The Connection Between Wikileaks Censorship And PROTECT IP: Censorship Through Cutting Off Service Providers

from the this-is-a-problem dept

Fri, Oct 21st 2011 6:30am — Mike Masnick

The always thought-provoking Yochai Benkler, has a new paper, which, unfortunately (and pointlessly given Benkler's key points -- see update below), is locked up behind an MIT paywall. It explores the "new vector" for censorship found in both the attacks on Wikileaks and the PROTECT IP Act: censorship by forcing service providers to not do business with certain websites. As the abstract notes:

The WikiLeaks affair and proposed copyright bills introduced in the Senate are evidence of a new, extralegal path of attack aimed at preventing access and disrupting the payment systems and advertising of targeted sites. In this model, the attacker may be a government agency seeking to circumvent constitutional constraints on its power or a private company trying to enforce its interests beyond those afforded by procedural or substantive safeguards in the law. The vector of attack runs through the targeted site's critical service providers, disrupting technical services, such as Domain Name System service, cloud storage, or search capabilities; and business-related services, such as payment systems or advertising. The characteristics that make this type of attack new are that it targets an entire site, rather than aiming for removal or exclusion of specific offending materials; operates through denial of business and financial systems, in addition to targeting technical systems; and systematically harnesses extralegal pressure to achieve results beyond what law would provide or even permit.

As he notes, the law has historically focused on narrowly targeting any attack on speech by removing just the offending works. That's about the only way that such efforts could line up with the First Amendment (and some may reasonably even argue that point). Yet with government pressure from the likes of Senator Joe Lieberman and the new PROTECT IP Act, they now go for scorched earth policies in which a variety of service providers are suddenly pressured or required to no longer do business with the sites in question. Payment processors, "information location tools," ad networks and DNS providers are all told they have to cut off the offending site. While the site itself may not be touched, the goal is to effectively starve such sites out, by blocking most reasonable services that such a site needs to exist.

While putting tremendous compliance burdens on those third party service providers, it also goes against the very fundamentals of the First Amendment in that it doesn't merely seek to stop illegal speech, but takes a broad attack against entire sites. The risk here was clearly laid out earlier this year by over 100 law professors including many of the most respected in the field. The other side has only trotted out one lawyer on their side: Floyd Abrams (who, while famous as a First Amendment lawyer, also does a lot of work with Hollywood). Supporters of this massive threat to the First Amendment keep pretending that as long as they say "Floyd Abrams says it's fine!" that they can ignore everyone else raising serious and significant First Amendment concerns. The problem, of course, is that even Abrams' "support" is pretty weak.

In fact, if you read what Abrams actually says (pdf), at points he appears to come out against provisions of PROTECT IP as violating the First Amendment. Such as this:

Any bill providing injunctive relief should be limited to halting infringement and prohibiting future infringement online, not acting as a prior restraint on protected speech in the future. For example, if a site or domain is seized or blocked for infringement, operators must be free to post all their non-infringing content elsewhere, as well as on their original site, once the infringing content is removed.

Except, as we've seen with the Puerto 80 case, the government does not allow site operators to repost non-infringing content on their original site at all. Given that Benkler, in the paper above, compares PROTECT IP to the Wikileaks situation, it should equally come as no surprise that Abrams last year ran into some problems for misrepresenting Wikileaks' actions in trying to support censoring that site.

In the long run, I find it difficult to see how one can be intellectually honest and side with Abrams on these issues, as compared to Benkler, who makes a pretty compelling case that these kinds of attacks on free speech are something to be worried about.

Update: Benkler sends over a link to a non-paywalled version (pdf).

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Filed Under: censorship, protect ip, service providers, third parties, yochai benkler

93 Comments

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xenomancer (profile), 21 Oct 2011 @ 5:56am

Problem:Solution
I see LOCKSS being used on a much broader scale in the future. The solution to this kind of blatant censorship policy already exists. We (those pesky internet dwellers) already fixed the inadvertent version of what these bumbling idiots plan on doing on purpose.
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Thomas (profile), 21 Oct 2011 @ 6:45am

Great opening..
allowing the feds to cut off sites that criticize the government under the guise of Protect IP. The feds want to control the internet as closely as North Korea or China.
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John Doe, 21 Oct 2011 @ 6:55am

Not a new tactic for the government
While this type of attack may be new in the IP arena, it is old hat to the 2nd amendment. The right to bear arms "shall not be infringed" yet the government limits the number of guns purchased, taxes guns and ammo with proposals being mentioned to tax them beyond reach of most, requiring gun sellers to record who purchased the gun and keeping those records indefinitely and so on.

I don't understand how "we the people" have allowed ourselves to become servants of our government rather than the government being our servant?
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Anonymous Coward, 21 Oct 2011 @ 6:58am

So what, specifically does Puerto 80 claim to be the free speech that was violated? Did it have a discussion board that became inaccessible or does it claim its directory to infringing content is protected speech? If the claim is that its directory is protected speech, I think that is weak. That would be like saying a phone book is covered by the First Amendment and I think that's a real stretch. Also, isn't the site back up with a foreign registry?
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John Doe, 21 Oct 2011 @ 7:00am

Re:
Yes, apparently it had forums that are now inaccessible. So what if it is back up with a foreign registry, that does not excuse the violation of the 1st amendment.

One problem with the constitution is it provides protections, but provides no penalties to those who violate its protections.
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A Guy (profile), 21 Oct 2011 @ 7:12am

Luckily, the social structure of the internet is such that as soon as something it is taken down, it will immediately be reposted everywhere. It will be reposted with the news "the US government doesn't want you to see this." Everyone and their mother will soon know about it. Think the Streisand effect on steroids.

Personally, I had never heard of Puerto80 or rojadirecta before the US government took them down. I still don't care enough to visit their site, but at least I now know that if I really wanted to find direct streaming of sporting events, rojadirecta is where to look.
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A, 21 Oct 2011 @ 7:14am

So it's actually a distributed-denial-of-third-party-services-attack by the government/copyright industry?
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Anonymous Coward, 21 Oct 2011 @ 7:29am

Re: Re:
Yes, apparently it had forums that are now inaccessible. So what if it is back up with a foreign registry, that does not excuse the violation of the 1st amendment.

One problem with the constitution is it provides protections, but provides no penalties to those who violate its protections.

So they're back up but the forums are inaccessible? Is the claim that the forums were what was protected speech or its directory of streaming content?
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John Doe, 21 Oct 2011 @ 7:33am

Re: Re: Re:
Probably the whole site should be protected free speech. How can it be illegal for me to tell you where to buy drugs? The illegal act is you buying them, my telling you where you can get them should not be illegal.

And again, whether or not the site is back up under a different domain has nothing to do with the fact that the 1st amendment has been violated. That is a complete straw man.
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Anonymous Coward, 21 Oct 2011 @ 7:35am

"the law has historically focused on narrowly targeting any attack on speech by removing just the offending works. "

This is true, but only where possible. That is to say, they won't close a book store because of a single book, but they may close a bookstore is most or all of the books are illegal.

The Puerto80 / Roja case is a perfect example. There are many reasons to keep the site offline, from the point that the vast majority of the content was either infringing or aided directly in the infringing, to the idea that turning it back on would only serve to restart the activities again. Clearly also, the site owners are free to post whatever material they feel is legal on their main site at any time.

I know it's hard to accept Mike, but sometimes it isn't a single bad item, it's a site that is a cesspool. The occasional "good" or legal item in the mix isn't enough to justify the rest of it.
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Anonymous Coward, 21 Oct 2011 @ 7:57am

Except, as we've seen with the Puerto 80 case, the government does not allow site operators to repost non-infringing content on their original site at all.

That's simply untrue, Mike. Puerto 80 and the government had talks, and the government offered to return the domain names if Puerto 80 would remove the infringing content. Puerto 80 refused.
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out_of_the_blue, 21 Oct 2011 @ 8:04am

Benkler's paper is "locked up behind an MIT paywall"? -- LIBERATE IT!
Come on, Mike, be consistent. If this paper is important enough for basis of a piece here, its "information wants to be free", so find a way to put it in a file locker; we need it.

Well, actually we don't. This Benkler seems to have merely noticed the ongoing merger of gov't and corporations -- to mutual pleasure and advantage, a symbiosis, not forced on either -- which is described by the word fascism. He should look into banking regulations, where banks are effectively gov't agents, along with numerous other areas where gov't has businesses act as unpaid agents in enforcing this or that "law", besides the ongoing increase of ID requirements for even ordinary transactions. Getting to be so citizens can't do anything without permission and identifying. If this Benkler ever came out of the ivory tower, he'd know that; if he had any real example of free living to compare, he'd regard Massachusetts as a police state already. -- Anyway, Gov't will use any means it can, and corporations will seek "laws" and your favorite phrase, "regulatory capture", by which to extract money and control the populace.

Wish you'd stop beating the dead horse of Puerto80: that's tangled with actual infringement which is reasonably regarded as the /cause/ for taking the web-site down, was NOT done to stifle free speech, merely a side-effect from Puert80's (verging on, to please you freetards) criminal actions. But since the site was using a dodge of indirectness to effectively dodge copyright, you're left with only a technical dodge in an area of law that you know is changing, and you know in which direction it's changing, and WHY is because of piracy. The case is a complete non-starter on its merits, so they're yelling "first amendment" in attempt to continue (verging on) infringement. Trouble with law cases is that it clears up gray areas, and often not in a way that anyone reasonable wants. Puerto80 may actually end up /damaging/ everyone's free speech by not slinking away quietly and starting another site...
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Anonymous Coward, 21 Oct 2011 @ 8:06am

Re: Re: Re: Re:
Ok, I understand your point. A few questions:

Does the First Amendment protect websites whose purpose is to direct people to child pornography streams? How about the forum connected with the site? Do you believe that is protected?

I have a real problem when free speech principles are used as a shield for lawbreaking as opposed to the legitimate expression of ideas, criticisms, etc. I also don't believe that having a forum (though legitimate) is a sufficient shield for the unlawful infringing (or enabling) activity.

Your analogy is a bit weak. There's a difference between telling someone where they can buy some crack and establishing a worldwide directory that links to infringing content. A more accurate portrayal would be that if you told someone where to buy crack and then drove them there to buy it as well. Providing the link is providing the transportation. That seems an awful lot like aiding and abetting. And while this is not a perfect analogy, the fact that the essence of the business model is to provide a resource for the furtherance of unlawful activity, strips it of the already thin protections its entitled to under the First Amendment (in my mind at any rate). I also think that the First Amendment provides different levels of protection. Individual speech critical of government or institutions gets the highest level. Commercial enterprises relying on free speech to justify promoting unlawful activity are hardly deserving of the same protection.
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E. Zachary Knight (profile), 21 Oct 2011 @ 8:20am

Re:
That is because the site is legal in the country it is hosted in and operated from. Why should they have to remove content from a site that is legal for them to operate everywhere except the US?
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Anonymous Coward, 21 Oct 2011 @ 8:22am

Re: Re: Re: Re: Re:
the analogy is wrong also, he is only teling you where to buy somthing that is = to posting a link, if you want to say that he is draving the eprson to taht plase is the same as me being in the house of someone and tey ask where can i get this and i use their computer ant take them to the site, to put it in a simple way if ai post a link is up to the perso if they click that link and go to that site that is = to telling a person A where to buy somthing and the person A then decide if they click / or drive to that site
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Anonymous Coward, 21 Oct 2011 @ 8:39am

Re: Re:
Zach, the site was legal for consumption in it's home country, but Spanish courts cannot rule on a service offered to the US public. Thanks for playing!
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gorehound (profile), 21 Oct 2011 @ 8:42am

Re: Great opening..
Senator Joe Lieberman and the new PROTECT IP Act
Lieberman should be tarred & feathered
PROTCET-IP ACT is like that real shitty toilet paper that falls apart when you wipe your butt !!!

Join the OCCUPY MOVEMENT ! End the Corruption in Washington.the more people who write to their Reps and put a few hours on the streets the better.And if there is a Country-Wide Call to OCCUPY WASHINGTON millions of us should go there.This whole PROTECT-IP is so bad we must protest it and fight it.
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John Doe, 21 Oct 2011 @ 8:47am

Re: Re: Re: Re: Re:
The problem is, you still cannot suppress all speech to get to the infringing speech. There are remedies in the law to go after the infringing speech.

Besides, the website was already found to be legal in Spain so why are we enforcing US law in Spain? Spain should have a big problem with that.
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Gwiz (profile), 21 Oct 2011 @ 8:49am

Re: Re: Re: Re: Re:
How about the forum connected with the site? Do you believe that is protected?

Absolutely. Speech is speech. Just because I personally find it disgusting and revolting doesn't change that fact. Even Florida officials recognized that with that idiot who published a how-to book for pedophilia. He was arrested because the book contained illustrations, not because of the text.

[Polk County, Florida, Sheriff Grady] Judd said he was frustrated that Greaves' book was protected under freedom of speech laws, even though it was created "specifically to teach people how to sexually molest and rape children."
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Anonymous Coward, 21 Oct 2011 @ 9:00am

Re: Re:
That is because the site is legal in the country it is hosted in and operated from. Why should they have to remove content from a site that is legal for them to operate everywhere except the US?

You didn't address my point, which was that Mike is wrong in saying that Puerto 80 was not allowed to repost non-infringing content. They were allowed to do that, and they refused.

To answer your point, though: Puerto 80 used a domain name registered in the US and subject to US law. The site's legality in other countries is irrelevant. If Puerto 80 wants to use property that exists in the US, then it needs to not violate US law.
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Tor (profile), 21 Oct 2011 @ 9:08am

DOSP
Maybe we need a new term for this type of attack: Denial Of Service Providers (DOSP)
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Gwiz (profile), 21 Oct 2011 @ 9:12am

Re: Re: Re:
Zach, the site was legal for consumption in it's home country, but Spanish courts cannot rule on a service offered to the US public. Thanks for playing!

But the US courts can rule on a service offered to another soviergn nation? Is that a one way street you got going there?

And how did you come to the conclusion that this service was "offered to the US public"? If it's based on the simple fact that it's viewable in the US, than that is a huge can of worms to open there, Sparky. Do you really want US citizens to have to abide by Sharia laws because our websites are visible in countries with such laws?
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Anonymous Coward, 21 Oct 2011 @ 9:15am

Re: Re: Re: Re: Re:
Do their servers transport the data to the infringing content?
Nope.

So how it is like providing transportation?

The correct technical way to translate that to a real world scenario is to to say that link is an address that others can input in their GPS navigators to get them there apart from the address the servers do nothing else.
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Anonymous Coward, 21 Oct 2011 @ 9:16am

Re:
It is also a legal website.
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John Fenderson (profile), 21 Oct 2011 @ 9:16am

Re:
That would be like saying a phone book is covered by the First Amendment and I think that's a real stretch.

How is that a stretch? The phone book absolutely is, and should be, covered by the first amendment. Are you saying it's not a violation of free speech rights to tell people that they can't distribute factual information?
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Anonymous Coward, 21 Oct 2011 @ 9:16am

Re:
Puerto80 is a legal website how is that a perfect example of any wrong doing?
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Anonymous Coward, 21 Oct 2011 @ 9:18am

Re: Re: Re:
And why US courts can rule on Spanish websites?
Can Spanish courts seize all assets in Europe for Google, Facebook for things that happen in Spain?
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Anonymous Coward, 21 Oct 2011 @ 9:18am

Re: Re: Re: Re: Re: Re:
You are wrong on this one. Roja used a US based registrary, the US has jurisdiction just from that factor alone. Even Roja itself is not arguing the jurisdictional question.

And I think you have it backwards. The directory to infringing content was primary, the forum ancillary. The legal ancillary cannot shield the unlawful primary.
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Anonymous Coward, 21 Oct 2011 @ 9:20am

Re: Re: Re:
Do you have any web presence?

A Facebook account perhaps?

It would be legal for Spain to seize every asset you have in Europe because of something that you did in the US?
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John Fenderson (profile), 21 Oct 2011 @ 9:22am

Re:
As I understand it, the site contained no infringing content. It contained links, but links aren't infringing. And even then, the US had to stretch the law to the point of breaking to even begin to make an argument.
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Anonymous Coward, 21 Oct 2011 @ 9:23am

Re: Re: Re: Re: Re: Re: Re:
So if you use an account in Europe that means anything you do wrong inside the US is now legal to seize eveything you have inside Europe right?
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John Fenderson (profile), 21 Oct 2011 @ 9:24am

Re: Benkler's paper is "locked up behind an MIT paywall"? -- LIBERATE IT!
But since the site was using a dodge of indirectness to effectively dodge copyright

You mean the technical dodge of it being completely legal?
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Anonymous Coward, 21 Oct 2011 @ 9:25am

Re: Re: Re: Re: Re: Re: Re: Re:
So if you have assets in Europe and you break European law while in the US they can seize everything you own there correct?

That will be fun.
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Anonymous Coward, 21 Oct 2011 @ 9:25am

Re: Re: Re: Re: Re: Re:
Yes, but infringing content (and aiding and abetting thereto) does not enjoy First Amendment protection. So the minor role that the forum played on the site doesn't extend First Amendment immunity to the site's unlawful activity. In fact, as noted elsewhere in this thread, Puerto 80 was offered the opportunity to have its domain returned if it dropped the unlawful aspects of it. They refused, assumedly because the unlawful aspect was the core of its business model.
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Anonymous Coward, 21 Oct 2011 @ 9:27am

Re: Re: Re: Re: Re: Re:
OK, I accept that as a better analogy. I don't see how a business model so structured wouldn't be in violation of aiding and abetting or conspiracy statutes.
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Anonymous Coward, 21 Oct 2011 @ 9:28am

Re: Re: Re: Re: Re: Re: Re:
Rojadirecta is a Spanish Website, dedicated to the Spanish market and fallows Spanish law that happens to have use a registrar in the US.

How do you seem to think it is reasonable to believe the US has any standing or right to dictate how others should act is just unbelievable.

You lost touch with reality trying to justify your self-serving interests.
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Anonymous Coward, 21 Oct 2011 @ 9:31am

Re: Re:
How about if the phone book only contains contact information for purveyors of child pornography?
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Anonymous Coward, 21 Oct 2011 @ 9:34am

Re: Re: Re:
When will you stop hiding behind the children?
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Anonymous Coward, 21 Oct 2011 @ 9:36am

Re: Re: Re:
Piracy is not about child pornography, it is about granted monopolistic rights, that are so convoluted that there is no clear way to say if something is right or wrong without an intrusive process that can also be used to censor things.
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Gwiz (profile), 21 Oct 2011 @ 9:36am

Re: Re: Re: Re: Re: Re: Re:
Yes, but infringing content (and aiding and abetting thereto) does not enjoy First Amendment protection.

That is assuming DOJ/ICE/Disney's theory of aiding and abetting of copyright infringement will be validated with actual legal precedence.
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Anonymous Coward, 21 Oct 2011 @ 9:41am

Re: Re: Re: Re:
"Zach, the site was legal for consumption in it's home country, but Spanish courts cannot rule on a service offered to the US public. Thanks for playing!"

But the US courts can rule on a service offered to another soviergn nation? Is that a one way street you got going there?

And how did you come to the conclusion that this service was "offered to the US public"? If it's based on the simple fact that it's viewable in the US, than that is a huge can of worms to open there, Sparky. Do you really want US citizens to have to abide by Sharia laws because our websites are visible in countries with such laws?

It's not simply accessibility. I'd well expect that if I registered my porn site (and utilized the Pashto language on the website) on an Afghani registry that the Afghan government would have both jurisdiction and legal justification to seize it. Like many of the foreign operators of these sites, I wouldn't bother flying to Kabul to defend my free speech rights; knowing full well that what I did was unlawful under Sharia (or whatever ass-backward law they operate under) and that a caning awaited me.
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Anonymous Coward, 21 Oct 2011 @ 9:43am

Re:
Where the fuck are you getting your information from?

Puerto 80's account of negotiations:

On May 26,2011, following weeks of prolonged negotiations, the government rejected Puerto 80's offers to compromise, and informed Puerto 80 that it would not agree to return the domain names unless Puerto 80 agreed not to host or permit its users to link to any U.S. content anywhere on its sites anywhere in the world. Tangri Decl. 78. Because the government's demand requires more than is prohibited under current U.S. law, Puerto 80 decided to move forward with its judicial challenge to the seizure.

The government's account of negotiations:

Those discussions included, among other things, the Government's offer to return the Rojadirecta Domain Names to Puerto 80 under an agreement in which the website would host chat forums and other non-infringing materials under the observation of a firm retained to monitor Puerto 80' s compliance.
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Anonymous Coward, 21 Oct 2011 @ 9:45am

Re: Re: Re: Re: Re: Re: Re:
Because you don't want to take into account that copyright can't be decided by anyone except a judge.

Copyright is not something that is clear and cut, it is messy, convoluted, shrouded in a mist of uncertainty, if you find cocaine with someone there is no way to deny the possession of the illegal substance, now can you say with absolute certainty that all the material that a website points to is illegal content? Have all the uncertainties have been dismissed?

No you can't, not even the copyright owner can know that because they often ignore the limitations copyright has and it does has limitations.

To violate those statutes you have to show intent can you show that?
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MrWilson, 21 Oct 2011 @ 9:48am

Re: Re: Re: Re: Re:
The child pornography analogy for copyright infringement has been addressed numerous times before.

Every part of child pornography is illegal, including its production, promotion, transmission, and distribution. It is against the law to view it, to link to it, to make it, to promote it, etc.

Linking to infringing content is not itself infringing. There is no copying being done in the mere linking. Not to mention, the legality of the content may differ from place to place, so what is infringing content one place may not be infringing in another place, not to mention the possibility of fair use protections, personal backups, excerpts, etc.

None of these protections apply to child pornography, but they may apply to possibly infringing content.
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Anonymous Coward, 21 Oct 2011 @ 9:50am

Re: Re: Re: Re: Re:
So anyone who has a web presence now has to know every law ever written as to not be a criminal in any country around the world or risk being jailed if they ever go there in a holiday or get their assets seized.

That makes a lot of sense.
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Chuck Norris' Enemy (deceased) (profile), 21 Oct 2011 @ 9:54am

Re:
Yep, I can't access their forums. I brought this up before...with links to the wayback machine in a previous comment a while back.
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Gwiz (profile), 21 Oct 2011 @ 9:55am

Re: Re: Re: Re: Re:
If it's not simply accessibility, then what is the criteria?

Domain registry location? That is really stacking the deck against anyone who isn't in the US, isn't it, since ICANN, Verisign and most others are in the US.

Language? That's a tough one since us Americans have made sure that English is the language of global business.

Currency? That's tough too for the same reasons as language.
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Jay (profile), 21 Oct 2011 @ 9:56am

Connecting the dots
I called it a few months ago.

Funny how looking at the incentives of politicians and those hiding under the guise of democracy can't connect the dots and look at their behavior as wrong.
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out_of_the_blue, 21 Oct 2011 @ 10:03am

Re: Benkler's paper is "locked up behind an MIT paywall"? -- LIBERATE IT!
But since the site was using a dodge of indirectness to dodge....

using a dodge to dodge, how novel, I should try harder. Nevermind the fact that we are policing other countries sites, that do not infringe in any manner or violate any of that countries laws.

I am a first class douche.
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Anonymous Coward, 21 Oct 2011 @ 10:08am

Re: Re: Re: Re: Re: Re:
US law is not being applied in Spain. It is being applied only in the US.
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John Fenderson (profile), 21 Oct 2011 @ 10:09am

Re: Re: Re:
What about it? This, too, is protected speech.
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Jay (profile), 21 Oct 2011 @ 10:23am

Re: Re: Re: Re: Re: Re:
"Language? That's a tough one since us Americans have made sure that English is the language of global business."

*ahem*

Yes, I was an English major before. The fact that English is spoken works worldwide is because of the (now) UK and it's globalistic tendencies.
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Gwiz (profile), 21 Oct 2011 @ 10:31am

Re: Re: Re: Re: Re: Re: Re:
Fair enough. I stand corrected on that point.
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Anonymous Coward, 21 Oct 2011 @ 11:21am

Re: Re: Re: Re:
Do you have any web presence?

A Facebook account perhaps?

It would be legal for Spain to seize every asset you have in Europe because of something that you did in the US?

If I register a .es domain name and use the site it points to to violate Spanish law, then that domain name could be seized by Spain.
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Anonymous Coward, 21 Oct 2011 @ 11:22am

Re: Re:
Um, how does that negative what I said? That confirms my point.
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Anonymous Coward, 21 Oct 2011 @ 11:25am

Re: Re:
As I understand it, the site contained no infringing content. It contained links, but links aren't infringing. And even then, the US had to stretch the law to the point of breaking to even begin to make an argument.

How do you figure that links aren't infringing? If I purposefully collect links to infringing content and post them on my website to help other people infringe, then I'm secondarily liable (civil law) or aiding and abetting (criminal law).

The ones stretching the law to the point of breaking are the ones who deny that linking of this sort isn't legal. Talk about wishful thinking.
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Anonymous Coward, 21 Oct 2011 @ 11:26am

Re: Re: Re: Re: Re: Re: Re: Re:
Because you don't want to take into account that copyright can't be decided by anyone except a judge.

That's not exactly true. It's easy to establish probable cause by showing digital fingerprints or watermarks on infringing content. Plus while there may be controversy regarding the copyright status of a select, small number of works- the overwhelming amount of content on these types of sites is slamdunk infringing.

Copyright is not something that is clear and cut, it is messy, convoluted, shrouded in a mist of uncertainty, if you find cocaine with someone there is no way to deny the possession of the illegal substance, now can you say with absolute certainty that all the material that a website points to is illegal content? Have all the uncertainties have been dismissed?

Again, you may be right in a small fraction of instances, like YouTube for example. But TVshack is no YouTube. Nor was there any mistaking NinjaVideo for YouTube. Again, the tail doesn't wag the dog. You can't reasonable expect first amendment protection when the overwhelming amount of the so-called "free speech" is not constitutionally protected.

No you can't, not even the copyright owner can know that because they often ignore the limitations copyright has and it does has limitations.

See above.

To violate those statutes you have to show intent can you show that?

This is really weak. Do you seriously think that the people behind these sites are innocently violating copyright law? Again, back to YouTube. Infringing work does reach their site. They do a (fairly) decent job of managing it. And it's not the core of their business model. Moreover, they respond to DMCA takedown notices and are subject to US jurisprudence. That's very different than the offshore actors targeted by the Protect IP Act.
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Anonymous Coward, 21 Oct 2011 @ 11:28am

Re:
So what, specifically does Puerto 80 claim to be the free speech that was violated?

All of it. Every last little piece.

You'll note that it's not just them, but the courts in their home country also said that.

If the claim is that its directory is protected speech, I think that is weak.

You're wrong. They are completely non-infringing, proven by a court of law.
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Anonymous Coward, 21 Oct 2011 @ 11:28am

Re: Re:
Even the court in Spain found that Rojadirecta facilitates infringement. Facilitating infringement might be legal in Spain, but it's not in the U.S.--and in the U.S. is where they registered their domain names (thus making them subject to U.S. law).
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Anonymous Coward, 21 Oct 2011 @ 11:32am

Re: Re: Re: Re: Re: Re:
So anyone who has a web presence now has to know every law ever written as to not be a criminal in any country around the world or risk being jailed if they ever go there in a holiday or get their assets seized.

That makes a lot of sense.

If you register a domain name in country X, then your domain name would be subject to the laws of country X. It makes perfect sense.
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Anonymous Coward, 21 Oct 2011 @ 11:33am

Re: Re: Re: Re: Re: Re:
None of these protections apply to child pornography, but they may apply to possibly infringing content.

Why? You can't have it both ways. If your argument that linking to infringing content is not itself infringing; then how can linking to child pornography be unlawful?

They both supply links to unlawful content, but in your view one is OK and the other not?

Sorry, I submit that linking is no different than aiding and abetting and further think that to the extent that linking directories act in concert with those that host there are the necessary elements to charge them with conspiracy as well.
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Anonymous Coward, 21 Oct 2011 @ 11:36am

Re: Re: Re: Re:
When will you stop hiding behind the children?

Does it make you uncomfortable to have pointed out the arguments you make to enjoy continued free access to copyrighted content also applies to the access to child pornography? It should.
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Anonymous Coward, 21 Oct 2011 @ 11:38am

Re: Re:
You're wrong. They are completely non-infringing, proven by a court of law.

Sorry. Wrong court, wrong country. They'd have been fine had they not chosen a US registry.
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Gwiz (profile), 21 Oct 2011 @ 11:47am

Re: Re: Re:
The ones stretching the law to the point of breaking are the ones who deny that linking of this sort isn't legal. Talk about wishful thinking.

Actually you are being wishful here. This is still muddy waters in the US.

A few courts have said that a hyperlink violates the law if it points to illegal material with the purpose of disseminating that illegal material. (Universal v. Reimerdes) & (Intellectual Reserve v. Utah Lighthouse Ministry).

But in contrast, the court in Ticketmaster v. Tickets.com found that links were not infringements of copyright.

Also, note that if the site is following the DMCA Safe Harbor rules then there is no 3rd party liability for them at all for copyright infringement.
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Anonymous Coward, 21 Oct 2011 @ 11:51am

Re: Re: Re: Re: Re: Re:
Do you honestly think that the operators of these infringing sites don't know that what they're doing is illegal in the US? It's not "every law ever written.....in any country around the world" It very specifically is whether they have knowledge that what they're doing is unlawful in the US. Anyone sophisticated to put together one of these sites absolutely understands what's what. Stop pretending that some erstwhile, law-abiding citizen gets swept up in a maelstrom due to some arcane, obscure law. That's utterly laughable.
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Anonymous Coward, 21 Oct 2011 @ 11:55am

Re: Re: Re: Re: Re: Re: Re:
Why? You can't have it both ways. If your argument that linking to infringing content is not itself infringing; then how can linking to child pornography be unlawful?

They both supply links to unlawful content, but in your view one is OK and the other not?

Sorry, I submit that linking is no different than aiding and abetting and further think that to the extent that linking directories act in concert with those that host there are the necessary elements to charge them with conspiracy as well.

In fact, courts find that sending someone a link to child porn is the same thing as sending someone the porn itself. If you apply the logic to copyright, I think it's fair to treat someone who links to infringing material as if they committed the infringement themselves. That's where I predict the courts will fall down on this issue. And, ironically enough, Puerto 80 is helping that reality to come about.
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lucidrenegade (profile), 21 Oct 2011 @ 12:07pm

Re: Re: Re: Re: Re:
Somebody need a hug from Pedobear.
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Anonymous Coward, 21 Oct 2011 @ 12:07pm

Re: Re: Re: Re:
Actually you are being wishful here. This is still muddy waters in the US.

A few courts have said that a hyperlink violates the law if it points to illegal material with the purpose of disseminating that illegal material. (Universal v. Reimerdes) & (Intellectual Reserve v. Utah Lighthouse Ministry).

But in contrast, the court in Ticketmaster v. Tickets.com found that links were not infringements of copyright.

Also, note that if the site is following the DMCA Safe Harbor rules then there is no 3rd party liability for them at all for copyright infringement.

Tell that to IsoHunt, Grokster, TorrentBox, NinjaVideo, Napster, etc. The idea that Rojadirecta is legal in the U.S. is laughable.
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Anonymous Coward, 21 Oct 2011 @ 12:10pm

Re: Connecting the dots
I called it a few months ago.

Sooooo..... Protect IP was drafted to get rid of Wikileaks??? I think you and Assange spend a little too much time at the Fortress of Solitude wearing your tinfoil helmets
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Anonymous Coward, 21 Oct 2011 @ 12:16pm

Re: Re: Re: Re: Re: Re: Re:
Child pronography is always a crime. Infringing content is not always crime. So in reality the law itself has it both ways. The two situations are not at all similar.
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Anonymous Coward, 21 Oct 2011 @ 12:19pm

Re: Re: Re: Re: Re:
Does it make you uncomfortable to leverage the exploitation of children to engage by conflating child pornography with copyright violation in an attempt to short circuit actual debate? It should.
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Anonymous Coward, 21 Oct 2011 @ 12:24pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
"Do you seriously think that the people behind these sites are innocently violating copyright law?"

Presumption of guilt. How typical. Do you seriously think that after being ruled legal in Spain they would bring suit in the US if they were sure they were violating copyright law?
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Anonymous Coward, 21 Oct 2011 @ 12:27pm

Re: Re: Re: Re: Re: Re: Re:
Puerto 80 refused to drop aspects of their site that have never actually been ruled illegal just to get their domain back once it was held hostage? Good on them.
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Gwiz (profile), 21 Oct 2011 @ 12:45pm

Re: Re: Re: Re: Re:
Tell that to IsoHunt, Grokster, TorrentBox, NinjaVideo, Napster, etc.

Weren't those all cases of being liable for inducing copyright infringement? That is different than merely having links to infringing material. That is actively engaging in getting your users to infringe.

And, I personally believe the IsoHunt case was wrong. Fung was removing infringing links when notified of them with a DMCA notification type system, even though he didn't have to. If he had been located in the US, then the DMCA safe harbors would have protected him.

The idea that Rojadirecta is legal in the U.S. is laughable.

The idea that the US has legal jurisdiction over a Spanish entity is laughable really.
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Anonymous Coward, 21 Oct 2011 @ 1:06pm

Re: Re: Re: Re: Re: Re:
Weren't those all cases of being liable for inducing copyright infringement? That is different than merely having links to infringing material. That is actively engaging in getting your users to infringe.

And, I personally believe the IsoHunt case was wrong. Fung was removing infringing links when notified of them with a DMCA notification type system, even though he didn't have to. If he had been located in the US, then the DMCA safe harbors would have protected him.

The DMCA isn't a shield to those who knowingly induce, assist, facilitate, aid, and abet infringement. You can't set up a site dedicated to infringement and then escape all liability by responding to takedown notices. That's just laughable.

The idea that the US has legal jurisdiction over a Spanish entity is laughable really.

In the Rojadirecta case, the court is exercising in rem jurisdiction over the domain names themselves. Puerto 80 is not even arguing that the court doesn't have jurisdiction. I actually think that S.D.N.Y. doesn't have jurisdiction over the domain names since they are registered in another state. I think it violates Due Process to have the proceedings in S.D.N.Y. Why Puerto 80 didn't challenge this perplexes me. At this point though, Puerto 80 has forfeited their right to challenge jurisdiction.

In the Puerto 80 case, Puerto 80 is the petitioner, meaning they consented to jurisdiction in S.D.N.Y. when they filed their petition there.
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Gwiz (profile), 21 Oct 2011 @ 1:07pm

Re: Re: Re: Re: Re: Re: Re:
Do you honestly think that the operators of these infringing sites don't know that what they're doing is illegal in the US?

I honestly think that if set up a website in some country outside of the US, then my worries would about what was legal in that country and I wouldn't give a rat's what is legal in the US. (although I would make sure my domain wasn't registered in the US after witnessing the events of the last year or so)
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Jay (profile), 21 Oct 2011 @ 1:29pm

Re: Re: Re: Re: Re: Re: Re:
The DMCA isn't a shield to those who knowingly induce, assist, facilitate, aid, and abet infringement. You can't set up a site dedicated to infringement and then escape all liability by responding to takedown notices.

"The DMCA safe harbors don't apply because no court found you liable?"

"In the Puerto 80 case, Puerto 80 is the petitioner, meaning they consented to jurisdiction in S.D.N.Y. when they filed their petition there"

But the government has been stalling, and the NY branch are the ones that took it. Isn't it kind of a catch-22 that they don't have the jurisdiction, have been leading ALL sites on a merry goose chase, then saying they're liable for the infringement without any type of argument in a court of law beforehand?
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Jay (profile), 21 Oct 2011 @ 1:31pm

Re: Re: Connecting the dots
Hey Buck, how've you been?

What, no other comments such as about the article here and the similarities of what the RIAA and MPAA want, and the government's to try to silence Wikileaks?
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Gwiz (profile), 21 Oct 2011 @ 1:32pm

Re: Re: Re: Re: Re: Re: Re:
The DMCA isn't a shield to those who knowingly induce, assist, facilitate, aid, and abet infringement. You can't set up a site dedicated to infringement and then escape all liability by responding to takedown notices. That's just laughable.

Fair enough. I can see your point there. Not sure I agree 100% though.

Out of curiosity, how would one setup a legal torrent indexing site in the US then?
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Any Mouse (profile), 21 Oct 2011 @ 1:37pm

Re: Re: Re: Re: Re: Re: Re:
I still don't buy that argument. The registries are supposed to be international. Do you seriously believe anyone, if they'd been informed the US would have jurisdiction over their websites, would have ever bothered with a US based registry? It's little more than the US trying to take yet more control over a medium they have no business with.
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Any Mouse (profile), 21 Oct 2011 @ 1:50pm

Re: Re: Re: Re: Re:
Child pornography is treated differently than any other offense. This is something you are well aware of. You cannot compare the two without making yourself look greasy in the process. Drop that line of argument, it will not win you the day.
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Anonymous Coward, 21 Oct 2011 @ 1:54pm

Re: Re: Re: Re: Re: Re: Re: Re:
It's not a Catch-22 since Puerto 80 could have made a special appearance and challenged jurisdiction, but they chose not to do this. There's a lot of caselaw from ACPA (cybersquatting) litigation that says jurisdiction only lies in the district where the domain name is registered. For Puerto 80, I believe (but could be misremembering) that that would be Pennsylvania.
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Anonymous Coward, 21 Oct 2011 @ 1:57pm

Re: Re: Re: Connecting the dots
Hey Buck, how've you been?

What, no other comments such as about the article here and the similarities of what the RIAA and MPAA want, and the government's to try to silence Wikileaks?

Hi Jay. Interesting to learn you were an English major. I never would have guessed after reading the second sentence.

And yes, for your viewing pleasure and acclaim I can be found at posts 4, 8, 13, 28,34, 35, 37, 41, 57, 61, 62, 63, 65, 69. Have a good weekend.
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Jay (profile), 21 Oct 2011 @ 3:25pm

Re: Re: Re:
Yes, they can and have done so on a number of occasions: yahoo v France, Google in Brazil... These are a few off the top of my head.
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Sarah, 21 Oct 2011 @ 3:53pm

Wikileaks
Wikileaks has let out some important and secret information over the last few years. If you don't know what wikileaks is, this article gives an explanation on it.

http://explainlikeakid.blogspot.com/2011/10/wiki-leaks.html
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Jay (profile), 21 Oct 2011 @ 4:45pm

Re: Re: Re: Re: Re: Re: Re:
And having an affect on foreign markets.
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Jay (profile), 21 Oct 2011 @ 4:45pm

Re: Re: Re: Re: Re: Re: Re:
And having an affect on foreign markets.
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Jay (profile), 21 Oct 2011 @ 4:45pm

Re: Re: Re: Re: Re: Re: Re:
And having an affect on foreign markets.
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Jay (profile), 21 Oct 2011 @ 4:46pm

Re: Re: Re: Re: Re: Re: Re: Re:
Damn phone, a plague on you!
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Jay (profile), 21 Oct 2011 @ 4:48pm

Re: Re: Re: Re: Re:
And who found that content infringing?
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MrWilson, 21 Oct 2011 @ 5:38pm

Re: Re: Re: Re: Re: Re: Re: Re:
Linking to infringing content can be done for non-infringing purposes. For instance, a journalist can link to potentially infringing content in an article about piracy and say, "hey, I found this content that might be infringing for example." You can't automatically say that content is infringing.

Viacom uploaded its own content to YouTube and then accused Google of hosting unauthorized content. The fact that Viacom uploaded the content means that it was permitting people to view it and therefore wasn't unauthorized. As an analogy, you can't give someone permission to rape you. If you give permission, it isn't, by definition, rape. Some bands "leak" music as a promotional measure. This is unofficially sanctioned "infringing" content. There is no way to definitively know that a link is infringing just by looking at it, even when the copyright owner might say that it is infringing.

A journalist cannot link to child pornography with any kind of journalist or fair use protections. Child porn is always illegal regardless of who uploaded it, distributed it, or linked to it.

That is the difference.
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Anonymous Coward, 22 Oct 2011 @ 9:41am

Re: Re: Re: Re: Re:
Re: �I have a real problem when free speech principles are used as a shield for lawbreaking as opposed to the legitimate expression of ideas, criticisms, etc.�

This, I believe, is a thin and possibly dangerous line to dance around. While I would tend to agree in a broad sense, I also recognize that there are situations where the law is used to suppress legitimate activities. The most readily available example today is the situation surrounding medical marijuana in those states that have legalized it. This has recently included threats to media outlets that accept ads from legal dispensaries. But remember also that at the time of the American revolution it was illegal to oppose the rule of the king of England or to speak or act in any manner that reflected that opposition.

What constitutes �legitimate expression of ideas, criticisms, etc.� is very often subject to the whims of the government when it comes down to what is legal and what is illegal.

It is also important to continually draw the distinction between the civil verses criminal nature of copyright infringement when considering the application of the full force of government power � both judicial and extra-judicial to cases of copyright infringement.

Also, I find the comparison of civil copyright infringement to child pornography to be offensive in the most extreme and inhuman manner and am continually shocked that any decent person with an IQ above freezing one would go there.
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Chilly8, 23 Oct 2011 @ 8:50pm

One issue that I am surprised has not been addressed yet by Congress is the issue of circumventing geo filtering.

A lot of subscription proxies tour circumventing geo filtering as a selling point for their services. I am surprised that Congress does not make a law, similar to the Commercial Felony Streaming Act, to make it a crime to provide the means to bypass geo filtering, if its for commercial gain or private financial gain. I think that will be the next thing from Congress, after PIPA and CFSA are passed.

With all the VPN and subcription proxy services that tout this, I would not be surprised if the next Congress, in 2013, does introduce such a bill to address that issue.
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