Can Defenders Of SOPA Explain How You Define Taking Deliberate Action To Avoid Taking Action?
from the the-problem-of-definitions dept
The Congressional Internet Caucus group held a recent panel discussion around SOPA, which is worth listening to. But one point struck me in particular. We’ve pointed out in the past the ridiculously convoluted language in the bill, that makes any site “dedicated to theft of U.S. property” if it “is taking, or has taken deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute” infringement. During the debate, supporters of SOPA defended this provision as nothing special, because you have to take “deliberate action.”
But, let’s be clear here. The “deliberate action” you have to take is to not take action. Think about that, and about how easy it is to abuse. How do you show that someone took deliberate action to not take action? You just show they didn’t take action. You have a double negative issue here. The reality is that this provision means “you must take action.” Not taking action is seen as deliberate action to “avoid confirming” that “high probability.” Basically, any site that doesn’t want to face massive liability, which could cause your site to disappear and all of your revenue partners to cut you off, would simply have to start monitoring proactively. If you don’t take action, you get accused of deliberately choosing not to take action.
See how ridiculous this is? The law is worded in such a weasel way that it allows defenders of the law to say there’s no requirement for action and that it only punishes “deliberate” actions — but actually reading the text shows that the “deliberate action” you have to take is to not take action. Thus, the only sensible course of action under the bill to avoid being declared “dedicated to theft of U.S. property” is to proactively monitor and block. That’s a massive change to the regulatory framework of the internet, disguised as something different through a sneaky language choice.
Filed Under: copyright, monitoring, protect ip, sopa
Comments on “Can Defenders Of SOPA Explain How You Define Taking Deliberate Action To Avoid Taking Action?”
Copyright infringement is bad because it’s illegal and it’s illegal because it’s bad, therefore the internet must be more like television.
And this is why “legalese” confuses the hell out of us normal folks.
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That’s exactly why most lobbyists do it. So that they can make vague renditions of laws but they’ll be precise where they need to be.
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There’s nothing confusing about it at all.
It’s about willful ignorance/blindness and it’s already illegal.
I have no idea why Masnick wrote this post. None.
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“I have no idea why Masnick wrote this post. None.“
That says more about you than about Mike.
Re: Re: Re:2 Re:
Nah. This was clearly a screw up, unless Masnick is more clueless about the law than we thought.
Re: Re: Re:3 Re:
The only screw up I see is you.
Re: Re: Re:3 Re:
you obviously want to make linking to content, ‘infringing’, which is not part of copyright. therefore, your post is at least disingenuous, and at most, a flat out FUD. do you really think there are mindless idiots here (sans OOTB) that bother to read your propaganda, much less agree with it?
the reality is that the internet has empowered us to see thru your dis-information and realize what is actually happening. so you say only 10% actually are cognizant of the issues at hand, and that only even a handful of those are against your censorship bill, yet we see post after post of of powerful establishments seeing right thru your attempt to twist wording in SOPA to give you breathing room to allow the courts to define your lack of definitions, which is what you want, a leg up on the technological tidal wave that is defeating your idiocy at every turn.
your only recourse is misdirect, diffuse, name-calling, and FUD, all lack the ability to turn the tide of reality, and people that see the reality.
continue to over-reach, and I will continue to infringe. consider realistic monopolistic regulated capture, and maybe, just maybe we might respect your monopoly.
until then, I have some downloading, and infringing to do…
Re: Re: Re:4 Re:
sociopathic, addicted-to-IP, freetard.
Re: Re: Re:5 Re:
So, nothing? When you resort to nothing but name-calling, you are admitting you’ve already lost the argument.
Re: Re: Re:5 Re:
I just want to point out that when shills complain about how everybody who doesn’t agree with “the Masnick” is labeled a troll, THIS is the kind of post that they’re referring to.
Re: Re: Re:6 Re:
It’s too bad that most of those posts are made by people trying to shout down the anonymous, logging off of their normal techdirt accounts and posting truly horrible insults, just to discredit the other side.
Those who do it should be ashamed, as you should be for falling for it.
Re: Re: Re:7 Re:
…and I suppose you have evidence that this happens. That it’s regular enough to be a problem, and not something you’ve latched on to as a conspiracy rather than address the issues actually being discussed?
It would be rather silly if your complaint was itself not true..
Re: Re: Re:7 Re:
Irrelevant, since you still defend this kind of post when it comes from your supporters.
But I guess you have a new “weapon” now, when somebody from your camp says something incredibly stupid, derisive and flat-out trolling you can just say “Hi Marcus!”
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@ Prisoner 201, Nov 11th, 2011 @ 2:38pm
“I have no idea why Masnick wrote this post. None.”
That says more about you than about Mike.
——————-
And what it says about the AC is that his judgment is more sound and hs knowledge wider than Mike’s.
The Anonymous Coward, Nov 11th, 2011 @ 2:24pm completely demolished Mike’s take.
Re: Re: Re:3 Re:
You place higher credence on a snide remark than a logical argument? You’re more of a waste of chemicals than I thought.
Re: Re: Re:4 Re:
Oh, be fair! He’s exactly the wast of chemicals that you thought he was.
Re: Re: Re:3 Re:
You are so stupid is not even funny anymore.
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http://www.techdirt.com/articles/20111109/03224316693/drake-once-again-shows-that-it-makes-sense-to-embrace-your-fans-who-infringe-too.shtml#c162
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Maybe not to you, nobody else understand that crap.
Although I do wonder when people will gang up against you people, it will happen eventually and it won’t be pretty.
http://www.physorg.com/news/2011-11-reveals-clues-humans-sociable.html
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It’s about willful ignorance/blindness and it’s already illegal.
Then why do we need a new law?
Perhaps the question is best addressed to the Supreme Court since the language is lifted from GLOBAL-TECH APPLIANCES, INC., ET AL. v. SEB S. A. decided this past May.
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Patent rights are not the same as copyrights.
There is no Constitutional amendment stating the government shall make no law abridging the freedom to manufacture. The Commerce Clause specifically gives the congress wide berth to regulate these types of things.
Forcing one to take deliberate action to censor speech on the other hand IS disallowed by the first amendments prohibition on making laws “to abridge the freedom of speech.”
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Patent rights are not the same as copyrights. There is no Constitutional amendment stating the government shall make no law abridging the freedom to manufacture. The Commerce Clause specifically gives the congress wide berth to regulate these types of things. Forcing one to take deliberate action to censor speech on the other hand IS disallowed by the first amendments prohibition on making laws “to abridge the freedom of speech.”
Patent rights and copyright rights are different, but the two branches of law are traced to the same clause in the Constitution. For certain purposes, it’s proper to look to one to understand the other. I agree that the First Amendment context would be one where patent operates differently from copyright. But when it comes to common law standards like willful blindness, there is no reason for the standards to operate differently.
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The problem comes when you force Joe internet site to start to distinguish between legitimate fair use and copyright infringement.
Sure, in some cases it can be pretty obvious, but it often isn’t.
Remember when Viacom uploaded to YouTube directly, and subsequently sued for infringement over those videos?
Remember that YouTube video of the baby with a prince song playing in the background?
How does a site know when a specific video is infringing? How can a website make a determination on fair use when that usually takes a trial to sort out on its own?
If the answer is to take proactive measures to delete it all at the first suggestion of infringement, when it has been proven that infringement notices have been used improperly to censor in the past then how is that not an abridgement of the freedom to speak?
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What wilful blindness has to do with anything when the power to censor others will be given to a crappy AG somewhere and the really scary part to companies like Warner Bros that have no interest in knowing what is legal or not.
There is no laws that say we must protect abusers of the law why SOPA does not have any ways of tracking what is going to happen or punishments for abuses committed?
Are we going to give some people the right ot abuse others and get away scott free is that your notion of law and justice?
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Perhaps the question is best addressed to the Supreme Court since the language is lifted from GLOBAL-TECH APPLIANCES, INC., ET AL. v. SEB S. A. decided this past May.
I recognize that’s where it’s from. Provides great cover. Still doesn’t answer the question.
Which isn’t surprising. Because you don’t want to answer the question.
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Ask a straight question and I’ll give you a straight answer. The condition, though, is that you must give me straight answers back. No weaseling. Deal?
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You don’t have straight answer you have some need for distorting reality with weasel wording trying to confuse the issues.
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Ask a straight question and I’ll give you a straight answer. The condition, though, is that you must give me straight answers back. No weaseling. Deal?
I never weasel. Problem is, you’ll accuse me of weaseling anyway. It’s what you do. And then you’ll throw a tantrum.
But if you want: answer me this: how do you explain the vast fear going through Silicon Valley right now? They read this bill and they’re all talking to lawyers, and freaking out about how they’ll have to shut down forums, change how they function. You pretend that’s impossible. But it’s happening *TODAY*. Under the terms of the bill, nearly every web company is potentially liable. Do you understand the amount of money that is being wasted because of this bill, when it hasn’t even passed yet?
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If these businesses need to rely on illegal behavior for their income, then their business model wasn’t very good to begin with, was it?
These companies need to learn to adapt.
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Allegedly illegal behavior. You Americans and your guilty until proven innocent.
Re: Re: Re:3 Re:
A business that rely on illegal behavior is not a business, by definition.
Being a business, does not put you above the law, (we are a business so we are allowed to break the law !!!)..
Re: Re: Re:3 Re:
“If these businesses need to rely on illegal behavior for their income,”
If you weren’t such an idiot, you’d recognise that the businesses he’s talking about are considering legal behaviour that will be affected if this bill goes through. They don’t depend on infringement, but may have to shut down anyway to avoid liability.
Sadly, you are an idiot though, aren’t you?
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Paul, most of those “legal businesses” are based solely on a rather broad interpretation of a single part of DMCA, and nothing more. That single part creates an exception to the entire copyright scheme, and who’s intention wasn’t to create a hole that people could drive an entire industry through.
” They don’t depend on infringement, but may have to shut down anyway to avoid liability.”
Actually, many of them are based on being wilfully ignorant of “user content”, and then using that content to build webpages. There is something inherently wrong with a system that allows this.
The “vast fear going through Silicon Valley” seems mostly to be venture capitalists who put money on the table for the next youtube or what have you, and have discovered that their money is now at risk, because the entire business model hinges on a gaping hole in the copyright system that is about to be plugged.
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Really?
When will labels stop doing business with the drug addicts they call musicians, the thieves they call actors should they not be willfully blind to that kind of thing?
Was there not a singer that hit his girlfriend recently, what are labels still doing business with that kind of people?
Why are they not held accountable?
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“Actually, many of them are based on being wilfully ignorant of “user content”, and then using that content to build webpages. There is something inherently wrong with a system that allows this.”
They’re not being willfully ignorant, it’s just that their ability to police all uploaded content and determine infringement is limited. Several hours of video are uploaded to Youtube every minute and it’s often even difficult for IP holders to determine infringement, yet alone a service provider who may not hold all of the information necessary to know what is and what isn’t infringement.
What there is something inherently wrong with is a system that expects everyone else to magically know what is and what’s not infringement and to bear the entire burden of enforcing everyone else’s IP privileges. Almost no burden is given to IP holders, they don’t even have the burden of opting in by registering their works on a website so that service providers can better detect infringing content. IP holders want free privileges and they want everyone else to undergo the burden and costs of enforcing, policing, and abiding by those privileges. That’s inherently wrong.
What this is is a war against “user content”. It’s not just a war against infringement. You see user content as competition to copy protected works and so you want to increase the burden of servicing user content. It’s too expensive to go after users and much cheaper to go after service providers.
Just like with everything else in this country (government established taxi cab monopolies, the government established mainstream media cartel that establishes itself through government imposed broadcasting and cableco monopolies, etc…) the government simply seeks to maintain a system of cartels. and user generated content competes with various media cartels and so you want to increase the burden of hosting them.
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“They’re not being willfully ignorant, it’s just that their ability to police all uploaded content and determine infringement is limited. “
Yes, but it is limited by their choices, not by the law. It is limited because their business model specifically makes it impossible to do. They take no action to “know your uploaders”, they don’t do anything to control accounts, they don’t do anything to assure that the uploaders are legit.
They chose their business model, and their business model fails, except for using a single exception in DMCA.
It’s not a war against user content, it’s a war against illegal content. If the user content is illegal, then so be it. It’s not about “user”, it’s about illegal. When you drop the persecution complex and move on to looking at it with a less biased eye, you can see how it works out.
” You see user content as competition to copy protected works and so you want to increase the burden of servicing user content. “
First off, I am not in the content industry (movies, music, etc) so I don’t see it as anything. However, I think that everyone would welcome FAIR competition. Having to compete against your own work used by someone else for free isn’t competition. User content (isn’t it all user content in the end?) is great, wonderful, and should be encouraged. Illegal content should not. Again, you need to learn the different, and understand it’s not against the users, just against those who think using the works of others without rights is acceptable.
There is no increase in burden in hosting legal user generated content. The only burden will be in hosting illegal content, as it should be.
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They take no action to “know your uploaders”, they don’t do anything to control accounts, they don’t do anything to assure that the uploaders are legit.
There is no law that requires them to (yet).
They chose their business model, and their business model fails, except for using a single exception in DMCA.
They chose their business model, and their business model fails, except for being completely legal. FTFY.
It’s not a war against user content, it’s a war against illegal content.
The actions of the uploaders (the content itself is not illegal, technically) are already illegal and can already be pursued.
Having to compete against your own work used by someone else for free isn’t competition.
It is illegal, it may be unfair, it may be unfortunate, but it is definitely competition.
There is no increase in burden in hosting legal user generated content.
So you’re saying all these companies that don’t infringe copyright and are worried about SOPA are misunderstanding the law?
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Yes, but it is limited by their choices, not by the law. It is limited because their business model specifically makes it impossible to do. They take no action to “know your uploaders”, they don’t do anything to control accounts, they don’t do anything to assure that the uploaders are legit.
They chose their business model, and their business model fails, except for using a single exception in DMCA.
Just like Ford “chooses” not to track how people drive their cars. What a bad business model choice by Ford. It builds tools that people use illegally.
I assume you also support changes to the law that will require Ford and other automakers to track how people drive, and if anyone breaks the law while driving, then Ford has to shut down their car permanently, or Ford is liable.
Right?
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“I assume you also support changes to the law that will require Ford and other automakers to track how people drive, and if anyone breaks the law while driving, then Ford has to shut down their car permanently, or Ford is liable.
Right?”
No, nothing is farther from the truth. Ford doesn’t have any influence on how their cars are used after they are sold. They don’t get to choose anything about how they are operated or used.
If you want to talk cars, the reality is that Youtube has more in common with a limo company. They will let anyone use their service, and they will take you anywhere you want to go. But really, their driver should be smart enough not to take people from bodega to bodega to commit robberies, right? See, Youtube is always there, they are always involved in the presentation, in the distribution, and the use of the content. They sort it, they track the views, they suggest similar content.
So no, Youtube isn’t like a straight sale. I thought you were smarter than that.
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They will let anyone use their service, and they will take you anywhere you want to go. But really, their driver should be smart enough not to take people from bodega to bodega to commit robberies, right?
If a court rules that the driver knew or should have known what was going on, right. If the limo company knows that someone somewhere at some time has used their service to commit a crime, no. Has a court ruled that YouTube, for example, knew or should have known about specific instances of copyright infringement and did not act?
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Had Youtube remained as it was when it started, they would have be guilty as sin and run out of business. They took steps to limit their liablity (such as blocking longer videos, and instituting as sort of finger printing system to try to spot obvious copyright violations), and that combined with DMCA safe harbors have been just enough to keep them from being found guilty. But it’s damn close.
DMCA safe harbors applied to the limo example would allow the limo driver to roll up the partition window and claim to be an “innocent driver”, even as he rolls up working hours for his company driving people from bodega to bodega. He turns a deaf ear to the gunshots (could be anyone, right?) and draws no conclusion why his customers want him to drive quickly away from each step and make a series of complicated turns to throw off pursuit. He won’t even consider the issue when they ask him half way through the night to change cars.
Safe harbors allow a form of institutional ignorance, and that is one of the things that SOPA / PROTECT IP attempts to address.
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Please stop with the analogies to the physical world. You’re really not very good at them, and it just makes you look like you *really* don’t understand what you’re talking about.
As for the rest of your post, is this really the new AC troll target? That provisions to protect people from prosecution for crimes they didn’t commit is a terrible idea, even as you admit that they helped a business that’s invaluable for advertising and distributing content to stay afloat. That seems like a very strange stance, unless you’ve either misunderstood everything you’re talking about or have a vested interest in the old distribution model…
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“Paul, most of those “legal businesses” are based solely on a rather broad interpretation of a single part of DMCA,”
Bullshit, but you’re entitled to believe your own lies, I suppose…
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I never weasel
LOLOLOLOLOLOL
Re: Re: Re:2 Re:
I never weasel. Problem is, you’ll accuse me of weaseling anyway. It’s what you do. And then you’ll throw a tantrum. But if you want: answer me this: how do you explain the vast fear going through Silicon Valley right now? They read this bill and they’re all talking to lawyers, and freaking out about how they’ll have to shut down forums, change how they function. You pretend that’s impossible. But it’s happening *TODAY*. Under the terms of the bill, nearly every web company is potentially liable. Do you understand the amount of money that is being wasted because of this bill, when it hasn’t even passed yet?
I meant questions about the meaning of willful blindness since your article is about that topic. But to your question, I’m not sure how you want me to respond to your generalizations about what’s happening in Silicon Valley. No offense, but given your propensity to sensationalize and jump to conclusions, I doubt that they’re all “freaking out” as you indicate. I don’t pretend to know though. If you could point me to something specific so I could see what “they” are saying, I could address that.
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Silly boy. It should be apparent that complete and accurate facts will never be presented so that the facts can be analyzed in accordance with legal precedents.
Re patents, “The invention is “obvious”, so why was this bad patent even granted? Just shows you how broken the patent system has become!” Of course, such conclusory statements are never backed up by a detailed analysis that measures the claims against the relevant prior art. One having the temerity to suggest that such analysis is necessary is immediately pounced upon and called a “IP maximalist”.
Re copyrights, “It is a clear cut case of fair use, and the court was plainly wrong to hold otherwise.” Again, the same level of superficial analysis is relied upon, and one who suggest that more analysis is needed is immediately called an “IP apologist.
Etc., etc., etc.
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No, we do thoroughly analyze the issue. All you do is “suggest that more analysis is needed” without actually ever providing any. You want everyone else to provide the analysis necessary to support your position because you can’t. Perhaps it the case that the analysis doesn’t support your position.
Me: The moon is not made out of cheese.
You: More analysis is needed.
Me: The moon doesn’t look like it’s made out of cheese. Cheese has all of the following properties (list of properties here) whereas the moon doesn’t posses any of these.
You: More analysis is needed.
Me: (more analysis)
You: More analysis is needed.
Eventually your “more analysis” argument becomes meaningless.
Re: Re: Re:4 Re:
“Of course, such conclusory statements are never backed up by a detailed analysis that measures the claims against the relevant prior art.”
Then you haven’t been reading Techdirt discussions very long because this statement is false. If you mean “the detailed analysis are not detailed to your arbitrary satisfaction” well, they’re far more detailed than any analysis that IP maximists have ever given. The only thing I see from IP maximists is “more analysis is needed” + “Ad hom” + “insult” + “There must be more to this story” or some other nonsense ‘analysis’
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My comment was made precisely because I have read over an extended period of time such discussions on this site.
Mike,
That “deliberate actions to avoid confirming a high probability” language is right out of Justice Alito’s opinion for the majority in Global-Tech: http://www.supremecourt.gov/opinions/10pdf/10-6.pdf
The case is a great read if you’re really interested in understanding this stuff. I very much doubt that Justice Alito and the other seven Justices who signed onto the opinion would agree that it’s “worded in . . . a weasel way.”
In fact, since the interpretation of that language in Global-Tech is controlling, we already know how courts will apply the standard. Willful blindness under this standard requires that: “(1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.”
What you call “ridiculous” happens to be the consensus opinion of the circuit courts of appeal and the Supreme Court. I know you like to pretend these things don’t exist and are unworkable, but willful blindness and inducement liability have existed (and worked well) for centuries.
No offense, but your whole “I don’t get it! It doesn’t make sense!” article is just silly FUD.
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See my reply above on the differences between patent rights and copyright.
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Well, considering that most non-legal people don’t seem to get the logic behind it, it seems impractical to continue assuming that it’s true.
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Also, thank you for at least citing your sources.
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It doesn’t change much, the supreme court was wrong, is wrong and you along with it.
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This is exactly why copyright will die eventually, it just don’t make sense to anybody except for people who profit from it and that is a small percentage of the total population.
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That “deliberate actions to avoid confirming a high probability” language is right out of Justice Alito’s opinion for the majority in Global-Tech: http://www.supremecourt.gov/opinions/10pdf/10-6.pdf
Yup. But that was a specific case with specific facts. Applying that broadly to the entire internet and copyright issues is a huge disaster of an idea. It takes existing, well established standards and throws them out the window for ridiculous vague standards that can and will be abused by private parties and the government.
In fact, since the interpretation of that language in Global-Tech is controlling, we already know how courts will apply the standard. Willful blindness under this standard requires that: “(1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.”
Again, you as a lawyer think this is clear. As an entrepreneur, and having spoken to dozens of entrepreneurs about this: IT’S SCARY AS HELL. It says if someone decides you should have known something and should have done something suddenly you’re shut down.
Holy shit is that a bad idea.
It’s scary that lawyers think this is clear. The people who actually have to deal with this — the people who build the shit you rely on every day — are freaked out about this.
No offense, but your whole “I don’t get it! It doesn’t make sense!” article is just silly FUD.
Seriously, come speak to some entrepreneurs. The fear of this bill is TREMENDOUS.
Re: Re: RUN FOR YOUR LIVES! Mike sez "IT'S SCARY AS HELL"!
No fear mongering there.
Re: Re: Re: RUN FOR YOUR LIVES! Mike sez "IT'S SCARY AS HELL"!
I don’t think it’s fear mongering when there is really something to be afraid of.
Re: Re: Re:2 RUN FOR YOUR LIVES! Mike sez "IT'S SCARY AS HELL"!
I have to wonder if a bill as monstrous as this actually becomes a law what will happen to me ?
I have a Non-Profit Educational Website dedicated to the Jewish People Who lived in Sub-Carpathian Ruthenia (Carpathia) before,during,and immediately after WW2.I have also made a 5 1/2 hour detailed Documentary on this subject.I originally did this for my Father’s side of the family and to learn of what really happened to Dad and the small amount of family I had on that side.If you are interested you can see it here http://www.bigmeathammer.com/aushwitz.htm and I am always cordial in trying to answer any inquiries I receive.
Anyways I have of course used a bunch of old photos,maps,and films.Guess I am already a “copyright” infringer so I will be heading to Jail or something.I will never take down my family site or change it.I receive every month at least one letter from someone in a different country.
DOWN WITH CENSORSHIP !!!
Re: Re: Re:3 RUN FOR YOUR LIVES! Mike sez "IT'S SCARY AS HELL"!
“I have a Non-Profit Educational Website dedicated to the Jewish People Who lived in Sub-Carpathian Ruthenia (Carpathia) before,during,and immediately after WW2”
If your non-profit educational website was dedicated to supporting oppressed Palestinians then you might have a problem. Though I have nothing against Jews the fact is that the U.S. government and the media are sometimes bias at times and as a Jew you’re probably fine.
While I do think your website is a good thing and I support your efforts and your website, I think this is just another example of how these sorts of laws can be used to censor certain types of speech while allowing other types of speech. The media maybe more sympathetic to Palestinians now than it was years ago, I noticed, but that’s partly because the Internet can keep them in check to some degree by making it more difficult for them to spread misinformation and factually wrong information and to pressure them to be less bias since it’s more difficult for them to get away with it.
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Yup. But that was a specific case with specific facts. Applying that broadly to the entire internet and copyright issues is a huge disaster of an idea. It takes existing, well established standards and throws them out the window for ridiculous vague standards that can and will be abused by private parties and the government.
You miss the point. The standard has existed in that basic form for centuries, being applied to new circumstances as they arise. The internet is nothing special. The same old rules will be applied just like they have with everything else.
Again, you as a lawyer think this is clear. As an entrepreneur, and having spoken to dozens of entrepreneurs about this: IT’S SCARY AS HELL. It says if someone decides you should have known something and should have done something suddenly you’re shut down. Holy shit is that a bad idea. It’s scary that lawyers think this is clear. The people who actually have to deal with this — the people who build the shit you rely on every day — are freaked out about this.
This standard of willful blindness is actually a pretty high bar, surpassing “recklessness and negligence” according to the Court. Negligence is when you should have known of a risk but didn’t. Negligence is not enough. Recklessness is when you know of a “substantial and unjustified” risk of infringement and do nothing. That’s not enough either. To be liable here, you have to go out your way to deliberately avoid finding out the truth about an infringement that is obvious.
It’s not “scary as hell.” Not even close. If you go out of your way avoid finding out something, then the law will treat you as if you have actual knowledge. Willful blindness is knowledge in copyright law, Mike. The idea is nothing new, and your FUD is just empty fluff.
Seriously, come speak to some entrepreneurs. The fear of this bill is TREMENDOUS.
I’m sure those that benefit from violating other people’s rights are worried. As they should be. True innovators have nothing to worry about. No offense, Mike, but you would be whining about how scary this bill is no matter what. Why don’t you do something actually useful and tell us how to define things in the bill better so the collateral damage is minimized. Where’s all your great ideas? Instead of just whining about how this is the end of the world, help to make it better.
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I’m sure those that benefit from violating other people’s rights are worried. As they should be. True innovators have nothing to worry about. No offense, Mike, but you would be whining about how scary this bill is no matter what. Why don’t you do something actually useful and tell us how to define things in the bill better so the collateral damage is minimized. Where’s all your great ideas? Instead of just whining about how this is the end of the world, help to make it better.
hear, hear….
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Those who benefit from infringiment has nothing to fear they can get their stuff, from anywhere really it doesn’t matter if it is legal or not.
Do you have any idea how many people rip off Hulu? or VEVO or any of the other “legal” places you refer to?
Now business people should be very afraid, the power of a few to decide what is wrong or not and their drive to eliminate the competition is far more damaging to any society than piracy will ever be.
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“you have to go out your way to deliberately avoid finding out the truth about an infringement that is obvious.”
Obvious to whom?
The only thing obvious is that granting the power to ask people to stop your financial support on their say so is just plain scary, the same people that have all the reasons in the world to end competitors because they basically don’t want competitors anywhere, it also gives them the power to threaten others if they don’t comply with something even if they are not competitors.
So really where is the fucking standard?
Is not a judge deciding that crap is companies that have all the reasons in the world to interpret that in a totally different light, so what is that crap about judicial standards? are companies going to use those standards?
Of course not and just to prove that you have Warner Bros doing away with any standard when they are not policed.
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Are you saying you can’t tell that pirate bay or demonoid are dedicated to infringement? Pirate bay brags about it.
If some sites only have small random occurrences of infringement, then they are easy for the site owners to spot and remove. Most sites and forums already do this.
This language just means you can’t be willfully blind and get away with it, like so many sites obviously have been doing.
All the FUD about this bill is so not convincing in any way.
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Are you saying that we must give a right to abuse to the entertainment industry?
Are you saying that we need to give them laws that can do great harm to business without any way to see what it is being used for?
I can see Warner Bros saying to other companies, “you do what we want or we will keep injunctioning you”.
When did it became ok to let others abuse the legal system?
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That language just means that private companies will create their own blacklists that they can put virtually anyone inside without any accountability whatsoever.
So you dishonest piece of shit can just go fuck yourself.
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Pirate Bay brags about the fact that what they do is completely legal. Please, try not to distort the facts.
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It bragged its way to a criminal trial in which its principals were convicted, sentenced to jail time, and fined a substantial amount.
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At the behest of the American movie industry.
Gee, that leaked cable about this was sure enlightening.
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The supreme court may have viewed that way, but companies don’t and since those powers are being granted to an AG and companies there will be no judicial standard applied.
You are a dishonest bastard that is what you are.
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Just because something is old doesn’t mean it’s right or easily understood.
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You miss the point. The standard has existed in that basic form for centuries, being applied to new circumstances as they arise. The internet is nothing special. The same old rules will be applied just like they have with everything else.
Then you don’t need this law.
This standard of willful blindness is actually a pretty high bar, surpassing “recklessness and negligence” according to the Court. Negligence is when you should have known of a risk but didn’t. Negligence is not enough. Recklessness is when you know of a “substantial and unjustified” risk of infringement and do nothing. That’s not enough either. To be liable here, you have to go out your way to deliberately avoid finding out the truth about an infringement that is obvious.
Problem is, this isn’t according to a court. Thanks to the private right of action, you just have to freak everyone out, and effectively force them to stop letting open communication happen on their site.
I’m sure those that benefit from violating other people’s rights are worried.
YouTube, Twitter, Facebook, Reddit, Craigslist, Linkedin. Yahoo.
Yeah, they’re all violating people’s rights. You’ve got them pegged.
Come on. The fact that you dismiss the very real concerns of some of the most important companies around, is really scary. This is why no one in Silicon Valley trusts DC.
It’s amazing to me that you simply ignore what these startups are saying, and the very real fact that they’re already gearing up to hire more lawyers to deal with this crap. And you pretend that’s not happening. You are directly taking money away from jobs and innovation by supporting this.
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Funny, you don’t seem to mind the money drain on recording budgets, which has meant less time for artists to be in the studio being innovative.
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There’s plenty of ways for artist to be innovative, that doesn’t involve signing away their rights to labels. This is what has the labels scared shitless. There’s plenty of ways for the labels to innovate as well, but they would rather shutdown every avenue for artist that doesn’t have ties to them. None of that matters though. Even if the law passes, many artist are NOT going to the labels, and the labels will eventually crumble–clenching to their back catalogs, even into perpetuity, can’t prop them up forever.
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Yeah, studio time is the reason why major labels are releasing generic crap and lame covers by people who won a glorified karaoke contest, and think that’s their biggest product.
*rolls eyes*
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Uhh, you’ve obviously never heard of Hollywood Accounting, where everything made goes into the “recording budget” or the “Production budget” in order to defraud artists of their rightful share.
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YouTube, Twitter, Facebook, Reddit, Craigslist, Linkedin. Yahoo.
The fact that you dismiss the very real concerns of some of the most important companies around”
That is SO FUNNY, that is your list of “the most important companies around” ?????
If all those listed companies dissapeared TODAY, right now, the world would hardly blink.
Sure lots of people would be upset about their facebook account, for about 2 minutues..
“the MOST IMPORTANT companies around” !!!!!!!!
and the very real fact that they’re already gearing up to hire more lawyers to deal with this crap.
You are directly taking money away from jobs and innovation by supporting this.
The lawyers are being hired, and if you job and income relies on an illegal activity, then you do not deserve that job, and have no right to do that job.
Sometimes you hire lawyers as well Masnick, you are supposed to be a economics expert, you must understand it is a normal cost of conducting a business, ensuring probity and ensuring your business is working with the limits of the LAW…
REGARDLESS, of whether you agree with that law or not, you MUST make sure you are within the law and operating your business in a legal and probative manner.
You do not hare lawyers to help you conduct illegal activities, you hire the lawyer to ensure your business meets the legal standards of your laws.
You get a letter from someone stating they want something from this site removed, or you to do something. You RUN (not walk) to your lawyer, pay him some money and get advice.
You ensure your business operates within the law.
You can whine about the laws all day, but who cares, Masnick you whine about EVERYTHING. After awile it’s hard to find anything you DO support.
Masnick ‘the boy who cried wolf’..
One day a REAL and important issue will become apparent to you, and you will rant about it, and no one will care,, because that is ALL YOU DO…
Everyone has laws and rules they do not like or do not agree with, WE ALL DO…
But we are (generally) grown up enough to understand that like them or not they are the laws and we have to live by them. And just because we dont like them does not release us from not having to abide by them, or live under those rules.
If you do not like the laws you live under, run for Government, run on a platform for copyright reform, see if you can gain popular support, become president and veto the law.
If anything of what you say is even close to true, you would be able to gain a great deal of popular support on an anti-copyright, patent reform platform and have the laws changed.
Of course you wont do that, and NEVER will, you dont have the balls.
It’s easy ranting to a group of drooling worshipers of “the Masnick”, who regardless of what rubbish you say take it as the total truth.
No, you would never actually DO anything !!!!
You have a too easy life now, playing on the net, and being paid for doing basically nothing. Why would you ever want a ‘real job’ ?
You are like the really poor person digging around the rubbish dump for things you can find and sell.
You dig for ‘rubbish’ on the internet,
Masnick have you EVER actually had a REAL job ?
Do you think your work here on Techdirt actually achieves ANYTHING ? (except to generate distain for you) ?
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“True innovators have nothing to worry about.”
Did you miss the point where legitimate parties can and have been shut down without prior notice, or are you just wilfully ignorant?
Re: Re:
You have certainly shed some light on the language, which I appreciate. I’ve been trying to think it through in terms of some relevant examples in terms of copyright infringement.
Something that would certainly meet the standard is tv/movie linking websites – assuming, at least, that linking definitely constitutes “facilitating” under SOPA, which it seems that it would. Most such sites provide legal links where available (Hulu, iTunes, Amazon) – but their main purpose is clearly the community-submitted links to unauthorized streams. With the popular ones, it is almost certain that they meet the (1) and (2) you listed as standards for willful blindness.
Fair enough.
Then there are the video platforms themselves. Some of them (Megavideo, VideoBB, Sockshare) seem almost entirely devoted to infringing TV and movies. It seems almost certain that they would meet the standard as well. That makes sense, but is also concerning: the community that uploads infringing tv/movies immediately flocks, en masse, to any and every new video hosting platform that becomes available. So with SOPA it would be essentially impossible to create a video-hosting platform without proactively monitoring for copyright infringement. Personally I find that somewhat troubling: a lot of innovation is going to be held back by the fact that nobody can launch a user-content platform without either the personnel or the technology to monitor submissions, which is going to be unfeasible or impossible in a lot of cases.
But whether you agree with it or not, it is clearly the intent of the bill (and most of its supporters) to make proactive monitoring a requirement for almost everyone – so it does seem quite weaselly to express that as a double negative. If proactive monitoring is going to become the required standard with this law, then it should say so clearly – and lay out a framework for the specific monitoring requirements. Then interested parties could understand, discuss and debate the law properly. I really can’t think of any reason to word it the way they did other than slipping it through – after all, the last thing the industry or Washington wants is for Silicon Valley to wake up.
But maybe I’m over-reading things. Do you agree that proactive monitoring would be required for the majority of user-generated content platforms under SOPA? If so, why doesn’t it say that clearly, and set out more specific requirements to avoid liability?
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If proactive monitoring is going to become the required standard with this law, then it should say so clearly – and lay out a framework for the specific monitoring requirements. Then interested parties could understand, discuss and debate the law properly. I really can’t think of any reason to word it the way they did other than slipping it through – after all, the last thing the industry or Washington wants is for Silicon Valley to wake up.
That’s EXACTLY why it’s worded that way. The entertainment industry has wanted service providers to be liable for the actions of their users since the DMCA was first being drawn up. The safe harbor protections, which were lobbied for by the telcom industry, are a massive thorn in the MPAA/RIAA’s side and they’re desperate to get rid of them.
They believe that they’re the most important industry in the world and that all other concerns come second to their profits. To that end, they believe that every ISP and web site should be required to police everything that the users post and remove anything that might infringe someone’s copyrights.
After all, you can’t make an omelet without stomping on the egg carton…
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Marcus, anyone opening a site that accepts user submitted content should, by nature, apply at least some basic monitoring.
As an example, no file host would want to be caught with child porn, snuff films, or being used as a terrorist plan exchange depot. No video site would want to run this stuff – there is no real safe harbor against CP, after all. Many of them don’t want to run any porn, and most of them have “adults only” sections (including Youtube) that indicates at least some ongoing filtering.
The law doesn’t dictate monitoring, that is perhaps only one solution out of many to be compliant with the law. They might also find that they can be compliant in other ways, such as having actual signed contracts with uploaders, no accepting purely anonymous contributions, etc. Being willing to provide that sort of information to copyright holders without trying to shield the offenders might also go a long way.
A wide open video sharing platform doesn’t really exist. Perhaps you would consider some of the other options outside of monitoring that would work out, and then you can understand why the law doesn’t dictate a single course of action to comply.
i must admit my spelling and grammer levels were only to the eleventh grade despite that i graduated both high school and community college but would a judge not just think it was typo and toss out one set of words? or does scotus leave out words written down when the gun lobby is paying them?
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Has anyone really been far even as decided to use even go want to do look more like?
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Anyone else want to vote this as the most insightful comment of the week?
Come on people, if we troll hard enough, we can do it.
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You’ve got to be kidding me. I’ve been further even more decided to use even go need to do look more as anyone can. Can you really be far even as decided half as much to use go wish for that? My guess is that when one really been far even as decided once to use even go want, it is then that he has really been far even as decided to use even go want to do look more like. It’s just common sense.
What is this BS about supreme court standards?
When are companies going to use those standards?
Nice weasel way to mud the issues trying to say that in court it won’t be used, but the issue is not the court is the lack of a court of law, is the lack of judicial overview, is the lack of transparency, is the lack of accountability.
The proposed law makes no mention of punishment or consequences for bad behaviour and Warner Bros recently just proved that given the chance they will take anything down even if it is not theirs.
There is not even a fucking way to track how it is being used, nobody is going to be held accountable for their acts so it is funny that the crappy shills here believe that justice only should go one way.
Where are the safeguards in the fucking law you morons?
WHERE?!
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The assholes at Jenner and Block don’t care about safeguards, only the balance on their bank accounts. Why do you think they went to law-school? Its a booming business my friend
I want to see the shills here defend a bill that says.
Any copyright holder that is accused and should have known better will face the full extent of the law and private action can be taken to cut their financial support, their assets would be seized to guarantee that they don’t try to skip the law or else face jail terms.
Those idiot shills would never agree to that, but somehow everybody else needs to agree to equally stupid terms that benefit their masters, that is just rich.
Censorship at its' best
All the AC’s and everyone else on board, including Mike,(if he hasn’t already, which I’m sure he has) can go to this page and sign up for the American Censorship Day being sponsored by the EFF on November 16, the day Congress will start hearings on it.
http://www.americancensorship.org/
To wit these are some of the highlights of the legal consequences of this bill:
“Website Blocking-The government and corporations can order service providers to block websites for infringing links posted by any users.”
“Risk of Jail for Ordinary Users-it becomes a felony with a potential 5 year sentence to stream a copyrighted work that would cost more than $2,500 to license, even if you are a totally noncommercial user, e.g. singing a pop song on Facebook.”
“Chaos for the Internet-thousands of sites that are legal under the DMCA would face new legal threats. People trying to keep the internet more secure wouldn’t be able to rely on the integrity of the DNS system.”
Those are the highlights. I’d hate to see the bad parts.
So,either protest this now or shut the hell up when it passes.
Arguing in cute little ‘bon mots’ will not make it go away. It’s on the verge of becoming law.
We have a choice-either let them get away with it or go down fighting the idiots.
worst heading EVER !!
Can Defenders Of SOPA Explain How You Define Taking Deliberate Action To Avoid Taking Action?
YES…
I take deliberate action NOT TO SPEED in my car so I can avoid taing action like “avoiding a crash”.
I can have a wee before I go to bed, so I can avoid having to get up in the middle of the night and take that action.
Everyone all the time, takes deliberate actions to avoid taking ‘other’ actions.
You probably lock your doors when you go out to avoid the actions of house theft.
You probably turn off your computer to avoid the action of a large electricity bill.
You probably Deliberately turn off your stove, to avoid the action of your house burning down…
If you were suddenly injured, and needed an ambulance, would you expect them to have to build the ambulance, fit it out, and train the people before they came to fix you ?
or would you expect that they allready have made a deleberate action before you injury, to avoid having to take that action WHEN you need it.
It might take some time to build an ambulance, so they took deliberate action in order to avoid that later actions.
Masnick your IQ is showing – but not in a good way….
Re: worst heading EVER !!
There’s a difference between taking “deliberate actions” for things that are a DIRECT consequence of your own PERSONAL actions and the actions of OTHERS. For instance, you watch your speed to prevent YOURSELF from wrecking YOUR car. This law, however, is about taking “deliberate actions” for things done by OTHERS. If this was analogous to speeding, it would be like not only having your car impounded, but having your credit cards canceled and being liable for the damages, all because you didn’t take “deliberate actions” to prevent others who where speeding from hitting your car. Being blindsided isn’t a defense because it was YOUR responsibility to act, regardless of the circumstances. It doesn’t matter if you depend upon your car for your job either. Sure, you could EVENTUALLY get a judge have your car released, but the actions were taken against you BEFORE you even have the right to a defense. Oh, and you can’t get another credit card because the companies don’t want to be accused of associating with anyone that had been involved in a speeding incident.
Of course, the way it really works with speeding, just as with copyright, is that the person breaking the law is the one held responsible, not the ones who didn’t “deliberate actions” to prevent their involvement.
Re: Re: worst heading EVER !!
…not the ones who didn’t take “deliberate actions” to prevent their involvement.
Oh, and darryl, your IQ is showing – but not in a good way….
Re: Re: worst heading EVER !!
Apparently you have never been exposed to longstanding concepts in tort law such as “contributory negligence”, “last clear chance”, and “comparative negligence”. All of these are associated with one party bearing in part responsibility for the actions of another party.
Re: Re: Re: worst heading EVER !!
And what this has to do with tort law vermin?
This is about private parties getting the power to threaten other business as they see fit.
You don’t give a drivers license to someone and day drive as you please there are rules to guarantee others will not be harmed by the actions of another are there not?
So vermin what you want is a law that only goes one way and not the other, you want all the perks of being able to “punish” others but don’t want to be accountable for your actions, I’m pretty sure that the law says nowhere that we must protect abusers and criminals like Warner Bros that using the DMCA keeps taking down everything they see and don’t care if it is legal or not.
Vermin go fuck yourself.
Re: Re: Re:2 worst heading EVER !!
Obviously you are not schooled in tort law. Otherwise, you would quickly understand the relevancy of the longstanding legal concepts I mentioned.
Re: Re: worst heading EVER !!
the ambulance takes deliberate action to PROTECT YOU,
This law, however, is about taking “deliberate actions” for things done by OTHERS.
Well yea,, !!!!!! of course, ALL FREAKING LAW IS….
So a police person will only take deliberate actions against themselves?
Re: worst heading EVER !!
Darryl, ever heard of paragraphs?
I want to see the judge that will get a list with hundreds of websites to block and will apply any supreme court BS standard, judges will just rubberstamp and sort things out late, at that point fucking irreparable damaged already has been done to business everywhere.
There is nothing saying that one cannot keep putting the same URL over and over and over again, there are no penalties for bad faith, there is nothing in there showing how the government will track that BS to see what it is being used for.
The stupid want to give the dishonest the most powerful censor tool ever and don’t think it will be abused?
AG’s everywhere will just injunction Craiglist now, the church of Scientology can ask others to keep cutting funds to others, overzealous people can keep putting any business in some list to be blocked and nothing apparently will happen to those people.
Those dishonest people then will claim that it was a mistake that they keep putting the same people on the lists they ask for injunctions, knowing full well that judges won’t be able to sift through all of them.
This law should be called “crooks and censor act”
Amazing how the shills are out in force on this issue every day. Wonder what drives the interest (and lack of basic logic)?