Mason Wheeler’s Techdirt Profile


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  • Apr 24th, 2015 @ 1:22pm

    Re: Re: Re: Re:

    you are suggesting writing a major copyright bill with thousands of provisions

    When did I suggest that? What I suggested above contains exactly one provision: the repeal of the entirety of the Digital Millennium Copyright Act. Although in the past I have advocated a second provision that logically should go with this: formally reclassifying the "access control devices" (aka DRM) formerly protected by the DMCA as what they truly are: illegal hacking tools.

    I see no need for further provisions, at least not right away. Fixing these two things would allow a lot of the problems built upon these main problems to sort themselves out.

  • Apr 24th, 2015 @ 1:18pm

    Re: Re: Re: Re:

    without having to completely rewrite digital copyright law.

    You say that like it would be a bad thing.

    It also gives rights owners a way to address concerns with infringement without A) creating a small claims court for copyright which would be a disaster, and B) requiring a rights holder to go through a bloated suit process for someone they likely cant serve.

    A) Why?
    B) If all you were looking for was getting infringing content taken down, a simple small claims suit would be quite suitable, (no pun intended), and if the defendant never shows up, you get a default judgment. It's all very simple, neat and tidy. It's only if you try to make a big deal out of it (see: stupid stunts that the MAFIAA pull on a regular basis) that it requires a bigger, more expensive court proceeding.

    Remember we do actually have to think about independent artists.

    You mean the guys who benefit the most and (generally, at least) have the least objections to having their work shared around, generating free advertising for them? The current system doesn't protect them; it gets in their way at best, and that's when it's not actively helping the bad guys to rob them blind.

  • Apr 24th, 2015 @ 12:29pm

    Re: Re: Freedom of trade

    Take a look at what his campaign spent on the last two elections. (Here's a hint: the order of magnitude is written with a B, not an M.) Who do you think provided all that money? It sure wasn't We The People...

  • Apr 24th, 2015 @ 10:59am

    Re: Re:

    Except without the safe harbors YouTube would totally have LOST its suits. Its entire defense hinged on the fact that by adhering to the law it was protected against the lawsuit.

    Begging the question. Yes, obviously without the DMCA, YouTube would not have had a "we were in compliance with the DMCA" defense, but it's a bit silly to jump from that to "they would have had no defense."

    MegaUpload went out of business, yes, but because of the rogue actions of law enforcement. If allowed to remain a going concern, Or if its assets had not been seized, it very likely could have kept going, as it had the cash to fight (which is why he was never sued). It has yet to be decided if MegaUpload violated the safe harbors. Evidence provided to us suggests no, but we shall see.

    Veoh yes got sued to death before being vidicated by the courts. But what took them down was court costs, not penalties for infringing on copyright. This has less to do with the safe harbors failing then the way the court system works failing.

    Well, it's not much of a safe harbor if it doesn't even keep you from being sued to death over an obviously meritless charge, now is it?

    You want to see a real safe harbor in action, look at CDA 230. Look at the way it routinely gets baseless cases thrown out long before they become expensive enough to destroy the innocent victims. The DMCA does not do that.

    You recommend a regime where if I upload say The Avengers 2 in HD and then go off grid, the site hosting the content would never have to take it down. Because even with the court declaring me guilty of infringement, the host isn't liable if it remains up. So without me to take it down, it remains up indefinitely.

    I recommended no such thing. This issue has come up before, and my recommendation has remained consistent: I believe in due process.

    If you were to be found guilty in a court of law, at that point the copyright owner would have every right to present the hosting site with a takedown request, and that request should be honored. But punishing someone for breaking the law before they have been found guilty of breaking the law is an abomination, and that doesn't change if the law in question is copyright law.

    Throwing out the safe harbor provisions doesn't solve anything.

    It solves the true problem: "guilty until proven innocent." Everything else is just details.

    Fix the issues in the courts, as with all copyright disputes make fee shifting the norm, institute penalties (on top of the fee shifting) for those who sue hosts who are adhering to the DMCA and make it so false DMCA claims are punishable, and you have fixed most of the problems with the safe harbors.

    ...or you could just throw it out and institute sane rules that preserve the sanctity of due process and the presumption of innocence.

  • Apr 24th, 2015 @ 9:56am

    Re: Re: mean like Megaupload? Oh, wait, the DMCA did nothing to protect them, even when their compliance went well above and beyond its requirements.

  • Apr 24th, 2015 @ 8:48am

    (untitled comment)

    If you're unfamiliar with it, copyright's safe harbors are designed to make sure that the internet thrives, by avoiding frivolous litigation that would stifle free expression and innovation. Honestly, the safe harbors are a pretty simple concept: put the liability for infringement on the parties that actually infringe the content, rather than the internet services that they use.

    No, that's the way they're marketed, and anyone who uses the term "safe harbor" here is either pushing that line of propaganda or has been taken in by it. The way it actually works in practice is the exact opposite: the "safe harbors" provide the exact opposite of safety, and a tool of extortion by which the bad guys use the threat of frivolous lawsuits are to avoid having to do the hard work involved in putting the liability on the parties who actually infringed, and instead going after the service providers who are supposed to be immune under the safe harbor.

    It did nothing to protect YouTube from coming within a hair's breadth of being sued out of existence. It did nothing to protect MegaUpload, Veoh, or Aereo. The bottom line is, it is a "safe harbor" that does not keep Internet companies safe!

    In fact, it actively makes things worse for Internet companies. By establishing a set of rules that an Internet company has to follow in order to avoid secondary liability, it implicitly establishes a concept of secondary liability that would not exist otherwise. The notion of liability pertaining only to the actual infringer and not to the person who transmits it long predates the Wold Wide Web; it's known as Common Carrier doctrine, it doesn't have any extortionate conditions attached the way the DMCA takedown system does, and if it weren't for the DMCA it would have been offering real protection to Internet companies all these years.

    So yes, the "safe harbors" have to go, along with the rest of the DMCA. Throw the entire law out, and maybe we can start making some real progress towards an Internet that's truly safe for user-generated content.

  • Apr 24th, 2015 @ 7:17am

    (untitled comment)

    Hard to take an article seriously when it opens with a line like:

    Trade is not an ideological issue. It’s a populist issue

    What does the author think that populism is, if not an ideology?

  • Apr 24th, 2015 @ 7:15am

    Re: Re: Re: Revisionist history much?

    The first line is quite correct. Much of the Democratic party is vehemently against these deals... but not all of it, and more significantly, not the guy at the top.

  • Apr 23rd, 2015 @ 1:36pm

    Re: Re: Re: Re: Re: The nuclear bomb card.

    If they make war too ugly, great! Maybe that would stop the next one from happening.

    That's what Nobel thought about his invention of dynamite: this is something too horrible to ever use in combat, therefore it will never be used. Instead, military folks gleefully adopted it and invented the bland-sounding notion of "collateral damage" to gloss over the attendant horrors.

    It's what a lot of people thought about World War I, with its insanely pointless trench warfare. They called it "the war to end all wars." We all know how that turned out.

    It's what a lot of people thought about the atomic bomb. Here, finally, is something so horrible that no one will ever try to use it again. And no one did... right up until the next war broke out, and General McArthur advocated using The Bomb on North Korea so aggressively that President Truman had to fire him. We've just barely managed to dodge this one so far, but don't think for a second there aren't people out there who would love to get their hands on a nuke and then set it off in a major population center, if they could!

    There's never been such a thing as a weapon so ugly that no one wants to use it, and I don't think there ever will be. Heck, just look at Star Wars. Build a weapon literally millions of times more destructive than a nuclear warhead, and someone will use it, and then rebuild it as a bigger and better 2.0 version when the first one gets destroyed! Those movies were so phenomenally successful because they had a ring of truth to them.

  • Apr 23rd, 2015 @ 12:55pm

    Re: Good cop / Bad Cop

    We can only hope. But remember this is Mitch McConnell we're talking about...

  • Apr 23rd, 2015 @ 10:53am

    (untitled comment)

    I once heard that a few years back, a certain political party in Britain managed to pick up a huge number of seats in an election by doing nothing more than publishing the official platform of their biggest rival and saying "this is what these guys stand for." Seems to me that a similar strategy is called for here. Take these statements, collect them, and say "this is sheer insanity on the face of it, and these people are trying to enshrine it in law."

    It's also worth pointing out that it's called copy-right for a reason, and not access-right or usage-right.

  • Apr 23rd, 2015 @ 10:46am

    Re: Re:

    A local govt. here had to step up and complain to a whole town that there seemed to be no English signage left.

    Wow, that's really screwed up. Where's "here"?

  • Apr 23rd, 2015 @ 7:31am

    (untitled comment)

    It hasn't created bilingual versions of its software -- something of a necessity in Los Angeles.


    I say this as a bilingual person, fluent in both my native English and in Spanish, who has lived in both LA and (a predominantly Mexican area of) San Diego. I have never personally been in a situation in either place where my Spanish was "a necessity." Sure, it makes things easier when dealing with people whose English isn't so good, but even then, most people either speak enough English to get by or have someone (frequently one of their own teenage-or-older children) on hand who can interpret, because English is the lingua franca of the country they're living in.

    And the place where it is the least necessary, to the point of being actively harmful, is the education of little children. Kids whose parents won't or can't teach them English are the ones most in need of English language education. It's a necessity to get by in an English-speaking country, and trying to pretend otherwise does a disservice both to them and to their communities. It leads to isolation and alienation in the long run.

    This is actually a tremendously important topic. The word "barbarian" means "uncivilized person" in the modern lexicon. But the original term comes from ancient Greek. The Greeks would mock people who spoke an unfamiliar language, calling it gibberish and saying that they went around saying nothing but "bar bar bar bar" all the time. The new meaning came about because if you can't communicate effectively with someone, then no matter how rich and well-developed their culture may be--or your own, for that matter--you are as barbarians to each other, unable to work together to build civilization.

    Is that really what we want to inflict upon children entrusted to our care?

  • Apr 23rd, 2015 @ 7:09am

    (untitled comment)

    Haven't I read, more than once, Techdirt articles claiming that laws named after dead people are universally terrible?

  • Apr 23rd, 2015 @ 6:57am

    In the immortal words of his sidekick...

    I am Groot!

  • Apr 23rd, 2015 @ 6:49am

    Re: Re:

    It guarantees freedom of religion (twice), freedom of speech, freedom of the press, "the right of the people peaceably to assemble," and the right "to petition the Government for a redress of grievances." This last one is known in the modern lexicon as "having your day in court."

  • Apr 22nd, 2015 @ 12:58pm

    (untitled comment)

    Dreyfuss and Wagner allege that studios often attempt to deter those seeking unpaid residuals with ... binding arbitration.

    And there's another major problem. We talk about "corporate sovereignty" in the context of ISDS and international trade treaties, but this is what it looks like here at home. The First Amendment guarantees the people the right to have their day in court, and the Constitution trumps all other laws in the USA, including contract law. Therefore, isn't any contract that strips a person of their right to petition the Government for redress of grievances unenforceable per se?

  • Apr 22nd, 2015 @ 12:51pm

    (untitled comment)

    This should have been the end of the encounter, but the officer went on a fishing expedition, hoping to have Rodriguez grant him permission to have a drug dog sniff his vehicle. Rodriguez refused but the officer detained him until another officer arrived and walked the dog around the vehicle anyway. It alerted and a search of the vehicle uncovered a bag of methamphetamines.

    The term "fishing expedition" implies a certain element of chance, that you're looking for "whatever bites". But when the officer specifically was looking for drugs, and he ended up finding drugs, to me that suggests that he had a reasonable suspicion that was grounded in something objective...

  • Apr 22nd, 2015 @ 11:36am

    Re: Re:

    I'm referring to the Sony Betamax, which Jack Valenti's people tried to sue out of existence not too long after he said that.

  • Apr 22nd, 2015 @ 10:15am

    Re: ... and whose fault is that, eh?

    Finally, what was entirely missing from this article was a plan of action.

    I believe that was actually the point of the article: we don't need to do anything, and more specifically, we don't need Congress to pass cybersecurity laws, especially since they don't seem to even be aware of the basics.

    (Note: I'm not saying here that I agree with that viewpoint, only that I believe that that was (at least part of) the argument being made in this article.)

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