Karl 's Techdirt Comments

Latest Comments (4260)

• On the post: Google Goes Big With Its SOPA/PIPA Protests; Blacks Out Logo

  

  Karl ( profile ), 18 Jan, 2012 @ 04:02am

  Re:

  Craigslist is blacked out too
  
  Good Lord. I am just waking up, and checking some of the links like I do when I'm bored. And in all seriousness, half of the sites I like are going dark today.
  
  The latest site MS Paint Adventures:
  http://www.mspaintadventures.com

• On the post: Lamar Smith & MPAA Brush Off Wikipedia Blackout As Just A Publicity Stunt

  

  Karl ( profile ), 18 Jan, 2012 @ 03:35am

  Re: Wikipedia still a charity?

  If Wikipedia keeps up with the lobbying
  
  News flash: blacking out your site in protest is not "lobbying."

• On the post: Google Goes Big With Its SOPA/PIPA Protests; Blacks Out Logo

  

  Karl ( profile ), 18 Jan, 2012 @ 03:30am

  Re: Re:

  Besides pissed-off pirates with an entitlement mentality, Google's money is behind the entire astro-turfing opposition to anti-piracy legislation.
  
  Your tin foil is showing again. Maybe you should wear another hat to cover it up?

• On the post: Google Goes Big With Its SOPA/PIPA Protests; Blacks Out Logo

  

  Karl ( profile ), 18 Jan, 2012 @ 03:28am

  Re:

  Craigslist is blacked out too
  
  You're right. I'm surprised I didn't hear about this, it's at least as big as the Reddit blackout.
  
  Good for them.

• On the post: It's Baaaaaaaaack: Lamar Smith Says SOPA Markup To Resume In February

  

  Karl ( profile ), 18 Jan, 2012 @ 01:27am

  Re: Re: What Will Really Happen

  Or the Protecting Children From Internet Pornographers Act
  
  Nice catch. This wouldn't surprise me in the least. We've already seen many of the most noxious AC's here compare piracy to kiddie porn. Considering that those same AC's have Washington D.C. IP addresses, I'd say it's a likely political ploy.

• On the post: Lamar Smith & MPAA Brush Off Wikipedia Blackout As Just A Publicity Stunt

  

  Karl ( profile ), 17 Jan, 2012 @ 10:32pm

  Re: Oh, really?

  hey tried not so long ago to permanently strip music artists of the rights to their own work.
  
  They're still trying to do that.

• On the post: Rupert Murdoch Lashes Out Bizarrely Against The White House For Asking Congress Not To Break The Internet

  

  Karl ( profile ), 16 Jan, 2012 @ 11:03am

  Salaries

  Whole entertainment ind employs 2.2 million ave salary 65 g
  
  This is a really weird figure. If Hollywood is including the florists, catering companies, etc. in their "2.2 million" figure, then the "ave salary" sure as hell wouldn't be "65 g."
  
  However, it's suspiciously close to the median income for producers and directors, according to the Bureau of Labor Statistics. Of course, there are only 98,600 producers and directors employed in the entire country.
  
  Incidentally, even if he did include the music industry (he did say "whole entertainment ind" after all), that would actually bring the "ave salary" down. The median annual salary of music directors and composers is $41,270, again according to the BLS. And, of course, there are only 53,600 directors and composers employed in the entire country.
  
  ...Separately, Google responded to Murdoch's tweets, accurately calling them "nonsense:"
  http://news.cnet.com/8301-31001_3-57359506-261/google-calls-murdochs-piracy-allegations-nonsense/

• On the post: SOPA/PIPA Supporters Pretend White House Statement Means We Can Rush Through SOPA/PIPA

  

  Karl ( profile ), 16 Jan, 2012 @ 10:23am

  Re: Democracy

  "but focus solely on illegal conduct, which is not free speech"
  
  Now there is a false statement.
  
  It's also false for another reason: it does not focus solely on illegal conduct. It blacklists entire sites, not just the infringing content. (Also, infringement may be unlawful speech, but it is speech, not "conduct.")
  
  Additionally, the parties who would be the most impacted are not "rogue sites," but the advertisers, search engines, and payment providers who must blacklist them (and their users and customers).

• On the post: White House Comes Out Against The Approach In SOPA/PIPA In Response To Online Petition

  

  Karl ( profile ), 15 Jan, 2012 @ 11:00pm

  Re: Re: Re: Re: Re: Repeal the Sonny Bono Copyright Term Extension Act

  And why would anyone ever care what you think? You don't create or innovate.
  
  As far as anyone here can tell, you don't create or innovate any more than he does.
  
  And he is absolutely right about copyright's purpose, by the way:

  The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings [...] Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policy is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention, to give some bonus to authors and inventors.
  -60th Congress, 2nd Session, Report 1108

  So, obviously, you don't know the first thing about copyright or how long it should last.

• On the post: White House Comes Out Against The Approach In SOPA/PIPA In Response To Online Petition

  

  Karl ( profile ), 14 Jan, 2012 @ 05:37pm

  Re: Re: Re: Re: Re: Re: Re: Positive development, but...

  The act of producing an iPhone requires a huge amount of resources: work, planning, monetary investment, plastic, metal, glass, and so on. Unauthorized copying of the end product is possible (heck, its done), but is made more difficult by the fact that you have to produce a tangible good, so copying isn't a huge problem.
  
  Here's the difference. Some factory in China can take the same pieces of metal, glass, and plastic, and make something that functions exactly like an iPhone. Then sell it for $100 less than an actual iPhone. All without doing the hours of planning, considerable monetary investment, et cetera.
  
  It is perfectly legal, and Apple has zero right to stop them. In fact, the last couple of MP3 players I bought were cheap iPod rip-offs - which I bought at the local computer store.
  
  If you try to do the same thing with something that is copyrighted, it would be unlawful.
  
  Copyright is what allows people to continue to spend millions of dollars and thousands of man hours to make your favorite movies and TV shows.
  
  As the kids say, [citation needed]. Copyright is not necessary to sell the fruits of your labor, and it's absolutely not necessary to sell the labor itself. On the contrary, most artists find that less copyright enforcement equals greater sales.
  
  There is no question in my mind that some copyright protection is necessary. But it is not the copyright protection we have now. Scaling it back from its current levels unquestionably would benefit the public, and in the long run it will benefit artists and publishers as well.
  
  In particular, non-commercial infringement should be absolutely decriminalized, and the penalties far weaker than current levels. (Fines that are the equivalent of a parking ticket seem about right to me.)
  
  The idea that "advertising" by itself constitutes for-profit infringement is also really problematic. Most websites have ads nowadays, and most of that income isn't even enough to cover hosting costs, much less fund a "criminal enterprise." Furthermore, I would hesitate to call it "profit from infringement" unless the ad money is directly attributable to specific acts of infringement.
  
  Creative Commons recently funded a study defining what members believed was "noncommercial use." That would be a good place to start.

• On the post: Boo-Freaking-Hoo: RIAA Complains That 'The Deck Is Stacked' Against Them On CES Panels

  

  Karl ( profile ), 13 Jan, 2012 @ 04:20am

  Citizen RIAA

  Does anyone else here think the RIAA is acting like Charles Foster Kane?
  
  "People will think... what I tell them to think."
  
  If so, we're coming up on the two-hour mark:
  
  "Whaddaya been doin' all this time?"
  
  "Playing with a jigsaw puzzle."
  
  "If you could've found out what 'CD' meant, I bet that would've explained everything."
  
  "No, I don't think so; no. Mr. RIAA was a man who got everything they wanted and then lost it. Maybe 'CD' was something he couldn't get, or something he lost. Anyway, it wouldn't have explained anything... I don't think any word can explain a man's life. No, I guess 'CD' is just a... piece in a jigsaw puzzle... a missing piece."

• On the post: Lamar Smith Caught Infringing On Photographer's Copyright

  

  Karl ( profile ), 12 Jan, 2012 @ 05:54pm

  Re:

  Lamar Smith is hosting a dangerous rouge site
  
  It's true. Why, just yesterday, I used his cosmetics to highlight my cheekbones, and I broke out in a rash.
  
  Obviously, it's counterfeit rouge, which costs the cosmetics industry billions of dollars per minute. We must break the internet to stop this outrage! Won't somebody think of the cheekbones?

• On the post: If SOPA's Main Target Is The Pirate Bay, It's Worth Pointing Out That ThePirateBay.org Is Immune From SOPA

  

  Karl ( profile ), 11 Jan, 2012 @ 05:19pm

  Re: .org *is* AFAIK an overseas provider (Ireland)

  Afilias, an Irish-headquartered organisation, took over running .org about a decade ago.
  
  Afilias runs the .info gTLG. The .org gTLD is run by the Public Interest Registry, located in Reston, Virginia.

• On the post: Lamar Smith Out Of Touch With The Internet: Still Thinks It's Just Google That Opposes SOPA

  

  Karl ( profile ), 31 Dec, 2011 @ 11:54pm

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

  Anyway, yes a TRO is an ex parte proceeding. But the plaintiff cannot get that TRO unless they can show that waiting for notice and a hearing would cause them great harm.
  
  This goes far beyond what is allowed under Rule 65. The A.G. may issue blacklist orders to third parties, immediately after initiating the lawsuit, something that would never in a million years be allowed under Rule 65.
  
  On the other hand, the lack of ability to allow accused websites to defend themselves are black-letter law in these bills. Moreover, the procedural safeguards from Rule 65 are directly contradicted in these bills, in the parts I've already quoted (2(f)/102(d)), which state as a matter of black-letter law that accused websites can only defend themselves after the blacklist orders have already been issued.
  
  The references to Rule 65 is pretty obviously low-level procedural concerns; rules about where to send paperwork and so forth. Put it this way: if these bills pass, and the A.G. acted exactly as I said he would, do you honestly believe a judge would throw out the blacklist?

• On the post: Lamar Smith Out Of Touch With The Internet: Still Thinks It's Just Google That Opposes SOPA

  

  Karl ( profile ), 31 Dec, 2011 @ 11:42pm

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

  SOPA doesn't target anyone's speech because of the idea or viewpoint contained therein, so it's not a content-based restriction.
  
  You might want to look at Andy Sellars' blog for info on your content-based claim:
  http://andyontheroad.wordpress.com/2011/05/20/hart-response/

• On the post: Lamar Smith Out Of Touch With The Internet: Still Thinks It's Just Google That Opposes SOPA

  

  Karl ( profile ), 31 Dec, 2011 @ 07:26pm

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

  You're using the word ex parte incorrectly. Ex parte means the other side isn't even invited, not that they're invited and don't show up.
  
  Perhaps I am using the term wrong. That does not make it any more procedurally sound. This isn't a case where they're given a date to reply, and if that date passes, then they can be blacklisted.
  
  The A.G. can send out notices to ISP's, search engines, financial transaction providers, and advertisers within hours or minutes of initiating the lawsuit. No opportunity is given for the sites to reply in any way, either to the courts or to the ISP's et al, until after the A.G. issues the blacklist orders. This is black-letter law in these bills.
  
  It's not that they "don't show up," it's that they're not allowed to show up. Not before they're blacklisted, at least.
  
  In this, it is exactly like the provisions in Pappert. Somehow I doubt that shooting an email to the accused sites would have made Pappert any less unconstitutional.

• On the post: Lamar Smith Out Of Touch With The Internet: Still Thinks It's Just Google That Opposes SOPA

  

  Karl ( profile ), 31 Dec, 2011 @ 05:27pm

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

  Now you're moving the goal posts. I said: "You and others might think that copyright should be content-based, but what you can't do is point to a single court that has ever held is."
  
  That may be a misunderstanding, but it is not moving the goalposts. You appeared to be saying that copyright has never been deemed to be a content-based restriction on speech, and I pointed to two cases where the courts said it was in those specific cases.
  
  There are other court cases that have also ruled that specific laws related to copyright are content-neutral (e.g. CBS v. EchoStar). But these courts did not say that copyright laws in general are content-neutral.
  
  The situation is that you have some cases where the courts said only those specific laws were content-neutral, and some cases where only those specific cases were content-based. This is the problem: copyright law in general does not really fit in either category. Certain laws and certain cases can be one or the other.
  
  But you can't just apply the same level of scrutiny to every copyright law, and you certainly can't excuse SOPA or PROTECT IP merely by claiming they're copyright laws, and thus somehow exempt from some inconvenient level of First Amendment scrutiny.
  
  Can you point to the sections of SOPA and PROTECT IP that you think provide for ex parte blacklisting?
  
  What, seriously? All of them, basically. All of the actions the A.G. is allowed to take are done before the accused site has a chance to respond. It must serve notice to the allegedly rogue site, but that site does not have a chance to respond before it is blacklisted.
  
  In SOPA (the Manager's Amendment), it's all covered in Sec. 102. In PROTECT IP, it's in Sec. 2. Pay attention to the phrase "On application of the Attorney General following the commencement of an action under this section." That is the point at which service providers, search engines, and financial transaction providers are required, under threat of liability and damages, to cut off the "rogue sites." At that point, the accused sites have not had any chance whatsoever to reply to the charges.
  
  The only chance to reply is in Sec. 2(f) of PROTECT IP, or Sec. 102(d) of SOPA. Both of those state that motions to modify or vacate the blacklist orders may only occur "At any time after the issuance of an order under subsection (b)" (weirdly, and perhaps not coincidentally, it's the same subsection in both bills).
  
  So, yeah, the whole shebang is done ex parte.
  
  In fact, the whole process is pretty much identical to the Pennsylvania web-blocking scheme, except that it doesn't merely apply to ISP's, but to pretty much every internet-related business. Pay special attention to the court's reasoning in CDT v. Pappert, and then ask yourself: why wouldn't this also apply to SOPA and PROTECT IP?
  
  His research is thorough and he backs up what he says with citations. And notably, you aren't even trying to rebut what he says.
  
  I've personally argued on here with Hart before, and frankly, it's tiresome. For fuck's sake, the guy actually believes that Arcara applies to copyright cases, which is just insane. I could do it if you want, though. But a lot of it is just rehashing the same stuff I just said to you about things like the CTEA.
  
  I'll use anybody as a source if they're writings are descriptive and not normative.
  
  You can't have "descriptive" writings if you're writing about something no court has ever actually decided.
  
  On a different note, happy New Year. I think one of my resolutions is going to be: stop wasting time arguing on the internet.

• On the post: Lamar Smith Out Of Touch With The Internet: Still Thinks It's Just Google That Opposes SOPA

  

  Karl ( profile ), 31 Dec, 2011 @ 06:01am

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

  I just read the whole RTC v. Lerma opinion, and not once is the First Amendment even mentioned.
  
  The judge mendtioned the First Amendment in the very passage I quoted! True, the judge overturned the order on the basis of "unclean hands." However, why they were "unclean" is very specific: it was a copyright claim that was designed "to stifle criticism of Scientology in general and to harass its critics." This is a classic content-based prior restraint.
  
  [r.e.: Suntrust v. Houghton Mifflin] The court never said that copyright laws are content-based and subject to strict First Amendment scrutiny.
  
  The court said that this particular injunction would be a prior restraint on expression. It's hard not to put that in the context of the First Amendment.
  
  And, no, neither one said copyright law in general is content-based, which is why I specifically said they didn't. On the other hand, no court has ever said they are content-neutral, either. That includes the Supreme Court:
  
  Indeed, as long as a copyright law does not change the traditional contours of copyright protection, that law gets rational basis scrutiny.
  
  But whether that law does, in fact, change the traditional countours of copyright protection, may in fact necesitate deeper scrutiny than rational basis scrutiny. The court was focused on one very narrow issue; an extension to a law that already had passed over a century of First Amendment scrutiny. It's a mistake to think that it applies to any other change in copyright law - including procedural changes, which SOPA and PROTECT IP fundamentally alter.
  
  It's also noteworthy to mention that the Supreme Court agreed to hear Golan v. Holder, where Congress put public domain works back under copyright. They would not do that unless they believed there was a significant First Amendment question that they didn't answer in Eldred. If even this law might change "the traditional contours of copyright protection," what does this say about a law that allows ex parte blacklisting of entire websites, protected expression and all?
  
  I completely disagree with you that SOPA and PROTECT IP change the traditional contours of copyright protection. You're looking at cases where there's a solid fair use (or other) defense.
  
  Under SOPA and PROTECT IP, you could not raise a fair use defense. Nor could you raise a DMCA defense, nor the defense that the content was in fact authorized. You could not raise any defense whatsoever before the sites were blacklisted.
  
  That is certainly a fundamental change from traditional copyright cases, where by and large, the accused at least gets a judicial hearing prior to any injunctions or restraining orders.
  
  Your long quote from Pappert doesn't apply. The problem in Pappert was that the procedural safeguards were inadequate.
  
  SOPA and PROTECT IP have no more procedural safeguards than Pappert did. Furthermore, both cast the net much wider than Pappert, implicating not only ISP's, but search engines, advertisers, and financial providers. If the procedural safeguards in Pappert were inadequate, then the "safeguards" in SOPA and PROTECT IP are certainly inadequate as well.
  
  You might want to read Copyhype
  
  Hart is not the most reliable source on these matters. He is unabashedly pro-copyright, which makes his analysis suspect at best, and flawed at worst. His views are definitely in the minority among legal circles. It's also worth mentioning that he is not yet a practicing lawyer, and has never seen the inside of a courtroom, much less argued a copyright case before a judge or jury.
  
  All of this is fairly well known. It's rather telling that he is your go-to guy on copyright issues, and not, say, Nimmer and Nimmer, Paul Goldstein, Eugene Volokh, Eric Goldman, Mark Lemley, or even Lawrence Lessig, all of whom have far more experience and knowledge than Hart.

• On the post: Lamar Smith Out Of Touch With The Internet: Still Thinks It's Just Google That Opposes SOPA

  

  Karl ( profile ), 30 Dec, 2011 @ 07:39pm

  Re: Re:

  not registering a DMCA agent with the Library of Congress
  
  er, U.S. Copyright Office, sorry.

• On the post: Lamar Smith Out Of Touch With The Internet: Still Thinks It's Just Google That Opposes SOPA

  

  Karl ( profile ), 30 Dec, 2011 @ 07:37pm

  Re:

  Do you have a citation to the full opinion
  
  A judge threw out the request for a TRO in Perfect 10 v. Rapidshare, holding that Perfect 10 did not have a likelihood of success on the merits of its case. They held that Rapidshare was not a direct infringer; was not a contributory infringer; and did not induce infringement. The only thing Rapidshare was dinged on, was for not registering a DMCA agent with the Library of Congress, so wasn't allowed to avail of the DMCA safe harbors (they had an agent, just not registered with the Library of Congress). But even without those safe harbors, they were not liable for infringement.
  
  The opinion is here:
  http://randazza.files.wordpress.com/2010/05/p10_rapidshare_tro.pdf

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