousands of dollars simply through advertising. Do you know what I want to say about this? That the internet has led to the consumer demand, not for content, but for DELIVERY of content.
I’ve paid for a megaupload account and fast internet. That gives me basically all you can eat in terms of content. All the copyright holders have to do is do the same here. Instead of charging for each separate piece of content, charge for access to high quality music/games/etc.
The only problem with this is that there would inevitably be separate companies, all demanding a separate payment, instead of what I do now: MU and internet. But surely something can be worked out.

Not an Electronic Rodent says:

And that is likely why they scream "theft" so much

(1) infringement is different than theft and (2) infringement online has a very different impact than “theft” of the same content in the offline world

I know there’s quotes around the “theft” but even that’s conflating a little there, which is why the term copyright theft annoys me so much.

Online or offline copying is copying and theft is theft.

If I copy a bunch of content online I’ve infringed copyright, possibly committed the crime of illegal computer entry depending where I got it from but basically not harmed or deprived anyone of anything. If I copy the content then deleted it off their server afterwards then perhaps it could be said to be theft as I have removed it from their possession.

In the “real world” if were I pick the lock on someone’s house and rip their CD collection to my laptop, I have committed the crime of breaking an entering and also committed copyright infringement. I have not, however, stolen anything. If I take their CD collection with me I have.

In both the “real world” and the “online world” theft is different from copying. Using the word “theft” at all confuses the real issue and the real “crime” (or otherwise). That, I suspect, is why it’s deliberately used that way – to obscure that infringement primarily affects “imaginary” money you didn’t have (and may or may not ever have got anyway), whereas theft has a direct tangible financial cost.
It’s an easy trap to fall into because it’s so easy to say and everyone *thinks* they knows what it means (I do it myself too) but it’s just NOT theft.


Anonymous Coward says:

“From counterfeit pharmaceuticals and electronics to pirated movies, music and software, IP thieves undermine the U.S. economy and jeopardize public safety.”

In a round about way infringing copyrights does effect public safety. If law enforcement wasn’t spending so much time looking after big business’s interests they’d have more time to focus on actual crimes.

Cower Land says:

The road to Hollywood is paved with GOLD

This saga reminds me of the Wizard of OZ and the yellow brick road!

O.k., so now we know who the Straw Men with no brains are.
I just need to know, who the Tin Man is. As one could take a wild guess and say its the Lawyers doing all the lying that could be the lion. But then it hit me, the Lion is the artist, who needs to find courage and leave in droves the established recording industry and form new alliances. Or force a change in relationships. Which makes me think the Tin Man is the lawyers ‘Pushing Tin’, that need to find a heart and maybe some honesty next time they look in the mirror.

If you don’t believe this is relevant, if you think my words foolish. Then I dare you to seek the truth and pull back the curtain to reveal who the REAL WIZARD of OZ is. It’s a decrepit bunch of old greedy men with some audio equipment they stole from an audio engineer I know, with some very dangerous DSP processing that feeds the main buss, which is connected the their lawyer mouth pieces. The main effect when listening to them is that this apparatus makes them seem more important than they are and bigger too. But when you look at them, there is a lot of gloss, but the culture of the human race is the poorer for it. But dam, them yellow brick roads are a sight to see.

My relationships have been more from the artist, engineer/producer side of the fence. And all I can say is, that technology is disruptive as well as progressive. The content creators have had to adapt over and over in their life’s journey for LOVE & GOD that created them. Yet all these Label guys think about is themselves, PURE & SIMPLE! They, the ‘Big Label Recording INDUSTRY’ must change. Just get over your self important greedy ways. Your not royalty playing patron to artists. Your living off their backs, yet your quite happy to keep them as slaves. Its about time you learn how to serve humanity, not yourselves. You don’t add any great value to cultural heritage, artist do that. So, stick to what your suppose to, we will all be happier. Whilst your at it, learn how to embrace the technology that is CHANGING THE WORLD including you. STOP dragging your heels.

I’ll be honest and say, sometimes Mike you really grind me the wrong way. But I realize your challenging people to see it differently. Piracy Apologist I know you’re not. But I can understand why the short sighted will tar you with this brush. Its tough subject, your not always right, but thanks for trying. We’re all here to learn & communicate the issues.

Word of advise, never cower to cowards with big lawyers with shinny tin belt buckles, who parade straw men with no brains. Take the stage light and shine it on the Wizard hiding behind the curtain, that old buzzard will whine and scream “I’m melting, I’m melting,” but eventually buckle under the weight of the truth.


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