Darrell Issa Tells IP Czar That She's 'Not Trying' If She Can't Pin Liability For File Sharing On Third Parties

from the the-law-doesn't-matter-apparently dept

Thu, Mar 3rd 2011 9:13am — Mike Masnick

Not much in the way of details but Thomas O'Toole reports (via Twitter) that Rep. Darrell Issa, who last fall had indicated he was worried that overly draconian copyright laws might stifle innovation, is now apparently pushing for even more draconian copyright laws. He apparently told IP Czar Victoria Espinel that she's "not trying" if she can't figure out a way to prosecute credit card companies who process transactions for "pirate" sites. It's kind of funny that Rep. Issa would say he's worried about stifling innovation... but then pushes for third party liability rules and prosecutions that would absolutely stifle innovation.

If he really wants the government to go after credit card companies with criminal lawsuits for the actions of some of their customers, that's simply going to lead those companies (and others) to be a lot stricter in terms of whom they work with. It could prevent plenty of perfectly legitimate companies from being able to offer transactions, because the credit card companies don't want to take the risk that one of those sites might just possibly be labeled an infringer. The chilling effects here would be massive. We have the safe harbors for third parties in the DMCA and the CDA for a damn good reason: because we should place liability on parties actually responsible, not on third parties who will then react by clamping down and denying important services to perfectly legitimate sites.

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Filed Under: darrell issa, secondary liability, victoria espinel

74 Comments

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weneedhelp (profile), 3 Mar 2011 @ 9:25am

off topic
Mike, the ASUS ad..... really silly.
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Anonymous Coward, 3 Mar 2011 @ 9:35am

I'm sorry, Mike. I don't follow the logic.

He's telling her that there's existing laws, and that if she can't find a reason to prosecute, she's not trying... that translates into "pushing for even more draconian copyright laws", how, exactly?

To me, it sounds less like "Oh, hey, I've completely reversed my previous stance, mua-ha-ha!" and more like he's dismissing an argument that stricter laws are needed.

Given the lack of context, making an assumption either way seems premature.
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The eejit (profile), 3 Mar 2011 @ 9:39am

Re:
No, the issues is that using current laws to 'punish' sites such as Rojadirecta, who have been cleared of wrongdoing. The issues is more of a chilling effect one. What might happen is that Mastercard and Visa might refuse to work with American companies because of pushing liability onto those who simply process payments, rather than going directly after those who are commecially infringing.
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:Lobo Santo (profile), 3 Mar 2011 @ 9:40am

Re:
(Psst! How can I get a job shilling? I could totally use some extra dough...)
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The Infamous Joe (profile), 3 Mar 2011 @ 9:48am

History.
I can't believe they used to make people use different water fountains based on their skin color.

I can't believe they wouldn't allow women to vote.

I can't believe they used to prosecute people for sharing.
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Anonymous Coward, 3 Mar 2011 @ 9:50am

It's kind of funny that Rep. Issa would say he's worried about stifling innovation... but then pushes for third party liability rules and prosecutions that would absolutely stifle innovation.

Mike, I have to say your logic here is sort of all over the road. It's posts like this that make people think you support piracy, because there is little other reason you would go here.

You are also setting up a false dichotomy, an "either or" choice that isn't one at all. Issa can be pro-innovation, while at the same time not being tolerate of law breakers. Innovation doesn't happen when people break the law. Third party processors and billers need to know what they are processing for (otherwise they violate their Visa / Mastercard agreements), and once informed of a copyright infringement or being made aware of the nature of the site, need to take action accordingly to limit their liability.

Your ISP / Hosting company only has protections if they act on DMCA notices. Failure to take action opens them up for liablity as well.

None of which limits innovation, only illegal acts.

Really, this makes it sound like you are supporting piracy and the way that they use to profit from piracy. Are you sure you want to be standing there?
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coldbrew, 3 Mar 2011 @ 10:03am

Re:
Innovation doesn't happen when people break the law.

Tell that to Hollywood.

Please get a grip.
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Anonymous Coward, 3 Mar 2011 @ 10:06am

Re: History.
I can't believe you think piracy is like segregation.
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Anonymous Coward, 3 Mar 2011 @ 10:06am

Re: Re:
No, the issues is that using current laws to 'punish' sites such as Rojadirecta, who have been cleared of wrongdoing.

Remind me again which US court cleared them. I must have missed that.
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Anonymous Coward, 3 Mar 2011 @ 10:07am

Re: Re:
Ask Mike. He pays in kool aid though.
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Anonymous Coward, 3 Mar 2011 @ 10:07am

Re: Re:
Do you have to break the law to innovate?
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jackwagon (profile), 3 Mar 2011 @ 10:08am

If I buy a hammer with a Visa card and smash an elected representative in the face with it, will Visa be prosecuted under the same laws or do I have to buy a counterfeit hammer online for it to be Visa's liability?
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:Lobo Santo (profile), 3 Mar 2011 @ 10:09am

Re: Re: Re:
Yes!! Earlier today I broke the law of gravity and right now I'm working on my anti-gravity vehicle.
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Vlad (small business blog), 3 Mar 2011 @ 10:09am

So when?
So when are we going after stores that sell cutlery every time we cut ourselves?
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Dark Helmet (profile), 3 Mar 2011 @ 10:10am

Re: Re: Re:
"Do you have to break the law to innovate?"

Ask the people doing innovative work in stem cells and then come back and tell me that there aren't times when that is very much the case....
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The Infamous Joe (profile), 3 Mar 2011 @ 10:12am

Re:
and once informed of a copyright infringement or being made aware of the nature of the site, need to take action accordingly to limit their liability.

Informed by whom? What proof is required? Does it require a court of law to determine copyright infringement? If not, how does Fair Use play in, since it requires a court to determine Fair Use?

What law states this?

You seem to be stating wishes and desires as facts and laws.

You aren't trying hard enough.

Really, this makes it sound like you are supporting piracy and the way that they use to profit from piracy. Are you sure you want to be standing there?

Mike: "because we should place liability on parties actually responsible"

That sounds like he's against piracy and also against blaming the wrong people to me.
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Anonymous Coward, 3 Mar 2011 @ 10:14am

Re: Re: Re:
They *might* be acting against US law. BUT they've not been found guilty of anything and will probably never be prosecuted in the US for anything related to the seizure.

The only relavant court case has gone in Rojadirecta's favor. So why did they get seized without trial?
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Mike C. (profile), 3 Mar 2011 @ 10:17am

Re:
In other words, now that the court case in Canada has been settled, Visa and Mastercard are no longer acceptable forms of payment for any of the compilation albums that were part of the 300,000+ instances of infringement?

Good to know.
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CK (profile), 3 Mar 2011 @ 10:20am

Re: Re: History.
I can't believe you think well-defined personal use is like piracy.
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Anonymous Coward, 3 Mar 2011 @ 10:20am

Re:
Problem is accusations are just that, and they largely come w/o any proof. So on accusations alone you shut down someone financially?

Take the closest analog of DCMA notices as an example, there are mistakes ALL THE TIME. They're used premptively by companies to stifle negative commentary, cut off what is very likely to be fair use, and shut down political speech. The law on fair use and copyright infringement is far from simple and even courts tend to come to different rulings with some regularity.
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Anonymous Coward, 3 Mar 2011 @ 10:20am

Re: Re: Re: Re:
I wasn't aware that the US justice system used judgements from other countries as the basis of their actions. Do tell!
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Anonymous Coward, 3 Mar 2011 @ 10:22am

Re: Re: Re: Re:
But do you have to break the law to innovate, or can innovation happen anyway?

It's the same debate as the stifling effects of copyright on content. We have apparently horrible stifling copyright laws, and yet production of content is at an all time high (according to Mike's own post).

Now we have such severe laws that the only way possible to innovate is to break the law.

Welcome to Bizarre Absolutes, Texas.
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Anonymous Coward, 3 Mar 2011 @ 10:25am

Re: Re:
Nope. You don't get it.

The case is settled, show the current illegal action.

There isn't any.

Next.
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Anonymous Coward, 3 Mar 2011 @ 10:25am

Re: Re: Re: History.
I can't believe you think well-defined personal use is like piracy

personal use without file trading isn't piracy.

I can't believe you don't understand the difference.
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Modplan (profile), 3 Mar 2011 @ 10:26am

Re: Re: Re: Re: Re:
You appear to be the only one relying on bizarre absolutes.
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Anonymous Coward, 3 Mar 2011 @ 10:29am

Re:
Your ISP / Hosting company only has protections if they act on DMCA notices. Failure to take action opens them up for liablity as well.

None of which limits innovation, only illegal acts.

--------------

It doesnt' limit innovation b/c DMCA notices are not aimed at shutting down commercial enterprises. It knocks off one copyrighted item on a website.

It does however severly limit speech such as political speech and limits fair use significantly. B/c of how the process and the law works, there is no true consequence for incorrectly filing a DMCA notice.

However, shutting down payment services to a business most certainly will limit innovation. If I file an accusation that company X is infringing, and can stop all payments to them I can now easily shut down competition or business models I don't like. For a start up or small business, even temporary halts to cash flow can be serious.
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Anonymous Coward, 3 Mar 2011 @ 10:30am

Re: Re:
Informed by whom? What proof is required? Does it require a court of law to determine copyright infringement? If not, how does Fair Use play in, since it requires a court to determine Fair Use?

What law states this?

DMCA. Being made aware of a violation does put a service provider in the position of needing to act (which is why some sites get pulled down when people don't response to their ISPs). Fair Use is an affirmative defense, a valid reply to a DMCA notice that would get the service provider off the hook if it is reasonable.

You aren't trying hard enough.

You aren't paying attention enough.

Mike: "because we should place liability on parties actually responsible"

You don't think that the people collecting the money at the door are at all responsible? Not even 1%? You don't think that a company like Visa, who has strict guidelines when it comes to online operations, high risk processing, and the like would not want to know what they are processing for? Do you think they hand out high risk merchant accounts like candy?

By your logic, a retail store shouldn't care if the stock they are selling is stolen or not, because it just isn't their issue. They didn't do the stealing, after all, they are just profiting from it.
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Anonymous Coward, 3 Mar 2011 @ 10:30am

Re: Re: Re: Re: Re:
I didn't know you're possessions could be seized without a trial and no plan for filing charges.
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Anonymous Coward, 3 Mar 2011 @ 10:34am

Re: Re: Re: Re: Re:
Creative Commons shouldn't really exist but it does, you know, in spite of how awesome chopyright is.
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Anonymous Coward, 3 Mar 2011 @ 10:38am

Re: So when?
Exactly. It the same argument that has (successfully) kept gun makers and dealers from being held liable for how the products they make/sell are used. It's not the credit card companies fault if their product is used illegally. There are already laws to go after those criminals, but Big Media is lazy and doesn't want to have to do the work themselves.
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Modplan (profile), 3 Mar 2011 @ 10:42am

Re: Re: Re:
Your don't need an analogy - the credit card companies apply in both situations, and in both situations credit card companies do not automagically know when an account is being used for theft or fraud before hand, as damaging as it is the mental model of holding third parties accountable for someone else's actions in situations where said party deals with hundreds of thousands and millions of transactions every day.
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jackwagon (profile), 3 Mar 2011 @ 10:42am

Re: Re: Re:
Are you saying Visa is 1% responsible if I buy a stolen guitar from a pawn shop? Is the Fed responsible if I pay cash?
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Modplan (profile), 3 Mar 2011 @ 10:49am

Re: Re: Re:
I think Mike is too generous with the kool aid to be honest. After the favourites of the week podcast, I've had to force myself to keep drinking just to clear space for anything else.
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Modplan (profile), 3 Mar 2011 @ 10:49am

Re: Re: Re: Re:
damn my typos, post, not podcast.
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The Infamous Joe (profile), 3 Mar 2011 @ 10:50am

Re: Re: History.
All those things look stupid looking back on them. I am embarrassed for what our grandchildren will say about us.
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Jay (profile), 3 Mar 2011 @ 10:52am

Re: Re: Re: Re: History.
I can't believe you don't understand that filesharing := 100% lost profits.
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Mike C. (profile), 3 Mar 2011 @ 10:58am

Re: Re: Re:
Hear that whooshing sound? That was the joke you missed....

/paytard
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Anonymous Coward, 3 Mar 2011 @ 11:04am

Re: Re: Re: Re: Re: Re:
Welcome to the Un-united States of Assholes
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Kevin (profile), 3 Mar 2011 @ 11:07am

Re: Re: Re:
US doesn't (shouldn't) have any jurisdiction over them. It would be like me getting arrested when I land in NY after smoking some pot in Amsterdam.
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Overcast (profile), 3 Mar 2011 @ 11:08am

This would make for good opportunity for some who might seek to do damage to credit card companies...

Just put up a self-proclaimed 'pirate site' - get some transactions and make accusations.

Sure they might know that 'PirateBay' is a site they wouldn't work with in light of the law, but what if someone put up 'MovieMadnezz.com' - put up pirated stuff and set up a credit card billing scheme....

This can and will be abused.
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Anonymous Coward, 3 Mar 2011 @ 11:09am

Re: Re: History.
I can't believe he thinks women should be able to vote we all know they are mentally inferior overly emotional and can't own property
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Kevin (profile), 3 Mar 2011 @ 11:11am

Re: Re: Re: Re: Re: Re:
"Only a Sith deals in absolutes"
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Liquid (profile), 3 Mar 2011 @ 11:15am

Re: Re: Re:
You seem like the type of person that would sue a gun manufacturer for being shot. Don't mind the hand that pulled the trigger go after the guy who built it. Your whole logic is flawed, and way of thinking is flawed.
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Anonymous Coward, 3 Mar 2011 @ 11:20am

Re: Re: So when?
No they want to go after those with the largest wallets.

I guess it good I do not carry a wallet.
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Anonymous Coward, 3 Mar 2011 @ 11:22am

Making piracy EVERYONE'S problem is not going to end well for those who control the world of asynchronous media. Even with the dwindling power to get politicians elected.
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The eejit (profile), 3 Mar 2011 @ 11:25am

Re: Re: Re: So when?
You have a purse?
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The eejit (profile), 3 Mar 2011 @ 11:26am

Re: Re: Re: Re: Re:
I didn't realise that the CON in Congress was literal.
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Anonymous Coward, 3 Mar 2011 @ 11:26am

Re: Re: Re: Re:
Actually Kevin, let me give you an example (extreme as it is):

There are people (pedophiles, we call them here) who travel the world in search of minors to have sex with. They are called "sex tourists". Now, the sexual acts occur outside of the country, and are often "legal" by local standards (or at least tolerated). The person involved is rarely if ever prosecuted overseas.

http://en.wikipedia.org/wiki/Operation_Predator

You do not have to perform any of the acts in the US to be arrested and charged. All you have to be is a US resident.

In more practical terms, there are legal issues with "any part of a business being in the US" or "offering services to the US". It is a pretty tangled web, but if there is a piece of the puzzle sticking into the US, the US can grab onto that part and work from there. It is what has been used against gambling sites in the past.
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Anonymous Coward, 3 Mar 2011 @ 11:27am

Re: Re: Re: Re: Re: History.
Did anyone say that?
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Anonymous Coward, 3 Mar 2011 @ 11:31am

Re: Re: Re: Re:
Nope. You are looking at the wrong end of the scale.

If a business is stealing guitars by the truckload and all they are doing is selling stolen guitars, and Visa keeps processing for them anyway, they may create liablity for themselves. Cops arrest everyone seize all the inventory, notify the building owner, banks, seize all the assets pending trial. The same people open in the building next door selling guitars again, do you really think Visa would process for them? Nope, because Visa knows they are creating liability for themselves.

We aren't talking about websites that might have a minor copyright infringement once every few years. We are talking sites that are almost exclusively selling access to violating content. It's really not the same thing as your example at all.
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Anonymous Coward, 3 Mar 2011 @ 11:33am

Re: Re: Re: Re:
When Visa gets 10 - 20 DMCA notices a day about a site, they cannot claim to be ignorant. A single notice is enough to make them aware, and if they don't work with the merchant to remove the offending content, they will create liablity for themselves. With enough notices, Visa would have to look very closely at processing for the site at all, knowing that their risk levels are increasing - they hate risk.
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Anonymous Coward, 3 Mar 2011 @ 11:38am

Re: Re: So when?
No, that is a different thing.

Gun sellers are often arrested and found guilty of not following the laws for selling guns. Liablity is limited because the product in and of itself is not defective, only the use of it. Gun stores are not selling "Hold up kits" or "Bank robbery specials" or "Mass murder toolkits". If they were, they would be creating liablity for themselves. They are very careful to keep themselves at arms length from suggesting anything other than legal intended uses.

Piracy sites are a very different animal, because their inventory is material that is clearly violating copyright. Those who charge extra for access (or speedy downloads, example) are clearly selling illegal material. It isn't a question if their service software is defective or not, but a question of the product they push with it.

Remember, guns stores are no liable for what you do with a gun. But they are liable if a gun goes off and shoots you in the store, or if a shotgun falls of a high shelf and cracks your skull.
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soulsabr, 3 Mar 2011 @ 11:48am

Re: History.
sharing -- read stealing.
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Richard (profile), 3 Mar 2011 @ 11:51am

Re: Re: Re: Re: Re:
the US can grab onto that part and work from there. It is what has been used against gambling sites in the past.

Like the case against Antigua - yeah that really went well.

The fact is that countries should be extremely cautious about pushing their own laws onto people in other countries. The fact is that the "sex tourism cases" that you mention are very problematic - and the justification for them is really based on the ends justifying the means - which is a morally bankrupt principle.

If it is acceptable in that case it is only because the countries in question certainly want to prosecute these people - but don't have the resources to do so.

Where the foreign country is not co-operative you should leave it (unless you are ready to declare war). You wouldn't want the laws of China or several middle eastern countries enforced in the US.
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soulsabr, 3 Mar 2011 @ 11:53am

Re: Re: Re:
By that then you should be liable if you lend somebody money and they go buy illicit drugs or purchase a gun and kill somebody. Are you sure you want that liability on your shoulders ALL the time?
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Anonymous Coward, 3 Mar 2011 @ 12:11pm

Due Process...
At least the ex-parte seizures follow due process right?

http://www.youtube.com/watch?v=XXK8hZYcc0Q
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Modplan (profile), 3 Mar 2011 @ 12:18pm

Re: Re: Re: Re: Re:
When did they get DMCA notices? Where has anything been said that Visa receives such notices? This seems like something you've pulled out of thin air.

Why are Visa responsible in a process intended for hosts of content and sites?
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Anonymous Coward, 3 Mar 2011 @ 12:19pm

Re: Re: Re: Re: Re:
What about a user generated site like Youtube that has a pay for portion of the service (maybe for premium, HD content)? They could easily get multiple notices per day, with the bulk of the site being legal.

This is one of the major problems with this sort of approach. It is not content specific, it knocks off an entire entity for potentially a very small amount of problem files.
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Chronno S. Trigger (profile), 3 Mar 2011 @ 12:22pm

Re: Re: Re: So when?
One, "piracy sites" as you call them, are not clear cut like you wish they were. They are not clearly violating copyright law.

Two, credit card companies aren't selling "theft kits" ether. Why should we hold them liable if their tools are misused?

Three, you seem to jump around in your arguments. You find anything that anyone can be held liable for and use it as an argument to push idiotic laws that aren't related. Any company can be held liable if their items are improperly stored and fall on someone. It's an entirely different law that covers that. It already exists, we don't need another one. We definitely don't need to use it as a reason to push a completely unrelated law.

Keep your arguments on topic.
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Ron Rezendes (profile), 3 Mar 2011 @ 12:58pm

Re: Re: Re: Re: Re: Re:
You haven't been paying attention for the last 80 years? C'mon The eejit! ;P
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Anonymous Coward, 3 Mar 2011 @ 3:13pm

Re: Re: Re: Re: Re:
I BLAME THE KOOL-AID!!!
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Kevin (profile), 3 Mar 2011 @ 3:34pm

Re: Re: Re: Re: Re:
Your right, that was an extreme example that had NOTHING to do with this post. I think Child molesters are disgusting and horrible people that need to meet a slow and painful end, but that does not mean that I think we should stretch US law and force it upon other sovereign nations because we disagree with a decision they made. It was their's to make.
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hmm (profile), 3 Mar 2011 @ 6:10pm

liability
If you're liable for third party actions, doesn't this also mean by extension you are liable if you DON'T stop somebody doing something?

Because either way its an "action".....
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Karl (profile), 3 Mar 2011 @ 8:04pm

Re: Due Process...
That video is at once really depressing (because Espinel just doesn't understand anything), and encouraging (because someone in the House is actually asking the right questions).
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Anonymous Coward, 3 Mar 2011 @ 8:25pm

Re: Re: Re: Re:
2+2 = 5
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Karl (profile), 3 Mar 2011 @ 8:25pm

Re:
Third party processors and billers need to know what they are processing for (otherwise they violate their Visa / Mastercard agreements), and once informed of a copyright infringement or being made aware of the nature of the site, need to take action accordingly to limit their liability.

No, they don't. Perfect 10 already tried suing third-party FSP's (financial service providers), and the cases were dismissed. eBay was the defendant in a few lawsuits (e.g. Tiffany v. eBay) trying to hold them accountable for counterfeit goods being sold on their service, and eBay won all of them.

So, no, Issa is not asking her to enforce laws already on the books. He's asking her to take action against third parties that are not breaking any law.

Also, FSP's do not ever receive DMCA notices, as they're not online service providers.

And if you think holding them liable will only prevent "illegal" acts, then you're out to lunch. There's this thing called "chilling effects" that you might want to check out.
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Anonymous Coward, 3 Mar 2011 @ 8:27pm

Re: Re: Re: Re: So when?
"piracy sites" as you call them, are not clear cut like you wish they were. They are not clearly violating copyright law.

Fail.
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Anonymous Coward, 3 Mar 2011 @ 8:29pm

Re: Re: Re:
The court from the American Spanish state of Great Spain LoL
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Anonymous Coward, 3 Mar 2011 @ 8:30pm

Re: Re: Re:
No but you need to break the mold and that often is viewed as breaking the law.
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Anonymous Coward, 3 Mar 2011 @ 8:32pm

Re: Re: Re: Re: Re:
U.S. judges have a mandate to respect international treaties and take them into account so yes they are obliged by their own protocols to pay attention to what other courts in other countries have done specially when dealing with things that fall outside their jurisdiction.
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Anonymous Coward, 3 Mar 2011 @ 8:34pm

Re: Re: Re: So when?
you do know that the banking system probably would have collapsed earlier in the U.S. if it was not for drug money right?

That was a big scandal some years back and people seem to have forgotten that.
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Anonymous Coward, 3 Mar 2011 @ 8:36pm

Re: Re: Re: So when?
I didn't see ICE seizing Baidu, did they come around and seized yet?
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Anonymous Coward, 3 Mar 2011 @ 8:55pm

Re: Re: Re: Re: Re: So when?
2008 called. They want their dumb "meme" back.
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Anonymous Coward, 4 Mar 2011 @ 6:26am

Re: Re: Re: Re: Re: Re:
LOL! You're making that up. When a website owner violates US law and that website owner happens to have their domain name registered with a US registrar, that domain name is in US jurisdiction. And that's according to ICANN.
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