Content Industry Insists E-PARASITE Won't Rewrite DMCA, But Co-Author Of The Bill Admits That's The Plan

from the rewriting-the-dmca dept

Defenders of E-PARASITE/SOPA have been going out of their way not just to mischaracterize the arguments against the bill, but now they’ve reached the point of outright lying. The American Bar Association has an email list for its “IP Section,” and recently there was a bit of a debate over E-PARASITE/SOPA, in which the myriad problems and dangers of the bill were put forth. Not one to let an opportunity go by to mislead, Viacom’s VP of Intellectual Property and Content Protection, Stanley Pierre-Louis, decided to defend the bill. I’ll have more to say about his various points later, but on one key point, he seems to not only be wrong, but at odds with one of the guys who supposedly “wrote” the bill. That is, Pierre-Louis responded to the charges that E-PARASITE is a backdoor to rewriting the important DMCA safe harbors by stating:

The criticism below views SOPA as a ?back door? means ?with which to bludgeon? innocent site operators by expanding the scope of secondary liability claims and diminishing DMCA protections. Of course, this view largely ignores that SOPA explicitly states that its provisions must not be read to expand or diminish either. And, it doesn?t. The fact that SOPA does not permit sites to take “deliberate actions to avoid confirming a high probability” of infringement merely restates the law as it stands today. There is no rule that permits ?willful blindness? of obvious wrongdoing under U.S. law, and nothing in the DMCA or any other statute has been deemed to hold otherwise.

Of course, this is one of the more nefarious tricks pulled by the authors of the bill. In a few different places, right before they totally decimate existing and established law, they put in a little thing that says, “nothing in here changes existing law…,” even as the plain text shows that it does.

But, in this case, why don’t we go to the source: Rep. Bob Goodlatte, supposed co-author of the bill, and the chair of the IP subcommittee in the House. When asked about criticism of the bill by Gautham Nagesh at The Hill, Goodlatte flat out admitted that the intention is to take away the DMCA’s safe harbors:

“I think it is unrealistic to think we’re going to continue to rely on the DMCA notice-and-takedown provision,” Goodlatte said.

“Anybody who is involved in providing services on the Internet would be expected to do some things.”

So, who do we trust? A Viacom exec with a history of trying to stretch, twist and break the DMCA (see: YouTube) by pretending that it requires actions it does not, or the supposed co-author of the bill, whose statements will certainly be used in a court of law down the road. And, if Goodlatte is admitting his intention was to change the DMCA with the bill, why did the bill even include that false claim that nothing in it changes the DMCA?

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Comments on “Content Industry Insists E-PARASITE Won't Rewrite DMCA, But Co-Author Of The Bill Admits That's The Plan”

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72 Comments
Anonymous Coward says:

Re: You found the smoking gun...

A bunch of lying thieving pricks is what these assholes are.And they want to take away our rights for their damn profits and their way to control all content on the Internet.
If this thing passes I hope to see some real Anarchy as our freedom will be gone and we will need some payback.

Anonymous Coward says:

Re: Re: You found the smoking gun...

A bunch of lying thieving pricks is what these assholes are.And they want to take away our rights for their damn profits and their way to control all content on the Internet.
If this thing passes I hope to see some real Anarchy as our freedom will be gone and we will need some payback.

be sure to wear your “Techdirt” hoodie to the Occupy Whatever demonstration so the cops know who is most in need of pepper spray.

Not that I think for a minute one of you keyboard anarchists would ever get off of your candy ass and actually do something.

PaulT (profile) says:

Re: Re: Re: You found the smoking gun...

“Not that I think for a minute one of you keyboard anarchists would ever get off of your candy ass and actually do something.”

If I had a vote in your country, I would, believe me. Instead I just have to sit back and watch as you morons destroy your own industry, taking the rest of us down with you.

“Not that I think for a minute one of you keyboard anarchists would ever get off of your candy ass and actually do something.”

Yeah, you tend to just attack people who get out there and state their opinion (e.g. Mike) instead of actually listening to their opinions.

Anonymous Coward says:

Mike, there is little chance that the one sided “notification and take down” DMCA system would be left to stand alone. Clearly it is not working well, too many sites make their living by using copyrighted content until they are notified, and often allowing the same content to re-appear within minutes. It’s not working out at all, neither side is happy.

The won’t re-write the DMCA, but PROTECT IP is certainly aimed at making sure that DMCA isn’t being used as a business model by “third parties” who have so far thumbed their noses at copyright holders.

Jay (profile) says:

Re: Re: Re: Re:

Re: Clearly it is not working well, too many sites make their living by using copyrighted content until they are notified, and often allowing the same content to re-appear within minutes.

People have made money on them. There’s plenty of free movies on Youtube. Google aggregates data from all over the world at this point. eBay allows consumers to pay for goods at wholesale prices if they can bid for it. And CL has been around for a while as a place for people to find good deals from others. All seem to be illegal from the looks of SOPA.

Quite frankly, I can’t tell if the old content industry has a problem with aggregate data or platforms for expression of content. But because people other than those durned pirates are making money from ads, they’re liable for what pirates do.

Ron Rezendes (profile) says:

Re: Re:

But…but… THAT’S THE LAW!!!

Been hearing that for years from the paytard side.

I am vehemently opposed to any process (bill/treaty/Executive decision) that intentionally leaves out the “due process” part of our legal system to hasten an agenda based on lies, mis-truths, and incompetence.

Not a single study or industry citation on IP infringement provided by the content side of the table remotely comes close to the facts when viewed by third parties, including government institutions. If the government says your studies are faulty and without basis, along with notable top flight IT industry insiders, it’s a pretty safe bet that you have a credibility issue since those two particular groups rarely agree on anything. Mostly because the gov’t is 10 years behind the technology curve and they really don’t have any idea how these things work thus allowing a proliferation of horrific bills like E-Parasite, Protect IP, and ACTA.

John Fenderson (profile) says:

Re: Re:

The won’t re-write the DMCA, but PROTECT IP is certainly aimed at making sure that DMCA isn’t being used as a business model by “third parties” who have so far thumbed their noses at copyright holders.

I’m not sure that this is actually a big problem. At least, when people have mentioned examples of these nose-thumbers, the examples that I’ve seen are dubious at best (YouTube, etc.)

Besides, I thought that the DMCA already had language that covered people fraudulently using safe harbors. I could be wrong, but I was pretty sure.

Josh in CharlotteNC (profile) says:

Re: Re:

there is little chance that the one sided “notification and take down” DMCA system would be left to stand alone. Clearly it is not working well,

I agree with this part.

It is entirely too one-sided, where any random person can send a notification and have perfectly legitimate speech taken down. We should move to a notice/notice system where the accused person can respond before a service provider is legally required to remove the speech.

Oh, you mean make it even more one-sided and favorable to obsolete corporations who are exploiting artists and real content creators while lying about trying to protect them?

Screw that. Go pound sand.

Rekrul says:

Re: Re:

Mike, there is little chance that the one sided “notification and take down” DMCA system would be left to stand alone. Clearly it is not working well, too many sites make their living by using copyrighted content until they are notified, and often allowing the same content to re-appear within minutes. It’s not working out at all, neither side is happy.

The won’t re-write the DMCA, but PROTECT IP is certainly aimed at making sure that DMCA isn’t being used as a business model by “third parties” who have so far thumbed their noses at copyright holders.

You mean third parties like eBay, Google and YouTube?

Under the DMCA, a provider isn’t responsible for what its users post through it. eBay isn’t responsible for what people sell, Google isn’t responsible for what people put on their web sites and YouTube isn’t responsible for any copyrighted videos that people post.

These new laws seek to strip away the DMCA’s “safe harbor” protections and make providers liable for what their users do, unless the company takes steps to stop the infringing activity. Let’s take a look at how that would affect the companies listed above;

eBay – Has been accused of allowing the sale of counterfeit goods. So now they have to police all auctions/sales to prevent counterfeit goods from being sold. Since the items are being sold by different people all over the world, how exactly is eBay supposed to tell a real item, from a counterfeit one? The only viable option is to start banning the sale of large categories of items that companies are worried might be counterfeit. Soon, you won’t be able to sell hardly anything on there. Movies, music, software, designer clothes. etc. The only people who will be allowed to sell anything copyrighted or trademarked will be registered companies.

Google – The entertainment industry has long complained that Google doesn’t prevent people from finding infringing files. Google is an automated system that indexes millions of web sites. There’s no practical way that every site can be reviewed by a live human, and even if there were, how are they supposed to know beyond a doubt that a site is safe or not safe. The only viable method is to use content filters that will exclude sites based on keywords. Sure, just filter for words like “BitTorrent” and “MP3”. Of course that will end up filtering pretty much every news story about piracy, even the ones that are absolutely opposed to it, and web sites that have perfectly legal sound files. In the end, you won’t be able to find anything even remotely related to entertainment on Google, because allowing such sites to be indexed opens them up to liability.

YouTube – According to Viacom, YouTube is a pirate site dedicated to making money off infringing content. They wouldn’t hesitate to have it shut down if the law allowed it. Since they would be liable for any copyrighted content uploaded by the users, all videos would have to be screened before being put online. With thousands of videos posted every day, each clip would only get a cursory viewing before some under-paid staffer decided whether it was safe or not. A few seconds of a song on the radio in the background? Not safe! A clip from a movie in a video review? Not Safe! Pretty soon, a good half of all videos uploaded would just disappear into the ether, with no explanation of why. That is, if the various studios don’t just band together and have it shut down altogether.

And there are thousands of smaller sites that would be similarly affected. These laws would basically put the entertainment industry in control of the internet.

Mike Masnick (profile) says:

Re: Re: Re:

Under the DMCA, a provider isn’t responsible for what its users post through it. eBay isn’t responsible for what people sell, Google isn’t responsible for what people put on their web sites and YouTube isn’t responsible for any copyrighted videos that people post.

fwiw, the DMCA only covers copyright and not trademark. The ebay stuff is about trademark. eBay is protected, but under caselaw, not a safe harbor in the DMCA.

out_of_the_blue says:

Where's the diff, Mike? Both say some version of "self-policing".

1st says: “There is no rule that permits ?willful blindness? of obvious wrongdoing under U.S. law, and nothing in the DMCA or any other statute has been deemed to hold otherwise.”

2nd says: “Anybody who is involved in providing services on the Internet would be expected to do some things.”

If don’t start out to split hairs, those say the same thing to me. Web-sites, like any other business, have a reasonable duty to insure that they’re NOT promoting illegal activities. — Actually all citizens have some “policing” responsibility when it’s perceived to be in the general interest. The degree is arguable, of course. — However, copyright infringement is fairly straightforward. If you put up links to obviously first-run movies, or encourage such links to be posted, and you know full well that those links actually do get to obviously copyrighted material, then you ignore those facts at peril.

An UNreasonable level of duty is not required. However, if your site traffic (Youtube) is so great you can’t possibly check them all, it’s NO excuse. It’s a basic flaw with the site’s premise. A LARGE volume of infringing material doesn’t thereby make an excuse. You’d better hire people to run an eyeball over it. If can’t and make a profit, TOUGH. Pawn shops, for instance, aren’t allowed to let just anyone walk in with a truckload of merchandise.

DannyO says:

Re: Where's the diff, Mike? Both say some version of "self-policing".

Let’s back this argument up 20 years and see how ridiculous it sounds…

If the VCR, no matter how cool a technology, is capable of copying a LARGE volume of illegal material than that is simply a flaw in its design. If it kills the technology, TOUGH! (BTW… the Supreme Court already rejected this line of argument in the Betamax case).

John Doe says:

Re: Re: Where's the diff, Mike? Both say some version of "self-policing".

You could also add in the DVR but lets not confuse anyone with facts. The content industry, if they had it their way, would have robbed society of many, many valuable innovations such as the record player, cassette tape, VHS, DVD, DVR, digital music, books and movies. Heck if it was left to the IP maximalist, we would be sitting around in log homes and riding horses..

This is what OOTB and the other maximalists here don’t want to admit, that their short sighted thinking and only looking out for their own pockets would stifle society as a whole. Any law on the books must take into account the good of society as a whole, not just some small segment of it.

el_segfaulto (profile) says:

Re: Where's the diff, Mike? Both say some version of "self-policing".

And what about the part that makes me a felon for streaming television, movies, and music to myself wherever I might be? I would agree with you that web sites have a duty not to promote illegal activities in the country in which they’re hosted, however the definition of “illegal activities” has gotten completely out-of-hand and is no longer in line with what the public at-large sees as morally and ethically wrong.

Examples: I can record an episode of a sitcom to a DVR (or MythTV Box), but I cannot download it. The result is the same, the file on a storage device, so why is one stealing and the other okay?

I can legally back-up my DVDs, but I cannot break the (simplistic) CSS encryption protecting them. That’s like saying, enjoy this egg, but you can’t break the shell to get to it.

People like you drastically over-estimate both the value of your own work and the level to which it is used illegally. Entire episodes of television shows and music albums should and ARE being blocked from YouTube. A family video of a kid dancing to a Prince song or a crappy garage band covering Good Riddance by Green Day should be fair use.

TL/DR: Your industry started this war by robbing the public domain and ramping up copyright lengths to ensure that it would never be a viable source of entertainment. How can you act surprised with people no longer respect the laws that let you rape our culture with impunity?

Gwiz (profile) says:

Re: Where's the diff, Mike? Both say some version of "self-policing".

A LARGE volume of infringing material doesn’t thereby make an excuse. You’d better hire people to run an eyeball over it.

Just out of curiosity here, even if YouTube hired 100,000 new employees to “run an eyeball over” the content being uploaded – how would they even know if it’s infringement?

Fair use defenses are determined by a court of law, not the rights owners.

And the rights owners themselves can’t even figure out what content they actually have rights to or if they were uploaded with permission. From the Viacom International Inc. v. YouTube, Inc. Wikipedia page:

…Google argued that since Viacom and its lawyers were “unable to recognize that dozens of the clips alleged as infringements in this case were uploaded to YouTube with Viacom?s express authorization,” that it was unreasonable to expect Google’s employees to know which videos were uploaded without permission.

BeeAitch (profile) says:

Re: Re: Where's the diff, Mike? Both say some version of "self-policing".

“Fair use defenses are determined by a court of law, not the rights owners.”

This.^^^^

E-PARASITE eliminates this (very important) defense. That is, E-PARASITE is based entirely on accusation, not a court of law (even if that only means a warrant issued by a judge).

Jay (profile) says:

Re: Re: Re: Where's the diff, Mike? Both say some version of "self-policing".

That has to be the most ignorant. IDIOTIC. ASININE statement you can have. Youtube is “too big to fail?” Are you kidding me?

Our drug policy has failed but it’s lead to an erosion of 4th Amendment rights. The Prohibition of Alcohol didn’t work in the 20s and 30s. Again enforcement of what the law said did not work when no one respected that law. And now you’re trying to conflate the topic of the day, the US economic crisis, with copyright law. Which is only similar in the fact that lobbyists are buying the politicians who thought this would breeze by. Sadly, you’re mistaken. Youtube is not “Too big to fail”. The fact is, the MPAA and RIAA business model needs to change to ensure the growth of the US, not the rest of the world conforms to their entitlement issues.

Jay (profile) says:

Re: Re: Re: Where's the diff, Mike? Both say some version of "self-policing".

That has to be the most ignorant. IDIOTIC. ASININE statement you can have. Youtube is “too big to fail?” Are you kidding me?

Our drug policy has failed but it’s lead to an erosion of 4th Amendment rights. The Prohibition of Alcohol didn’t work in the 20s and 30s. Again enforcement of what the law said did not work when no one respected that law. And now you’re trying to conflate the topic of the day, the US economic crisis, with copyright law. Which is only similar in the fact that lobbyists are buying the politicians who thought this would breeze by. Sadly, you’re mistaken. Youtube is not “Too big to fail”. The fact is, the MPAA and RIAA business model needs to change to ensure the growth of the US, not the rest of the world conforms to their entitlement issues.

Anonymous Coward says:

Re: Where's the diff, Mike? Both say some version of "self-policing".

The thing is you can’t even show us if something is infringing or not, this is not something clear cut.

Next you gonna say that every dude out in the streets now can say with absolute certainty what is and not infringement, than we wouldn’t need courts would we?

Narcissus (profile) says:

Re: Where's the diff, Mike? Both say some version of "self-policing".

Let’s extend this logic and see what other services need to be shut down then.
– Phone companies. I’m sure drug dealers use the phone a lot, not to mention terrorists and Pedophiles. Gasp! What about the children? They should screen all the calls to be sure everything is safe.
– US Post. Didn’t you read that they sometimes use the post to send threat letters? Clearly illegal so if they can’t prevent it, shut it down. Shear volume (not to mention constitutional issues) is NO EXCUSE.
– The Stock exchange. Some broker just went bankrupt and there is talk of foul play and illegal use of funds. We could also mention everybody’s favorite Madoff. If the Exchange can’t stop illegal trading or wrongdoings they should shut down! Sheer volume is NO EXCUSE
– Flea markets: Some people use flea markets to sell stolen goods so they’re all criminals. Shut them down!

Orwell and Huxley would be proud of you OOTB. You’re their best chance of proving their predictions right.

PaulT (profile) says:

Re: Re: Where's the diff, Mike? Both say some version of "self-policing".

“Orwell and Huxley would be proud of you OOTB. You’re their best chance of proving their predictions right.”

One of the problems with the issues here is that we seem to be arguing with a bunch of people who don’t understand – those books are meant to be cautionary tales of what we should strive to avoid, not instruction manuals.

That Anonymous Coward (profile) says:

“Anybody who is involved in providing services on the Internet would be expected to do some things.”

Why?
Why are you forcing others to protect the interests of a few?
Why is what we have done so far not enough?
What has the other side done other than pay you off to get a stupid bill proposed?

The issue this bill seeks to solve is 2 fold.
1 – it makes sure they do not need to consider consumer demands yet again.
2 – it lets them kill off innovation, you know that amazing thing you all tout about americans, because it scares them.

Why not stop sucking on the teat of the industry and oh I dunno… fix the rest of the country.

peopleagainstheft (profile) says:

Mike you’re a better lawyer than that. Goodlatte is saying that “I think it is unrealistic to think we’re going to continue to rely on the DMCA notice-and-takedown provision,” Goodlatte said. Pierre-Louis is saying that the DMCA survives. the sentences are completely consistent
the DMCA applies only in the US, for example. The DMCA is also NOT only a notice-and-takedown statute- for example there is no safe harbor if there is no agent for service of process, no safe harbor if the storage provisions is relied upon but the operator knows of infringement, etc. Notice and takedown only works for US sites that actually respond to takedown notices and act in good faith. No one is suing to block the phone company. But the pirate bay? Ever try sending them a takedown notice?

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