Viacom: Court Should Grant Summary Judgment Over YouTube, But It's A Secret Why
from the um,-what? dept
The Viacom vs. Google/YouTube lawsuit has become something of a running joke in legal circles over the amount of time it's taken to run through the discovery process and actually get the lawsuit moving. However, people are now expecting the case to finally move forward. Both Google and Viacom have asked for summary judgment, claiming that there's enough evidence that a trial isn't needed. That's all to be expected. What's odd, though, is that Viacom's filing has pretty much the entire "background" section redacted. Check out page two on the document below:
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Filed Under: copyright, music, redacted, summary judgment
Companies: google, viacom, youtube
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Umm, yeah
Among The Clips That Viacom Sued Google Over, About 100 Were Uploaded By Viacom Itself
And then we get a redaction directly after the statement "Viacom has identified 63,000 unauthorized video clips ...".
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anyone?
payment in Internets :P
(oddly, google's spell check only cares that i didn't capitalize 'internets' originally. let me say that again. Google's spell check believes there is more than one internet *grins*. but only if you're willing to capitalize it. just to confuse everyone. this is also totally off topic. move along. )
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That would be because their spellcheck knows that Internets is perfectly correct.
http://en.wikipedia.org/wiki/Internet2
You just didn't use it properly.
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The redacted area? I suspect that it shows that the 100 clips were uploaded to show how this could be done, and that the 100 clips were used in a manner that the uploading users did not intend, or similar. It would likely also show that the 100 clips were clips that had previously been DMCA'ed to YouTube, and that were still allowed to be re-uploaded by another user (Viacom test accounts). Something along those lines would be a very strong indication of how the YouTube system both failed to protect rights holders, and that they did little to police their own entertainment system. It is just a guess, but I suspect much of it is in there.
Not sure, I wonder if:
http://techdirt.com/article.php?sid=20091223%2F1924027493&op=sharethis&threaded=true& amp;sp=1
this one has come up. That might also be an interesting tack to push.
I actually think at this particular moment, Viacom is more likely to get a favorable judgment than in the past. I also think that this is going to end up in the Supreme Court at some point, and both sides may just be posturing up for the final showdown.
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Only in your world could those two be mutually exclusive.
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YouTube isn't about giving you a place to store your videos, the main thrust of YT is entertainment. They are more about the presentation of videos, and not of the storage.
What does that mean? It means they aren't an "innocent host", but a content provider. They source the material from different places, and sort and present it in a contextual manner, not at all in keeping with the idea of pure file storage, which would likely be separated by user. Instead, their site's thrust is entertainment (open their front page to see, very little about storage and all about "what's new"). In a legal sense, it greatly diminishes YouTube's chances to claim innocence and ignorance of the content of their site.
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Now, whether the user-uploaded content is also user-created is something that cannot be assessed automatically. Even if a clip has been DMCAed before as you say, there is no way of teaching a computer to tell it apart from any other clip (unless they are the exact same copy of the clip, or under some other very limited circumstances).
It can't be assessed manually either, as Viacom proved by mistaking its own clips as infringing (and they had as much time as they wanted to check what clips are what). Bear in mind the statistics we keep hearing about YouTube: the _billions_ of videos served every day, and the millions of videos uploaded.
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A pure host would accept the material, and it would be up to the user using the hosting to tell people how to find it (example, running their own website). Youtube's main interface isn't based on users, it aggregates all submitted content, sorts it, allows other users to rate it, and then re-publishes that content based on those ratings and taggings.
As for tracking content, there are a number of things that can be done. There are companies like this:
http://baytsp.com/
who have worked on this sort of thing for years, Mark Ishikawa is a very interesting person to talk to, I met him a number of years ago when BayTSP was first started.
Considering some of the recent judgements against Torrent style sites, I would not be shocked for the courts to rule in Viacom's favor, putting YouTube in a position to have to do much more to stay legal.
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And, of course, like the CDA, you have no idea about what the DMCA entails. Shocker.
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Also, have you ever seen illegal clips in YouTube's top videos? If not, then your argument does not stand because YouTube's site is not actively promoting illegal content.
Baytsp etc: they are included in the "other very limited circumstances" I mentioned. I know more about signal processing than they'll ever know, so trust me on that. Speaking of content filtering, YouTube already has content filters (relatively good ones, too).
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and there is nothing wrong with this. This is what's best for the public and the government shouldn't interfere being that they should be more concerned about the public interest and not just your personal selfish interests.
"It is the reason that DMCA safe harbor provisions may not (and should not) apply"
No, it's exactly why they should apply, to prevent selfish people like you from destroying a perfectly good system that serves the public interest just because you want to serve your own selfish interests.
"as they are not only providing hosting, but in fact re-using the user submitted content as feature material on their entertainment website."
and what's wrong with that. By uploading the info on Youtube the users agree that it's OK if their material gets used on the site. Otherwise users can find another site to upload to.
"A pure host would accept the material, and it would be up to the user using the hosting to tell people how to find it"
But that would create a lot more work for users and it would make substantially reduce social utility. Why should we artificially destroy a perfectly good system just to serve your selfishness?
"Youtube's main interface isn't based on users, it aggregates all submitted content, sorts it, allows other users to rate it, and then re-publishes that content based on those ratings and taggings."
Again, what's wrong with this. If it's what the people want then there is nothing wrong with it. For the government to intervene would be going against the public will and why should YOUR specific will get served just because you're more selfish than others?
"Considering some of the recent judgements against Torrent style sites, I would not be shocked for the courts to rule in Viacom's favor, putting YouTube in a position to have to do much more to stay legal."
You are a very selfish person.
I would be very upset if retarded laws turned the Internet into what the cable/telco industry currently is. The government shouldn't just serve evil rich people.
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The problem? the users mostly don't OWN the content or have the rights to grant YouTube the permission to use it. From using other people's music to mashing up other people's videos, to running clips from shows without permission, it's all there.
If the OWNERS of the content want to publish it, they can do it. It isn't up to the public to decide if a clip should be shared freely or not. Can you imagine your neighbors deciding that you should share your car, your house, your electricity, heat, your wife / husband / daughter for "entertainment"? If you want to have some rights, you should respect the rights of others.
Again, what's wrong with this. If it's what the people want then there is nothing wrong with it. For the government to intervene would be going against the public will and why should YOUR specific will get served just because you're more selfish than others?
Did I say there was anything wrong with it? it's actually a very nice system they have developed, with one major problem: they don't have the rights to much of their inventory of product, and this sort of non-hosting interface makes them much more than a file host, which puts them legally in a very different place.
You are a very selfish person.
I would be very upset if retarded laws turned the Internet into what the cable/telco industry currently is. The government shouldn't just serve evil rich people.
I'm selfish? You are the one suggesting that we ignore the rights of content creators because it suits your personal desires.
Honestly your entire post reads like a whiny schoolkid who has never created anything of value in their lives, never owned anything of value, and never lost anything of value. At least TRY to see the other side, rather than concentrating on your juvenile "mommy, mommy, mommy, I want this" tendencies.
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If the OWNERS of the content want to publish it, they can do it. It isn't up to the public to decide if a clip should be shared freely or not."
If I record something on a video camera and put it on youtube, it's MY recording, I have the right to grant youtube permission to use it.
"Can you imagine your neighbors deciding that you should share your car, your house, your electricity, heat, your wife / husband / daughter for "entertainment"? If you want to have some rights, you should respect the rights of others."
Intellectual property is not a right, it's a privilege. No one owes you a monopoly to anything. Sure the government may misname it as a right but it's not.
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Yup, that is true - until you put someone else's music behind it, amongst other things. A fair bit of user submitted content falls into that trap.
Intellectual property is not a right, it's a privilege. No one owes you a monopoly to anything. Sure the government may misname it as a right but it's not.
IP is pretty much on the same level as property rights, as they are both constructs of the government and society, and not any sort of natural law. If you want to toss out IP, you need to also toss out all those other rights that create artificial constructs like land ownership, real estate, and all those other things that you "own" in no other way except under a legal construct.
Don't be angry, you are making the same error that many people make, trying to pick and choose the rights they like and the rights they don't. It's a package deal.
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Just because you assert something doesn't make it true.
The purpose of any laws, including property laws, SHOULD be to optimally benefit society as a whole. Any law that does not do this fails. This is true for both intellectual property and physical property. The arguments for physical property laws are that they benefit society as a whole. Intellectual property does not, at least not in its current ridiculous state.
"Don't be angry, you are making the same error that many people make, trying to pick and choose the rights they like and the rights they don't. It's a package deal."
It is not a mistake to choose the rights that benefit society the most and to criticize those that do not. It is a mistake to do anything else. and to claim it is a package deal just because you said so does not hold merit either.
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It is always a mistake when you look at them only from your own personal benefit. Further, without a clear understanding of all of the implications of various IP laws, it is impossible for most people to truly understand their benefit to society.
Further, and this is very important, laws don't have to benefit everyone in society evenly. There is no "right to equal satisfaction" in the US constitution. No parking zones absolutely frustrate me, but some of those areas make public transit easier, which benefits other people. From my own point of view, they suck and are worthless, but there are benefits, just none that I receive directly.
I understand you are frustrated, but perhaps you should guide that energy towards creating something of your own, rather than trying to scheme on how to take everyone elses ideas and content.
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Yes. All animals are equal, but some animals are more equal than others.
There is no question that IP laws are there to serve the few at the expense of everybody else. There is no way to argue against that fact.
If everybody cries foul and those laws remain unchanged (or, in the current case, are fortified further), then there is oppression and something is wrong with the system.
Copyright was a privilege (I wholeheartedly agree with the AC) granted to protect content creators and improve competition between them, but the vast majority of creators relinquished their rights to others. Those "others" are ABUSING copyright law, and that is why people have any problem at all.
So tell me Anti-Mike, who are you arguing for; the creators of the content, or the "others"?
(I'll take a guess and say you are a self-published author, possibly a journalist, that is living off book sales as your main source of income. If copyright laws are dissolved or weakened, you may need to go and get a job some day, and that's why copyright law is good. If I'm right, then you ARE abusing copyright law and you are a hypocrite. But, that's just a guess.)
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No, they just have to benefit YOU unfairly.
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because somehow you are better at ascertaining their benefit than anyone else. Please, you're barley learning how to make a non contradictory sentence yet alone how to ascertain all of the implications of IP laws and how they allegedly benefit society. The fact is that you have to present EVIDENCE, not merely speculation and assertions, that IP benefits society and you have presented NONE. and we know from well established economic theories that monopolies are bad for society and there is plenty of evidence that IP hinders innovation as well.
"There is no "right to equal satisfaction" in the US constitution."
But the purpose of the constitution should be to optimize social welfare as a whole. There is no inherit right for you to pass laws or the government to pass laws and there is no inherent reason for anyone to follow laws. We do so because we believe that having laws is best for everyone as a whole and if some of the laws in place are not best for everyone as a whole we should abolish them.
"I understand you are frustrated, but perhaps you should guide that energy towards creating something of your own, rather than trying to scheme on how to take everyone elses ideas and content."
Until the laws in this nation are not so unequally crafted for evil rich people at public expense I will guide my energy towards overturning the existing laws.
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We shouldn't destroy a perfectly good system for something as useless and harmful to society as intellectual property.
"I'm selfish? You are the one suggesting that we ignore the rights of content creators because it suits your personal desires."
Again, no one owes them a monopoly and the fact is that you don't care about artists and musicians, you only care about the middlemen and distributors who unfairly benefit from the work of others.
"At least TRY to see the other side, rather than concentrating on your juvenile "mommy, mommy, mommy, I want this" tendencies."
The other side is criminal and has been considered and is regarded as criminal for good reason. It's CRIMINALS (the RIAA and FOX) supporting it, those who commit crimes to humanity. They infringe on others and they don't want others to infringe on them.
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Amazing to think that someone living in Mom's basement trying to do their 10th grade math homework also needs fresh tin foil for their hat.
Bravo!
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When the government considers the side that is best for the public, and not just evil rich people, then I might consider considering the "other" side. So far the government grants astronomically long intellectual property privileges, they unfairly enforce those laws against poor people while not enforcing them against rich infringers (ie: the CRIA has gotten away with infringement for many years with no punishment and techdirt has had many other examples as well, even in America. Not to mention that the RIAA, EMI, et al don't even pay their typical artists, they may pay you only if you're a big time artist), they make the punishment for infringement much higher than the punishment for falsely claiming rights on something you do not own (which is fraud) and the punishment for infringement is huge unless you're an evil rich person or some huge corporation, they grant monopolies on the existing cableco/telco infrastructure and on who can build new infrastructure and they grant a monopoly on the airwaves (result, almost all content that is easily available to the public outside the Internet is ONLY available at monopoly prices despite the fact that many people are more than willing to create and release free content, and they're trying to turn the Internet into this same exact garbage), they even give monopolies on who can drive a taxi cab. I have considered the other side and it's GARBAGE. Your side is a self serving side, you don't care about the artists or the public, you only care about yourself.
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And you can prove this how? I have three AMVs up on my account. Each one has a link to the person who put the video together in the description. I also have an email from the copyright owner of the music used in each stating that it is all right for it to be posted on YouTube. You, on the other hand, have wild accusations with nothing to base them upon other than other wild accusations.
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here's an example:
http://www.youtube.com/watch?v=ygykMyj9NZo&feature=topvideos
Zoom forward to about 9 minutes 5 seconds in. Nice music in the background. Do you think the band might have approved it? I suspect not.
It's all over the place. :)
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http://baytsp.com/
who have worked on this sort of thing for years, Mark Ishikawa is a very interesting person to talk to, I met him a number of years ago when BayTSP was first started.
*Cough*
http://www.techdirt.com/articles/20090514/0136024879.shtml
http://www.techdi rt.com/articles/20070207/233111.shtml
BayTSP is notoriously not secure or reliable.
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I should also point out that you don't seem to comment on their technology (which was my point) but rather some of their methods (which isn't relevant to the discussion, but you knew that).
Are you suggesting that there are no ways that exist to detect obviously infringing content?
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Precisely that. Anyone who tells you otherwise is a charlatan.
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You have yet to present any solutions and almost nothing you present is reasonable.
"Are you suggesting that there are no ways that exist to detect obviously infringing content?"
Obviously infringing content is often removed from youtube unless there is an agreement between the copyright holder and Youtube that the content can stay, often because Google pays a fee every time someone views that content (ie: music videos). Sure someone may upload infringing content and it may stay on there for a while until Google finds out about it and removes it but, given the vast majority of content that Youtube legally offers, such a scenario is the exception and not the rule. We shouldn't take down or tax or artificially increase the cost or price of a perfectly good system that provides so much public utility just to serve your selfishness. The fact is that you can care less about the infringing content being it's not a major problem on Youtube, you just want to take down Youtube because it provides content that competes with the content of the existing status quo.
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You just know your arguments don't hold water and have no other defense. That's quite lame.
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The fact is that you can care less about the infringing content being it's not a major problem on Youtube, you just want to take down Youtube because it provides content that competes with the content of the existing status quo.
That is a pretty angry and VERY incorrect statement.
I think YouTube is a great concept. However, like almost every other "user submitted" content site, they are passing the buck onto the users when it comes to rights management, yet not really requiring that the users be identified. Their income is made in a sort of arbitrage, between the time a user posts illegal content and the time someone gets a DMCA notice to them.
If they actually attempted to operate fully legally, the costs would likely be beyond the income they can make. AS I often mention, you don't see Google crowing about the grand turn around to profitablity at Youtube, which is a good indication that it still isn't making real money. If they actually had to police content before it was published, they would be dead.
There are solutions, but none of them are dynamic enough to maintain the feel of YouTube. That isn't rights holders problem, that is YouTube's problem.
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They do attempt to operate fully legally it's just that your demands require that you assume people to be guilty until proven innocent and destroy a perfectly good system just to serve your selfishness. Intellectual property is useless and harmful to society (at least the way it stands now), we shouldn't allow it to destroy a perfectly good system for no good reason.
"Zoom forward to about 9 minutes 5 seconds in. Nice music in the background. Do you think the band might have approved it? I suspect not."
Have you asked the band or are you just pretending that people should be guilty until proven innocent.
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The problem is that privilege (not rights) holders are not owed the privilege of a monopoly on anything and if such stupid laws are going to interfere with a perfectly good system for no good reason then perhaps it's the laws that should be changed.
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Google already has solutions that does a pretty good job at removing infringing content and if intellectual privilege holders request Google to remove content they will. The problem is that you want to destroy Google, this isn't about protecting the privileges of intellectual privilege holders, you want to destroy a perfectly good system in order to turn the Internet into what the evil cableco/telco companies have becomes where everything easily accessible to the public is only available at monopoly prices.
"That isn't rights holders problem, that is YouTube's problem."
It's not a right, it's a privilege, I don't care how much you or the government mislabels it as a right. It's an UNOWED privilege and we shouldn't make it the problem of society (ie: youtube, artists who put their work on youtube, and consumers) to destroy a perfectly good system just to serve the privileges of selfish privilege holders. Destroying such a system HURTS the artists, it hurts the consumers, it hurts youtube, and it only benefits evil criminals the RIAA.
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I am angry, I'm very angry at the stupid laws in place and it's justified anger. As you said, the position of intellectual property maximists are absolutely indefensible and the current intellectual property laws in place are absurdly indefensible and yet these SELFISH THUGS are pushing for even more and stricter intellectual property laws and I have every reason to be angry.
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Reform copyrights. Reform patents. Reform trademarks.
Reform intellectual property.
Reform! Reform! Reform!
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I'm pretty sure that falls under the 'who gives a flying F' category. Youtube lays the responsibility on the user to make sure they have the proper authority to upload. Their responsibility ends there.
I manage a datacenter. Our policy is that we do not own any data on the machines, so it is not our responsibility to police what anyone has on the servers. I get DMCA notices all the time. ALL of them end up in the shredder since they were mistakenly sent to us and not the owner of the data. Not my problem if an attorney or so-called content owner cannot take the time to properly contact the owner of the sites.
The only time I have had to cooperate is with an FBI investigation of 1 server. They had the owner info and IPs. they came, cloned the disk and turned off the server. The asked that it remain off til we hear back from them. A couple days later I got a call and they said to format the server. I made all efforts to contact the client and after 3 weeks, we reclaimed the server and resold it.
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Do you repackage any of your user's material for entertainment? Do you run Godictube and play their videos and run advertisements next to them? Do you sort them, represent them, and aid in their wide distribution as as embedded videos with your advertising and logo on them?
That is where the differences lie. Running a datacenter, I would say no problem (but you still have to pay attention to DMCA notices), but in YouTube's case, running a datacenter isn't their main income producing business. Heck, technically, they subbed that out into the Google ether when they got taken over.
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Also, TAM, since you said I need to get better lawyers, I have clauses that exempt us from indemnity in the event our clients are sued or charged with any crimes. We do not bow to anyone, except for authorities with warrants. But, even they will stay at bay until the warrant is verified by our legal staff.
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It is ok to demand stuff and not provide rational in support of your claims.
This brought to you by our favorite troll, the Anti-Mike
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In his world you need to pay 100000% more than anything is worth as a 'I'm too stupid to breathe' tax.
Oh and RIAA and MPAA won everything, so pay up. Oh, you thought of a song... pay up. You whistled a tune... you have to pay and anyone that heard it has to pay.
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The usual "think of a song" or "whistle a tune" thing is such a load of crap as to be beyond understanding. It sounds like a 4 year old complaining about not getting to play with favorite toy. It's whiny horsecrap at it's finest.
I have to say, if that is where the discussion goes, I'm done, because it is clear you have no desire to get a grip on reality.
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- I don't think you need any help in that regard.
"a realistic view of what is actually in the world."
- realistic in your mind
"The usual "think of a song" or "whistle a tune" thing is such a load of crap as to be beyond understanding"
- Because it would never actually happen ?
PRS's Latest Trick: Demanding Money From Shop Assistant Who Was Singing At Work
http://www.techdirt.com/articles/20091021/1134566619.shtml
"It's whiny horsecrap at it's finest."
PRS Threatens Woman For Playing Radio To Her Horses Without Paying A Licensing Fee
http://www.techdirt.com/articles/20090327/1113014276.shtml
"I'm done, because it is clear you have no desire to get a grip on reality."
- Well done, crispy even.
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You so fervently argue for the status quo that you ignore any opposing points of view, and just charge ahead with the same arguments time and time again. You assume that all laws are laws because they are right and just, but they are NOT -- they cannot be. They were put up by people, and people can make mistakes, and are very often wrong and unjust.
So, if everything else went into deaf ears, let this get through your thick skull: laws can be wrong. Copyright laws can be wrong, and can be unfair, and can be unjust. The masses are dissatisfied with them, and are expressing their view by breaking those laws. Are you suggesting that people are silenced? That people are oppressed just to keep those laws in place? Or should the laws be adjusted instead? Why?
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Protective order
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Now we can argue semantics all we want, but what it really comes down to is what are the measures, if any, that you propose to change the mindset of the people? Whose going to step in front of this social freight train? And what's going to happen when someone does?
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