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PROTECT IP Would Gut Parts Of The DMCA's Safe Harbors [Updated]

Copyright

from the don't-let-that-happen dept

Fri, May 13th 2011 08:36am -

We’ve been covering the newly released “son of COICA” censorship bill, now renamed the PROTECT IP Act, this week, breaking the news of the summary version of the law as well as posting the full text. However, as people dig deeper into the text, it looks worse and worse. In fact, I have to apologize, because I think I got fooled by the summary text into believing the actual text of the bill wasn’t as bad as it turns out to be.

Sherwin Siy, over at Public Knowledge, points out that the part that we’d been highlighting as applying to “search engines” actually is not about just search engines, but applies extremely broadly to “interactive computer services,” a phrase that the courts have treated quite broadly for years. Update: Apparently the “interactive computer service” phrase was in a draft of the bill, but then was switched out for “information location tool” in the final version. However, there are still serious concerns about the loss of DMCA safe harbor provisions…

The real issue here is that it seems to eliminate some of the important safe harbors provided by the DMCA. It kind of makes you wonder if that was the purpose of this bill all along. The entertainment industry has been whining for a while about how the DMCA’s safe harbors need to go, and have test marketed that line of argument a few times, only to see major push-back. It’s beginning to look like they decided to use the PROTECT IP Act to undo the DMCA’s safe harbors with a bit of misdirection. First, they got people to focus on the issues from COICA (seizing sites, etc.) and then with the “summary” they turned the debate into it being about search engines, rather than all interactive service providers.

Updated: To clarify with the update above, the target isn’t quite as broad due to the last minute change in the phrasing, but there’s still a significant threat to the DMCA safe harbors. That’s because while the new act says that it shouldn’t impact the DMCA, the actual wording of the bill suggests otherwise. Specifically, the bill notes that “nothing in this Act” and “no order issued” can be used as evidence to knock out a safe harbor, but that leaves a massive loophole: allegations about the sites can still be used as evidence for “red flag” violations under the DMCA. So, for example, a rightsholder could use the PROTECT IP Act to make allegations against a site, and then claim that service providers now have red flag knowledge. It wouldn’t be exempted because the Act only exempts actual court orders or the Act itself… the allegations are not exempted, and could be claimed as a sign of infringement, upon which service providers would be expected to act.

That makes this law significantly worse than COICA. It’s a full on attack on the basic proper application of liability, and seeks to impose liability on third parties where it doesn’t belong.

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Comments on “PROTECT IP Would Gut Parts Of The DMCA's Safe Harbors [Updated]”

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167 Comments
Anonymous Coward says:

Re: See previous comment...

Mike Masnick just hates this bill because he loves piracy and this bill punishes infringers.

The DMCA?? LOL. You mean that incredibly flawed law that provides cover for infringers? Good for the government for addressing it. That’s why they’re there: to make correct laws.

Anonymous Poster says:

Re: Re:

If I legally purchase a firearm and later use the firearm to murder a person, I am the one charged with a crime. The person who sold me the gun is not liable because they only sold me the gun, and the gun manufacturer is not liable because they only made the gun.

Similarly, liability for copyright infringement should be focused specifically on the person who commits the act. Google should not be held liable, and neither should the ISP that the person uses to connect to the Internet.

DannyB (profile) says:

Re:

The problem is that you mislabel as enabler or facilitator, anything that can be misused to commit piracy. That’s why.

Your idea of enablers and facilitators is just an easy target who didn’t actually do anything wrong. That’s why.

Is AT&T an enabler and facilitator? Maybe. They’ve got lots of money. Their wires or airwaves carry infringement. They are much easier to go after than ACTUAL infringers. So let’s call AT&T an enabler or facilitator.

Is Google an enabler and facilitator?

Is the power company an enabler and facilitator?

Is Rapid Share an enabler and facilitator? Only by the same logic that a VCR is an enabler and facilitator of piracy — an argument that had to be fought in court. Only by the same logic that the Diamond Rio (one of the first popular brands of) mp3 player was an enabler and facilitator — again which had to go to court.

Anonymous Coward says:

I have written my representatives both federal and local in regards to my concerns with this bill, ACTA, and COICA. I get nothing but form letters telling me that they are looking into it, or how we need to be sure we protect our creative industries. I keep writing, but it appears that my opinion doesn’t really seem to matter. Nor do the others like me who are afraid of what laws like this one are going to do. They rush these into place based off of the content industries tell them, and once the real damage can accurately be weighed it will take nothing short of a miracle to get rid of them.

Anonymous Coward says:

Re: Re: Re:3 Re:

The point is that just because something is for sale doesn’t mean I don’t have a right to copy it.

and just because you ‘create’ something doesn’t mean you have a right to prevent others from copying it. You don’t. I never agreed not to copy it. If you don’t like it then don’t create. Others will.

Anonymous Coward says:

Re: Re: Re:5 Re:

I don’t have to disagree with every law just to disagree with some. I can reasonably disagree with anti – violence laws without disagreeing with laws that prohibit people from drinking water. Just like I can reasonably disagree with IP laws without disagreeing with laws that prohibit violence.

Anonymous Coward says:

Re: Re: Re:6 Re:

errr … I said that backwards (it’s late).

I meant to say

I can reasonably disagree with anti – water drinking laws without disagreeing with laws that prohibit violence. Just like I can reasonably disagree with IP laws without disagreeing with laws that prohibit violence.

buck lateral (profile) says:

Re: Re:

The bill, as I understand it, allows the government to get an order prohibiting search engines (or interactive computer services) from taking users to a site that has been declared to be a rogue site. That’s not much of a “liability”. They have the ability to challenge the order and if they lose and then choose to defy the judge’s order then I presume they could be cited for contempt. I don’t see any safe harbor issues at all. But then again I’m not a piracy apologist so maybe Mike could explain it to me.

The eejit (profile) says:

Re: Re: Re:

Under current law, the Search engine is not liable for gathering the site information.

What PROTECT IP would do is pass on the costs of monitoring the ‘blacklist’ to the ISPs, and then make them liable if the blacklist isn’t adhered to. Linking to Isohunt, Google? That’ll cost you about $40k. Visiting a US hosting site? That’ll cost the ISP if they’re ever blacklisted.

You know the last country to try a blacklist? Libya. And look what’s happening there. I’m guessing you don’t want that to happen in the US. IT’s coming, and probably sooner than you think.

The eejit (profile) says:

Re: Re: Re:2 Re:

That may be. With a warrant to track these people down.

Why is it that when people can’t respond, they try fopr the moral outrage attack? I mean, seriously? You’re going to desensitise people to a very real and very serious issue. And that’s going to get people killed. Just like the demonstrably false information that led the US and the UK into Iraq.

Anonymous Coward says:

Re: Re: Re:

“The bill, as I understand it, allows the government to get an order prohibiting search engines (or interactive computer services) from taking users to a site that has been declared to be a rogue site”

I look at this and see red flags all over the place.

If this was implemented, anyone can declare any site that is considered bothersome (read: wikileaks) a “rogue site” and wipe off the face of the Internet. You are basically giving gasoline and matches to a pyromaniac.

Or can’t you honestly see how this could be used for censorship? Even if you assume that the government has the purest of intentions, the recent domain seizures have proven that it, at least, has the poorest of aims and picks the biggest ammunition available, not necessarily the most adequate (a good analogy is hunting for one rabbit by carpet bombing the forest…usually the wrong forest).

A.R.M. (profile) says:

Re: Re:

“Which 512 safe harbors would it “gut” and how would it do so?”
By my reading, all of it. When I see the words “Attorney General”, I don’t think of due process, especially when I read Section 3(b):
“On application of the AG following the commencement of an action pursuant to subsection(a)…”

This subsection attempts to make notification.

You know, the same notification lawyers use to file en masse file sharing lawsuits.

A.R.M. (profile) says:

Re: Re: Re:

Dang submit before preview.

At any rate, my reply here was I don’t see any legitimate proof this law will be used any differently than others before it which are being abused to sue routers, not people.

If all it takes is an application to an AG, stop and think how this will swamp the system. 80,000 (as pulled from the recent DoJ crap) is ALOT of applications to sort through.

Do you really think any AG’s office will legitimately seek out to notify these web owners?

I don’t, which means “Block first, work details later”.

That’s Safe Harbors removed.

Anon says:

Not just search engines

I think browsers should have a blacklist built in. This would help those pesky file sharers that try to use proxies and get around a Search Engine or ISP blacklist. Even better, firmware added to all comps with a blacklist that’s kept up to date automatically.

Hell, lets just get rid of the whole internet. I’m tired of people using these tubes to infringe on others rights.

Anonymous Coward says:

safe harbors got abused (see youtube as an example) to build businesses that would have not existed without it. the intent of safe harbor wasn’t to encourage infringement, but it is being used to create infringement. it allows business models that are based on using the works and property of others to gather an audience and profit from it.

with this much abuse, there has to be pushback. the free lunch is over.

The eejit (profile) says:

Re: Re:

Wow, nice strawmen you have there. Did you have to chop down a field of corn?

Youtube is also a method of allowing fans to create derivatives. Go to Youtube and search for Vocaloid of MMD. There’s a lot of creativity on there and a massive opportunity to further monetise a work.

But no, people love their free l;unches far too much, right? Ask the RIAA if they’re going to pay that $105mil settlement from Limewire to the artists, or whether they’re going to bribe Congress again. Guess what the answer’s going to be?

And you know the funniest part? It’s legal in America, and illegal (supposedly) anywhere else in the world. Land of the Free? More like Land of the Long Con.

Raphael (profile) says:

Re: Re:

I’ve recently come to actually agree with you regarding the free lunch being over; I don’t think it’s as safe to download copyrighted works from infringing sources as it once was.

The problem that neither you nor anyone else on your side of this debate seems to understand is that production and distribution are no longer secret magic that only record labels have. My friends in the free culture movement have been working their asses off for the past decade to help me understand that there is no difference in quality between the products that media companies are wrapping in ever-more-draconian legal ice and the products that artists (http://www.jamendo.com/en/) and engineers (http://www.thingiverse.com/) are creating in their spare time and giving away for free. Media companies will probably be able to sue for infringement as long as people are dumb enough to regard them as the only source of cultural artifacts, but those lawsuits are powerful arguments for the alternatives to those companies’ products. It’s Econ 101; when the cost of one kind of goods increases, people will move to substitutes. Proprietary culture is just too expensive in terms of acquisition and potential liability cost.

Anonymous Coward says:

Re: Re:

“safe harbors got abused (see youtube as an example)”

IP got abused (see 95+ year copy protection lengths for example) and IP itself is an abuse because it violates my natural right to copy and punishes me for breaking a victimless crime.

“it allows business models that are based on using the works and property of others to gather an audience and profit from it.”

You mean how Hollywood and the big corporations have managed to use the government to monopolize content distribution (outside the Internet) for years in order to ensure that all content creators who want their content distributed must go through monopolist gatekeepers so that those gatekeepers can exclusively use their works for profit while offering the artists a small royalty in return (so small that artists hardly make any money from it, they usually made most of their money from concerts) and so that those corporations can often not even pay the artists the small sum of money that they owe?

No, it’s Hollywood et al, those who are lobbying for these laws, that want to use the works of others to profit while not offering those others very much compensation in return. Thanks to the FCC’s revolving door, these monopolist corporations have managed to get govt imposed monopoly control over the use of public airwaves (which keeps competitors and independent artists who want control over their own content or who want to distribute their content under a CC license, perhaps to gain and benefit from recognition, out of the market), these same corporations get govt imposed monopoly power over the use of existing cableco infrastructure (and the building of new cableco infrastructure), these same corporations prevent artists from performing at various restaurants and other venues because they demand absurd royalties or else they threaten those venues with expensive lawsuits under the pretext that someone might infringe, and they systematically ensure that all content delivery goes through a monopolist gatekeeper so that it is ensured that content is only distributed if the actual content creators hand over their copy protections over to some third party.

These big corporations don’t like the Internet because it enables competition. I don’t see the government lifting a single finger to correct the wrongful monopolistic structure they have created outside the Internet and so I see no reason to believe that their actions are nothing short of trying to extend this monopolistic structure over to the Internet.

IP exists for the same reason that govt imposed taxi cab monopolies and all the other many govt imposed monopolies exist. It exists because the govt seeks to grant monopoly power over everything that it can.

Anonymous Coward says:

Re: Re: Re: Re:

Do you actually read this website? Mike and everyone have explained that over and over again. You are either more convenient than your cost, offer better services than free, or you use free as part of your model. Are you only here to irritate people; because, that is all I have garnered from your posts?

Anonymous Coward says:

Re: Re: Re:2 Re:

Mike Masnick hasn’t explained anything. Not only are his ideas of promo not new, they have no basis in reality for sustaining everyone that makes music or helps make it.

He’s a geek that thinks he knows how the music world works and is laughably ignorant of basically every facet of it.

Anonymous Coward says:

Re: Re: Re:3 Re:

“they have no basis in reality for sustaining everyone that makes music or helps make it.”

No system can sustain everyone that makes music or helps make it. Anyone who plays a guitar on their spare time makes music, is it the governments job to ensure that their guitar playing sustains them? Some people make music and they suck, should the system sustain them too? Why should the system sustain everyone that makes music?

His ideas can sustain at least some people that make music and if the rest of those who make music can’t be sustained then I’m fine with that. Those people can contribute to the economy elsewhere by finding other jobs. So long as his ideas can sustain some people that make music then all that’s needed for them to sustain everyone that makes music is for those who it can’t sustain to find other jobs. The government should not try to manipulate how many people make music, that’s borderline communism where the government picks winners and losers and the government chooses what industries should be prioritized.

and if some people can’t be sustained by making music alone, perhaps some hobbyists who like to make music on their spare time for fun and maybe don’t want to make a ton of money from it, then there is nothing wrong with them working another job and making music on their spare time.

Anonymous Coward says:

Re: Re: Re:5 Re:

“His recycled theories have no basis in reality for sustaining everyone that makes the music EVERYONE IS CONSUMING or the people that help make it.”

I don’t care. Everyone that picks up a guitar and makes music that others listen to is music that others are consuming, even if those others is just the guitar players friend next door.

It’s also not the governments job to ensure that everyone that makes consumed music is sustained.

Anonymous Coward says:

Re: Re: Re:6 Re:

If you want the music that you like to be sustained, sustain it yourself. Fund it yourself. Don’t force others to fund it via paying for these stupid laws and via paying for the inconvenience of enforcing them (ie: service providers having to pay the extra costs of policing them which will result in fewer, more expensive, less innovative service providers that provide consumers with less).

Anonymous Coward says:

Re: Re: Re:5 Re:

“or the people that help make it.”

It should also be noted that a legal system that systematically monopolizes the distribution of content (outside the Internet our legal system wrongfully does that) and then allows certain people who sacrifice their copy protections to get their content distributed (ie: in return for recognition and the benefits of that recognition) isn’t doing anything to help those content creators distribute their content because they’re not providing them with anything that couldn’t be provided for them without these monopolistic laws.

So the argument that “the RIAA” et al help artists “market” their work is a lie. They do not. The RIAA et al are the ones responsible for the monopolistic nature of our information distribution channels (and the laws that govern them) to begin with and so simply giving them access to something that they can have access to if these gatekeepers didn’t exist isn’t actually providing them with anything.

Anonymous Coward says:

Re: Re: Re:7 Re:

“Enforcing piracy law doesn’t stop anyone from distributing their music for free if that’s what they want to do.”

That’s not what I said. What I said is that granting monopoly power over public airwaves and cablco infrastructure use and using our broken legal system to force restaurants and other legal venues to either pay absurd fees or face expensive lawsuits if they want to host independent content creators artificially makes it more difficult for those content creators to distribute their work.

Anonymous Coward says:

Re: Re: Re:2 Re:

So your solution is “No, artists can’t make their living making art, they have to stop and go work another job.”

Thankfully, our lawmakers don’t listen to parasites that consume but don’t contribute anything like yourself, and support and protect the rights of creators.

Anonymous Coward says:

Re: Re: Re:3 Re:

“No, artists can’t make their living making art,”

Your argument assumes that these IP laws are needed for artists to make their living making art.

“they have to stop and go work another job.”

For those who can’t make their living selling art, yes. That’s free market capitalism.

“Thankfully, our lawmakers don’t listen to parasites that consume but don’t contribute anything like yourself”

You mean corporate parasites that use the legal system to wrongfully control most information distribution channels (outside the Internet, and they’re working on the Internet as well) and then they parasite off the works of content creators by taking full control of their works (demanding title to the copy protections), offering them little in return, and often not even paying them what is owed?

As citizens us ‘parasites’ should have just a much a say in government policy as anyone else. The problem is that the government doesn’t listen to everyone, it only listens to big corporate parasites that want one sided laws that only favor them.

You’re consuming the air you breath yet that consumption doesn’t require you to contribute anything back. Parasite.

Some artists may enjoy giving away their art just like some people give to charity. If you think that giving away your art for free makes others parasite off your work then don’t do it. No one is forcing you to. But don’t use the government to fund and enforce your desired monopolies. No one is entitled to having any government giving them a monopoly (and further having taxpayers pay for it). If anything, that’s being a parasite (forcing others others to fund your business model via the inconvenience necessary to police it). Many artists will make art without these monopolies and they will find other ways to make money off of those who consume their art. You assume that those who consume their art will simply consume their art without contributing anything (ie: by going to concerts, donating, etc…).

“and support and protect the rights of creators.”

This is not a legal right I want them to have and it’s not a legal right that the government should protect.

Anonymous Coward says:

Re: Re: Re:5 Re:

Just because you don’t care doesn’t mean no one else cares.

and as a citizen the government should represent me just as well as everyone else. Sure, they shouldn’t represent me alone, but they should represent me in addition to everyone else. and in order for them to represent me they need to know my viewpoints and in order for them to know them I need to express them. If the majority of citizens agree with me and no one expresses their view then how can the government know to represent us? I am here expressing my viewpoint and if the rest of our citizens agree that IP laws should be abolished then they should be. The govt should serve the public will and the public isn’t ‘nobody’. You are also free to express your views as well and if the majority agree with you then may the govt pass the laws you want. It’s called democracy.

Anonymous Coward says:

Re: Re: Re:7 Re:

“If you don’t like it get copyright repealed.

Until then, shut your parasitic piehole.”

Perhaps part of the reason I’m discussing this matter is because I want copy protection laws repealed. Not saying anything is not a good way for me to get these laws repealed. A better way is for me to advocate their abolition. So, no, I will not be quiet because that would be detrimental towards the end of having the laws repealed.

Anonymous Coward says:

Re: Re: Re:3 Re:

“Thankfully, our lawmakers don’t listen to parasites that consume but don’t contribute anything like yourself, and support and protect the rights of creators.”

The purpose of IP isn’t to prevent ‘parasites’ who don’t produce from consuming. The founding fathers recognized that everyone has a nature right to copy as they please. The purpose of these laws is to promote the progress. That’s their alleged justification. That way we can have more things in the public domain for people to freely copy. These laws are not promoting the progress, they’re being used to stifle progress.

Regardless, these laws don’t make sense and they never did. They do not serve the public benefit. The founding fathers though they could if they were very limited but the founding fathers should have stuck to their initial skepticism and prohibited these laws explicitly.

Jay (profile) says:

Re: Re: Re:5 Re:

“try dealing with the Constitution as is.”

Amendment 1 – Freedom of Religion, Press, Expression. Ratified 12/15/1791.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Constitution does not have a “right to profit” if it interferes with the 1st Amendment.

Amendment 4 – Search and Seizure. Ratified 12/15/1791.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

IP addresses are debatable, but the rules state that the government has to describe what’s being looked for. Add this to the 1st Amendment’s petition for grievances, and the government has to find a very plausible reason for doing what it is doing in copyright law with IP lookups, domain seizures, and the one sided trials that are going into effect so far.

Amendment 5 – Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

4th Amendment described that the government needs a warrant. The 5th Amendment describes that they can’t take domains or anything else from someone without compensation. As it stands, they’ve done nothing but take away domains, forcing people to uproot their lives in a lot of ways.

buck lateral (profile) says:

Re: Re: Re:6 Re:

So let Yuri argue his case all the way to the Supreme Court. In the meanwhile, you may have to pay for the content you enjoy.

The absurd thing is that even the pirates know yours is a bullshit argument, that’s why when they get shut down, they just reinvent themselves. That’s why the professional apologists like EFF, Public Knowledge and CDT don’t sponsor cases based on idiotic Constitutional contentions. Making specious Constitutional arguments to gin up support amongst freeloaders is very different than going to court and having the court uphold the constitutionality of your position.

Are you really so cheap and self-entitled that you just simply won’t pay to watch the content you enjoy?

Jay (profile) says:

Re: Re: Re:7 Re:

“So let Yuri argue his case all the way to the Supreme Court. In the meanwhile, you may have to pay for the content you enjoy. “

There’s these small mythical boxes called TV and radio, that severely disagree with you… Call it a hunch…

“Making specious Constitutional arguments to gin up support amongst freeloaders is very different than going to court and having the court uphold the constitutionality of your position. “

Dude, you brought the Constitution into this. As it stands, the enforcement of copyright leads to the statutory damages, the IP searches, and high monetary damages. That’s not an efficient allocation of goods in the slightest. It doesn’t “deter” the behavior of “pirates”, nor does it prop up the industries who look for a world where their way was king.

By the government’s own admission, in the Tenenbaum case, one filesharer undermines the very idea of copyright. If you looked at the supposed damages, it equates to $600,000? How does that add up except to the middlemen that aren’t creating, but hold copyright? That’s the problem. It’s a government imposed monopoly that no longer has a place.

And please, can the rhetoric. It’s not helping your cause. It actually undermines any point you’re trying to bring up by making you look less informed on the issues at hand.

“Are you really so cheap and self-entitled that you just simply won’t pay to watch the content you enjoy?”

As I said before, I pay for those I support. I still enjoy my games through Steam, my music through Jamendo, last.fm, etc. and the movies and content of artists and directors I support. I just watched Thor in 3D. Badass movie. I’ll probably get it on DVD, but maybe I’ll wait for Marvel to put it on Netflix soon.

I’m still waiting for you to actually sit down for a debate. These arguments lose all meaning when all you can do is say “But… but… piracy”

ASTROBOI says:

War against US....

Its been said again and again that file sharing, copying, piracy etc. are not going away and can’t be stopped. But look around and you see that this activity will no longer be the easy caper it once was. For our government will respond in the only way it knows; declare yet another “War Against…” and this time file sharing will join drugs, porn, skateboarding, speeding, sex and just about anything else that is either harmless fun or sources of money for out of country crooks. So even though our country is about broke, there is always a few bucks to be scrounged up to fight an unnecessary, unwinable war.

Jay (profile) says:

The real targets

I thought about this and I’m wondering what exactly our government is thinking…

Bear with me, the parts equal a sum to a new whole.

Domain seizures were done for “copyright infringement”.

Politicians pressured Mastercard, Visa, and other financial institutions to take away financial capabilities of those that are outside the reach of the US.

Google is required to “block” sites from being spidered.
Attorney Generals are given power to enact these powers against websites and a mighty loophole for foreigners.

Let’s move to what happened to wikileaks:
Financial pressure
Takedown of domain(?)
Attempts to go after Assange and block wikileaks through Google among other attempts.

I don’t think this legislation was actually meant to be the beneficiary of the Recording Industry or MPAA…

It seems all of this is to again go after Wikileaks. Sure, it helps out the causes of the lobbyists of the MPAA and RIAA. It’s catered to their ideals and interests, which is control of how people distribute their products.

Ultimately, this actually shows that ALL of our government will go to any means to stop Wikileaks. That’s far more telling than a few infringing files.

Jay (profile) says:

Re: Re: The real targets

*sigh*

Let’s get this straight, you don’t know anything about the Wikileaks vs government debacle that’s been going on?

Makes much more sense than what you’re trying to post about. Such as going for foreign sites who don’t follow US law. So basically the US wants to stomp on other nation’s sovereignty for infringement along with whatever else they can get away with. Bravo on showing that.

buck lateral (profile) says:

Re: Re: Re: The real targets

Jay: PROTECT IP only permits orders on US ad networks, US payment processors, US search engines, etc. The common thread is US. There is no abuse of sovereignty nor are orders enforceable (or even contemplated) against foreign registered websites.

You can continue to freeload. You’ll just have to do it without using the aforementioned US-based assets.

The eejit (profile) says:

Re: Re: Re:2 The real targets

Wikileaks pimpslapped the US. Mastercard, Visa, Verisign are all US companies. I’d argue that that’s using extra-jurisprudential means of pressuring a non-sovereignty-binding group who embarrassed you.

Apparently, China’s in awe of your adoption of their methods. They’re so proud that Communism actually won you over.

Anonymous Coward says:

Re: Re: Re:3 The real targets

Our form of ‘communism’ more closely resembles Russia than China. In Russia the government intentionally serves the interests of big business, often by bailing them out (like what the U.S. has started doing in more recent years) and by granting them monopoly power over everything. It’s not really communism, it’s more like plutocracy.

Anonymous Coward says:

Mike – I’m not sure where you got your info, but I’m assuming it’s from PK’s now corrected post you linked to. The bill says “information location tools,” so yes, it’s search engines, not “interactive computer services.” I’ve got issues with the bill, too, but like others commenters have asked, how do you think this “guts” the DMCA?

The text of the bill says in a couple places that it does nothing to change obligations, or to expand or contract the safe harbors, under 512. It does affect search engines, and that certainly seems like cause for concern. But reading the actual text of the statute, it does nothing to change the *liability* of search engines. It just subjects them to court orders to remove links. It even says that if they don’t obey those court orders, the remedy is that they can be sued for injunctive relief (that is, not damages).

So how does this gut the DMCA safe harbors?

buck lateral (profile) says:

Re: Re:

The answer is that it doesn’t gut DMCA safe harbors. Mike is a second-rate piracy apologist who is perfectly willing to distort the facts to fit his position. He’s entitled to his own position, but not his own facts. He blindly followed his liege lord, Prince Sherwin The Apologist into this trap and as a consequence has shit all over his face too. Expect no explanation of the safe harbors issue.

Jay (profile) says:

Re: Re: Re:

*laughs*

You must be right.

I’ll help.

Piracy has cost the US and Europe $1 million dollars

Nearly two months after the launch of the MPEE report, we?ve run the numbers. Using common industry methods, the rate of piracy of MPEE in the US and Europe stands at a staggering 98%. Non-profit research sector losses to MPEE piracy total $345,000. Losses to the US economy are around $1 million, equivalent to a loss of 20 jobs.* At this point, we can only guess how much we might have learned about piracy losses if the MPEE project had suffered fewer piracy losses.

It?s silly to talk this way, of course, but it is a pretty close approximation of how our piracy debate is constructed.

As I have said before, the use of rhetorical words is poor form in an argument. Maybe you should look at some data that can explain why ex officio powers and strong “enforcement” just won’t work.

FUDbuster (profile) says:

Specifically, the bill notes that “nothing in this Act” and “no order issued” can be used as evidence to knock out a safe harbor, but that leaves a massive loophole: allegations about the sites can still be used as evidence for “red flag” violations under the DMCA. So, for example, a rightsholder could use the PROTECT IP Act to make allegations against a site, and then claim that service providers now have red flag knowledge. It wouldn’t be exempted because the Act only exempts actual court orders or the Act itself… the allegations are not exempted, and could be claimed as a sign of infringement, upon which service providers would be expected to act.

I disagree. In an action under the PROTECT IP Act the defendant is put on notice of the infringement. Whether or not that defendant down the road could lose his 512 safe harbors would depend on what he did with that knowledge. This is no different than any other defendant. The safe harbors are completely intact and the defendant is still protected by them.

Greevar (profile) says:

Re: Re:

“Whether or not that defendant down the road could lose his 512 safe harbors would depend on what he did with that knowledge.”

Exactly, if they do nothing, they’re fucked, because they will be implicated. So the only remaining option is to become copyright cops by compulsion. When you are notified, you must act on it (despite any actual evidence) to avoid being added as an accomplice.

FUDbuster (profile) says:

Re: Re: Re:

Exactly, if they do nothing, they’re fucked, because they will be implicated. So the only remaining option is to become copyright cops by compulsion. When you are notified, you must act on it (despite any actual evidence) to avoid being added as an accomplice.

But how does the PROTECT IP Act change things? A plaintiff can already sue a defendant for regular old infringement. The defendant in such a lawsuit could be claimed to have gained knowledge of the infringement, and if the defendant does nothing about it, a plaintiff later on could claim that they lost their safe harbor.

I don’t see how the PROTECT IP Act affects safe harbors in some special way. I don’t see how this “guts” them.

buck lateral (profile) says:

Re: Re: Re:

My understanding of the PROTECT IP protocol is that first there must be a good faith effort to notify the infringing sight owner. If he fails to appear then the government or rights holders can seek an order to have the enablers stop providing service service. So are you suggesting that safe harbor provisions could be jeopardized before a judge decided whether or not to issue an order to VISA?

Greevar (profile) says:

There's only one sure way to deal with this in finality.

That way is to abolish copyright in its entirety. These absurd laws are born out of the rights and assumptions derived from copyright law. They claim copyright gives them ownership of the works they create, so they think “need” legal enforcement to “protect” their “property”.

What they’re trying to accomplish, is to restore a system that has lost its foundation. Only one pillar of that foundation remains (law) and they are trying to make it work by increasing its strength. Unfortunately for them, you can’t support a structure with only one pillar, no matter how strong it is. It only results in a balancing act that will topple the moment anyone shakes it up.

So, I’ll say it again. We have to get rid of copyright or they will continue to create these abusive, one-sided enforcement laws to put all the sand back in the hourglass. It’s not a matter of whether or not it should be abolished, because it just gives these people too much leeway to create these COICA’s, DMCA’s, ACTA’s, and PROTECT IP’s.

Anonymous Coward says:

Re: Re: There's only one sure way to deal with this in finality.

“See, the most important thing is that I’m allowed to consume the work of others for free, while I myself contribute nothing back to society.”

and people give to charity. Those who benefit from charity may not always give back to those who donated.

There are many people who don’t mind others freely consuming their work and there is nothing wrong with consuming that work. As for those who do mind, no one is forcing them to create and release work. If they don’t like the terms that society offers them, then they don’t have to create works. Abolishing copy protection laws will only result in people freely consuming the work of others who don’t mind their work being freely consumed. Those who don’t like it can find other jobs.

But they have no business having the government and others freely fund the enforcement of their business model. That’s being a parasite without contributing anything.

Huph (user link) says:

Re: Re: Re: There's only one sure way to deal with this in finality.

Abolishing copy protection laws will only result in people freely consuming the work of others who don’t mind their work being freely consumed. Those who don’t like it can find other jobs.

The problem here is that the majority of consumers (in America, at least) prefer these big box-office megastar-laced, over-the-top productions of modern media. I think that if we were suddenly left with a world full of “Golf Wang” videos rather than, I don’t know, all the Marvel franchise movies, you’d find that many many people would not be happy with that trade-off.

It would be very much like the dark ages in comparison to the Roman empire. We’d be left with all these epic works of art from the past, but all we in the present would have are lo-fi bedroom recordings, or small budget films with minimal grandeur; everyone would look around and wonder “What happened?” Then, just as history teaches us, we’d again adopt the practices of the previous era in an effort to bring back the “glory” of the past. That’s exactly what the Enlightenment and Renaissance was about.

I’m not a fan of mainstream media by any stretch of the imagination, but the fact that it is massively popular says something about its cultural relevance. Your idea that these sorts of works should be gone is by default an admission that you want to stifle the aspects of culture you don’t like. I know that you might not think of Iron Man movies as “culture”, but that is your rather lonely opinion.

Jay (profile) says:

Re: Re: Re:5 There's only one sure way to deal with this in finality.

I believe he was talking about Hollywood accounting, which allows a studio to (ab)use a copyrighted work, then when it’s time to ante up the funds, it’s doomed to fail. It’s a separate corporation set up for each movie that pays for artists and such, but on paper, it’s hurting the industry.

What this does is cement Hollywood’s belief that piracy is hurting them, when it’s really their own failed accounting and business practices.

And judging how some of the top brass in Hollywood is thinking, it seems that everyone is putting money on distribution and trying to control the internet around the world.

Mike Masnick (profile) says:

Re: Re: Re:4 There's only one sure way to deal with this in finality.

Can you give me the name of a filmmaker currently making a living without copyrighting any of his content

Wrong question. Since copyright is applied automatically, this is meaningless.

However, many filmmakers are making a living without *enforcing* their copyright. Nina Paley is one we’ve spoken about frequently.

buck lateral (profile) says:

Re: Re: Re:5 There's only one sure way to deal with this in finality.

Nina Paley? Are you kidding me? The only “movie” she ever produced was “Sita Sings The Blues” which was an 82 minute cartoon she made on her home computer for under $200,000.

Why wasn’t copyright automatically applied to this film as well?

Interesting to note she infringed on ten songs and was able to settle a $220,000 claim for $50,000. According to her, the film has made back $132,000. Hard to see how one makes a reasonable living with these economics.

Anonymous Coward says:

Re: Re: Re:2 There's only one sure way to deal with this in finality.

“you’d find that many many people would not be happy with that trade-off.”

Even if your doomsday trade off scenario were true, and it’s likely FUD, I, for one, wouldn’t mind. It wouldn’t bother me.

“Then, just as history teaches us, we’d again adopt the practices of the previous era in an effort to bring back the “glory” of the past. “

If you look at history, that’s not why these laws were adopted at all. and history has shown that plenty of good content was created without these laws in places and at times that didn’t have them.

“but the fact that it is massively popular says something about its cultural relevance.”

Maybe it’s massively popular because the government grants monopoly power over public airwaves (broadcasting radio and television) and cableco infrastructure and these monopolies make it a whole lot more difficult for competitors to compete. Makes it much easier for those who have such govt imposed monopoly power to benefit from the ad revenue that a wider audience brings and hence to produce more expensive content.

“Your idea that these sorts of works should be gone is by default an admission that you want to stifle the aspects of culture you don’t like.”

There is a difference between me wanting to stifle them and me not wanting my government to actively support them at taxpayer expense. I don’t necessarily want to stifle them, if you want to fund them then that’s fine with me, I just don’t want laws that require me to contribute to them via paying for the social costs of enforcing and abiding by these laws.

“I know that you might not think of Iron Man movies as “culture”, but that is your rather lonely opinion.”

It is culture, but that’s besides the point. Any form of art is culture but that’s no reason for the govt to subsidize it. Culture will exist without govt subsidies.

Greevar (profile) says:

Re: Re: There's only one sure way to deal with this in finality.

The creation of art requires labor. Is any additional labor invested into copying that art? I’d say not. Then why should getting paid for labor you’re not doing be protected at the expense of the rights of the people? Prove to me that all the copies of Lady Gaga’s music that weren’t paid for required additional labor on her part to create and I’ll concede my position. Otherwise, your argument is nothing but an ad hominem attack showing that you have nothing of merit to argue and wish to diffuse my point by claiming that I’m a thief/freeloader. Whether I want content for free and do not contribute to society has no bearing on the facts. Facts are fact no matter who is speaking about them. If a mass-murderer says that water is wet, is he wrong because he is a mass-murderer or is water, in fact, wet?

So the fact remains that the existence of copyright is harmful to society because it takes away rights from the people to protect what doesn’t need to be protected. It also harms, by extension, by way of any laws that use copyright as a springboard to create more enforcement to strengthen copyright. It’s needlessly harmful and it enables more harm to be force upon the public. That is why it should be abolished, because if anything of it is left, it will be used as an excuse to create more power for those that would profit from it.

Mike Masnick (profile) says:

Re: Re: Re:2 There's only one sure way to deal with this in finality.

Maybe you could cite a country with weak or non-existent copyright law and we could examine the health of their indigenous film and music industries.

We’ve discussed, in detail, the state of the film industries in Nigeria, China and India. All produce more movies than the US each year, and all are known for weak copyright laws (or at least enforcement).

buck lateral (profile) says:

Re: Re: Re:3 There's only one sure way to deal with this in finality.

The average Nigerian film costs $20,000 and shoots in a week on a camcorder or if it’s really high end a Red camera. What’s the exposure to piracy? Do you really think there are people in every country in the world downloading Nollywood films? They’re not and that’s because these films are, by and large, shit.

The Federation of Indian Chambers of Commerce and Industry (FICCI) estimates that the Bollywood industry loses $100 million annually in loss of revenue from pirated home videos and DVDs. This in an industry of about 1.5 billion per year. Also a significantly higher percentage of annual revenues comes from the box office which is not affected by piracy.

Quoting statistics issued by the State Administration of Radio, Film and Television, the paper said that China produced 526 films in 2010. Of these, 17 took more than 100 million yuan (US$15.19m) at the box office, while 59 of them made more than 10 million yuan (US$1.52m) each.

However, only around 200 of the 526 films were ever screened in public and the average profit made by each film made was less than 20%. About 80% of the films that managed to be screened failed to recover their production costs.

Nice try though.

Anonymous Coward says:

Mike – you’ve probably given up reading this comment thread by now (I can barely stand it), but just to follow up on your update. I understand that you’re saying that the allegations against a site made in a PROTECT ACTion against the site might then be used as “red flags” that would bring the site outside the DMCA safe harbors, but doesn’t that seem like a criticism of the structure of the DMCA, rather than this law? I mean, a content owner could make such allegations now, without PROTECT. We’re seeing that very issue being litigated in Viacom and Veoh. It seems to me that one bright spot, amid an otherwise troublesome bill, is the “this doesn’t change the DMCA” part. That seems like boilerplate, sure, but in a legal case, where a site is being sued for something like infringing content posted by a user, or a link to a specific location with infringing stuff, it seems helpful to be able to point to that language; the site would have a strong argument that the court should (must?) ignore any PROTECT Act claims previously made. Or at leAst treat them no differently than any other sorts of claims.

The eejit (profile) says:

Re: Re:

The difference is that, with the way that the DMCA and PROTECT IP intersect, the PROTECT IP Act would allow for ‘red-flag’ knowledge to be a viable attack with little more than “We flagged it with PROTECT IP, tso they have red-flag knowledge, so we3 deserve to be paid!”

That’s not law, that’s legalised extortion.

buck lateral (profile) says:

We wouldn’t be having this discussion if you were content with the broadcast television you bring in through an antenna (ad supported) or radio (ad supported).

If PROTECT IP wasn’t viewed as a serious threat to continued freeloading, I doubt you and your apologists friends would have your knickers in such a twist.

Oh, btw it’s nice you pay for the content of artists and directors “you support”. But it’s hardly a justification to steal from the ones you don’t.

Jay (profile) says:

Re: Re:

I’m assuming you are pointing this towards what I was saying before? You might want to either copy the arguments you’re responding to, or change from the flattened view that you’re using.

“We wouldn’t be having this discussion if you were content with the broadcast television you bring in through an antenna (ad supported) or radio (ad supported). “

First, I create my own content elsewhere on the internet, but also support my own list of people that I like. I like Jamendo and Kendra Springer. I also like the underground artists such as Zion I. I listen to their music on Jamendo or even through other streams, such as live365.

“If PROTECT IP wasn’t viewed as a serious threat to continued freeloading, I doubt you and your apologists friends would have your knickers in such a twist.”

Again, this doesn’t follow. The use of your rhetoric is hurting your argument. PROTECT IP is hurting the liberal freedoms of choice in how people want to use internet resources, all to the detriment of society as a whole. It’s an effective “time shift” back into the past two decades. Technology has trumped the need for these laws. And the ones that don’t get it are the ones that promote these ideas to politicians without a clue.

“But it’s hardly a justification to steal from the ones you don’t.”

I don’t. You’re trying to read words that aren’t there. Drop the rhetoric, and deal with the issues at hand, please.

Jay (profile) says:

Re: Re:

What foreign operator is hurting sales here in the US?

If anything people are still interested in American products and licenses. We have The Office in the UK and America. Saudi Arabia (who mainly gets C-Span, not much of our entertainment programming) is interested in shows such as The Housewives.

All those “foreign operators” are in sovereign nations, where our rules shouldn’t apply. Why is taking a domain name so important to the US economy as to cause me, an American consumer, grief? Better yet, what grief is it causing to the artists to see a show for free? We do that with TV, still! If an artist wants to go into those countries and negotiate to have their art, shows, and games in a country, our government shouldn’t do it with misguided legislation. It’s up to finding a good way to talk and license for a program to make money despite the “piracy” that takes place.

If anything, that shows some of the grievances that are easily fixed by changing the rules in the digital era. One frustration from Americans that causes frustration is the TV show Doctor Who, and the regionalization that occurs there. BBC shows it, then two weeks later, it’s shown in the US. Do you think any of the people that are fans of Doctor Who are going to care that you think they’re criminals? More than likely they already have four Sonic screwdrivers and are just frustrated in that they have to wait for nothing for their favorite TV show. So, downloads occur, unless BBC puts it on their website. Simple.

The point is, all of these issues, that you deem as necessary for artists, really aren’t. Foreign operators, such as websites who stream, fans of TV or music of different countries, or even businessmen, can be approached and a solution found without one domain name seized. We have the tools and PROTECT IP isn’t one of them. The tools are

Twitter
Kickstarter
Youtube
Ustream
Bandcamp
Soundstage

And many, many others…

I firmly believe that you want to connect with people, not ostracize them. The PROTECT IP doesn’t do much to make friends when you’re treating everyone as if they’re criminal.

I have friends who have started a movie review website in Australia.

I have others in Japan who talk about music in the country. Should they have their website taken down because of accusations in the US?

buck lateral (profile) says:

Re: Re: Re:

I’m going to type this s-l-o-w-l-y in the hope you can follow along. The PROTECT IP Act DOES NOT take down foreign websites. It allows the government or rights holders to seek an order from the court directing US payment processors, US ad networks and US search engines (gov’t only) from providing services. They are perfectly free to carry on with their infringing activities.

Joe Blow says:

It ain't about the artists

The world would be a different place if the post office had succeeded in requiring a postage stamp on every email!

98% (approximately) of artists have been getting screwed by the content distribution corporations since before your grandparents were born. Content distribution used to an expensive and complicated process when physical objects had to be produced and shipped. The ability to distribute electrons instead removes 98% of the reason for content (books, movies, music, newspapers, magazines, etc.) distribution corporations to exist. Now anybody can be a content distributor, which is terrifying to the entrenched distributors.

But, these corporations are big and powerful and have realized they are fighting for survival. They will do whatever it takes to win. The political repercussions are a side effect that they don’t care about because their continued ability to profit from their outdated business models is the primary goal.

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