Protect IP/SOPA: The Entertainment Industry's attempt to break the internet

[JollyRoger]

Don't be so coy. The effect of this bill is to give the entertainment industry an inordinate amount of control over what shows up on your internet.

And if you think that this doesn't translate because the entertainment industry is not literally the judicial branch then you're very naive. Money talks and there's bound to be a judge that can and will shut down website X for the smallest of reasons.

Add to that the fact (that you conveniently ignored) that the bill won't actually stop piracy, and you've got yourself a stew goin' on.

Crime bills do not stop crime, anti-fraud bills do not stoip fraud - they just gives means of doing something about it.

And why would a rightholder want to waste resources against a website that is not infringing on the rightholders property?

 

[Skwink]

How close is this bill to being passed on the the President?

 

[Crezth]

Crime bills do not stop crime, anti-fraud bills do not stoip fraud - they just gives means of doing something about it.

And why would a rightholder want to waste resources against a website that is not infringing on the rightholders property?

You don't seem to understand that the tools for shutting down infringing websites are already there, they just don't apply to websites outside of the United States' plane of jurisdiction.

What this bill does is allow media companies to block access to websites for violating their copyright claims. But wait! Because it's not an actual copyright claim (those websites are outside of US jurisdiction!) this means that the media companies can issue spurious claims as to the latter pretty much giving them free reign!

Why would they bother to attack websites that weren't infringing? They wouldn't, but it would allow them to attack YouTube (those parasitic fan videos and the like need to be stopped) and Facebook (talk about MY movie in a negative light, will you?) for minute infractions.

The reason this (I mean fan-videos and negative Facebook commentaries) isn't something we should worry about is because the media companies are losing nothing from these "usages" of their IP and the whole thing essentially amounts to the same abuse of the ******** copyright scheme that has dominated the legal discourse in this country for the past century.

What the media companies are losing is income from piracy of their property, but most legitimate websites in the US already stop this sort of thing (can't do it on YouTube for starters) and the "illegitimate" websites outside of the U.S. would only be ceremoniously "blocked." True piracy wouldn't be stopped at all.

This bill is essentially about giving the judicial branch (and those who will be using the bill the most, i.e. the entertainment industry) the tools to shut off access to any part of the web that they deem fit. In most cases they might not even need to issue an injunction of the website doesn't want to take it to court. In many cases I'm sure the judge wouldn't look twice before putting the kibosh on Johnny P. Nobody's fanpage because it has fan-drawn pictures of Buffy the Vampire Slayer.

So, yes. The bill is trash and should not be passed.

 

[innonimatu]

Crime bills do not stop crime, anti-fraud bills do not stoip fraud - they just gives means of doing something about it.

And why would a rightholder want to waste resources against a website that is not infringing on the rightholders property?

The "rightholder" should be stripped of his "right" to monopolize copies, and the problem would go away. Fixing" copyright so that it works in the modern world of costless copies is as easy as that. But no, you and the "copyright industry" must cling to concepts which were outdated by new technology. Luddites.

Even the EU commissioner, who is a prime target for bribing by that business, is admitting that copyright doesn't work:

Digital agenda commissioner Neelie Kroes said on Saturday that the creative industries had to embrace rather than resist new technological ways of distributing artistic works. She added that the existing copyright system was not rewarding the vast majority of artists.

"Is the current copyright system the right and only tool to achieve our objectives? Not really," Kroes said in a speech to the Forum D'Avignon thinktank. "Citizens increasingly hear the word copyright and hate what is behind it."

"Sadly, many see the current system as a tool to punish and withhold, not a tool to recognise and reward," Kroes added.

But, fellow enemies of digital monopolies and "rights management", don't get your hopes too high over this: I'm sure she's hatching some new stupid law to "fix" copyright, instead of doing the obvious thing and abolishing it.

 

[JollyRoger]

What part of limited injunction is escaping notice here? I don't see how on one hand there is the claim that the rightholders would not go after sites that do not have the rightholders' content and on the other hand there is the cry that it is the biggest freedom killing bill ever.

 

[Crezth]

What part of limited injunction is escaping notice here? I don't see how on one hand there is the claim that the rightholders would not go after sites that do not have the rightholders' content and on the other hand there is the cry that it is the biggest freedom killing bill ever.

Because the terms for the content are so broad as to enable the "rightholders" to issue the full brunt of the law against websites that have only made minimal infractions at worst.

The language is broad enough that any website which posts a negative review of your movie/game can probably get the injunction for posting screenshots/movie posters/using the name of the movie or whatever.

It's pretty much an internet-killer, whether you want to acknowledge that or not.

 

[JollyRoger]

Because the terms for the content are so broad as to enable the "rightholders" to issue the full brunt of the law against websites that have only made minimal infractions at worst.

The "full brunt" is a limited injunction, meaning a takedown or blocking of the minimal content that is infringing. That is with giving into the assumption that the industry would waste resources over minimal infractions.

 

[Crezth]

The "full brunt" is a limited injunction, meaning a takedown or blocking of the minimal content that is infringing. That is with giving into the assumption that the industry would waste resources over minimal infractions.

I think you must be misunderstanding something because the injunction is actually an ISP blocking of the website wholesale.

If this is not the case please point out the language in the bill that disagrees with it because that is definitely not what the general discourse is (and seems to be moreso the case given the underwhelming amount of support/counter-propaganda about the bill's "actual" effects).

 

[cardgame]

I don't even care if this bill is limited in scope.

 

[JollyRoger]

I think you must be misunderstanding something because the injunction is actually an ISP blocking of the website wholesale.

A possible injunction could be blocking a website wholesale, but remember, a court is drawing up the injunction and the law says "limited" injunction. The way this would work in reality (assuming it is not resolved during step 1) is the judge would say to the rightholder "show me the infringement" and if the rightholder establishes an infringement, the judge would say to the website "show me why it is not an infringement or why the infringement is more limited than being claimed by the rightholder." Assuming an infringement is found, the injunction would likely as a frist step requre the website to take the content down and if that is not complied with, then more aggressive injunctive relief would come into play.

This act is actually helpful to those being pursued by rightholders as it requires the pre-suit notification process. As of right now, a rightholder could, under common law principles, go straight to court without the notification step and request injunctive relief. This law would replace the common law principles and require the extra notification step.

 

[Crezth]

A possible injunction could be blocking a website wholesale, but remember, a court is drawing up the injunction and the law says "limited" injunction. The way this would work in reality (assuming it is not resolved during step 1) is the judge would say to the rightholder "show me the infringement" and if the rightholder establishes an infringement, the judge would say to the website "show me why it is not an infringement or why the infringement is more limited than being claimed by the rightholder." Assuming an infringement is found, the injunction would likely as a frist step requre the website to take the content down and if that is not complied with, then more aggressive injunctive relief would come into play.

Okay. So why wouldn't websites like YouTube, Facebook et al just censor their users right off the bat? Why would they fight for their users' right to express when they don't really have a dog in this fight?

The effect would be that, rather than getting tied up in the "injunction"-"no it's not" quarrel, these websites would be forced to censor aggressively to handle the issue smoothly.

Either way, it limits what users can post/talk about, and (again) wouldn't actually combat the issue of piracy, which would remain alive and well.

Finally, it's not a true injunction as it applies to websites outside the United States' operating territories, because those websites can't actually have an injunction issued against them. For these websites, which cannot contest the claim, the ISP would block them at the first say-so of the copyright-holder.

This act is actually helpful to those being pursued by rightholders as it requires the pre-suit notification process. As of right now, a rightholder could, under common law principles, go straight to court without the notification step and request injunctive relief. This law would replace the common law principles and require the extra notification step.

I don't think you actually understand the law as it is being proposed and I'd like you to take the bill and highlight the bits of it which align with what you're saying as it certainly doesn't seem to be the case.

 

[JollyRoger]

Okay. So why wouldn't websites like YouTube, Facebook et al just censor their users right off the bat? Why would they fight for their users' right to express when they don't really have a dog in this fight?

Their dog in the fight is to want users to be able to post content. They have the resources to 1) embrace technology that helps filter out infringing content, and 2) work with the rightholders' industry in a reasonable agreement to take down infringing content as it is found.

The effect would be that, rather than getting tied up in the "injunction"-"no it's not" quarrel, these websites would be forced to censor aggressively to handle the issue smoothly.

Actually, they receive notification, view the content and make a decision. Since there is no monetary relief tied to this, this looks like an good workaround to the traditional infringement claim where money is at risk.

Either way, it limits what users can post/talk about, and (again) wouldn't actually combat the issue of piracy, which would remain alive and well.

It limits their ability to infringe for sure. I don't see the problem with that.

Finally, it's not a true injunction as it applies to websites outside the United States' operating territories, because those websites can't actually have an injunction issued against them. For these websites, which cannot contest the claim, the ISP would block them at the first say-so of the copyright-holder.

In a DOJ action, that is true, but the DOJ would likely only get involved in very blatant cases. In an action iniated by a rightsholder, the foreign website, through the notification processs can submit to U.S. jurisdiction to be heard. If they do not want to be heard in the U.S., I do not see it as a great tragedy that their websiite cannot be accessed from the U.S.

I don't think you actually understand the law as it is being proposed and I'd like you to take the bill and highlight the bits of it which align with what you're saying as it certainly doesn't seem to be the case.

I have already quoted the bill summary that states that the injunctive relief is limited. In my law practice, I deal with injunctive relief all the time and generally, limited injunctive relief means just that - relief designed to narrowly address the specific offending act.

I think I have established my burden unless you can show something in the law's language where "limited" does not mean "limited".

Edit to show the relevant law:

(5) RELIEF- On application of a qualifying plaintiff following the commencement of an action under this section with respect to an Internet site dedicated to theft of U.S. property, the court may issue a temporary restraining order, a preliminary injunction, or an injunction, in accordance with rule 65 of the Federal Rules of Civil Procedure, against a registrant of a domain name used by the Internet site, or against an owner or operator of the Internet site, or, in an action brought in rem under paragraph (2), against the Internet site, or against the domain name used by the Internet site, to cease and desist from undertaking any further activity as an Internet site dedicated to theft of U.S. property.

http://www.opencongress.org/bill/112-h3261/text

Rule 65. Injunctions and Restraining Orders


(a) Preliminary Injunction.

(1) Notice.

The court may issue a preliminary injunction only on notice to the adverse party.

(2) Consolidating the Hearing with the Trial on the Merits.

Before or after beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing. Even when consolidation is not ordered, evidence that is received on the motion and that would be admissible at trial becomes part of the trial record and need not be repeated at trial. But the court must preserve any party's right to a jury trial.

(b) Temporary Restraining Order.

(1) Issuing Without Notice.

The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:

(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and

(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

(2) Contents; Expiration.

Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk's office and entered in the record. The order expires at the time after entry — not to exceed 14 days — that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record.

(3) Expediting the Preliminary-Injunction Hearing.

If the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character. At the hearing, the party who obtained the order must proceed with the motion; if the party does not, the court must dissolve the order.

(4) Motion to Dissolve.

On 2 days' notice to the party who obtained the order without notice — or on shorter notice set by the court — the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires.

(c) Security.

The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.

(d) Contents and Scope of Every Injunction and Restraining Order.

(1) Contents.

Every order granting an injunction and every restraining order must:

(A) state the reasons why it issued;

(B) state its terms specifically; and

(C) describe in reasonable detail — and not by referring to the complaint or other document — the act or acts restrained or required.

(2) Persons Bound.

The order binds only the following who receive actual notice of it by personal service or otherwise:

(A) the parties;

(B) the parties' officers, agents, servants, employees, and attorneys; and

(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).

(e) Other Laws Not Modified.

(1) any federal statute relating to temporary restraining orders or preliminary injunctions in actions affecting employer and employee;

(2) 28 U.S.C. § 2361, which relates to preliminary injunctions in actions of interpleader or in the nature of interpleader; or

(3) 28 U.S.C. § 2284, which relates to actions that must be heard and decided by a three-judge district court.

(f) Copyright Impoundment.

This rule applies to copyright-impoundment proceedings.

http://www.law.cornell.edu/rules/frcp/Rule65.htm

 

[Crezth]

Fair points all. I'd like you to address my concern about users posting information that could be construed as copyright-infringing but clearly isn't (such as a negative review). What protections are there for those posting the information and who is to stop a judge from ruling unfairly on the issue?

Are you of the opinion that more laws limit freedom or increase them? Do you support big government?

Edit: Your assertion that the named websites care enough about their users to defend their posting of content is laughable, however. You'd see almost every single video game video on YouTube subject to removal by this law. Also, that same website already includes methods for copyright holders to remove infringing content, without putting any money at stake to begin with. Why isn't this something that can be worked out privately? What real benefit does this law provide that isn't already provided for? Can you give specific examples of websites that need this kind of regulation right now?

 

[JollyRoger]

Fair points all. I'd like you to address my concern about users posting information that could be construed as copyright-infringing but clearly isn't (such as a negative review). What protections are there for those posting the information and who is to stop a judge from ruling unfairly on the issue?

There is nothing that can stop a judge from ruling unfairly on any law - the remedy is the appellate process.

That being said, just on a quick browse of the bill, I have found a few things helpful to the potential targets:

1) FIRST AMENDMENT- Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution.

6) MISREPRESENTATIONS- Any provider of a notification or counter notification who knowingly materially misrepresents under this section--

(A) that a site is an Internet site dedicated to the theft of U.S. property, or

(B) that such site does not meet the criteria of an Internet site dedicated to the theft of U.S. property,

shall be liable for damages, including costs and attorneys’ fees, incurred by the person injured by such misrepresentation as a result of the misrepresentation.

(C) DEFENSE- An entity against whom relief is sought under subparagraph (B) may establish an affirmative defense by showing that the entity does not have the technical means to comply with this subsection without incurring an unreasonable economic burden, or that the order is not authorized by this subsection. Such showing shall not be presumed to be a complete defense but shall serve as a defense only for those measures for which a technical limitation on compliance is demonstrated or for such portions of the order as are demonstrated to be unauthorized by this subsection.

Are you of the opinion that more laws limit freedom or increase them?

I am of the opinion that this law provides an enforcement mechanism under Federal statutory law that already existed under common law. The statute, however, provides several explicit provisions that are more favoirable to the websites than the common law would necessarily provide. As there is not a freedom to infringe and this law is targeted at infringement (though I do see a few references to theft ), I do not see the limitation on freedom.

Do you support big government?

The only "big government" in this statute is giving the government tools to fight foreign websites. Most of the statute deals with disputes between private parties.

Edit: Your assertion that the named websites care enough about their users to defend their posting of content is laughable, however. You'd see almost every single video game video on YouTube subject to removal by this law. Also, that same website already includes methods for copyright holders to remove infringing content, without putting any money at stake to begin with. Why isn't this something that can be worked out privately? What real benefit does this law provide that isn't already provided for? Can you give specific examples of websites that need this kind of regulation right now?

First, if you are going to call assertions laughable, you may want to request that the Red Diamond be removed from this thread.

Most website business models want a lot of users and eyeballs, so accommodating the users is valid.

As to video game videos, I think playthrough videos are fair use and if I am a gamemaker, it would be silly for me to want such content taken down - it is generally free advertising. If you are talking about access to the game, then that is another matter and is a fair object of a takedown. If I am Youtube, I would go approach the video game companies and get the authorization to allow such content. If a specific company balks, then there are methods to filter for such content and remove it.

As to working things out in private - that is what one hopes happens. But without a legal enforcement mechanism, then the infringer has no incentive to work it out in private. Are you suggesting we get rid of laws on enforcing/regulating home loans or laws enforcing/regulating medical malpractice simply because it can be worked out in private? This statute just lays out some specific ground rules for what had been a murky area of law that could still be enforced through the courts without a statute.

As to specific websites, I think there are plenty of willful infringers not located in the U.S. (particulary when it comes to movies, music, and porn). Stateside, there is less of a problem, because the U.S companies were already easy targets to go after under murkier aspects of common law. This statute just lays out some ground rules, some favorable to the rightholders and some favorable to the websites.

 

[Crezth]

So do you think the general concern that this will remove a lot of content from the web is unfounded?

EDIT: Also, because I don't trust myself to articulate these arguments correctly, can you discredit this breakdown of the PROTECT IP bill?

 

[JollyRoger]

So do you think the general concern that this will remove a lot of content from the web is unfounded?

If you are talking about non-infringing content or gray area content (like gaming walkthroughs), yes - I think such claims are unfounded (or at least overblown). If you are talking about obvious infringement, then the concern is not unfounded, but not a concern that is valid in my eyes.

 

[Crezth]

OK. I know I added it just before you posted, but can you address my edit now?

EDIT: Also, on a scale of 1 to stupid, how incorrect is this?

 

[Cutlass]

Crime bills do not stop crime, anti-fraud bills do not stoip fraud - they just gives means of doing something about it.

And why would a rightholder want to waste resources against a website that is not infringing on the rightholders property?

Fox shuts down websites that provide free publicity for their TV shows.

 

[Commodore]

I don't care how limited this bill is, I will stand against any legislation that regulates the internet. Call me whatever you want, but I am a firm believer that the internet should remain completely free, uncensored, and unregulated.

 

[choxorn]

EDIT: Also, because I don't trust myself to articulate these arguments correctly, can you discredit this breakdown of the PROTECT IP bill?

To be fair, that link is several months old.