Can PROTECT IP Be Fixed?

from the might-be-tough dept

Earlier this week, I went to see Rep. Bob Goodlatte speak at a State of the Net West event in Palo Alto. It was basically a Q&A session, hitting on a variety of points concerning legislation that impacts the tech industry. Honestly, there wasn't too much surprising said, though he was clearly well-briefed and ready for a variety of questions on copyright, patents and privacy -- which were the main themes of the discussion. The one thing that really caught my attention was in response to a question about PROTECT IP asked by EFF lawyer Michael Barclay. Goodlatte noted, correctly, that the current PROTECT IP bill being discussed is the one in the Senate, and that the House has yet to introduce its version, but will in the next few weeks. He claimed that the people working on the bill were definitely aware of the criticism being leveled at the Senate version, and he expected that people would be surprised at the House version. He insisted that it aimed to fix some of the problems of the Senate version, but that it might include some "other things" that might upset the tech community. We'll see what's in there when it's ready, though we've already heard that a version of S.978 -- the bill that can put people in jail for embedding YouTube videos -- will be rolled into the House's version of PROTECT IP. Still, while admitting pretty clearly that the bill was "being driven by" the recording industry and the movie industry, he also noted that they "might not be too happy" with some of the things in the bill when it comes out.

I doubt they'll be too disappointed (other than being upset that it's not draconian enough), but his statements at least raised some basic questions about how you could fix PROTECT IP. Larry Downes takes a stab at the five essential changes needed to fix the bill. He goes into more detail at that link, but the quick version:
  1. Don't destabilize the domain name system
  2. Leave search engines and hyperlinks out
  3. No private enforcement
  4. Correct ongoing abuses by DHS
  5. Clearly define "rogue" Web site
If I had to guess, I would think that the House bill might actually tackle number one, but I doubt any of the others are under serious consideration. There has been some push for number three, but the entertainment industry lobbyists are salivating so heavily over that one I can't see them giving it up. I haven't seen any indication that anyone (other than Rep. Lofgren) in the House seems to care about the DHS's abuses, so that's out.

But, really, a bigger question may be whether PROTECT IP is needed at all? I agree that the five changes listed above would be a massive improvement, and would make the bill significantly less objectionable. But, why is this even needed? In this era when we're supposed to be focused on evidence-based copyright changes, the industry doesn't show any evidence of actual harm caused by these "rogue sites." They just insist that they must be "losing" billions. But that ignores the point made over and over again in the research: which is that this is a business model issue, not a legal issue. If the industry spent one-tenth the effort it spends on crafting bad legislation on actually innovating and creating services that people like, this wouldn't even be considered a problem at all.


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    fogbugzd (profile), Aug 19th, 2011 @ 6:03am

    Is the administration so deeply under the influence of the MPAA that they are willing to lose the next election? The evidence seems to indicate that they are.

    The next Presidential election in the US appears to be a close call at this point. Protect IP has a great deal of potential for getting the President a lot of bad press and pissing off a significant part of the electorate. In a close election it could make a difference.

     

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      The eejit (profile), Aug 19th, 2011 @ 6:19am

      Re:

      To be honest, given the level of insanity in the opposition for the GOP primaries, I think the only way the Dem candidate could lose is if they killed puppies on live TV, then ate babies.

       

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        Jay (profile), Aug 19th, 2011 @ 6:42am

        Problem with politics

        All of the candidates in a nutshell

        Now who the hell is Fred Karger?

        And why has no one heard of Gary Johnson?

         

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          Anonymous Coward, Aug 19th, 2011 @ 3:08pm

          Re: Problem with politics

          That link doesn't work with TOR and it appears to have tracking code in it.

           

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          Anonymous Coward, Aug 19th, 2011 @ 3:10pm

          Re: Problem with politics

          That is the XML file I get from that link.
          AccessDeniedRequest has expired6D08A2EE29DACA422011-08-19T21:49:26ZtDZl3RA1IIvUnQqQmjSxml1fH4Zesm3JZ+T8ZhPkkCvUxwfyksjXScVX7 FubhKem2011-08-19T22:09:06Z

           

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        The Mighty Buzzard (profile), Aug 19th, 2011 @ 7:25am

        Re: Re:

        Or, you know, we sunk into a the second bit of a double-dip recession? People are, as a whole, extremely petty and short-sighted when it comes to their personal finances. It worked for the Dems in `08 and it's almost certain to work against them in `12. Them's the breaks.

         

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          MrWilson, Aug 19th, 2011 @ 9:45am

          Re: Re: Re:

          While it's still very early, I foresee that the pandering that the top Republican candidates are doing to the far right will polarize the election to the extent that all the moderates will vote for Obama as the lesser of two evils.

          I'm all for balancing the budget, but doing so entirely through the make-believe economic principles that that the Tea Party supports is equivalent to bleeding a patient to get the demons out of their body that are causing their stomach to ache.

           

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            Anonymous Coward, Aug 19th, 2011 @ 9:58am

            Re: Re: Re: Re:

            I foresee that the pandering that the top Republican candidates are doing to the far right will polarize the election to the extent that all the moderates will vote for Obama as the lesser of two evils.


            Concur.

            In fact, I'd say there's a high probability that we have a de facto one party state right now. The Republican candidates appear to be trolling the electorate.

            So, is it just one “mainstream” candidate and a bunch of trolls colluding to throw the election to that “moderate” candidate? Sure looks like that to me.

             

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            The Mighty Buzzard (profile), Aug 19th, 2011 @ 4:13pm

            Re: Re: Re: Re:

            Meh, most of the TP types I know are only interested in the "stop spending more money than you take in" end of things. Every group has its assholes though and the Dems have done pretty well at finding the ones who claim TP allegiance.

            Personally, I'm rooting for another Obama victory. There are still people who believe in his economic policies and nothing will cure that better than having to live under them for another four years.

            Don't take that to mean I think Bush's were any better. They've both spent way, way too much money. I mean with entitlements currently taking up just under 90%* of the money we take in each year, that's some serious vote buying by both sides. Not a single damn given about the fiscal health of our nation, just that they dish out enough national pork to stay/get in power.

            * I shit you not. The math is correct. Google the numbers up and do it yourself if you don't believe me. Percent of budget spent on entitlements * budget / annual tax revenue. Feel free to use last year's revenues since it doesn't look like we'll be doing any better next year. Or bump them by 3% or however much you expect our economy to grow. It'll still be between 89 and 90 percent of revenues.

             

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              Jay (profile), Aug 22nd, 2011 @ 6:06am

              Re: Re: Re: Re: Re:

              I strongly suggest relooking at what Obama has done in the technology field. Basically, he unleashed Biden, who is the largest friend to the RIAA.

              His behavioral economics has actually caused a booming black market. He ignores drug policy, even though there is a large amount of evidence it is wrong. Operation In Our Sites continues to be condoned by him. He's involved in Libya while both sides are against the US.

              Unfortunately, I find Obama's methods to seem more about talking big, then backing down.

               

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      gorehound (profile), Aug 19th, 2011 @ 2:28pm

      Re:

      PROTECT-IP is shit and you can not call it any other name.If it goes thur I do hope that Millions of us join in DDOS' ing Washington in a General Protest.
      FUCK YOU WASHINGTON !!!
      Fix the economy and leave the Internet alone.You hasve a lot bigger problems to deal with than this krap.

       

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    out_of_the_blue, Aug 19th, 2011 @ 6:05am

    Industry "might not be too happy"...

    Even you see through that as a standard lie.

    But you then start guessing what might be in it and other fantasy. It's on rails, they're just seeing how much evil they dare to do.

     

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    Zot-Sindi, Aug 19th, 2011 @ 6:21am

    Can PROTECT IP Be Fixed?

    Why yes, yes it can.

    In the same fashion any other unneeded, unwanted(except by industry control-freaks) and problematic PoS gets fixed: get rid of it.

     

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      Zot-Sindi, Aug 19th, 2011 @ 6:25am

      Re: Can PROTECT IP Be Fixed?

      You know, now that I think about it... You can fix IP/Copyright/Patents in the same way. It's so easy I wonder why it hasn't already been done yet. Do people really think they can save a cake that's been baked with salt instead of sugar?

       

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        Jay (profile), Aug 19th, 2011 @ 6:40am

        Re: Re: Can PROTECT IP Be Fixed?

        The number of lobbyists fighting to destroy America's economy, for personal gain, is directly proportional to how much legislation is needed to "fix our economy".

         

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    Ima Fish (profile), Aug 19th, 2011 @ 6:30am

    Leave search engines, hyperlinks, and embeds out

     

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    That Anonymous Coward (profile), Aug 19th, 2011 @ 6:42am

    well first it needs to be tested.
    We set fire to it -
    If it burns its like Christine O'Donnell and not a witch.
    If it doesn't burn it is a witch and we should use extraordinary rendition to take it to the Vatican and have the demons driven out of it.

    Easy peasy...

     

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    Anonymous Cowherd (profile), Aug 19th, 2011 @ 6:45am

    PROTECT IP is moot before it's legislation

    One way or the other, the will of the internet users cannot be stopped without killing the goose with the golden eggs (aka: DNS).

    Misguided idealists and/or corrupt pundits may succeed in pushing legislation to ban [X], but will always be beaten by a group of clever pragmatic kids in a garage in Sweden setting up [Y] as an alternative.

    The fact that bureaucracy almost always moves slowly, and the speed with with groups of internet users can respond, means that MPAA/RIAA etc. etc. might as well follow the advice in Mike's last sentence, because there is not nor has there ever been any chance of "winning" the war on infringement.
    So, unless the plug is pulled at the highest level, more and more of the boomers will be replaced by tech-savvy kids finding ways around any limitation thrown at them.

     

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      Greevar (profile), Aug 19th, 2011 @ 7:42am

      Re: PROTECT IP is moot before it's legislation

      "The Net interprets censorship as damage and routes around it."
      John Gilmore

       

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      Chosen Reject (profile), Aug 19th, 2011 @ 9:34am

      Re: PROTECT IP is moot before it's legislation

      more and more of the boomers will be replaced by tech-savvy kids finding ways around any limitation thrown at them.
      Not to rain on your parade, but consider the number of people back in the 60s who might have said something similar about the then current leaders and drug laws. In reality, drug laws have only become even more strict once the hippie generation got into power. I'd love to see a tech-savvy congress, but after reading recently that 90% of people don't know how to use ctrl-f or otherwise search a document, I hold out little hope.

       

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    The Logician (profile), Aug 19th, 2011 @ 7:05am

    I must agree with Cowherd. Technology always outpaces large organizations such as governments and media conglomerates. The internet is designed in such a way that any attempts to restrict the flow of information are inevitably routed around. PROTECT IP will not be effective in any form because of this, therefore, the logical course of action would be to abandon it. Unfortunately, however, elected officials often act in highly illogical ways.

     

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    Anonymous Coward, Aug 19th, 2011 @ 7:08am

    If by "fixed" you mean "neutered", I think it is always a possibility. However, PROTECT IP is just the move to swing the pendulum of copyright violation back to the other side. Right now, almost all of the rights are on the side of the offender, as a whole. The 48 hours to handle a DMCA takedown, the (often abused) hosting safe harbors, and there being no simple way to address repeated abuses has lead to a situation where rights holders are complaining loudly to congress.

    Right now we have plenty of companies who have business models that are either based on abusing the current copyright laws (by counting on the DMCA system to protect them, rather than punish them for copyright violations), or by offering services that are clearly often used to spread copyright material (file lockers, example). As with the discussion yesterday about 1 million DMCA notices, it's clear that there are business models out there that exist only because of way DMCA is structured, and use the gaps to profit.

    As for the five points, they only really apply to companies who are pushing the limits or who are working business models predicated on abusing the current copyright laws for profit.

    The domain name system isn't under any real pressure, except for specific cases of illegal or questionable activity.

    While it is nice to say "search engines" should be exempted, it is those sites (like torrent finder style sites) that abuse the current system and make it impossible to ignore. Too bad for honest search engines, there are too many sites out there claiming to be search engines that are really just fronting for piracy. Hyperlinks are pretty much in the same issue, you cannot exempt them because it is one of the major ways that sites claim innocence, usually by putting the violating files into a file locker site, and linking to them... and then claiming not to be working to violate copyright, just providing "information".

    There will always be private enforcement, because copyright is considered a civil matter for the most part. It means that many criminal cases in copyright are driven by civil litigation, which may expose larger issues. You cannot deny civil litigants the rights to investigate and move forward with legal action.

    DHS is only applying the laws as they sit. We are in a transition period where governments in many countries are finally addressing the Internet and looking for "how do we police this thing?". Until the laws catch up to reality, there will be the DHS doing what it can.

    If you work to hard to "clearly define" a rogue website, you run the risk of setting up a series of blinds that these sites can hide behind, and claim legality. Rogue websites may end up being legally more like obscenity, where the test is less concrete and more fluid.

     

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      Anonymous Coward, Aug 19th, 2011 @ 7:18am

      Re:

      "If you work to hard to "clearly define" a rogue website, you run the risk of setting up a series of blinds that these sites can hide behind, and claim legality."

      So, you agree that it is HARD to define exactly what a rogue site is? As in, I could stretch the definition to fit my needs?

      I'm glad we are on the same page citizen. Please continue to ignore our abuses.

       

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        Anonymous Coward, Aug 19th, 2011 @ 7:50am

        Re: Re:

        No, I don't agree it is hard to define what a rogue website is, not at all. What I am saying is that in defining it in legal terms, you create the very foxholes that they can hide in and claim innocence.

        Example: DMCA notification wasn't created to allow sites to profit from using copyright material as their content. Yet, it is the very basis of many sites, who will post up almost anything and "wait for the DMCA", all in the name of traffic or profits. Nobody intended the DMCA notification system to be a free pass for all sorts of business models, but that is what it has become. The law written too narrowly allows for many to slip by.

        You can also look at thing like the safe harbour provisions for service providers. The term "service provider" has been stretched to the point of stupidity in many cases, allowing almost any online site to call itself a "service provider" and to avoid any legal implications from the acts of it's users, even if the very nature of the site encourages those activities.

        So if you write the "rogue website" provisions too narrowly, you end with a single definition that then becomes easy to avoid. Then you end up once again with a bunch of people tap dancing around the law, doing things that are not in the spirit of the law, but are within overtly narrow wording of the same.

         

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          Greevar (profile), Aug 19th, 2011 @ 8:18am

          Re: Re: Re:

          You mean, if you define "rogue website" too narrowly, you can't use it to arbitrarily accuse any website you don't like of criminal acts? You're really just looking for broader power to abuse the law to your own ends. Sorry guy, we are not going to grant you absolute power to accuse and judge whom is a "rogue website" by your own personal opinion or whatever suits your mood that particular day.

           

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            Anonymous Coward, Aug 19th, 2011 @ 8:29am

            Re: Re: Re: Re:

            @Greevar

            You sound like an embittered, failed creator who can't earn a living in the industry. I submit if you had any real stake in making a living from your own, vulnerable intellectual property, you'd be singing a different tune.

            Sorry guy, we are not going to grant you absolute power to accuse and judge whom is a "rogue website" by your own personal opinion or whatever suits your mood that particular day.

            You don't seem to grasp that the law will define what constitutes a rogue website, and a magistrate will apply that to the circumstances presented. Stop pretending that anyone from the content industry can arbitrarily include any website it chooses.

             

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              Greevar (profile), Aug 19th, 2011 @ 9:05am

              Re: Re: Re: Re: Re:

              "You sound like an embittered, failed creator who can't earn a living in the industry. I submit if you had any real stake in making a living from your own, vulnerable intellectual property, you'd be singing a different tune."

              No, your gross delusional thinking just irritates me because it is quite plain that you think that more enforcement will solve a problem that can't be solved that way. What you propose will inevitably fail because it's not an enforcement issue, it never was. You can no more stop people from copying works than you can stop them from talking. You're trying to restrict communication. That will always fail.

              "You don't seem to grasp that the law will define what constitutes a rogue website, and a magistrate will apply that to the circumstances presented."

              Since when has the industry cared how the law defines things? It's people such as yourself that can't grasp that copying is not stealing as the law defines, so why would defining "rogue websites" prevent the industry from taking it to abusive extremes?

               

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                Anonymous Coward, Aug 19th, 2011 @ 10:04am

                Re: Re: Re: Re: Re: Re:

                "You sound like an embittered, failed creator who can't earn a living in the industry. I submit if you had any real stake in making a living from your own, vulnerable intellectual property, you'd be singing a different tune."

                No, your gross delusional thinking just irritates me because it is quite plain that you think that more enforcement will solve a problem that can't be solved that way. What you propose will inevitably fail because it's not an enforcement issue, it never was. You can no more stop people from copying works than you can stop them from talking. You're trying to restrict communication. That will always fail.

                Perhaps you should read the post above regarding the effect of increased enforcement in South Korea. A 55% increase in recorded music sales in three years attributable to tougher enforcement.

                "You don't seem to grasp that the law will define what constitutes a rogue website, and a magistrate will apply that to the circumstances presented."

                Since when has the industry cared how the law defines things? It's people such as yourself that can't grasp that copying is not stealing as the law defines, so why would defining "rogue websites" prevent the industry from taking it to abusive extremes?

                There are laws on the books right now that prohibit the kind of "copying" you cite and it's illegal. So again, I understand that you feel entitled to enjoy the creative output of others without compensating them but call it stealing, call it infringing, it's still illegal. One more time: A magistrate judge must determine whether a website meets the statutory definition of dedicated to infringing and having no other legitimate purpose. So the industry doesn't set the tone, the law as interpreted by the judge does.

                 

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                  Greevar (profile), Aug 19th, 2011 @ 10:16am

                  Re: Re: Re: Re: Re: Re: Re:

                  "So again, I understand that you feel entitled to enjoy the creative output of others without compensating them but call it stealing, call it infringing, it's still illegal."

                  That's a pretty bold assumption. Do you typically deal in false dichotomies? I never said it wasn't illegal, I said that they don't care how the law defines it. They draw up their own definition to suit themselves and act on it. The magistrate is typically about as clueless as the accuser, so how does that solve anything?

                  "A 55% increase in recorded music sales in three years attributable to tougher enforcement."

                  Correlation is not equal to causation. Also, their measures would surely violate many constitutional protections in America.

                  Your fail boat is taking on water pretty fast.

                   

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                  Mike Masnick (profile), Aug 20th, 2011 @ 1:10am

                  Re: Re: Re: Re: Re: Re: Re:

                  Perhaps you should read the post above regarding the effect of increased enforcement in South Korea. A 55% increase in recorded music sales in three years attributable to tougher enforcement.


                  What our anonymous friend ignores is what actually happened in the Korean music industry -- and actually how much of the "Korean Wave" of music was successful *because* of widespread infringement, and how that resulted in innovative labels like JYP embracing new business models that made them massively successful across Asia (and even in the US) by not relying on music sales, but alternative business models to create some of the most successful music acts ever.

                  Park has even specifically admitted that the high rates of piracy in Korea helped him.

                  So, what we really have with greater enforcement is not a better market, but a market distortion, wherein more money goes to a few major labels, and less money actually goes to the artists.

                  Take a wild guess who the AC commenter works for.

                   

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                  Anonymous Coward, Aug 20th, 2011 @ 7:31am

                  Re: Re: Re: Re: Re: Re: Re:

                  "A 55% increase in recorded music sales in three years attributable to tougher enforcement. "

                  and that money goes to ... not the artists.

                  Increased sales is not an end in itself. Increased aggregate output is. Increased record label sales maybe good for the record labels, but that doesn't necessarily make it good for society as a whole.

                  Of course government established monopolies create increased sales for monopolists. But they come at an even greater social cost to the rest of society.

                   

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                    Anonymous Coward, Aug 22nd, 2011 @ 7:10am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    @AC

                    "A 55% increase in recorded music sales in three years attributable to tougher enforcement. "

                    and that money goes to ... not the artists.

                    You aren't actually suggesting that the artists do not receive a portion of that increased revenue are you?

                    Increased sales is not an end in itself. Increased aggregate output is. Increased record label sales maybe good for the record labels, but that doesn't necessarily make it good for society as a whole.

                    Nor is it necessarily bad. It's impossible to know about total output from legitimate and illegal sources. I infer that the anti-piracy measures in S. Korea drove the 55% increase, so it appears that much of it came at the expense of pirated music.

                    Of course government established monopolies create increased sales for monopolists. But they come at an even greater social cost to the rest of society.

                    WTF? Go learn to play an instrument and start a band. Follow Mike Masnick's magic formula and you'll be on the path to riches. Just as with any other venture, if you have any talent, you will be successful.

                     

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                      Jay (profile), Aug 23rd, 2011 @ 8:58pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      "It's impossible to know about total output from legitimate and illegal sources."

                      le·git·i·mate/liˈjitəmit/
                      Adjective: Conforming to the law or to rules

                      il·le·gal   
                      [ih-lee-guhl]
                      –adjective
                      1.
                      forbidden by law or statute.

                      There is nothing different between a supposed legitimate and illegitimate source!

                      You can have a place that is authorized and a place that is unauthorized. I can go to iTunes and I can go to The Pirate Bay for various media. There's a certain expectation I look into from each place. In no way, shape or form, does the movie or music have a fundamental difference. But nothing makes it illegal except for some corporate executive's say so.

                      I infer that the anti-piracy measures in S. Korea drove the 55% increase, so it appears that much of it came at the expense of pirated music.

                      And you'd be wrong. Looking at some of the data in regards to copyright enforcement, there is no way that someone that has been kicked off of the internet can pay for digital services.

                      So unless you have datathat shows how being kicked off of the internet allows you to buy music from the Korean iTunes, I'm pretty sure the 55% increase is through less copyright enforcement, not more.

                       

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                  Anonymous Coward, Aug 21st, 2011 @ 3:28am

                  Re: Re: Re: Re: Re: Re: Re:

                  your sock puppet is showing

                   

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              jackwagon (profile), Aug 19th, 2011 @ 9:08am

              Re: Re: Re: Re: Re:

              Stop pretending that the content industry wouldn't try to include websites that are not infringing and while you're at it, stop denying that the content industry has enough lobbying power to make it happen.

               

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                Anonymous Coward, Aug 19th, 2011 @ 10:19am

                Re: Re: Re: Re: Re: Re:

                @jackwagon

                The content industry's civil actions under Protect IP are subject to the Federal Rules of Civil Procedure. Abuses, such as those by Rightshaven are subject to sanctions (just like Rightshaven).

                The content industry probably does have the muscle to push this through. But it has any number of allies from the US Chamber of Congress, pharma industry, manufacturers and labor unions.

                 

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              John Fenderson (profile), Aug 19th, 2011 @ 10:18am

              Re: Re: Re: Re: Re:

              You sound like an embittered, failed creator who can't earn a living in the industry. I submit if you had any real stake in making a living from your own, vulnerable intellectual property, you'd be singing a different tune.


              Why do trolls always try to make this argument, that successful IP creators of course agree with draconian IP laws? (And, yes, as soon as you begin making personal attacks, you are a troll by definition.)

              I am a successful IP creator (I make a very good living that way), and I agree with Greevar. And so do about 80% of my colleagues, partners, and competitors.

               

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                Anonymous Coward, Aug 19th, 2011 @ 10:26am

                Re: Re: Re: Re: Re: Re:

                Really? What specific content do you create?

                 

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                  John Fenderson (profile), Aug 19th, 2011 @ 10:29am

                  Re: Re: Re: Re: Re: Re: Re:

                  Communications software. The odds are excellent that you're using some of my product right now.

                   

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                    Anonymous Coward, Aug 20th, 2011 @ 7:39pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    And communications software piracy is what tiny percentage of music and television piracy. You have no dog in the fight

                     

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                      btrussell (profile), Aug 20th, 2011 @ 9:23pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      What % is acceptable piracy level?

                       

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                      Jay (profile), Aug 22nd, 2011 @ 5:59am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Nice job moving the goalposts.

                       

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                        Anonymous Coward, Aug 22nd, 2011 @ 9:39am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        Nope, same goalposts. Like so many poseurs, this douche implies he is a creator of entertainment- which is almost exclusively what these discussions are about. He gets on his high horse implying that he is a stakeholder whose livelihood is threatened by piracy to advocate against the bill. Fact is his economic interests aren't materially affected by piracy, he's just another apologist looking to freeload.

                         

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          Anonymous Coward, Aug 19th, 2011 @ 8:29am

          Re: Re: Re:

          Ah, so we must continue broaden the definition of "rogue site" as much as possible, to catch as many of these "rogues" as we can, correct?

          Thanks for giving us a free pass to crush every and all political opposition online. Oh, sorry, I meant "rogues sites". You know "pirates" and all that lot.

          Signed: every politician everywhere.

           

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          Anonymous Coward, Aug 19th, 2011 @ 3:17pm

          Re: Re: Re:

          If you can't define something that will not enable "foxholes" then it is not easy is it?

          Besides I never saw a law that was not abused in some form or another, but what I did see is that laws that are not limited are the ones most abused.

          That is why I don't want laws, they should be used only in extreme cases not to guarantee revenue to some business that probably will not able to hold its own in the very very near future, arts will survive, those labels and studios probably will die.

           

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      Anonymous Coward, Aug 19th, 2011 @ 7:30am

      Re:

      "The domain name system isn't under any real pressure, except for specific cases of illegal or questionable activity."

      Translation: The domain name system IS under real pressure

       

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      HothMonster, Aug 19th, 2011 @ 7:38am

      Re:

      "If by "fixed" you mean "neutered""

      i was thinking castrated actually

       

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      The eejit (profile), Aug 19th, 2011 @ 7:51am

      Re:

      Frankly, I would much rather decapitate IP law and stumpfuck it 'til the sun comes up, because, as it is, it's so far beyond the realm of insanity that fucking Cthulhu has less chance of being insanity-causing.

       

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      Greevar (profile), Aug 19th, 2011 @ 8:12am

      Re:

      "Right now, almost all of the rights are on the side of the offender"

      No, they are on the side of the innocent, which they are there to protect. You may believe in guilty until proven innocent, but our system of laws do not follow that concept.

      "If you work to hard to "clearly define" a rogue website, you run the risk of setting up a series of blinds that these sites can hide behind, and claim legality."

      So we should leave it vague and broad so it can be used as a bludgeon to beat down anything the industry doesn't like, regardless of it's legality one way or the other?

      "Too bad for honest search engines, there are too many sites out there claiming to be search engines that are really just fronting for piracy. Hyperlinks are pretty much in the same issue, you cannot exempt them because it is one of the major ways that sites claim innocence, usually by putting the violating files into a file locker site, and linking to them... and then claiming not to be working to violate copyright, just providing "information". "

      Yes, let's criminalize all tools that have the capacity to violate the law. So let's get rid of hammers, cars, phones, pens, knives, computers, and people. They all have the capacity to break some kind of law, so we should ban them right?

      I can see from your comments that you don't care one iota for the rights of the people. You only care about protecting a privileged few while pissing all over the liberties of the people at large. Let's get rid of the 4th amendment! It makes catching criminals harder! Newsflash, the ease with which police apprehend criminals is not superior to the right of the people to be secure in their possessions and persons while redeeming their natural right to not be unreasonably searched as they go about their life. Your outrage over how people are violating your copy restriction privilege does not supersede the right to be left the hell alone without just cause.

      The police must perform their duties to protect the public safety and uphold the law from within the confines of everyone's constitutional rights. You don't get to ignore that just because it's too hard to catch people breaking the law while you're expected to respect that limitation. If you can't catch a criminal without bypassing natural rights and due process, that's too bad. I'd rather see a murderer go free than an innocent man have his natural rights infringed. And no, copyright is not a natural right, it is a privilege granted by congress.

       

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        Anonymous Coward, Aug 19th, 2011 @ 8:38am

        Re: Re:

        The point isn't to broaden the definition, rather to understand that things are fluid. When DMCA was written, nobody have considered the idea of file lockers, YouTube, or any of the other sites who live in the margins of the law. If they did, they might have added verbiage to make it clearer what a "red flag" situation might be.

        As someone else posted, "The judicial standard of "dedicated to infringing activity" and no other legitimate commercial purpose is a high standard". It isn't so narrow as to stop nothing, but it isn't so overly broad as to stop legal activities. It gives the courts a good guideline to look at, and allows them to measure it on a case by case basis, rather than coming up with an arbitrary "number of links" or "percentage of text" standard that would be meaningless and easy to get around.

        The point is to write laws that are respectful to both sides, and that don't generally create legal loopholes that allow illegal activity to flourish.

        As for the rest of your post, well, all I can say is that you must live in a wonderful, idealized world. Nobody is trying to outlaw legal tools, and the intention is to outlaw specific USES of those tools. Hammers are legal, until you use them to bash someone's head in. Hyperlinking is legal, until you use it as part of an illegal act.

        That you can't see the obvious makes me shake my head.

         

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          Gwiz (profile), Aug 19th, 2011 @ 8:45am

          Re: Re: Re:

          ...YouTube, or any of the other sites who live in the margins of the law.

          Sorry, there is no such thing as "margins of the law". Something is legal or it is illegal.

          Something you seem either to be either forgetting or purposely omitting is the fact that Congress specifically included the Safe Harbors in the DMCA laws to promote growth in the internet. YouTube is a shining example of the success of that forethought.

           

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            Anonymous Coward, Aug 19th, 2011 @ 8:55am

            Re: Re: Re: Re:

            GWIZ, thanks for making my point for me. Where Youtube exists is "legal", but not intentionally legal. DMCA wasn't created to give everyone a 48 hour free pass to use copyright content, but that is what it becomes.

            DMCA wasn't created to make a system where anyone can use copyright content until they are caught, and then they can just say "oops" and remove it, long after the harm is done. Those provisions were put in place to "protect" accidental violators, but have become the "margin of the law" that many companies abuse for profit.

            The safe harbors were not intended to give everyone a free pass on using copyright content. That is what it has become, so there has to be a tightening to make things balance for both sides again.

             

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              Anonymous Coward, Aug 19th, 2011 @ 9:05am

              Re: Re: Re: Re: Re:

              "Where Youtube exists is "legal", but not intentionally legal. DMCA wasn't created to give everyone a 48 hour free pass to use copyright content, but that is what it becomes."

              So YouTube waits 47 hours and 59 minutes before taking the content down? I'd like to see some evidence of that. From what I've heard they're pretty responsive.

              Do you think that it should be illegal, in general, for a website to accept user-posted videos? Or images? Or text?

              If not, what exactly do you think YouTube should do, beyond responding when they receive a complaint, and actively scanning all videos against their ContentID system to detect infringement?

               

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              Gwiz (profile), Aug 19th, 2011 @ 9:08am

              Re: Re: Re: Re: Re:

              DMCA wasn't created to make a system where anyone can use copyright content until they are caught, and then they can just say "oops" and remove it, long after the harm is done. Those provisions were put in place to "protect" accidental violators, but have become the "margin of the law" that many companies abuse for profit.

              Actually the Safe Harbors were created to place liability where it belongs - the actual infringers, not the tool being used. Just because the copyright industries are crying "But that's hard" doesn't mean we need to move the goalposts after the game has started.

              That is what it has become, so there has to be a tightening to make things balance for both sides again.

              I am not sure you are looking for balance, you seem to be looking for someone else to police your content for you.

               

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                btrussell (profile), Aug 19th, 2011 @ 9:27am

                Re: Re: Re: Re: Re: Re:

                "I am not sure you are looking for balance, you seem to be looking for someone else to police your content for you."
                Agreed.

                If copyright is to create incentive, while maintaining a balance with the general public, and the public has to now pay for protecting said creation, shouldn't the balance be leaning to shorter terms?

                 

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              Greevar (profile), Aug 19th, 2011 @ 9:08am

              Re: Re: Re: Re: Re:

              No, the 48 hour restriction is to prevent abuse of the DMCA, not to give a "free pass". Anywhere there is measures to protect the public from abuses of the law, you see nothing but loopholes and legal hiding places.

               

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              Gwiz (profile), Aug 19th, 2011 @ 9:22am

              Re: Re: Re: Re: Re:

              GWIZ, thanks for making my point for me. Where Youtube exists is "legal", but not intentionally legal. DMCA wasn't created to give everyone a 48 hour free pass to use copyright content, but that is what it becomes.

              Your tone seems to indicate that the success of YouTube was solely because of the use of copyrighted content. I disagree, YouTube's success is because of user created content.

               

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              John Fenderson (profile), Aug 19th, 2011 @ 10:26am

              Re: Re: Re: Re: Re:

              Where Youtube exists is "legal", but not intentionally legal.


              I am completely baffled at why you continue to single out YouTube. Far from simply adhering to the letter of the law, YouTube goes far out of its way to help copyright owners locate infringement and enforce their copyrights. I cannot think of anything more they could possibly due that wouldn't make it impossible to offer the service at all.

              By arguing that YouTube is some kind of shady operation, you're really arguing that it's impossible to offer a popular service that allows users to upload content.

              You are, in effect, arguing against the internet itself -- the bottom line is that all internet content is uploaded by the users.

               

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                BeeAitch (profile), Aug 19th, 2011 @ 11:47am

                Re: Re: Re: Re: Re: Re:

                I am completely baffled at why you continue to single out YouTube. Far from simply adhering to the letter of the law, YouTube goes far out of its way to help copyright owners locate infringement and enforce their copyrights. I cannot think of anything more they could possibly due that wouldn't make it impossible to offer the service at all.

                THIS. Google/YouTube has bent over backwards for these assholes. It's time Google tells them to fuck off and police themselves.

                I like :Lobo Santo's response in another thread:

                "I must say, Google/YouTube has been far and away more accommodating than I would have in their shoes.

                I'd have said "here's an RSS feed with every newly uploaded video. You do know what an RSS feed is right? Anyhow, with this setting up your own system to check every video uploaded should be a snap. Then just let us know which ones are infringing. Have a nice day." and left those clueless bastards scratching their asses and wondering just how they were going to figure out how to set up such a thing, let along pay for it."

                 

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              Jay (profile), Aug 19th, 2011 @ 11:32am

              Re: Re: Re: Re: Re:

              In addition to what others are saying above, you also seem to deem online lockers and other forms of storage as not worthy of DMCA safe harbors.

              So if any company provides a service, should they be liable for infringement? I find that an odd stance to take.

               

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          Anonymous Coward, Aug 19th, 2011 @ 8:53am

          Re: Re: Re:

          AC:

          That you can't see the obvious makes me shake my head.

          It's not that they can't see it, it's that they won't see it. Most of the regulars here are self-entitled freeloaders. They don't believe there's anything wrong with enjoying the copyrighted creative output of others without paying for it. They hide behind specious free speech and due process arguments but at the end of the day, it's all about free. Note that there has been no defense of the counterfeiters of Viagra, Fendi bags or Rolex watches. So it's apparent what the true agenda is all about.

           

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            btrussell (profile), Aug 19th, 2011 @ 9:17am

            Re: Re: Re: Re:

            "They don't believe there's anything wrong with enjoying the copyrighted creative output of others without paying for it."

            I bought the tv, put up with commercials(that pay for the content), what more do you want? Oh, you want me to pay again and again and again...



            "Note that there has been no defense of the counterfeiters of Viagra, Fendi bags or Rolex watches. So it's apparent what the true agenda is all about."

            Why would anyone, other than a lawyer, defend a thief?

            But, speaking of counterfeit, quit with the remakes.

             

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            jackwagon (profile), Aug 19th, 2011 @ 9:19am

            Re: Re: Re: Re:

            Self-entitled freeloaders vs Self-important megalomaniacs. Round 2: The interweb wars. Should be fun to watch. I hope I can afford the ticket.

             

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            Greevar (profile), Aug 19th, 2011 @ 9:29am

            Re: Re: Re: Re:

            Assumptions, straw men, and libel is all I see in that comment. You make a pretty weak argument, one where you don't try to debate the issues with facts and logic, but with snide attempts to discredit and demonize the opposing position. Can you prove beyond a doubt that the regulars here are "self-entitled freeloaders" or is that just your opinion? If you can't prove it, you need to stop making that claim. It just makes you look like a arrogant jerk.

            "They don't believe there's anything wrong with enjoying the copyrighted creative output of others without paying for it. They hide behind specious free speech and due process arguments but at the end of the day, it's all about free."

            Really? Can you back up that claim with facts and evidence, or is that just your opinion again?

            "Note that there has been no defense of the counterfeiters of Viagra, Fendi bags or Rolex watches. So it's apparent what the true agenda is all about."

            Relevance? That's trademark law, not copyright. Nice try though. True agenda? The true agenda is to get companies to compete by the value of their labor rather than their ability to dictate how their customers use their paid-for goods every minute of the day. When two providers are offering the same goods, but one with limitations and the other with choice attached to it, which would you choose, price not withstanding? You would choose the one that offers choice rather than restriction, that's obvious. You'd have to be stupid to choose the limited option over the unlimited option.

             

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              Anonymous Coward, Aug 19th, 2011 @ 10:13am

              Re: Re: Re: Re: Re:

              Relevance? That's trademark law, not copyright. Nice try though.

              The relevance is that the Protect IP Act would afford sanctions against websites selling fake pharma, counterfeit hardgoods, etc. The title of the article is "Can PROTECT IP Be Fixed?" I don't see how even a dullard like you can fail to see that.

               

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                Greevar (profile), Aug 19th, 2011 @ 10:34am

                Re: Re: Re: Re: Re: Re:

                Ah, now we get to the insults. Good, I thought this thread was much too civil.

                 

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                Gwiz (profile), Aug 19th, 2011 @ 10:43am

                Re: Re: Re: Re: Re: Re:

                The relevance is that the Protect IP Act would afford sanctions against websites selling fake pharma, counterfeit hardgoods, etc.

                Then make the law about that and stop trying to lump copyright infringement into it. These are very separate issues with different impacts.

                 

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            Anonymous Coward, Aug 19th, 2011 @ 9:56am

            Re: Re: Re: Re:

            Haha

             

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            BeeAitch (profile), Aug 19th, 2011 @ 11:52am

            Re: Re: Re: Re:

            They hide behind specious free speech and due process arguments but at the end of the day, it's all about free.

            So you find free speech and due process specious?

            Good to know. Thanks for the insight into your "thought" process.

             

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      Gwiz (profile), Aug 19th, 2011 @ 8:35am

      Re:

      Right now we have plenty of companies who have business models that are either based on abusing the current copyright laws (by counting on the DMCA system to protect them, rather than punish them for copyright violations), or by offering services that are clearly often used to spread copyright material (file lockers, example). As with the discussion yesterday about 1 million DMCA notices, it's clear that there are business models out there that exist only because of way DMCA is structured, and use the gaps to profit.

      Wait. Are you saying that companies that create business models based on the language of current laws are somehow bad?

      Wouldn't that then apply to all copyright industries across the board? They created business models based on laws giving them exclusive monopolies on their products.

       

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      Mike Masnick (profile), Aug 19th, 2011 @ 9:43am

      Re:

      The 48 hours to handle a DMCA takedown

      Out of curiosity, where did you hear that there's a 48 hour period to take down content? I don't believe that's true at all, and I know for certain that it does not take YouTube that long to do so. I've never heard anyone claim there's a 48 hour period until now.

      So, are you getting that from somewhere or are you making it up?

       

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        Anonymous Coward, Aug 19th, 2011 @ 10:24am

        Re: Re:

        The actual bill says "upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material".

        A Google search for "DMCA" and "48 hours" turned up a lot of sites that attempt to remove stuff within 48 hours, but there was nothing there that suggested an official rule, even when narrowing it to .gov sites.

        My guess is that his 48 hour claim was one of those 78% of statistics that are made up on the spot.

         

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        Anonymous Coward, Aug 19th, 2011 @ 1:19pm

        Re: Re:

        The 48 hours is not specific in the law, but a more general legal practice.

        DMCA uses the term "responds expeditiously to remove" (512.c.1.c)

        For what it's worth, here is what Wikipedia has on the subject:

        The law provides for “expeditious” action. The meaning of "expeditious" in the context of this law has not yet been determined by the courts. Black's Law Dictionary defines "expeditious" as "performed with, or acting with, expedition; quick; speedy." In the common law, the term "expeditious" has been interpreted according to the circumstances, allowing more time than "immediate" but not undue delay. Some suggest that the most prudent courses are to comply "immediately" or to seek immediate legal advice from qualified legal counsel. In the commercial online world, taking more than 24 hours may well be viewed as undue delay. However, when legal advice is factored into the equation it is reasonable to give counsel time to review all the facts, verify the necessary elements of the notice and conduct minimal research to ascertain the current state of the law. This may reasonably occur when the material posted appears likely to be covered by a fair use, for fair use is not copyright infringement. So, in some situations it may be reasonable to determine that "expeditious" would take more than 24 hours, and if the ISP was a small not-for-profit provider, or a server run by volunteers, it may not have the resources to obtain a legal opinion with the same speed that a large multinational corporation may have resources at its disposal to comply immediately. There may not even be a person immediately available who is qualified to determine if the notice complies with the standards set forth in the act. Perhaps a reasonable court would take these factors into consideration. The courts in the United States have yet to rule on these issues.
        For a commercially run on-line provider taking action within the hour to tell a customer that a takedown notice has been received and informing them that they must immediately remove the content and confirm removal, giving them six to twelve hours to comply; and otherwise informing them that the content will be taken down or their Internet connection terminated, may be considered reasonable. Some courts may find this to be too great a burden on an ISP if it receives a large number of communications at the same time or has limited resources to review § 512 notices for substantial compliance. It may also depend on how the notice is sent. If the notice is sent via regular mail or via fax, there may be a lag between the sending of the notice and its reception by those who are able to act upon it. If the notification is received by a mail delivery on a Saturday when the ISPs offices are closed and not acted upon until Monday, that may be considered reasonable.


        So there they suggest 24 hours, but with consideration for legal opinion, or for a backlog, you can see that running into 48 hours pretty easily.

        You can perhaps ask your lawyer friends (you seem to have many) what "expeditiously" means. Google, example, who have some pretty good lawyers, and generally is cited as using the full 48 hours to accomplish things.

        From a legal standpoint, if a notice is received on Monday, and is sent to the lawyer, who examines it and returns it Tuesday, and the content is then removed at the end of the day Tuesday, you have effectively a 48 hour cycle that is still "expeditious".

        Ask the laywers Mike, they will tell you. There is no hard and fast numeric answer, but generally 2 business days (28 hours) is pretty much inside the window of "expeditious".

         

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          Mike Masnick (profile), Aug 20th, 2011 @ 1:03am

          Re: Re: Re:

          You can perhaps ask your lawyer friends (you seem to have many) what "expeditiously" means. Google, example, who have some pretty good lawyers, and generally is cited as using the full 48 hours to accomplish things.


          Again, as far as I can tell this is entirely made up by you, as was your original claim. YouTube has a reputation for taking things down significantly faster than that.

           

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            Anonymous Coward, Aug 20th, 2011 @ 1:08pm

            Re: Re: Re: Re:

            Youtube use to be one of the slowest at taking things down, ate a lot of legal shit for it, and got much, much faster at it. You cannot look at them today and say that this has always been the way they worked. In the Viacom case, it was pretty clear that they were playing the DMCA "timing" game like everyone else was at the time.

            It isn't made up. It's just a fluid situation that comes out pretty much at 48 hours from receipt. That doesn't mean they have to wait 48 hours, rather that they deal with the issue within that time frame.

            What is amazing Mike is that you try so hard to put me down that you will ignore reality. Ask a lawyer, better yet, go back and look at the history of YouTube and see where that gets you.

             

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              Jay (profile), Aug 20th, 2011 @ 3:45pm

              Re: Re: Re: Re: Re:

              You're full of it.

              Where's your proof of Youtube not responding quickly? You make the assertion, why can't you prove it yourself?

               

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                Anonymous Coward, Aug 21st, 2011 @ 6:54am

                Re: Re: Re: Re: Re: Re:

                Jay, do you honestly think that they have records of every removal they have ever done online?

                Let me add this: Youtube responds "expeditiously", but the question is what does that mean in legal terms? For the most part, that would be something like next day service. While much of DMCA has hard time frames to work in, the processing of notices is left to "expeditious" treatment, which is pretty elastic. That is why I suggested that Mike ask one or more of his many lawyer friends to common, as it is a term that lacks true definition in this framework. My personal experiences is that 48 hours appears to be a time frame that satisfies the legal aspects (nobody has been chased in court of not being expeditious), while at the same time giving the violator the maximum benefit of displaying the offending content.

                It should also be noted that it covers nicely the weekend issue, where many companies / businesses don't process faxes or mail received over the weekend, so a DMCA notice faxed on a Saturday will get addressed typically on Monday, about 48 hours later. I couldn't imagine a court of the land getting upset with anyone who took that sort of time frame to operate in, and that creates the DMCA grey zone.

                You can go back and look at old news articles and such from the time frame of 2003-2005 and see the complaints. There is plenty of it out there, it just takes a very long time to find because Google isn't very good with dated searches.

                 

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      Karl (profile), Aug 21st, 2011 @ 5:09pm

      Re:

      Right now, almost all of the rights are on the side of the offender, as a whole.

      This is, of course, total bullshit. For as long as either of us have been alive, Congress has never passed a law that favors the public (much less infringers) over rights holders.

      Let's take one of your favorite bugaboos: the DMCA notice-and-takedown provisions. They are very heavily biased towards rights holders.

      For example:

      The 48 hours to handle a DMCA takedown

      As you point out, the word is "expedient." Most sites take down content long before 48 hours have passed. For sites like eBay or YouTube, the takedown is instantaneous and automated.

      But, let's say you're right, and 48 hours is too long a wait. If you contest the takedown notice, you know how long service providers have to put the content back up? Between ten and fourteen days.

      Furthermore, if a service provider fails to comply with a DMCA notice, they become liable for infringement. Are they liable to any innocent party whose material is wrongfully taken down? No, they are not.

      Also consider this: According to Google, 57% of the DMCA notices it receives were sent by business targeting competitors, and 37% of notices were not valid copyright claims. Know how many of those Google is required, by law, to take down? All of them.

      In fact, it is much less favorable to service providers than its non-IP kin, 47 USC 230. Interesting that you're not complaining about how that law is "on the side of the offender." I guess you must be one of those "libeltards" I've heard about.

      Right now we have plenty of companies who have business models that are either based on abusing the current copyright laws (by counting on the DMCA system to protect them, rather than punish them for copyright violations), or by offering services that are clearly often used to spread copyright material (file lockers, example).

      If you read the Congressional record, a large reason they passed safe harbors laws was because companies should be "counting on the DMCA system to protect them."

      Later on in this thread, you claimed one of those companies was YouTube. This is particularly interesting, since lawmakers justify PROTECT IP by saying sites like YouTube would not be affected.

      And as for those "file lockers," they keep being found innocent of even civil infringement in the courts. So what you're advocating is that sites be considered "rogue websites" when they're not breaking any law whatsoever.

      Too bad for honest search engines, there are too many sites out there claiming to be search engines that are really just fronting for piracy.

      Not even torrent-finder was accused of "fronting for piracy." Even the people who think linking sites should be "rogue sites" are not accusing these search engines of actually providing any of the content they link to.

      Hyperlinks are pretty much in the same issue, you cannot exempt them because it is one of the major ways that sites claim innocence, usually by putting the violating files into a file locker site, and linking to them... and then claiming not to be working to violate copyright, just providing "information".

      I've never heard of anyone claiming this... because it's nonsense. If anyone could show that the "link sites" actually uploaded any content, they'd be directly liable for infringement. All of the "link sites" that have been proposed as being "rogue sites" (e.g. every single site whose domain was seized by ICE) provided links to third-party sites where users of those sites uploaded content.

      There will always be private enforcement, because copyright is considered a civil matter for the most part.

      As well it should be. However, PROTECT IP gives rights holders the power to block websites ex parte, something that is probably unconstitutional (and clearly unfair). Not only can a TRO be obtained ex parte, meaning the RIAA can take exactly the same actions DHS is currently taking, but they can also require advertisers and credit card companies to cut off those sites - again, ex parte. This is pretty clearly unconstitutional, and absolutely unfair.

      And despite claims to the contrary, the private right of action is not limited to overseas websites.

      This goes far, far, far beyond anything allowed in civil law thus far.

      DHS is only applying the laws as they sit.

      The laws have not changed, yet DHS is just now seizing websites. And their legality has thus far not been tested in a court of law (the first case is still pending). So I'd wait a bit before saying DHS is "applying the laws."

      Furthermore, if this is legal - well, why would PROTECT IP be necessary in the first place? DHS is already seizing sites and extraditing people who didn't break their own country's laws. How much more draconian should it get?

      If you work to hard to "clearly define" a rogue website, you run the risk of setting up a series of blinds that these sites can hide behind, and claim legality.

      So, let me get this straight: clearly-written laws favor criminals? That is just ridiculous. If the law sets up "a series of blinds," then these sites should "hide behind" them, because that's how you obey the law. If the law isn't clearly defined, nobody can tell whether they're obeying the law or not - and that is exactly why laws like 17 USC 512 were passed.

       

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    Scooters (profile), Aug 19th, 2011 @ 7:13am

    The ONLY way to fix PROTECT IP at this point:

    http://wyden.senate.gov/

    He saved the country once before. Here's hoping he'll do it again.

    Especially since those sitting next to him think this is about net neutrality, or some other Fox News buzzword of the day.

    Use the link. Please.

     

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    Anonymous Coward, Aug 19th, 2011 @ 7:25am

    Downes proposal essentially guts Protect IP.

    1. Don't destabilize the domain name system

    All of this talk about breaking the internet is a lot of hot air. To the extent the dark warnings about people fleeing to alternative DNS comes true, it will largely be people who sought out the alternative DNS for their own nefarious purposes. If in so doing, they are victimized by scammers whose fault is that?


    2. Leave search engines and hyperlinks out

    Though the entire focus of the debate is the application of the bill to motion pictures and music, it also targets rogue sites peddling dangerous or ineffective counterfeit drugs and consumer products. Delisting these predators from "mainstream" search engines, directories and indexes seems worthwhile and prudent. Perhaps the application to hyperlinks in blogs and user comments needs to be looked at. Remember, this aspect of the bill can only be enforced by the government and, as such has a built-in higher level of review.

    3. No private enforcement

    With all of the crying about the government acting as the industry's private police force and the attendant costs of government enforcement, you'd think that opponents of the bill would embrace a private right of action. The debate on this particular aspect is telling about opponents. They don't want the government acting as private police, nor do they want businesses to enforce the law. In short, they want to be able to say they oppose piracy but then attack every reasonable alternative to fight it.

    4. Correct ongoing abuses by DHS

    This is absurd. DHS operates under existing law. Protect IP is solely focused on foreign rogue sites. No one except perhaps Downes sees this as an opportunity to address the legal principles used by DHS to enforce IP law. This is much more of a policy than a legislative issue and everyone but Downes seems to recognize it.

    5. Clearly define "rogue" Web site

    CDT was largely responsible for defining what constitutes a rogue website. The definition was tightened considerably from the earlier version of the bill (COICA). The judicial standard of "dedicated to infringing activity" and no other legitimate commercial purpose is a high standard.

    Downes questions whether prohibiting payment processors and ad networks from doing business with rogue sites won't drive them to foreign-based payment processors and ad networks. I just don't see it, particularly a payment processor that would be accepted by American consumers.

    The bottom line is that no one would object to any of these measures if they were being applied only to pharmacies selling bogus medications and stores selling fake designer goods. But because a sense of entitlement regarding free access to music and motion pictures has been allowed to grow, we've arrived at this juncture.

    The House bill will include the essentials of the Felony Streaming bill and will be more broad in its attack on rogue sites. The ensuing debate will make for an interesting Fall.

     

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      Anonymous Coward, Aug 19th, 2011 @ 7:36am

      Re:

      "CDT was largely responsible for defining what constitutes a rogue website. The definition was tightened considerably from the earlier version of the bill (COICA)."

      So you are saying, it used to be worse, now that it is better, we don't need to get it right.

       

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      Anonymous Coward, Aug 19th, 2011 @ 7:47am

      Re:

      For the most part search engines are left out. At some point, however, what would otherwise be considered a search engine crosses a line where it ceases to be merely a search engine and serves as an active participant in the infringement process. No one can seriously argue that Google has crossed the line, but what about sites like Rojadirect, or Limewire, etc. where those who are behind these search engines are doing so much more that merely providing search results. Where that line should be drawn can be a matter or reasonable debate, but clearly some sits have overstepped the line.

      Perhaps what constitutes might benefit from further tweaking, but as a conceptul matter is has merit. It was a beneficial thing to remove the black list" provision that appeared in the first iteration of the Senate bill.

      It is useful to bear in mind that the gravamen of PIP is generally directed to foreign sites that are beyond the reach of personal, in oersonam, juridiction of US Courts. What is left, therefore, are in rem actions, and such actions have a long history associated with US law. It is worthy of serious consideration.

       

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        The eejit (profile), Aug 19th, 2011 @ 7:54am

        Re: Re:

        Rojsdirecta was proven to be protected by safe harbors in it's own nation. Why you think an essentially terrorist act on a private company by a government is perfectly okay is beyond me. I'm certain that if the roles were reversed, the US would have invaded Spain for harboring terrorist pirate Nazis by now.

         

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          identicon
          Anonymous Coward, Aug 19th, 2011 @ 8:09am

          Re: Re: Re:

          There wouldn't be an issue if they only offered service to Spanish people, right? Think past the end of your nose.

           

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            Gwiz (profile), Aug 19th, 2011 @ 12:13pm

            Re: Re: Re: Re:

            There wouldn't be an issue if they only offered service to Spanish people, right? Think past the end of your nose.

            And how, exactly, would you prevent access by foreigners of a website?

            Some sort of regional restrictions? Those would most surely be routed around within minutes of their enactment. I am of the belief that the internet population does not want borders nor will it allow them.

             

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        Anonymous Coward, Aug 19th, 2011 @ 7:58am

        Re: Re:

        Even when you move a website to a foreign jurisdiction, you still cannot avoid US law when it comes to US citizens.

        The best example would be to look a the online poker industry. It doesn't matter that the companies are in Europe, the servers on an Indian Reserve in Canada, or any of the other dodges. When they marketed to and sold to US players, they have entered the US marketplace and are subject to US law.

        Something to consider: Visa, Mastercard, and Paypal are all US listed companies. As such, those companies are in at least some small way bound by US law. It is unlikely that they would want to deal with the legal ramifications of providing services to websites that would be clearly illegal under PROTECT IP. So it wouldn't matter where those sites are located, they may not be able to get the financial gains they are looking for.

        Further, when you consider that Paypal has it's head office in the US. Could it be considered that every transaction through it's system occurs in the US?

        The offshoring of websites may make it harder for them to be shut down directly, but clearly there are legal issues that, with appropriate US law, could make it much harder for them to profit from their illegal / questionable activities.

         

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          Jay (profile), Aug 19th, 2011 @ 11:00am

          Re: Re: Re:

          So in effect, the US is looking to police the entire world based on their laws.

           

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          Gwiz (profile), Aug 19th, 2011 @ 12:36pm

          Re: Re: Re:

          Something to consider: Visa, Mastercard, and Paypal are all US listed companies. As such, those companies are in at least some small way bound by US law. It is unlikely that they would want to deal with the legal ramifications of providing services to websites that would be clearly illegal under PROTECT IP. So it wouldn't matter where those sites are located, they may not be able to get the financial gains they are looking for.

          If things end up going this way, it seems to me that setting up a financial transaction company based on the Moon might actually end being a lucrative endeavor, even considering astronomical start-up costs.

           

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      Ron Rezendes (profile), Aug 19th, 2011 @ 1:35pm

      Re:

      "but then attack every reasonable alternative to fight it."

      And this is EXACTLY the point that shows you simply don't understand the opposition whatsoever. Every conceivable effort has been made to reasonably point out where, when, why, how, and even under what circumstances would be reasonable ways to combat piracy and these crucial elements of the discussion fall by the wayside as you and your ilk plug your ears and scream "I'm not listening!! I'm not listening!! I'm not listening!!".

      Try, just once, maybe for five minutes out of your troll ridden life to LISTEN and UNDERSTAND when people who say that trying to completely legislate away piracy WILL NEVER WORK!!

      It is not because we are "freetards", "pirates", or that we condone illegal activity, or that we don't think content producers shouldn't get paid. In fact the numbers from several studies previously linked to here on this site show that those who do download content are among the BEST paying customers the content industry has.

      The content industry was GRANTED rights to allow them to produce content with the goal being to enrich society as whole with works of artistic and cultural value that would be shared with EVERYONE. The Public Domain is where all of this cultural enrichment is SUPPOSED to end up. The longer you and your ilk believe that this is NOT the case the longer the rest of society will pummel you into the ground and defeat any type of restriction of OUR culture. It is only YOUR content for so long, and the terms of these monopolies have been extended by back door deals involving YOUR industry and MY public servants (Congress).

      The problem is YOU and YOUR industries and it will eventually be handled in a proper manner that you and your industries will not be happy with at all. It is the content industries that steals the culture of the people, by the people, and for the people then holds it ransom and dares to call society the criminal.

      When you can just comprehend that viewpoint (not even agree with it) you may understand the argument you are actually in.

      Until that time, you are simply a miserable myopic troll.

       

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    identicon
    Pixelation, Aug 19th, 2011 @ 7:43am

    #3 No private enforcement without transparency and protections for the innocent.

     

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    identicon
    Anonymous Coward, Aug 19th, 2011 @ 7:53am

    And to address the effectiveness of rigid enforcement of IP laws, I offer this snippet from The Economist:

    "As media companies pull out of Spain, they are beefing up in South Korea. That country is the world’s 12th-biggest music market, a notch behind Spain. It will almost certainly overtake the Mediterranean country this year. Korean recorded-music sales, which collapsed in the first half of the last decade, have risen for each of the past three years. Sales were worth 207 billion won (then $179m) in 2010—up from 134 billion won in 2007.

    South Korea has the world’s toughest anti-piracy laws. Almost every measure under discussion elsewhere—threatening to cut pirates’ broadband connections; blocking pirate websites; forcing youthful downloaders into education programmes; clamping down on cyber-lockers—has been done in Korea. Legal music-streaming and downloading websites have sprouted, providing many more honest ways of getting hold of music. The Korean experience may be unique: anti-piracy laws have not had such a clear effect elsewhere."

     

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      identicon
      Anonymous Coward, Aug 19th, 2011 @ 8:01am

      Re:

      South Korea is a great example, because it's a closed market really. Language limited, small enough to actually police effectively, and yet vibrant in all forms of content production.

      Mike would hate that story (and would likely never run it) because it proves once again that yes, when the illegal "free" alternative is not on the table, people will pay for the music they value.

       

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      identicon
      Anonymous Coward, Aug 19th, 2011 @ 9:05am

      Re:

      "Legal music-streaming and downloading websites have sprouted, providing many more honest ways of getting hold of music"

      I think that this is key point here. Much more important than the extreme measures taken to punish pirates.

       

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    identicon
    Anonymous Coward, Aug 19th, 2011 @ 8:10am

    Roja's site was registered in the US. Therefore, it's subject to US jurisdiction. They've since moved to a foreign registrar and are operating outside the reach of US jurisprudence. Roja has also been afforded the same treatment as any other civil litigant under US law. I don't see what the problem is here.

     

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      BeeAitch (profile), Aug 19th, 2011 @ 12:19pm

      Re:

      Roja has also been afforded the same treatment as any other civil litigant under US law. I don't see what the problem is here.

      Do you often state what a problem is in one sentence, then ask what it is in the next?

       

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    identicon
    Anonymous Coward, Aug 19th, 2011 @ 8:20am

    Why not destabilize DNS?

    There's a looming policy problem out there:

    ICANN is a mostly failed experiment.

    Destabilizing the global IANA DNS is probably the best way to get rid of ICANN and allow something better to fill its role.

    So why not let Congress pass the most draconian DNS censorship law?

    People will fight censorship. Americans will fight censorship. Americans will fight alongside our allies around the world who believe in the freedom of the internet—the freedom of the new press. And in that fight we will develop new technology. That new technology will create a space for new government.

     

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    identicon
    Liz, Aug 19th, 2011 @ 8:31am

    1. Hit the DELETE key.

     

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    identicon
    Anonymous Coward, Aug 19th, 2011 @ 8:35am

    About DNS

    The Domain Name System is broken by design. Basically, we trust some centralised entity to resolve names into IP addresses for us, and to keep their records updated.

    This is problematic because this entity cannot be trusted (there's no binding 'contract' here), so it can do sneaky things, like sending you to ad pages for each address you type wrong. Also, unless the DNS server uses some sort of authentication system, man-in-the-middle attacks are quite possible: just intercept DNS request, and send back whatever you like: Ads, malware pages, etc.

    What must be done, and what this kind of legislation is pushing for people to do, is come up with a new, better way of resolving names that isn't as insecure or as vulnerable to rogue governments that want to wipe out sites they don't like.

     

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      identicon
      Anonymous Coward, Aug 19th, 2011 @ 8:45am

      Re: About DNS

      What must be done, and what this kind of legislation is pushing for people to do, is come up with a new, better way of resolving names that isn't as insecure or as vulnerable to rogue governments that want to wipe out sites they don't like.


      However...

      • The courts are institutionally inhibited —or should be— from having a policy debate on the wisdom of this course.

      • Congress, as presently constituted, is institutionally incapable of having a rational debate on technology.

      • The current executive is dominated by their friends in the old “content” industries who are still necessary to win a presidential election.

       

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    Michael Barclay (profile), Aug 19th, 2011 @ 9:48am

    One more for Downes' list

    An important item to add to Downes' list is to fix the lack of notice and hearing in the existing draft of the Senate bill. See item 1 of the law professors' letter, available at
    http://blogs.law.stanford.edu/newsfeed/files/2011/07/PROTECT-IP-letter-final.pdf
    This might be one of the easiest fixes to the bill -- just require a notice and hearing, such as a hearing similar to a civil preliminary injunction hearing.

     

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    Anonymous Coward, Aug 19th, 2011 @ 11:42am

    nope..

     

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    Chilly8, Aug 19th, 2011 @ 1:44pm

    The one thing to worry about is what is in the House vesion of S978. Under the Senate version, the law only applies to those to transmit and not to those who only view the streams, contrary to all the FUD that is being put out be some articles. Amy Klobuchar was careful to draft her bill to that extent, so that viewers are not covered under the law.

     

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    Rikuo (profile), Aug 19th, 2011 @ 3:51pm

    This was a comment on Downe's article

    "I simply dont understand why everyone is making this into an issue about censorship or free speech, when clearly its simply about attempting to block websites that contain illegal content, many of which are international sites that fund oveseas terrorist activity. The very basic principle here is that, if you were to create a peice a work, and others wish to utilize and enjoy it, don't you think you should get paid for your work? At the very core, these websites are working as conductors to promote piracy - which last I checked, was ILLEGAL. Piracy is stealing, its as simple as that."

    By saying you don't understand why we're talking about free speech/censorship, it shows you value the loss of free speech very lightly. By having private police action occurring all over the internet, this would have an impact on free speech.
    Pirate sites fund terrorism? Where's the evidence? Oh, you don't want to provide any? We're just supposed to shut up and believe you when you confuse those who infringe in civil law with those who commit mass murder.
    Don't you think we should be paid for our work? That line shows that many people are fundamentally flawed, in that they are incapable of actually processing the thought in their head, that they don't HAVE to be paid for every single copy of their work. There are countless examples of those who release their work for free, who have become successful.
    Lastly, piracy is not stealing. That line has been debunked millions of times, so I'm not going to bother with it.

     

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    identicon
    Anonymous Coward, Aug 19th, 2011 @ 8:55pm

    Can anyone polish a turd?
    No, then Protect IP is not feasible.

     

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  •  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 7:25am

    "admitting pretty clearly that the bill was "being driven by" the recording industry and the movie industry"

    IOW, this has absolutely nothing to do with the will or best interests of the people, IP laws exist solely to serve the corporate will and their best interests.

    Instead of seeking to correct our current IP laws (ie: insanely long copy protection lengths with insanely high infringement damages and relatively low damages for claiming infringement on something you don't have privileges on, or something that's in the public domain, along with perpetual copy protection extensions that effectively make nothing ever enter the public domain anymore) the government is only seeking to further serve the corporate interests.

    ABOLISH IP!!!! These laws do not exist to serve the public interest and they do nothing of the sort.

    Abolish the FCC for passing laws that effectively keep us ignorant and make it more difficult for us to organize resistance and abolish government established cableco monopolies for similar reasons. Abolish ALL government established monopolies. We, as a people, should not tolerate such oppressive laws whatsoever.

     

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    identicon
    Androgynous Cowherd, Aug 20th, 2011 @ 5:25pm

    Larry Downes takes a stab at the five essential changes needed to fix the bill.


    Missed by a country mile. Here, I'll take a stab of my own:

    1. Dip it in concentrated sulfuric acid.

    2. Wrap it around a brick and drop it from 30,000 feet.

    3. Douse it in gasoline.

    4. Set it on fire.

    5. Bury the ashes in lead-lined containers, distributed among at least five widely-separated spots, and then kill everyone who knows where any of them are.

     

    reply to this | link to this | view in chronology ]


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