Law Professors Come Out Against PROTECT IP

from the good-for-them dept

Tue, Jul 5th 2011 8:27am — Mike Masnick

Another day, another constituency speaking out against PROTECT IP and the damage that it will do. This time, it's a large group of law professors (over 90 have signed on so far), including some big names. The professors' full letter is embedded below, but the key points are found right at the beginning:

Although the problems the Act attempts to address -- online copyright and trademark infringement -- are serious ones presenting new and difficult enforcement challenges, the approach taken in the Act has grave constitutional infirmities, potentially dangerous consequences for the stability and security of the Internet's addressing system, and will undermine United States foreign policy and strong support of free expression on the Internet around the world.

Indeed. One would hope that politicians would start paying attention. Already, we've seen technologists, some of the top funders of innovation and some of the biggest names in the news business come out against the bill. Who's actually supporting it? So far, just a coalition of businesses who seek to block competition and get increased gov't protection to try to cover for their own failures to innovate and adapt.

What I find most amusing, of course, is that when some of us who have been talking about this bill from the beginning raised some of the Constitutional questions about it, we were told that we had no idea what we were talking about. I wonder if people will continue to say that now that some of the most respected law professors around are signing this letter?

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: free speech, law professors, protect ip

62 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

The eejit (profile), 5 Jul 2011 @ 7:49am

I wonder what those....
...who said that Pappert and Maryland weren't relevant would have to say.
[ link to this | view in thread ]
Gabriel Tane (profile), 5 Jul 2011 @ 8:34am

What will they say?
Hmm... let me see if I can remember...

"lolz your wrong"
"give it up freetard"
"start pouring the koolaid Masnick"
[Some opinion-stated-as-fact followed by something like "wassamatta... take away your binky? lol".]
There. Did I miss anything?
[ link to this | view in thread ]
Mr. LemurBoy (profile), 5 Jul 2011 @ 8:43am

Re: What will they say?
Umm... does the "pouring the koolaid" comment cover "Masnick promotes piracy?"
[ link to this | view in thread ]
DannyB (profile), 5 Jul 2011 @ 8:46am

Changing their tune
> when some of us who have been talking about this
> bill from the beginning raised some of the
> Constitutional questions about it, we were told
> that we had no idea what we were talking about.
> I wonder if people will continue to say that now

They'll change their tune. Let me venture a guess . . .

* Anyone who doesn't support this is pro-piracy!

* Telecoms are pro-piracy. (Answered that one earlier today.)

* Electronics industry is pro-piracy.

* Freetards just want free stuff.

* I just don't get it.
* I just don't see it.

* You can't compete with free.

* Free isn't a business model.

* We must stop facilitators and enablers, such as Google and AT&T.

* We still don't know what we're talking about, and neither do law professors. After all, they just want free stuff.

* The Internet needs to be tamed.

* Give me an analogy that involves law breaking.

Any other predictions?
[ link to this | view in thread ]
Anonymous Coward, 5 Jul 2011 @ 8:49am

Does David Post contribute anything to the Volokh Conspiracy other than posts in which he whines about copyright laws?
[ link to this | view in thread ]
MRK, 5 Jul 2011 @ 8:51am

Unless those signatures come with big fat campaign contributions, the politicians won't notice. Because the only constituency that matters is the one that pays the bills.
[ link to this | view in thread ]
Gabriel Tane (profile), 5 Jul 2011 @ 8:53am

Re: Re: What will they say?
Only if we agree with him and we promote the piracy as well. Good call, I missed that one.
[ link to this | view in thread ]
Hothmonster, 5 Jul 2011 @ 8:54am

Re: Re: What will they say?
that is in the "give it up freetard" category
[ link to this | view in thread ]
Hothmonster, 5 Jul 2011 @ 8:55am

Re: Changing their tune
You forgot:

That isnt the intent of the law so why worry about it
[ link to this | view in thread ]
johaus (profile), 5 Jul 2011 @ 8:57am

Make your voice heard
Instead of focusing on what the responses will be here - why not do what you can to affect this? I just sent comments to my two Senators. This isn't exactly the biggest issue on most American's minds, so if the Techdirt community made its views know to their respective representatives, we could actually make a difference.

Get on it people.
[ link to this | view in thread ]
MrWilson, 5 Jul 2011 @ 8:58am

Re: What will they say?
I do have to say that I prefer the trolling before the stupid law is passed rather than after. The trolling that comes after is even more boneheaded, especially when they equate law with ethics and morality. "The law is the law!"
[ link to this | view in thread ]
Anonymous Coward, 5 Jul 2011 @ 9:02am

Re: I wonder what those....
A child pornography case and an obscenity case. So what?

Funny how the profs don't actually point to any law that has to do with copyright and trademark infringement.
[ link to this | view in thread ]
Hothmonster, 5 Jul 2011 @ 9:05am

Re: Re: I wonder what those....
Yeah those stupid law profs know shit about the law. Why they talking about old cases, that shits old.
[ link to this | view in thread ]
Anonymous Coward, 5 Jul 2011 @ 9:07am

Re: Re: Re: I wonder what those....
They are noticeably not talking about how the First Amendment works in the copyright/trademark context. I think the omission is glaring--and quite telling.
[ link to this | view in thread ]
Anonymous Coward, 5 Jul 2011 @ 9:18am

Re: Re: Re: Re: I wonder what those....
You suck at laws to infinity + 1!

I win!

(Hey, you started it)
[ link to this | view in thread ]
Hothmonster, 5 Jul 2011 @ 9:30am

Re: Re: Re: Re: I wonder what those....
You are noticeably not talking about the points they do raise. I find that quite telling.

So what are the cases they left out that is such a glaring omission? Where is your amicus briefing in support of protect IP I would love to read it than say "his omission of things that support my viewpoint is quite telling."

Please show me the case law that says because a copyrighted work may be involved that prior restraint is allowed; that copyright infringement is identifiable to the layman and does not need a court decision to be decided; that the government should force 3rd parties to police others copyrighted material; that a copyright holder can legally stop another company from doing business with someone because of accusations; or that US copyright interest is more important than the last 20 years of work on global internet infrastructure.
[ link to this | view in thread ]
Anonymous Coward, 5 Jul 2011 @ 9:45am

Re: Re: Re: Re: Re: I wonder what those....
Lemley, one of the authors of this letter, should know since he said this in one of his papers:
In copyright cases, though, preliminary injunctions are granted pretty much as a matter of course, even when the defendant has engaged in creative adaptation, not just literal copying. How can this be? True, the Supreme Court has held that copyright law is a constitutionally permissible speech restriction; though copyright law restricts what we can write or record or perform, the First Amendment doesn't protect copyright-infringing speech against such a restraint. But libel law and obscenity law are likewise constitutionally valid restrictions on speech, and yet courts refuse to allow preliminary injunctions there. The "First Amendment due process" rule against prior restraints applies even to speech that's alleged to be constitutionally unprotected. Why, then, not to allegedly infringing speech?
http://www2.law.ucla.edu/volokh/copyinj.htm

I have no problem with people making the argument that the First Amendment should work a certain way in copyright or trademark cases. What bothers me, though, is when they pass off their normative views of how things should work without acknowledging how they do in fact work. Lemley clearly knows that "First Amendment due process" does not apply to "allegedly infringing speech." He says so right at the end. He writes a brilliant paper about why it shouldn't be that way, and that's great. I agree with him. But the fact remains that it works the way it works right now, and to throw out obscenity and child porn cases like those are the right cases to look at seems a bit dishonest to me.
[ link to this | view in thread ]
LegitTroll (profile), 5 Jul 2011 @ 9:51am

I do like that people (who should be listened too) are speaking out about this new law and other laws like it. The only issue is that they are not spending the lobbying dollars that the content industries are.

"So this is how liberty dies. With thunderous applause."
[ link to this | view in thread ]
Robert Doyle (profile), 5 Jul 2011 @ 10:04am

http://xkcd.com/14/
[ link to this | view in thread ]
Anonymous Coward, 5 Jul 2011 @ 10:11am

Re: Re: Re: Re: Re: Re: I wonder what those....
Copyright seems a bit dishonest to me.
[ link to this | view in thread ]
Hothmonster, 5 Jul 2011 @ 10:14am

Re: Re: Re: Re: Re: Re: I wonder what those....
OK, so he has a paper that says if allegedly infringing speech should be treated like allegedly unconstitutional speech (porn/obscenity). You like this

Then, as co-author of a different paper, he shows
protect-ip is in conflict with porn/obscenity rulings that relate to free speech(probably due to lack of relevant copyright cases, seeing as how no one on your side has presented one yet either) and you say they do not equate. You even say this while linking to another paper that you say you support because it says porn/obscenity and copyright infringement should be dealt with similarly in regards to free speech.

On top of that, I haven't had time to read it yet but based on the abstract, you seem to be grossly misrepresenting the article you link. What he is saying and asking is why do we allow preliminary injunctions in copyright cases but not any similar type of case of free speech case. You say:
""First Amendment due process" does not apply to "allegedly infringing speech." He says so right at the end. He writes a brilliant paper about why it shouldn't be that way, and that's great." But it would see the paper is arguing why this shouldn't be not why it is that way.

Abstract from AC's linked article:
"Preliminary injunctions against libel, obscenity, and other kinds of speech are generally considered unconstitutional prior restraints. Even though libel may inflict truly irreparable harm on its victim, the most a libel plaintiff can hope for is damages, or perhaps a permanent injunction after final adjudication, not preliminary relief. Professors Lemley and Volokh argue the same rule should apply to preliminary injunctions in many copyright, trademark, right of publicity and trade secret cases.
They note that intellectual property rights, unlike other property rights, are a form of content-based, government-imposed speech restriction. The mere fact that the restriction is denominated a "property right" should not exempt it from conventional First Amendment scrutiny, or justify government action that restricts speech which ultimately proves to be constitutionally protected. This is especially so because in most cases, damages would be a relatively effective remedy. The Court's prior restraint doctrine and sound First Amendment policy suggest that preliminary injunctions in intellectual property cases are often (though not always) unconstitutional."

emphasis mine
[ link to this | view in thread ]
Anonymous Coward, 5 Jul 2011 @ 10:21am

Re: Re: Re: Re: Re: Re: Re: I wonder what those....
You don't seem to grasp the difference of explaining how courts currently treat the issue, and how Lemley thinks they should treat the issue. One is a statement of the law as it currently exists, and the other is a suggestion for how the law could work.

And you're missing where in the abstract Lemley says this: "We conclude that permanent injunctions in copyright cases should generally be constitutional, and the same should go for preliminary injunctions in cases that clearly involve literal copying, with no plausible claim of fair use or of copying mere idea rather than expression. Other preliminary injunctions, though, should generally be unconstitutional."

That's right. Lemley says that "preliminary injunctions in cases that clearly involve literal copying" are constitutional. This makes the fact that he's arguing against preliminary injunctions in this letter all the more curious. Are they constitutional or not? He seems to be flip-flopping.
[ link to this | view in thread ]
Anonymous Coward, 5 Jul 2011 @ 10:22am

Re: Re: What will they say?
"If you don't like the law then change it!"
[ link to this | view in thread ]
Gabriel Tane (profile), 5 Jul 2011 @ 10:28am

Re: Re: What will they say?
"I AM the Law!"
-Dredd
[ link to this | view in thread ]
The eejit (profile), 5 Jul 2011 @ 10:31am

Re: Re: Re: Re: Re: Re: Re: Re: I wonder what those....
Prove literal copying.
[ link to this | view in thread ]
The eejit (profile), 5 Jul 2011 @ 10:33am

Re: Re: I wonder what those....
And it's funny how those who benefit the most from said laws get to write them.
[ link to this | view in thread ]
Hothmonster, 5 Jul 2011 @ 10:45am

Re: Re: Re: Re: Re: Re: Re: Re: I wonder what those....
No I understand that he is saying that although preliminary injunctions happen as a matter of course in copyright cases they shouldn't and are by and large unconstitutional. You are saying, "see it happens and that is the way it is," dismissing the other 15,000 words in the paper that explain why this shouldn't be and how this is in contradiction with the process for every other form of unprotected speech.

And as it has been pointed out the sites the industry and this law would like to block (and those already blocked by ice) are not those that have "literal copying" but rather possible infringement that should be decided by a court not the copyright holder, or ice at the request of a copyright holder. This law would abolish the need for adversarial hearing and anything accused of infringing could be blocked. Why do we need such a law? Why not allow a court to decide if something is infringing before removing it?

We have seen sites removed for posting content provided by the industry for public consumption, we have seen the industry blacklist artist's sites (50cent) for posting and talking about their own work. These are not cases of clear literal copying and the site owners should be allowed a chance to show this in court rather than have a biased 3rd party shut them down without any chance to speak their case.
[ link to this | view in thread ]
Anonymous Coward, 5 Jul 2011 @ 10:53am

Re: Re: Re: Re: Re: Re: Re: Re: Re: I wonder what those....
I'm not dismissing any of it. I think it's dishonest to now say that preliminary injunctions are unconstitutional when he's published a paper saying they're not. I think it's dishonest to say "look at the test the Court used in these other cases" when he knows those aren't copyright/trademark cases and there's no reason to think that test applies here.

Why doesn't he point to all of the cases he examines in his paper, you know, the cases where the courts treated copyright laws differently in their First Amendment analysis?
[ link to this | view in thread ]
Hothmonster, 5 Jul 2011 @ 11:04am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: I wonder what those....
"I think it's dishonest to now say that preliminary injunctions are unconstitutional when he's published a paper saying they're not"

The paper is about how they are being treated as is the injunctions are not unconstitutional even though they are and here is why. Again, you are dismissing the paper, because it says that although this happens it shouldn't because its unconstitutional. Example:

"We thus see no compelling normative reason to treat copyright differently from other speech restrictions, restrictions that are likewise substantively valid but that nonetheless require certain procedural safeguards. And we see a good reason not to treat copyright more favorably than other speech restraints. "

That is what the paper is about not, as you seem to think, that it is right to treat copyright differently and that because it has happened in the past we should write new laws to support these bad practices.

"Why doesn't he point to all of the cases he examines in his paper, you know, the cases where the courts treated copyright laws differently in their First Amendment analysis?"

You mean all the ones he claims were handled in an unconstitutional fashion? So you would like him to quote what he thinks is bad law practice to support a new law that will expound on those bad practices? Is protect-ip so shitty that the only thing you can base it on are cases that many would argue were handled in an unconstitutional manner?
[ link to this | view in thread ]
Anonymous Coward, 5 Jul 2011 @ 11:16am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: I wonder what those....
It's quite simple. I think it's dishonest to say that the Act violates the First Amendment when scrutinized under a test that he knows isn't used in copyright cases. The honest thing to do would be to admit that the bulk of authority is not on your side and then explain why that authority is wrong. Instead, he just pretends the bulk of authority is on his side when he knows for a fact it's not.
[ link to this | view in thread ]
Hothmonster, 5 Jul 2011 @ 11:26am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: I wonder what those....
Well if the bulk of authority is on your side then it should be easy for you to fulfill my earlier request that I will restate here.

"Please show me the case law that says because a copyrighted work may be involved that prior restraint is allowed; that copyright infringement is identifiable to the layman and does not need a court decision to be decided; that the government should force 3rd parties to police others copyrighted material; that a copyright holder can legally stop another company from doing business with someone because of accusations; or that US copyright interest is more important than the last 20 years of work on global internet infrastructure."

Just because it has been standard practice doesn't mean there is written case law that supports that practice. That is the point of the paper you were so kind to point out, that although this has been going on for some time there is no reason it should be as no law supports it and actually case law opposes it. If there is please show me the case law that says accused copyright infringement does not require adversarial hearings and I will print out this thread and eat it.
[ link to this | view in thread ]
Anonymous Coward, 5 Jul 2011 @ 11:32am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: I wonder what those....
The Lemley article has many examples of courts treating the First Amendment differently when it's copyright. Maybe you should read it.
[ link to this | view in thread ]
Greevar (profile), 5 Jul 2011 @ 11:36am

Re:
That's "buys the bills", not "pays the bills". Jeez! Get it right! ZOMG!
[ link to this | view in thread ]
DannyB (profile), 5 Jul 2011 @ 11:37am

Re: Re: Changing their tune
That sounds like the Sony guy talking about the rootkit fiasco saying:

Most people don't even know what a rootkit is, so why should they worry about it?

It's like saying: you don't even know what the intent of the law is, so why worry about it?

Laws are something that should be very clear and unambiguous.
[ link to this | view in thread ]
Hothmonster, 5 Jul 2011 @ 11:50am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: I wonder what those....
Yes, examples of courts treating it differently, not case law that says it should be treated differently. The paper also explains why those times it was treated differently was unconstitutional(not 100% but the majority) as that is the point of the paper, that although this happens it shouldn't and there is no legal basis to give special treatment to copyright cases.

Maybe you should reread it. Because you seem to think it says this should go on and is constitutional, it doesn't.
[ link to this | view in thread ]
Mitch Featherston, 5 Jul 2011 @ 12:00pm

Stop the insanity
At some point this type of legislation efforts need to end. What a waste of time.
[ link to this | view in thread ]
Anonymous Coward, 5 Jul 2011 @ 12:05pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: I wonder what those....
Lemley in the paper explicitly says that preliminary injunctions in cases with literal copying are (in his opinion) constitutional, as I've already pointed out. It says exactly what I think it says.

Examples of courts treating it differently is caselaw. Not sure if that term means what you think it means.

I'm just repeating myself, but my point is pretty simple: The bulk of authority does not support the notion put forth in this letter by the profs that this is unconstitutional prior restraint. Lemley's own paper makes it clear that courts treat the First Amendment differently when it's copyright. The best they can do is point to cases that aren't copyright cases and say it fails the test put forth in those cases. Of course, no mention is made that courts routinely treat things differently when it's copyright, and those other tests are not applied when it's copyright. The last thing they want to mention is how courts actually treat these issues.
[ link to this | view in thread ]
Anonymous Coward, 5 Jul 2011 @ 12:40pm

Re:
No.
[ link to this | view in thread ]
Anonymous Coward, 5 Jul 2011 @ 12:53pm

Re: Re:
I know, right? It's kind of lame.
[ link to this | view in thread ]
Hothmonster, 5 Jul 2011 @ 1:09pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: I wonder what those....
Yes LITERAL
"We conclude that permanent injunctions in copyright cases should generally be constitutional, and the same should go for preliminary injunctions in cases that clearly involve literal copying, with no plausible claim of fair use or of copying mere idea rather than expression. Other preliminary injunctions, though, should generally be unconstitutional. "

Unfortunately for your argument the sites this bill targets and those the industry blacklists do not have CLEAR LITERAL copying. Even if you think they do, that is for the court to decide not you or the copyright owner.

Excuse my not being clear when referring to case law as I have a hard time taking this serious when you are being, it seems, purposefully ingenious. Let me clarify:

The copyright act says: Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.

You are correct that as the paper says non-copyright cases use the "traditional four-factor preliminary injunction test, which asks: (1) whether the plaintiff is likely to succeed on the merits; (2) whether the plaintiff will suffer irreparable injury if the injunction is not granted; (3) whether the balance of hardships tips in the plaintiff's favor; and (4) whether granting the injunction would be in the public interest." And copyright cases tend to weight factor number one as more important than others.

So yes if this new brief was arguing that this 4 factor system is applied equally to copyright and non-copyright related speech it would be disingenuous. But the brief says that a adversarial hearing is required by the constitution. No where in the paper does it say that this rule does not apply to copyright infringement. It says that at that hearing copyright is treated differently than non-copyright because in most cases the plantiff only has to show likelihood of success on the merits.

So yes the court treats copyright different at the preliminary injunction hearing and may be more likely to issue a preliminary injunction based solely on 1 of the 4 factors used in non-copyright cases but the key point is the still need a preliminary injunction hearing. Something that protect-ip aims to get rid off. So even though the case law allows infringing speech to be treated differently than non-copyright related infringing speech at a preliminary hearing it still requires a hearing to issue the injunction and that injunction still has to be followed up with final judicial decision.

"it fails the test put forth in those cases. Of course, no mention is made that courts routinely treat things differently when it's copyright, and those other tests are not applied when it's copyright. The last thing they want to mention is how courts actually treat these issues."

The test referred to in this brief and your linked paper are not the same. This brief is not talking about the four-factor test that is treated differently when copyright is involved it is talking about the constitutional requirement that a court make a final judicial decision after and adversary hearing, where does it say in this paper that such a hearing is not the norm for copyright cases?

[whats the trick to make these long arguments readable? I know someone mentioned it before, this one word a line bullshit drives me crazy.]
[ link to this | view in thread ]
Anonymous Coward, 5 Jul 2011 @ 1:24pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: I wonder what those....
If you can't see the double-standard, I'm sorry. Lemley writes a paper explaining how in the courts it's not considered prior restraint when it's a copyright case. Then he pens a letter arguing that it's prior restraint in a copyright context, and he points to cases that aren't copyright cases to make this point. It's a simple strawman. He can't point to any actual copyright cases to make his point because the copyright cases only refute his point.
[ link to this | view in thread ]
Anonymous Coward, 5 Jul 2011 @ 2:18pm

Astroturfing for Big Search
Is it any surprise that Mark Lemley has been paid by Google? Nope. Naturally people who link to content want to think of their brilliant linking as in the same class as the work of Martin Luther King, Peter Zenger, and other free speech advocates. Hah. The next thing you know, they'll be arguing that a mob boss's order to kill is protected by free speech too!
[ link to this | view in thread ]
abc gum, 5 Jul 2011 @ 2:25pm

Re: Astroturfing for Big Search
"The next thing you know, they'll be arguing that a mob boss's order to kill is protected by free speech too!"

Based upon Citizens United, you are probably correct.
[ link to this | view in thread ]
Hothmonster, 5 Jul 2011 @ 2:29pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: I wonder what those....
In a copyright case it is not considered prior restraint if the plaintiff can prove they are likely to succeed as opposed to the 4 factor test used in non-copyright cases. If that sole factor is met a preliminary injunction can be issued in a copyright related case, and it is even stardard practice for this to happen. That is what the paper explains (it also explains that this makes no sense and is unconstitutional - a not uncommon viepoint: http://www.yalelawjournal.org/the-yale-law-journal/content-pages/the-freedom-of-imagination:-copyrig ht%27s-constitutionality/).

The brief argues that copyright cases can not throw out the preliminary hearing and that a court is still required to make a final decision at an adversary hearing.

You are the one arguing a strawman. Just because the paper says the 4 factor system is not fully applied when the case is related to copyright does not mean that you can also skip the other requirements for preventing prior restraint as required by the constitution. Yes copyright cases more readily allow a preliminary injunction but not a permanent injunction without a adversary hearing.

Protect-IP allows an injunction to be issued without notifying the allegedly infringing site which erases the presumption of innocence is what makes this law unconstitutional. No where does the paper state that it is standard practice for copyright cases to be resolved with only an ex parte hearing. While copyright law allows a preliminary injunction to be issued after the plaintiff shows a likelihood of success the case still has to follow through and that decision must be upheld. That is what this brief takes issue with, an ex parte hearing with no review and no final judicial decision at an adversary hearing. No where does it state that those accused of copyright infringement are presumed guilty until proven innocent and don't even deserve the right to try to prove that innocence at a hearing.

Do you not see the disconnect between being more lax in applying the four factor test and completely removing any judicial oversight and removing the defendants chance to state their side before the preliminary injunction and again prior to a final decision?

I would agree with you if they were merely saying that in a copyright case a preliminary injunction is prior restraint, but I think the point is the removal of all the checks that follow that preliminary injunction (judicial review and a final decision following an adversary hearing) turn it into prior restraint.
[ link to this | view in thread ]
Hothmonster, 5 Jul 2011 @ 3:09pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: I wonder what those....
Upon a review of our debate I do understand what you are saying. Preliminary injunction is common practice in copyright related cases upon proving likelihood of success by the plaintiff. This brief does not make that clear and uses sites examples from cases in which a different standard applies.

I still think that is a moot point, as the bigger issue is the removal of review and hearings that are still required following the preliminary injunction in a copyright case.

Also since the entire paper is an argument against that practice I can understand why its not something they would want future laws based around and something they may avoid mentioning.

But I do see the issue you raise although I think it is beside the point. I hope you see the merits of my argument as well after I took the time to make it a little more clear, its probably still not 100% clear as I have been jumping back and forth between responses and work sometimes leaving 10-15 minutes in between paragraphs, I tried to clean it up but see the disconnect.

Anyway I am about to head home, Ill see your response on the train in the morning. Have a good night and I look forward to one of us eating our foot if this bill ever gets a judicial review by the supreme court.
[ link to this | view in thread ]
techflaws.org (profile), 5 Jul 2011 @ 10:25pm

Re: Astroturfing for Big Search
Obvious troll is obvious.
[ link to this | view in thread ]
Mike Masnick (profile), 5 Jul 2011 @ 11:10pm

Re: Re: Re:
I know, right? It's kind of lame.

I know, right? I mean, how dare he write about something he's knowledgeable and passionate about, and not find other subjects that he doesn't care about to write. What a jackass!

Along those lines, I will note that all your comments seem to be about one particular subject as well. Should we complain and bitch about you as well?
[ link to this | view in thread ]
The eejit (profile), 5 Jul 2011 @ 11:19pm

Re: Astroturfing for Big Search
Is it any surprise that Rupert Murdoch hacked intot he phone of a dead girl to generate sales?

...See what I did there. It's the same thing as you, only mine has more evidence.
[ link to this | view in thread ]
Anonymous Coward, 6 Jul 2011 @ 6:43am

Re: Re: Re: Re:
LOL! Go ahead. Not like that doesn't already happen. :)

I think it's a bit lame that he only posts from time to time, and when he does post, it's to complain about copyright law. Others have noticed this too and said as much. If you disagree, that's fine with me. I was just stating my opinion. I'm sure he's a brilliant guy. I'd just like to see a little more diversity in his posts. I'm a big fan of the Conspiracy.
[ link to this | view in thread ]
SailingCyclops (profile), 6 Jul 2011 @ 7:16am

Bottom Lines
First: Taking punitive action against someone based on an allegation is not constitutional. We still live by the rule of law; by the rule of innocent until proved guilty. Worse, taking federal government law enforcement action against someone based on a civil complaint violates due process. So this piece of shit is not legal, and should die in the Supreme Court. However, given this Court's propensity to side with big business and greed, I won't be holding my breadth.

Second: It simply will not produce the desired results. The U.S. government does not control the Internet. Dot Com and Dot Net yes, because Verisign is a U.S. entity, but the Internet is far wider.

Third: Those who feel threatened, or affected by this (whether rightly or wrongly) will simply register abroad. Overseas DNS providers and VPN operators, search engines, advertising companies, and financial processing firms, will see a boon in their business, and U.S. jobs will be lost.

This law will do nothing to thwart copyright infringement, but merely move a portion of the Internet out of this country. Not only that, but faced with the very real possibility of being shut down on a mere accusation (by a competitor for instance), many other businesses will flee preemptively. Overseas Domains, collocation facilities, and bandwidth providers will benefit, we will lose. Proof of this can be seen when we look at the ICE take-downs. Nuked sites came back up almost immediately, only they came up overseas, with safe domain names. It's sad that the very country which invented the Internet will be seen as an unsafe place!

Fourth: This is a very slippery slope. Once you give any government, or industry in this case, the power to silence communication, it will inevitably be misused for other purposes. Don't like the political or religious views of someone? Simply accuse them of infringement, and they are gone without recourse. This thing will open a Pandora box of censorship. We may find ourselves behind the great Internet wall of America, just like China.

Finally: Breaking the very foundational technology which makes the Internet work, simply to protect an industry which stubbornly refuses to keep up with the times, and innovate, is absurd. The Internet is all about innovation, new ways of doing things, new business models, new freedoms and opportunities for the twenty-first century. This law will stifle innovation in America, and we will be left behind in yet another area.

The Cyclops
[ link to this | view in thread ]
Anonymous Coward, 6 Jul 2011 @ 7:47am

Re: Bottom Lines
Or, the bill gets passed, the courts uphold it, the internet doesn't break, and a lot of sites that are dedicated to infringement disappear. From my perspective, the sky is not falling.
[ link to this | view in thread ]
SailingCyclops (profile), 6 Jul 2011 @ 8:45am

> Or, the bill gets passed, the courts uphold it
This is very likely.

> the internet doesn't break
By definition returning invalid DNS information is breaking the Internet

> sites that are dedicated to infringement disappear
There is nothing in this bill which will accomplish this. It merely gives legal cover to what ICE has already been doing. That program has been an utter failure. The most notorious sites are alive, thriving, and well. What makes you believe that codifying a failed system into law is going to work any better? Bear in mind this law only applies to the U.S. and has no effect outside our borders. There are better and more efficient ways to deal with the problem.

> the sky is not falling
No, the sky is not falling. We are simply giving an already corporate-corrupted government unnecessary powers which are ineffective to the stated goal, and which they will only abuse.
[ link to this | view in thread ]
Anonymous Coward, 6 Jul 2011 @ 12:51pm

Re:
Are they thriving? I know Rojadirecta has said in court documents that their traffic is down significantly since they moved to a new domain name. I think PROTECT IP will be more effective because it will affect more than just sites with domain names registered in the US. Rojadirecta is a good example. They moved to a new domain name, one that ICE can't touch. Under PROTECT IP, there are no domain names where they can hide like that.

What "better and more efficient ways" are there to deal with the problem? I'm curious.

I see it as that the laws are already being abused--by an alarming number of people. The absusers being the infringers. This Act is an attempt to go after the abusers. Trying to flip this around like the government is the bad guy here just makes me laugh, to be honest.

There are those who pretend like it's the unintended consequences that are going to be the problem, but I think really they're worried about the intended consequences. I think it's FUD to say this bill won't work. It will. The goal is to decrease piracy and counterfeiting, and this bill will do just that.
[ link to this | view in thread ]
Anonymous Coward, 6 Jul 2011 @ 1:13pm

Re: Re: Re: Re: Re:
OMG ... I figured it out, these law professors just want free stuff!
[ link to this | view in thread ]
Anonymous Coward, 6 Jul 2011 @ 1:16pm

Re: Bottom Lines
"Finally: Breaking the very foundational technology which makes the Internet work, simply to protect an industry which stubbornly refuses to keep up with the times, and innovate, is absurd."

Actually, they have become obsolete. They have no future. and will, in the end, fail.
[ link to this | view in thread ]
rxrightsadvocate, 6 Jul 2011 @ 1:38pm

As the letter says, the PROTECT IP Act could mean "the equivalent of an Internet death penalty" for web sites deemed to have infringing content. What's worse, web sites can be shut down the same day a complaint is filed--even before they are actually judged to have infringing content.

RxRights is a national coalition of individuals and organizations dedicated to promoting and protecting American consumer access to sources of safe, affordable prescription drugs. We are concerned about PROTECT IP's potential impact on legitimate online pharmacies. The bill's overarching language fails to make a distinction between rogue online pharmacies that don't require valid prescriptions and trusted, safe pharmacies that do. Over a million Americans safely import their needed medications from trusted Canadian and other international pharmacies. They do this because they can't afford the price of meds at home. PROTECT IP would effectively cut off this virtual lifeline.

The Coalition is encouraging consumers to take action now by sending letters to President Obama and Congress urging them to protect our right to safe, affordable medications. For more information or to voice your concern, visit www.RxRights.org.

Lee Graczyk, RxRights
[ link to this | view in thread ]
darkwinglance, 6 Jul 2011 @ 2:55pm

time for everbody to be arrested
with all the people think that if the laws about downloading come out i think its just time to think FIRST.
I saw a 10 year old child put infront of a judge for downloading he totaly agried that he did download all the stuff he had. and he was willing to go to jail but he asked that the entire court room answer 5 questions the judge agried. the kid stood up and asked if everyone can put there hand up if they did this. his first question.

1. Who here has owned a tape deck?
the entire court room put up there hand

2. Who here has used it to recored something that was not theres?
the entire court room but one put up there hand

3. Who here owns or has owned a VCR, PVR, or something that can record live TV?
the entire court room put up there hand

4. Who here has used one of those devices to Record something?
the entire court room raised there hand

the kid looked about the room and with a BIG GRIN he asked the last question and also made a statment that shocked the entire court room.

5. Who here has Writen consent to has such recordings, becaue if you dont your honner your better arest your self first becuae you anmitted in court that your guilty like the entire court room did. I only downloaded movies and music that has already been freely shaired. I have never downloaded anything that was still in the movie theators I have gotten a camed virsion once in a while and i do post that they are and get them off my system as fast as I can. I never Download an entire CD unless all the songs have been on Radio or on TV.

Your honner the download laws are so out of date if so find me not guilty becaue if you do then you better arest every one out there that owns a item that can record in anyway becaue they are then breaking all piricy laws. heck you might as well arest everyone who has used a photocopier becuse they has broken the copy right law and not gotten the permission of the others.

With that the kid stood up and WALKED out of the court room. all charges were droped and a good chunk of what happened was sealed becaue they dont want people with any brains to realise that this 10 year old kid out smarted the entire court. So people think about this are you dummer then a 10 year old. or he so smart that he is going to make fun of them all.
[ link to this | view in thread ]
Mike Masnick (profile), 6 Jul 2011 @ 3:38pm

Re: Re:
Are they thriving? I know Rojadirecta has said in court documents that their traffic is down significantly since they moved to a new domain name. I think PROTECT IP will be more effective because it will affect more than just sites with domain names registered in the US. Rojadirecta is a good example. They moved to a new domain name, one that ICE can't touch. Under PROTECT IP, there are no domain names where they can hide like that.

You conveniently leave out that the company was found to be perfectly legal (twice) by courts in its home country.

What "better and more efficient ways" are there to deal with the problem? I'm curious.

By not censoring the internet and focusing on coming up with better business models, I would think.

I see it as that the laws are already being abused--by an alarming number of people. The absusers being the infringers. This Act is an attempt to go after the abusers. Trying to flip this around like the government is the bad guy here just makes me laugh, to be honest.

Um. Again, site is LEGAL in its home country. How can you possibly continue to call them abusers?

There are those who pretend like it's the unintended consequences that are going to be the problem, but I think really they're worried about the intended consequences. I think it's FUD to say this bill won't work. It will. The goal is to decrease piracy and counterfeiting, and this bill will do just that.

Yeah, stomping on free speech, eh, what's the big deal, right?
[ link to this | view in thread ]
Anonymous Coward, 6 Jul 2011 @ 4:09pm

Re: Re: Re:
You conveniently leave out that the company was found to be perfectly legal (twice) by courts in its home country.

I also didn't mention what the Rojadirecta people had for breakfast because it's irrelevant to the point being made. He said that the seizures are not effective. I pointed out that Rojadirecta is admitting it's effective. Heck, they're complaining about how effective it is. The evidence, at least in the Rojadirecta case, is that it's effective. Just imagine how effective it would be if Rojadirecta's new incarnations could also be blocked.

By not censoring the internet and focusing on coming up with better business models, I would think.

What better ways can they approach the problem of piracy? Not everyone thinks they should throw in the towel and just accept piracy like you do. Fundamentally, many people like myself believe that people have the right to make money in return for their time and effort. They don't have to give it all away, nor should they have to. In fact, they won't, because the law will protect those who create valuable things, like copyrighted works. So what if some people can give it away and make money, Mike? It's not a one-size-fits-all world, and I think it's silly to just expect everyone to jump onto your alternative business models. As it is now, they can choose to give it away or choose not to. You won't be happy until they are forced to give it away. If your business models are so great and universally applicable, then they'll catch on. As it is now, your views are not the majority view. Deal with it.

Um. Again, site is LEGAL in its home country. How can you possibly continue to call them abusers?

The issue is not whether they are legal in some other country. The issue is whether they are legal in this country. Someone can abuse the US legal system and be answerable to it despite the fact that their actions are legal elsewhere. It's amazing to me how much you defend piracy despite your claim that "piracy is not OK." It's not OK, but they should all just give in, right? Not everyone rolls over when their rights are violated. Funny that you think they should.

Yeah, stomping on free speech, eh, what's the big deal, right?

No, Mike, stomping on infringement. It's amusing how you try and defend the pirates with this sort of argument. If their sites are dedicated to infringement, then whatever protected speech there is does not shield the site. You can't hide your crimes behind some free speech. Of course, you think they should. Anything to get the pirates off the hook, right?
[ link to this | view in thread ]
SailingCyclops (profile), 6 Jul 2011 @ 4:48pm

Re: Re:
The entertainment industry has become the abuser. This "piracy" is an appropriate, massive, popular reaction to their abuse and greed.

Copyright was supposed to protect owners AND the public sphere. It was implemented fairly as a fourteen year exclusivity right, so authors can make money, and then the public could freely enjoy the fruits of society.

Today?

Don't/can't watch a TV show when freely aired? PAY ME

Want to replace a scratched dvd movie or a song you already bought 4 times (on vinyl, on cassette, on 8-track, on dvd)? PAY ME AGAIN, AGAIN, AGAIN and AGAIN for 70 years past the owners death.

Want to watch your TV in another room? PAY ME MORE

Want to see it on your phone? PAY ME EVEN MORE

Want to watch it on your computer? Gimigimigimi MORE MORE MORE

Want to hear a 40 year old song, which should have been in the public domain decades ago? PAY PAY PAY.

And if you don't like all this, tough shit, we will extort reams of money from you like the mafia does, with the help of our bought and paid for courts.

This kind of behavior deserves a severe public reaction. The very reaction it is getting.

You say Rojadirecta isn't doing well. That's to be expected, as they were one of the first to be hit with this. However, look at all the biggest P2P sites like ThePirateBay, and IsoHunt, they are not only thriving, but growing, and untouchable by ICE and IP-PROTECT. Things like Mafiaafire redirector, and the increasing use of off-shore VPNs, and international domains, will make it impossible for this to be stopped. Only the entertainment industry can stop this, no one else, and not by thuggish mafia-like tactics either. They have to start serving their audiance in the way their audience wants to be served.

What "better and more efficient ways" are there to deal with the problem? Make good quality entertainment easily available on-line at a fair price. The solution is totally in the entertainment industry's power to implement, only greed is preventing them. Look at iTunes! It's profitable, and fair. It used to be that I could buy a single song on a 45RPM record, now if I want that song, I have to buy a CD with 90% crap on it for a lot more money. Why should I have to buy a dvd with commercials on it, when all I want to buy is a single movie? Keep your dead fragile plastic media sell it to me on-line at a fair price.

The trouble is that the entertainment industry refuses to evolve with a changing technology and audience, and for this they will fail. At every technological turn they have fought tooth and nail. They opposed the sale player pianos, of reel to reel tape recorders, cassette players, dvd burners..... now with this new technology, they are stymied and are trying to keep a terribly dated business plan alive by censoring the entire world wide web. They will fail, and they deserve to fail.
[ link to this | view in thread ]
Mike Masnick (profile), 6 Jul 2011 @ 5:47pm

Re: Re: Re: Re:
I also didn't mention what the Rojadirecta people had for breakfast because it's irrelevant to the point being made.

What you believe is relevant and what actually is relevant appear to be two separate things.

I pointed out that Rojadirecta is admitting it's effective

Rojadirecta admitted that traffic declined by approximately 30%. I'm not sure if that's effective or not. I would imagine people could argue either way.

What better ways can they approach the problem of piracy?

Um. I already said: "By not censoring the internet and focusing on coming up with better business models,"

Not everyone thinks they should throw in the towel and just accept piracy like you do.

Dude, I've never said people should "throw in the towel." I've shown how by embracing new technology and better business models they can MAKE MORE MONEY. Claiming that's throwing in the towel is crazy.

Fundamentally, many people like myself believe that people have the right to make money in return for their time and effort.

You imply I don't think that. I absolutely do. Which is why I explain how they can make more money.

So what if some people can give it away and make money, Mike? It's not a one-size-fits-all world, and I think it's silly to just expect everyone to jump onto your alternative business models.

So what if some people don't want to stop selling horse and buggies, anonymous coward? It's not a one-size-fits-all world, and I think it's silly to expect everyone to focus on selling automobiles if that's what the market wants.

As it is now, they can choose to give it away or choose not to. You won't be happy until they are forced to give it away.

As it is now, they can choose to sell horse and buggies or they can choose not to. You won't be happy until they're forced to stop making horse and buggies.

See the point? (No, of course you don't). It's not me "forcing" them. It's the market.

If your business models are so great and universally applicable, then they'll catch on.

The problem is that thanks to clueless folks, who put in place bad laws, they get a crutch to rely on that means they don't have to adapt. The business models do work, but people are lazy thanks to people like you who wish to hold back progress and stifle innovation through ignorance.

As it is now, your views are not the majority view. Deal with it.

You're right. They're not in the majority. And I deal with it by teaching the ignorant. But I do understand economics, and I recognize how progress works. What I worry about are the unintended consequences and stifling of innovation and free speech by people like you.

And that's something you should deal with. Though you won't.

The issue is not whether they are legal in some other country. The issue is whether they are legal in this country. Someone can abuse the US legal system and be answerable to it despite the fact that their actions are legal elsewhere.

And you don't think that's a problem?

It's amazing to me how much you defend piracy despite your claim that "piracy is not OK." It's not OK, but they should all just give in, right? Not everyone rolls over when their rights are violated. Funny that you think they should.

I worry about people in other countries having to face foreign jurisdictions when what they did was entirely legal in their home countries. I'm amazed you don't feel the same.
[ link to this | view in thread ]
Gabriel Tane (profile), 7 Jul 2011 @ 7:13am

Re: Re: Re: Re:
"The issue is not whether they are legal in some other country. The issue is whether they are legal in this country. Someone can abuse the US legal system and be answerable to it despite the fact that their actions are legal elsewhere."
So you're saying the whole world should adopt US laws? If I am a legal citizen in another country that allows the ownership of slaves, and I own a slave, I should be punishable under US law because US law forbids slavery? What about a Japanese man having sex with a 14 year old girl? It�s legal in his country for his citizens... should we drag him over here and try him for statutory rape?

The US needs to realize that our laws STOP at our borders. How can a company in another country be held accountable to our laws? You're going to say "if they do business here, they should be held accountable to our laws"... and there you're right. But you�re talking about �blocking the other incarnations of Rojadirecta�� what other incarnations? We already �stopped� their way into America� are we going to �defend the world� against them next and just shut down a company that IS LEGAL IN THIER OWN COUNTRY?

All of this will just make business not want to do business with us. That 30% drop in Rojadirecta's could represent the loss of US 'customers' and maybe they're OK with that. Hell, maybe they redirected their business plan to cut of the US from their model and move on in the world. Way to create isolationism! No wonder so much of the rest of the world thinks our government is imperialistic.
[ link to this | view in thread ]