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Darrell Issa Tells IP Czar That She's 'Not Trying' If She Can't Pin Liability For File Sharing On Third Parties

Copyright

from the the-law-doesn't-matter-apparently dept

Thu, Mar 3rd 2011 09:13am -

Not much in the way of details but Thomas O’Toole reports (via Twitter) that Rep. Darrell Issa, who last fall had indicated he was worried that overly draconian copyright laws might stifle innovation, is now apparently pushing for even more draconian copyright laws. He apparently told IP Czar Victoria Espinel that she’s “not trying” if she can’t figure out a way to prosecute credit card companies who process transactions for “pirate” sites. It’s kind of funny that Rep. Issa would say he’s worried about stifling innovation… but then pushes for third party liability rules and prosecutions that would absolutely stifle innovation.

If he really wants the government to go after credit card companies with criminal lawsuits for the actions of some of their customers, that’s simply going to lead those companies (and others) to be a lot stricter in terms of whom they work with. It could prevent plenty of perfectly legitimate companies from being able to offer transactions, because the credit card companies don’t want to take the risk that one of those sites might just possibly be labeled an infringer. The chilling effects here would be massive. We have the safe harbors for third parties in the DMCA and the CDA for a damn good reason: because we should place liability on parties actually responsible, not on third parties who will then react by clamping down and denying important services to perfectly legitimate sites.

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Comments on “Darrell Issa Tells IP Czar That She's 'Not Trying' If She Can't Pin Liability For File Sharing On Third Parties”

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74 Comments
Anonymous Coward says:

I’m sorry, Mike. I don’t follow the logic.

He’s telling her that there’s existing laws, and that if she can’t find a reason to prosecute, she’s not trying… that translates into “pushing for even more draconian copyright laws”, how, exactly?

To me, it sounds less like “Oh, hey, I’ve completely reversed my previous stance, mua-ha-ha!” and more like he’s dismissing an argument that stricter laws are needed.

Given the lack of context, making an assumption either way seems premature.

The eejit (profile) says:

Re: Re:

No, the issues is that using current laws to ‘punish’ sites such as Rojadirecta, who have been cleared of wrongdoing. The issues is more of a chilling effect one. What might happen is that Mastercard and Visa might refuse to work with American companies because of pushing liability onto those who simply process payments, rather than going directly after those who are commecially infringing.

Anonymous Coward says:

Re: Re: Re: Re:

They *might* be acting against US law. BUT they’ve not been found guilty of anything and will probably never be prosecuted in the US for anything related to the seizure.

The only relavant court case has gone in Rojadirecta’s favor. So why did they get seized without trial?

Anonymous Coward says:

Re: Re: Re:3 Re:

U.S. judges have a mandate to respect international treaties and take them into account so yes they are obliged by their own protocols to pay attention to what other courts in other countries have done specially when dealing with things that fall outside their jurisdiction.

Anonymous Coward says:

Re: Re: Re:2 Re:

Actually Kevin, let me give you an example (extreme as it is):

There are people (pedophiles, we call them here) who travel the world in search of minors to have sex with. They are called “sex tourists”. Now, the sexual acts occur outside of the country, and are often “legal” by local standards (or at least tolerated). The person involved is rarely if ever prosecuted overseas.

http://en.wikipedia.org/wiki/Operation_Predator

You do not have to perform any of the acts in the US to be arrested and charged. All you have to be is a US resident.

In more practical terms, there are legal issues with “any part of a business being in the US” or “offering services to the US”. It is a pretty tangled web, but if there is a piece of the puzzle sticking into the US, the US can grab onto that part and work from there. It is what has been used against gambling sites in the past.

Richard (profile) says:

Re: Re: Re:3 Re:

the US can grab onto that part and work from there. It is what has been used against gambling sites in the past.

Like the case against Antigua – yeah that really went well.

The fact is that countries should be extremely cautious about pushing their own laws onto people in other countries. The fact is that the “sex tourism cases” that you mention are very problematic – and the justification for them is really based on the ends justifying the means – which is a morally bankrupt principle.

If it is acceptable in that case it is only because the countries in question certainly want to prosecute these people – but don’t have the resources to do so.

Where the foreign country is not co-operative you should leave it (unless you are ready to declare war). You wouldn’t want the laws of China or several middle eastern countries enforced in the US.

Kevin (profile) says:

Re: Re: Re:3 Re:

Your right, that was an extreme example that had NOTHING to do with this post. I think Child molesters are disgusting and horrible people that need to meet a slow and painful end, but that does not mean that I think we should stretch US law and force it upon other sovereign nations because we disagree with a decision they made. It was their’s to make.

Anonymous Coward says:

It’s kind of funny that Rep. Issa would say he’s worried about stifling innovation… but then pushes for third party liability rules and prosecutions that would absolutely stifle innovation.

Mike, I have to say your logic here is sort of all over the road. It’s posts like this that make people think you support piracy, because there is little other reason you would go here.

You are also setting up a false dichotomy, an “either or” choice that isn’t one at all. Issa can be pro-innovation, while at the same time not being tolerate of law breakers. Innovation doesn’t happen when people break the law. Third party processors and billers need to know what they are processing for (otherwise they violate their Visa / Mastercard agreements), and once informed of a copyright infringement or being made aware of the nature of the site, need to take action accordingly to limit their liability.

Your ISP / Hosting company only has protections if they act on DMCA notices. Failure to take action opens them up for liablity as well.

None of which limits innovation, only illegal acts.

Really, this makes it sound like you are supporting piracy and the way that they use to profit from piracy. Are you sure you want to be standing there?

Anonymous Coward says:

Re: Re: Re:2 Re:

But do you have to break the law to innovate, or can innovation happen anyway?

It’s the same debate as the stifling effects of copyright on content. We have apparently horrible stifling copyright laws, and yet production of content is at an all time high (according to Mike’s own post).

Now we have such severe laws that the only way possible to innovate is to break the law.

Welcome to Bizarre Absolutes, Texas.

The Infamous Joe (profile) says:

Re: Re:

and once informed of a copyright infringement or being made aware of the nature of the site, need to take action accordingly to limit their liability.

Informed by whom? What proof is required? Does it require a court of law to determine copyright infringement? If not, how does Fair Use play in, since it requires a court to determine Fair Use?

What law states this?

You seem to be stating wishes and desires as facts and laws.

You aren’t trying hard enough.

Really, this makes it sound like you are supporting piracy and the way that they use to profit from piracy. Are you sure you want to be standing there?

Mike: “because we should place liability on parties actually responsible”

That sounds like he’s against piracy and also against blaming the wrong people to me.

Anonymous Coward says:

Re: Re: Re:

Informed by whom? What proof is required? Does it require a court of law to determine copyright infringement? If not, how does Fair Use play in, since it requires a court to determine Fair Use?

What law states this?

DMCA. Being made aware of a violation does put a service provider in the position of needing to act (which is why some sites get pulled down when people don’t response to their ISPs). Fair Use is an affirmative defense, a valid reply to a DMCA notice that would get the service provider off the hook if it is reasonable.

You aren’t trying hard enough.

You aren’t paying attention enough.

Mike: “because we should place liability on parties actually responsible”

You don’t think that the people collecting the money at the door are at all responsible? Not even 1%? You don’t think that a company like Visa, who has strict guidelines when it comes to online operations, high risk processing, and the like would not want to know what they are processing for? Do you think they hand out high risk merchant accounts like candy?

By your logic, a retail store shouldn’t care if the stock they are selling is stolen or not, because it just isn’t their issue. They didn’t do the stealing, after all, they are just profiting from it.

Modplan (profile) says:

Re: Re: Re: Re:

Your don’t need an analogy – the credit card companies apply in both situations, and in both situations credit card companies do not automagically know when an account is being used for theft or fraud before hand, as damaging as it is the mental model of holding third parties accountable for someone else’s actions in situations where said party deals with hundreds of thousands and millions of transactions every day.

Anonymous Coward says:

Re: Re: Re:2 Re:

When Visa gets 10 – 20 DMCA notices a day about a site, they cannot claim to be ignorant. A single notice is enough to make them aware, and if they don’t work with the merchant to remove the offending content, they will create liablity for themselves. With enough notices, Visa would have to look very closely at processing for the site at all, knowing that their risk levels are increasing – they hate risk.

Anonymous Coward says:

Re: Re: Re:3 Re:

What about a user generated site like Youtube that has a pay for portion of the service (maybe for premium, HD content)? They could easily get multiple notices per day, with the bulk of the site being legal.

This is one of the major problems with this sort of approach. It is not content specific, it knocks off an entire entity for potentially a very small amount of problem files.

Anonymous Coward says:

Re: Re: Re:2 Re:

Nope. You are looking at the wrong end of the scale.

If a business is stealing guitars by the truckload and all they are doing is selling stolen guitars, and Visa keeps processing for them anyway, they may create liablity for themselves. Cops arrest everyone seize all the inventory, notify the building owner, banks, seize all the assets pending trial. The same people open in the building next door selling guitars again, do you really think Visa would process for them? Nope, because Visa knows they are creating liability for themselves.

We aren’t talking about websites that might have a minor copyright infringement once every few years. We are talking sites that are almost exclusively selling access to violating content. It’s really not the same thing as your example at all.

Anonymous Coward says:

Re: Re:

Problem is accusations are just that, and they largely come w/o any proof. So on accusations alone you shut down someone financially?

Take the closest analog of DCMA notices as an example, there are mistakes ALL THE TIME. They’re used premptively by companies to stifle negative commentary, cut off what is very likely to be fair use, and shut down political speech. The law on fair use and copyright infringement is far from simple and even courts tend to come to different rulings with some regularity.

Anonymous Coward says:

Re: Re:

Your ISP / Hosting company only has protections if they act on DMCA notices. Failure to take action opens them up for liablity as well.

None of which limits innovation, only illegal acts.

————–

It doesnt’ limit innovation b/c DMCA notices are not aimed at shutting down commercial enterprises. It knocks off one copyrighted item on a website.

It does however severly limit speech such as political speech and limits fair use significantly. B/c of how the process and the law works, there is no true consequence for incorrectly filing a DMCA notice.

However, shutting down payment services to a business most certainly will limit innovation. If I file an accusation that company X is infringing, and can stop all payments to them I can now easily shut down competition or business models I don’t like. For a start up or small business, even temporary halts to cash flow can be serious.

Karl (profile) says:

Re: Re:

Third party processors and billers need to know what they are processing for (otherwise they violate their Visa / Mastercard agreements), and once informed of a copyright infringement or being made aware of the nature of the site, need to take action accordingly to limit their liability.

No, they don’t. Perfect 10 already tried suing third-party FSP’s (financial service providers), and the cases were dismissed. eBay was the defendant in a few lawsuits (e.g. Tiffany v. eBay) trying to hold them accountable for counterfeit goods being sold on their service, and eBay won all of them.

So, no, Issa is not asking her to enforce laws already on the books. He’s asking her to take action against third parties that are not breaking any law.

Also, FSP’s do not ever receive DMCA notices, as they’re not online service providers.

And if you think holding them liable will only prevent “illegal” acts, then you’re out to lunch. There’s this thing called “chilling effects” that you might want to check out.

Anonymous Coward says:

Re: So when?

Exactly. It the same argument that has (successfully) kept gun makers and dealers from being held liable for how the products they make/sell are used. It’s not the credit card companies fault if their product is used illegally. There are already laws to go after those criminals, but Big Media is lazy and doesn’t want to have to do the work themselves.

Anonymous Coward says:

Re: Re: So when?

No, that is a different thing.

Gun sellers are often arrested and found guilty of not following the laws for selling guns. Liablity is limited because the product in and of itself is not defective, only the use of it. Gun stores are not selling “Hold up kits” or “Bank robbery specials” or “Mass murder toolkits”. If they were, they would be creating liablity for themselves. They are very careful to keep themselves at arms length from suggesting anything other than legal intended uses.

Piracy sites are a very different animal, because their inventory is material that is clearly violating copyright. Those who charge extra for access (or speedy downloads, example) are clearly selling illegal material. It isn’t a question if their service software is defective or not, but a question of the product they push with it.

Remember, guns stores are no liable for what you do with a gun. But they are liable if a gun goes off and shoots you in the store, or if a shotgun falls of a high shelf and cracks your skull.

Chronno S. Trigger (profile) says:

Re: Re: Re: So when?

One, “piracy sites” as you call them, are not clear cut like you wish they were. They are not clearly violating copyright law.

Two, credit card companies aren’t selling “theft kits” ether. Why should we hold them liable if their tools are misused?

Three, you seem to jump around in your arguments. You find anything that anyone can be held liable for and use it as an argument to push idiotic laws that aren’t related. Any company can be held liable if their items are improperly stored and fall on someone. It’s an entirely different law that covers that. It already exists, we don’t need another one. We definitely don’t need to use it as a reason to push a completely unrelated law.

Keep your arguments on topic.

Overcast (profile) says:

This would make for good opportunity for some who might seek to do damage to credit card companies…

Just put up a self-proclaimed ‘pirate site’ – get some transactions and make accusations.

Sure they might know that ‘PirateBay’ is a site they wouldn’t work with in light of the law, but what if someone put up ‘MovieMadnezz.com’ – put up pirated stuff and set up a credit card billing scheme….

This can and will be abused.

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