Can Defenders Of SOPA Explain How You Define Taking Deliberate Action To Avoid Taking Action?

from the the-problem-of-definitions dept

The Congressional Internet Caucus group held a recent panel discussion around SOPA, which is worth listening to. But one point struck me in particular. We’ve pointed out in the past the ridiculously convoluted language in the bill, that makes any site “dedicated to theft of U.S. property” if it “is taking, or has taken deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute” infringement. During the debate, supporters of SOPA defended this provision as nothing special, because you have to take “deliberate action.”

But, let’s be clear here. The “deliberate action” you have to take is to not take action. Think about that, and about how easy it is to abuse. How do you show that someone took deliberate action to not take action? You just show they didn’t take action. You have a double negative issue here. The reality is that this provision means “you must take action.” Not taking action is seen as deliberate action to “avoid confirming” that “high probability.” Basically, any site that doesn’t want to face massive liability, which could cause your site to disappear and all of your revenue partners to cut you off, would simply have to start monitoring proactively. If you don’t take action, you get accused of deliberately choosing not to take action.

See how ridiculous this is? The law is worded in such a weasel way that it allows defenders of the law to say there’s no requirement for action and that it only punishes “deliberate” actions — but actually reading the text shows that the “deliberate action” you have to take is to not take action. Thus, the only sensible course of action under the bill to avoid being declared “dedicated to theft of U.S. property” is to proactively monitor and block. That’s a massive change to the regulatory framework of the internet, disguised as something different through a sneaky language choice.

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Comments on “Can Defenders Of SOPA Explain How You Define Taking Deliberate Action To Avoid Taking Action?”

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102 Comments
surfer (profile) says:

Re: Re: Re:3 Re:

you obviously want to make linking to content, ‘infringing’, which is not part of copyright. therefore, your post is at least disingenuous, and at most, a flat out FUD. do you really think there are mindless idiots here (sans OOTB) that bother to read your propaganda, much less agree with it?

the reality is that the internet has empowered us to see thru your dis-information and realize what is actually happening. so you say only 10% actually are cognizant of the issues at hand, and that only even a handful of those are against your censorship bill, yet we see post after post of of powerful establishments seeing right thru your attempt to twist wording in SOPA to give you breathing room to allow the courts to define your lack of definitions, which is what you want, a leg up on the technological tidal wave that is defeating your idiocy at every turn.

your only recourse is misdirect, diffuse, name-calling, and FUD, all lack the ability to turn the tide of reality, and people that see the reality.

continue to over-reach, and I will continue to infringe. consider realistic monopolistic regulated capture, and maybe, just maybe we might respect your monopoly.

until then, I have some downloading, and infringing to do…

out_of_the_blue says:

Re: Re: Re:2 Re:

@ Prisoner 201, Nov 11th, 2011 @ 2:38pm

“I have no idea why Masnick wrote this post. None.”

That says more about you than about Mike.

——————-

And what it says about the AC is that his judgment is more sound and hs knowledge wider than Mike’s.

The Anonymous Coward, Nov 11th, 2011 @ 2:24pm completely demolished Mike’s take.

A Guy (profile) says:

Re: Re:

Patent rights are not the same as copyrights.

There is no Constitutional amendment stating the government shall make no law abridging the freedom to manufacture. The Commerce Clause specifically gives the congress wide berth to regulate these types of things.

Forcing one to take deliberate action to censor speech on the other hand IS disallowed by the first amendments prohibition on making laws “to abridge the freedom of speech.”

Anonymous Coward says:

Re: Re: Re:

Patent rights are not the same as copyrights. There is no Constitutional amendment stating the government shall make no law abridging the freedom to manufacture. The Commerce Clause specifically gives the congress wide berth to regulate these types of things. Forcing one to take deliberate action to censor speech on the other hand IS disallowed by the first amendments prohibition on making laws “to abridge the freedom of speech.”

Patent rights and copyright rights are different, but the two branches of law are traced to the same clause in the Constitution. For certain purposes, it’s proper to look to one to understand the other. I agree that the First Amendment context would be one where patent operates differently from copyright. But when it comes to common law standards like willful blindness, there is no reason for the standards to operate differently.

A Guy (profile) says:

Re: Re: Re: Re:

The problem comes when you force Joe internet site to start to distinguish between legitimate fair use and copyright infringement.

Sure, in some cases it can be pretty obvious, but it often isn’t.

Remember when Viacom uploaded to YouTube directly, and subsequently sued for infringement over those videos?

Remember that YouTube video of the baby with a prince song playing in the background?

How does a site know when a specific video is infringing? How can a website make a determination on fair use when that usually takes a trial to sort out on its own?

If the answer is to take proactive measures to delete it all at the first suggestion of infringement, when it has been proven that infringement notices have been used improperly to censor in the past then how is that not an abridgement of the freedom to speak?

Anonymous Coward says:

Re: Re: Re: Re:

What wilful blindness has to do with anything when the power to censor others will be given to a crappy AG somewhere and the really scary part to companies like Warner Bros that have no interest in knowing what is legal or not.

There is no laws that say we must protect abusers of the law why SOPA does not have any ways of tracking what is going to happen or punishments for abuses committed?

Are we going to give some people the right ot abuse others and get away scott free is that your notion of law and justice?

Anonymous Coward says:

Mike,

That “deliberate actions to avoid confirming a high probability” language is right out of Justice Alito’s opinion for the majority in Global-Tech: http://www.supremecourt.gov/opinions/10pdf/10-6.pdf

The case is a great read if you’re really interested in understanding this stuff. I very much doubt that Justice Alito and the other seven Justices who signed onto the opinion would agree that it’s “worded in . . . a weasel way.”

In fact, since the interpretation of that language in Global-Tech is controlling, we already know how courts will apply the standard. Willful blindness under this standard requires that: “(1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.”

What you call “ridiculous” happens to be the consensus opinion of the circuit courts of appeal and the Supreme Court. I know you like to pretend these things don’t exist and are unworkable, but willful blindness and inducement liability have existed (and worked well) for centuries.

No offense, but your whole “I don’t get it! It doesn’t make sense!” article is just silly FUD.

Marcus Carab (profile) says:

Re: Re:

You have certainly shed some light on the language, which I appreciate. I’ve been trying to think it through in terms of some relevant examples in terms of copyright infringement.

Something that would certainly meet the standard is tv/movie linking websites – assuming, at least, that linking definitely constitutes “facilitating” under SOPA, which it seems that it would. Most such sites provide legal links where available (Hulu, iTunes, Amazon) – but their main purpose is clearly the community-submitted links to unauthorized streams. With the popular ones, it is almost certain that they meet the (1) and (2) you listed as standards for willful blindness.

Fair enough.

Then there are the video platforms themselves. Some of them (Megavideo, VideoBB, Sockshare) seem almost entirely devoted to infringing TV and movies. It seems almost certain that they would meet the standard as well. That makes sense, but is also concerning: the community that uploads infringing tv/movies immediately flocks, en masse, to any and every new video hosting platform that becomes available. So with SOPA it would be essentially impossible to create a video-hosting platform without proactively monitoring for copyright infringement. Personally I find that somewhat troubling: a lot of innovation is going to be held back by the fact that nobody can launch a user-content platform without either the personnel or the technology to monitor submissions, which is going to be unfeasible or impossible in a lot of cases.

But whether you agree with it or not, it is clearly the intent of the bill (and most of its supporters) to make proactive monitoring a requirement for almost everyone – so it does seem quite weaselly to express that as a double negative. If proactive monitoring is going to become the required standard with this law, then it should say so clearly – and lay out a framework for the specific monitoring requirements. Then interested parties could understand, discuss and debate the law properly. I really can’t think of any reason to word it the way they did other than slipping it through – after all, the last thing the industry or Washington wants is for Silicon Valley to wake up.

But maybe I’m over-reading things. Do you agree that proactive monitoring would be required for the majority of user-generated content platforms under SOPA? If so, why doesn’t it say that clearly, and set out more specific requirements to avoid liability?

Rekrul says:

Re: Re: Re:

If proactive monitoring is going to become the required standard with this law, then it should say so clearly – and lay out a framework for the specific monitoring requirements. Then interested parties could understand, discuss and debate the law properly. I really can’t think of any reason to word it the way they did other than slipping it through – after all, the last thing the industry or Washington wants is for Silicon Valley to wake up.

That’s EXACTLY why it’s worded that way. The entertainment industry has wanted service providers to be liable for the actions of their users since the DMCA was first being drawn up. The safe harbor protections, which were lobbied for by the telcom industry, are a massive thorn in the MPAA/RIAA’s side and they’re desperate to get rid of them.

They believe that they’re the most important industry in the world and that all other concerns come second to their profits. To that end, they believe that every ISP and web site should be required to police everything that the users post and remove anything that might infringe someone’s copyrights.

After all, you can’t make an omelet without stomping on the egg carton…

Anonymous Coward says:

Re: Re: Re:

Marcus, anyone opening a site that accepts user submitted content should, by nature, apply at least some basic monitoring.

As an example, no file host would want to be caught with child porn, snuff films, or being used as a terrorist plan exchange depot. No video site would want to run this stuff – there is no real safe harbor against CP, after all. Many of them don’t want to run any porn, and most of them have “adults only” sections (including Youtube) that indicates at least some ongoing filtering.

The law doesn’t dictate monitoring, that is perhaps only one solution out of many to be compliant with the law. They might also find that they can be compliant in other ways, such as having actual signed contracts with uploaders, no accepting purely anonymous contributions, etc. Being willing to provide that sort of information to copyright holders without trying to shield the offenders might also go a long way.

A wide open video sharing platform doesn’t really exist. Perhaps you would consider some of the other options outside of monitoring that would work out, and then you can understand why the law doesn’t dictate a single course of action to comply.

Anonymous Coward says:

Re: Re: Re:

You’ve got to be kidding me. I’ve been further even more decided to use even go need to do look more as anyone can. Can you really be far even as decided half as much to use go wish for that? My guess is that when one really been far even as decided once to use even go want, it is then that he has really been far even as decided to use even go want to do look more like. It’s just common sense.

Anonymous Coward says:

What is this BS about supreme court standards?
When are companies going to use those standards?

Nice weasel way to mud the issues trying to say that in court it won’t be used, but the issue is not the court is the lack of a court of law, is the lack of judicial overview, is the lack of transparency, is the lack of accountability.

The proposed law makes no mention of punishment or consequences for bad behaviour and Warner Bros recently just proved that given the chance they will take anything down even if it is not theirs.

There is not even a fucking way to track how it is being used, nobody is going to be held accountable for their acts so it is funny that the crappy shills here believe that justice only should go one way.

Where are the safeguards in the fucking law you morons?

WHERE?!

Anonymous Coward says:

I want to see the shills here defend a bill that says.

Any copyright holder that is accused and should have known better will face the full extent of the law and private action can be taken to cut their financial support, their assets would be seized to guarantee that they don’t try to skip the law or else face jail terms.

Those idiot shills would never agree to that, but somehow everybody else needs to agree to equally stupid terms that benefit their masters, that is just rich.

FM Hilton (profile) says:

Censorship at its' best

All the AC’s and everyone else on board, including Mike,(if he hasn’t already, which I’m sure he has) can go to this page and sign up for the American Censorship Day being sponsored by the EFF on November 16, the day Congress will start hearings on it.
http://www.americancensorship.org/

To wit these are some of the highlights of the legal consequences of this bill:

“Website Blocking-The government and corporations can order service providers to block websites for infringing links posted by any users.”

“Risk of Jail for Ordinary Users-it becomes a felony with a potential 5 year sentence to stream a copyrighted work that would cost more than $2,500 to license, even if you are a totally noncommercial user, e.g. singing a pop song on Facebook.”

“Chaos for the Internet-thousands of sites that are legal under the DMCA would face new legal threats. People trying to keep the internet more secure wouldn’t be able to rely on the integrity of the DNS system.”

Those are the highlights. I’d hate to see the bad parts.

So,either protest this now or shut the hell up when it passes.

Arguing in cute little ‘bon mots’ will not make it go away. It’s on the verge of becoming law.

We have a choice-either let them get away with it or go down fighting the idiots.

darryl says:

worst heading EVER !!

Can Defenders Of SOPA Explain How You Define Taking Deliberate Action To Avoid Taking Action?

YES…

I take deliberate action NOT TO SPEED in my car so I can avoid taing action like “avoiding a crash”.

I can have a wee before I go to bed, so I can avoid having to get up in the middle of the night and take that action.

Everyone all the time, takes deliberate actions to avoid taking ‘other’ actions.

You probably lock your doors when you go out to avoid the actions of house theft.

You probably turn off your computer to avoid the action of a large electricity bill.

You probably Deliberately turn off your stove, to avoid the action of your house burning down…

If you were suddenly injured, and needed an ambulance, would you expect them to have to build the ambulance, fit it out, and train the people before they came to fix you ?

or would you expect that they allready have made a deleberate action before you injury, to avoid having to take that action WHEN you need it.

It might take some time to build an ambulance, so they took deliberate action in order to avoid that later actions.

Masnick your IQ is showing – but not in a good way….

Ed C. says:

Re: worst heading EVER !!

There’s a difference between taking “deliberate actions” for things that are a DIRECT consequence of your own PERSONAL actions and the actions of OTHERS. For instance, you watch your speed to prevent YOURSELF from wrecking YOUR car. This law, however, is about taking “deliberate actions” for things done by OTHERS. If this was analogous to speeding, it would be like not only having your car impounded, but having your credit cards canceled and being liable for the damages, all because you didn’t take “deliberate actions” to prevent others who where speeding from hitting your car. Being blindsided isn’t a defense because it was YOUR responsibility to act, regardless of the circumstances. It doesn’t matter if you depend upon your car for your job either. Sure, you could EVENTUALLY get a judge have your car released, but the actions were taken against you BEFORE you even have the right to a defense. Oh, and you can’t get another credit card because the companies don’t want to be accused of associating with anyone that had been involved in a speeding incident.

Of course, the way it really works with speeding, just as with copyright, is that the person breaking the law is the one held responsible, not the ones who didn’t “deliberate actions” to prevent their involvement.

Anonymous Coward says:

Re: Re: worst heading EVER !!

Apparently you have never been exposed to longstanding concepts in tort law such as “contributory negligence”, “last clear chance”, and “comparative negligence”. All of these are associated with one party bearing in part responsibility for the actions of another party.

Anonymous Coward says:

Re: Re: Re: worst heading EVER !!

And what this has to do with tort law vermin?
This is about private parties getting the power to threaten other business as they see fit.

You don’t give a drivers license to someone and day drive as you please there are rules to guarantee others will not be harmed by the actions of another are there not?

So vermin what you want is a law that only goes one way and not the other, you want all the perks of being able to “punish” others but don’t want to be accountable for your actions, I’m pretty sure that the law says nowhere that we must protect abusers and criminals like Warner Bros that using the DMCA keeps taking down everything they see and don’t care if it is legal or not.

Vermin go fuck yourself.

Anonymous Coward says:

I want to see the judge that will get a list with hundreds of websites to block and will apply any supreme court BS standard, judges will just rubberstamp and sort things out late, at that point fucking irreparable damaged already has been done to business everywhere.

There is nothing saying that one cannot keep putting the same URL over and over and over again, there are no penalties for bad faith, there is nothing in there showing how the government will track that BS to see what it is being used for.

The stupid want to give the dishonest the most powerful censor tool ever and don’t think it will be abused?

AG’s everywhere will just injunction Craiglist now, the church of Scientology can ask others to keep cutting funds to others, overzealous people can keep putting any business in some list to be blocked and nothing apparently will happen to those people.

Those dishonest people then will claim that it was a mistake that they keep putting the same people on the lists they ask for injunctions, knowing full well that judges won’t be able to sift through all of them.

This law should be called “crooks and censor act”

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