RIAA: We Must Take A Shoot First, Ask Questions Later Approach To Censorship
from the really,-mitch? dept
Specifically, he uses the example of the ongoing ITC case filed against Apple & RIM by Kodak to explain why OPEN is no good. His particular concern is the length of time it's taking the ITC to rule on the case:
The U.S. International Trade Commission (ITC) recently reported that it will delay ruling on an important patent infringement claim brought by well-known camera company Kodak against smartphone makers Apple and Research In Motion (RIM). The case, originally filed in January 2010, now anticipates a ruling in September 2012. The delay now means that the ITC will have taken 33 months to decide on a high-stakes and time-sensitive issue. So this is the “expedited” process SOPA opponents are embracing as an alternative in the proposed OPEN bill?This is both disingenuous and obnoxious at the same time. First of all, as Glazier must know, but apparently is too intellectually dishonest to admit, a patent case involves some very different issues, involving some pretty specific efforts around figuring out exactly what a patent really covers. You don't have to deal with "claim construction" in a copyright case. But in a patent dispute -- in a federal court or at the ITC -- there's a big, long, complicated claim construction process to determine the actual boundaries of what's covered in a patent. Then there's the process (somewhat complicated) of figuring out if the products in question actually do infringe on the patent.
Copyright is different than patents. And while there does need to be a careful analysis of whether or not a copyright is infringed, the process is very different than with patents, and can absolutely be expedited, if need be.
Why in the world would we shift enforcement against these sites from the Department of Justice and others who are well-versed in these issues to the ITC, which focuses on patents and clearly does not operate on the short time frame necessary to be effective? In addition, the remedy traditionally offered by the ITC – an exclusion order to prevent foreign criminals from accessing the US market – is precluded under the OPEN Act.Oh really? This would be the same "well-versed" experts at the DOJ who have been censoring multiple websites on no legal basis for over a year? The same "well-versed" experts at the DOJ who finally had to give back Dajaz1.com after an entire year in which it refused any and all due process?
I'm sorry, but I think there's more than enough evidence that the DOJ isn't that "well-versed" in these issues, and that when it acts in a "short time frame" it makes significant and serious mistakes. Similarly, where was that vaunted "short time frame" when it came time to admit that it totally screwed up and seized and censored a blog without legal basis? It took Dajaz1 over a year to get its domain name back, despite no legal action being taken against it. Multiple other sites are still being held. So, forgive me for questioning (1) if the DOJ is really that well-versed, (2) really should be operating on such a "short time frame" or (3) really does operate on such a "short time frame" when it comes to admitting it screwed up. And, the story of Dajaz1 seems like a pretty damn perfect example of why "an exclusion order" is a dangerous remedy. When you screw it up, you make a serious mess of things.
Realistically, what Glazier is making clear here, is that the RIAA wants a "censor first, ask questions later" approach to any site it doesn't like, no matter how legal it might actually be. That's scary. As the Dajaz1 case pretty clearly demonstrated, the damage such an approach creates is something we should all be against. Look, censoring a website is not something that should be done lightly. If we're going to have such a remedy in the law, it should be a slow process that takes time to review to make sure mistakes aren't made. Unfortunately, the current law and the laws that the RIAA wants appear to take the opposite approach: censor first, then take your damn sweet time in ever reviewing those censor orders.