Once Again, Political Speech Is Silenced By Copyright/ContentID

from the because-that's-how-it-works dept

Tue, Apr 7th 2015 3:20pm — Mike Masnick

This seems to happen every political season. When he was a Presidential candidate, John McCain got annoyed at YouTube taking down political videos based on copyright claims. During the last Presidential election, a Mitt Romney TV ad featuring President Obama singing an Al Green song was taken down via a copyright claim. And now, 2016 Presidential candidate Rand Paul has discovered that his announcement speech from Tuesday morning has been taken down. This wasn't a DMCA takedown, but yet another case of YouTube's over-eager ContentID doing the job:

Apparently the announcement kicked off with an anti-Wall Street country song, "Shuttin' Detroit Down" by John Rich, whose copyright is held by Warner Music Group.

Of course, Rand Paul has been sort of a mixed bag on copyright. He was one of the first Senators to speak out against SOPA/PIPA in 2011. But, not long after that, he and his father Ron put out a weird internet freedom "manifesto" that appeared to argue for much stronger copyright laws, and which argued that the public domain was an evil "collectivist" threat that was against basic property rights.

Of course, it would be nice if this little incident led candidate Rand Paul to support fixes to copyright law and the DMCA, but as some are pointing out, assuming this really was a ContentID takedown, changes to the DMCA wouldn't much matter -- since ContentID is a private solution, outside of copyright law. That said, it was put in place, in part, to help keep YouTube from getting sued over copyright claims, so a fixed DMCA might lead to a better ContentID offering. Unfortunately, despite a history of copyright and ContentID being abused against political candidates, it still hasn't really resulted in them taking a real platform stand on the problems of copyright law today and how it impacts free expression. It's unlikely that Rand Paul is going to really take a stand on this, especially given that weird manifesto from a few years ago.

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Filed Under: contentid, copyright, dmca, john rich, rand paul, shuttin detroit down, takedown, youtube
Companies: warner music group, youtube

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That One Guy (profile), 7 Apr 2015 @ 3:31pm

Live by the sword, die by the sword
But, not long after that, he and his father Ron put out a weird internet freedom "manifesto" that appeared to argue for much stronger copyright laws, and which argued that the public domain was an evil "collectivist" threat that was against basic property rights.

I admit, I can't say I'm too broken up over an apparent copyright maximalist getting a little taste of their own medicine, and being hit, eve if only temporarily, with the kind of 'shoot first, never ask questions ever' copyright 'enforcement' that they seem to love so much.

Now, ridiculous automatic takedowns like this are still hugely problematical, no matter who they hit, but if they're going to affect someone, I'd at least prefer that they affect someone who is on the side for pushing for harsher copyright laws, which lead to these sort of systems, that of companies paying no attention to collateral damage as long as they can keep themselves safe from insane lawsuits.

The video won't be down for long I'm sure, a simple phone call will likely be enough to fix this(unlike what other people have to go through in similar conditions), but at least for a bit, a maximalist gets to enjoy some of the results of the maximalist mindset.
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avideogameplayer, 7 Apr 2015 @ 3:41pm

What we need to see is whole channels and accounts blasted for anything to happen...
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jupiterkansas (profile), 7 Apr 2015 @ 3:44pm

It's long past time people started using Vimeo or other video services. Google is needs to get out of the copyright police business and let the actual copyright holders do the work.
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Anonymous Coward, 7 Apr 2015 @ 4:06pm

Re: Live by the sword, die by the sword
It is also ironic that mr libertarian was knocked off by a private enforcement system and not something done at the point of a gun held by the government.

Lets see how he reacts...
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Phil, 7 Apr 2015 @ 4:12pm

Why should Ron Paul be allowed to use someone's original work to further his own political career?
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Chronno S. Trigger (profile), 7 Apr 2015 @ 4:21pm

Re:
Lots of Youtubers have had this discussion before. There are no competitors to Youtube. All other streaming sites are too exclusive (Vimeo) or too specialized (everyone else). The only other option for most people on Youtube is to host it yourself (too expensive) or just not upload. In this situation "just do without" is not the correct answer.

Google is the only one willing to deal with relatively unrestricted uploading. And the only reason they're given as much "freedom" as they are is because of the Content ID system. If they didn't have that, they would be up to their eyes in lawsuits. The problem is not Youtube, the problem is further up.
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avideogameplayer, 7 Apr 2015 @ 4:48pm

Re: Re:
The ContentID was a system 'voluntarily' put in place by 'rights holders' so they wouldn't have to dirty their hands or spend money to research what is theirs or not...
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Anonymous Coward, 7 Apr 2015 @ 4:51pm

We used to do business with a hand shake. That was when words like honor and respect had meaning. Why can't I work one day a year and get paid for the other 364? Up yours Sonny Bono, I would mention Cher too, but I'll have to confer with my lawyers before I do. Oops ;)
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antidirt (profile), 7 Apr 2015 @ 4:56pm

That said, it was put in place, in part, to help keep YouTube from getting sued over copyright claims, so a fixed DMCA might lead to a better ContentID offering.

How exactly would you fix the DMCA so that this wouldn't likely happen with ContentID, Mike?
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Atkray (profile), 7 Apr 2015 @ 5:57pm

Make fair-use assumed.
You have to prove it is infringing and isn't fair use, and if you lose you pay.
3 bogus take-downs and you lose your ability to issue take-downs.

Level the field.
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Atkray (profile), 7 Apr 2015 @ 5:59pm

Re:
Above was supposed to be a reply to:

How exactly would you fix the DMCA so that this wouldn't likely happen with ContentID, Mike?

Spartan hates me :|
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Gwiz (profile), 7 Apr 2015 @ 6:07pm

Re:
How exactly would you fix the DMCA so that this wouldn't likely happen with ContentID, Mike?

Obviously I'm not Mike, but I would start with opt-in copyright and a central database to track copyright ownership going forward.

It wouldn't help much with the mess we have on our hands now due to automatic copyright, but future generations would benefit.
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PaulT (profile), 7 Apr 2015 @ 6:55pm

Re: Re: Live by the sword, die by the sword
If I understand American politics correctly - by still trying to claim that this is the fault of government or even Obama personally, then whining about the "liberal" media when people point out this is false?
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Anonymous Coward, 7 Apr 2015 @ 7:04pm

That's right musicians, Mike Masnick thinks anybody should be able to use your song for whatever they'd like- without permission or paying.

But he doesn't hate musicians!
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Anonymous Coward, 7 Apr 2015 @ 7:05pm

Re: Re:
That's not a solution. It wouldn't have changed anything.
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Anonymous Coward, 7 Apr 2015 @ 7:38pm

Re:
Musicians don't have a sharing problem. They know that inspiration is not something than springs from nothing.
Those having a sharing problem are the rights holders. That's what we call all those, whose creativity runs towards living off others (artistic) work.
Like you, they love to jangle the artist to deflect focus from their leeching.
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Gwiz (profile), 7 Apr 2015 @ 7:40pm

Re: Re: Re:
That's not a solution. It wouldn't have changed anything.

I think it would have.

Imagine Google's Content ID system built upon verifiable ownership, as opposed to unsubstantiated claims of ownership. It would be quite a bit different.
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Anonymous Coward, 7 Apr 2015 @ 8:46pm

Re:
Where did he say that? Be specific.
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Anonymous Coward, 7 Apr 2015 @ 11:12pm

Re: Re: Live by the sword, die by the sword
except for the fact that YouTube's ContentID system was created EXACTLY at the end point of a gun held by the government.
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Anonymous Coward, 7 Apr 2015 @ 11:19pm

Re: Re:
opt-in copyright and a central database to track copyright ownership going forward.

that's exactly what ContentID is...

...and in this case WMG, being judge, jury and chief executioner, has decided that the political speech was infringing on their copyrights and ordered the assistant executioner (YouTube) to nuke it. They don't bother with minor details such as fair use when it doesn't let them squeeze money. /sarc
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orbitalinsertion (profile), 7 Apr 2015 @ 11:34pm

Re: Re: Re: Live by the sword, die by the sword
except for the fact that YouTube's ContentID system was created EXACTLY at the end point of a government held by the content gatekeeper industry.

FIFY
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David, 8 Apr 2015 @ 1:03am

Fix copyright
But, not long after that, he and his father Ron put out a weird internet freedom "manifesto" that appeared to argue for much stronger copyright laws, and which argued that the public domain was an evil "collectivist" threat that was against basic property rights.

Well, sure. Corporations are people, and the Public Domain rips control from them while they are alive.

As long as you postulate that corporations are people, they are being treated unfairly by the Public Domain. However, in contrast to real people they have the slight advantage that they are basically immortal.

So to level the playing ground, they must not get extra privileges or penalties due to being immortal.

Which means that copyright really needs to be fixed to publication+x years. Decoupled from the life time of an author. Then an author knows exactly what he is selling when selling the proceeds for a work. And when there are 20 contributing authors, you don't get to prolong copyright indefinitely by putting one on life support. They way things are going these days, the big copyright industry players will soon turn to entertaining their own cryogenics departments and the standard MAFIAA contracts will contain an option to freeze content creators when their expected remaining lifetime drops under a pre-agreed threshold.

"Surely it would not come to that." How often did that prediction turn out correct when pitted against greed?
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Anonymous Coward, 8 Apr 2015 @ 1:46am

Re:
Soma have been, it is just that they did not have enough of a following to make enough noise to attract attention.
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PaulT (profile), 8 Apr 2015 @ 2:17am

Re: Re:
"Where did he say that?"

He dared place free speech over and above profits and control. That combined with a rare opportunity for an anonymous troll to actually appear to be on the side of the actual artist rather than just the label or corporation makes the comment too juicy for him to resist making!

Of course, anyone really paying attention will be aware that the above article is perfectly in tune with the general stance of protecting free speech and fair use normally associated with this site.
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PaulT (profile), 8 Apr 2015 @ 2:17am

Re: Re: Re: Live by the sword, die by the sword
The government? Really?
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Anonymous Coward, 8 Apr 2015 @ 2:32am

Re:
Fuck's sake, antidirt, log back in.
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Anonymous Coward, 8 Apr 2015 @ 3:18am

Re:
How about removing the "good faith" loophole?

Currently, the takedowns are sworn under penalty of perjury that they have a good faith belief that the content is infringing.

Modify that section so that the takedown filer swears under penalty of perjury that the material is infringing, and does not fall under Fair Use or any other form of defense.

Require all automated takedowns to have human oversight. If *one* takedown is wrong, the company representative must assume responsibility.

Multiple false takedowns must lead to a company being banned from using the process. Abuse the right, lose the right.

There, that's three fair fixes.
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Anonymous Coward, 8 Apr 2015 @ 3:22am

Rand Paul is a psychopathic asshole
But even psychopathic assholes shouldn't be censored.
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Paul Merrell (profile), 8 Apr 2015 @ 4:26am

Not a libertarian viewpoint
@ ... he and his father Ron put out a weird internet freedom "manifesto" that appeared to argue for much stronger copyright laws, and which argued that the public domain was an evil "collectivist" threat that was against basic property rights.

The giggle there is that copyrights (and patents) are market artificialities issued by the government creating an artificial shortage of goods. Hence they conflict with libertarian free market principles. The conflict between intellectual "property" rights and non-imaginary property was perhaps best summed up by Thomas Jefferson, the Father of the U.S. patent system:

Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious, then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made anyone thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less because every other possesses the whole of it. He who receives an idea from me receives instruction himself without lessening mine, as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man and improvement of his condition, seems to have been peculiarly and benevolently designed by nature when she made them, like fire, expansible over all space, without lessening their density in any point, and, like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done according to the will and convenience of the society, without claim or complaint from anybody.

VI Writings of Thomas Jefferson at 180-181 (Washington ed.), as quoted in Graham v. John Deere Co., 383 U.S. 1 footnote 2 (1966), http://supreme.justia.com/us/383/1/case.html (italics added).
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vdev (profile), 8 Apr 2015 @ 5:57am

Licenses ?
This will get awkward if it turns out that Paul's campaign actually had licensed the music.
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antidirt (profile), 8 Apr 2015 @ 6:25am

Re: Re:
Fuck's sake, antidirt, log back in.

That wasn't me! I only made the one comment above. Don't be so paranoid!
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jupiterkansas (profile), 8 Apr 2015 @ 7:57am

Re: Re: Re: Re: Live by the sword, die by the sword
The government isn't holding the gun, but the government's laws are the ammo in the gun.
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Just Another Anonymous Troll, 8 Apr 2015 @ 8:08am

Re: Re:
#2 and #3 sound good, but #1 seems dangerous to me. It's perfectly possible to believe that something is infringing when it's legal. You shouldn't face perjury charges for not understanding the law or making an honest mistake. If you think it's infringing and the uploaded disagrees, then it can go to (unfortunately expensive) court where a judge and jury can determine so. A better fix would be to have the loser pay court costs for an infringement (or any, really) case so people will be much less likely to launch lawyers at everything, especially if it's megacorp vs. youtuber.
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Ruben, 8 Apr 2015 @ 8:17am

Re:
Amend the DMCA to include penalties for false takedowns. Make challenging takedowns easy and transparent.

Reduce copyright term to ten years with opt-in, not opt-out. After that an option to renew for a fee.
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Paul Merrell (profile), 8 Apr 2015 @ 8:38am

Don't forget the orphan works problem. I advocate for a copyright's automatic expiration one year from the date it is no longer available for sale to the public. The quid pro quo of both copyrights and patents is that the public is to receive the information in trade for a limited-term government license granting the exclusive rights to the profit from the work during that period.

If the information ceases to be available, the public is getting short-changed if the unavailability continues; it no longer has access to the information.
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bob, 8 Apr 2015 @ 8:51am

Re:
there would also have to be a balance on the other side of the scale where if it IS proven to be infringing that there is a cost associated with that, not just a takedown.
it wouldn't be fair to say that if it IS fair use, the complainer has to pay and possibly lose the ability to complain, and if it is NOT fair use then the video just gets taken down and nothing else. there would be no incentive to keep people from infringing in the first place.
one should never completely lose their ability to complain.. perhaps greater and greater limitations the more you cry wolf though.

as someone who has had videos blocked, and I've not contested the block because even though I thought the videos were transformative enough to be fair use, I'm no expert and am unwilling to accrue a strike against me by appealing and losing..
I'd like youtube to spell out some clear guidelines of what can make a video qualify as "fair use", and then I can see the stick I'm being measured against, as opposed to the invisible stick I'm being beaten with.
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nasch (profile), 8 Apr 2015 @ 9:09am

Re: Re:
Currently, the takedowns are sworn under penalty of perjury that they have a good faith belief that the content is infringing.

No, they have to swear they hold the copyright to the material in question. There's no requirement to swear anything about infringement. So that would be a good thing to add to the process.
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Anonymous Coward, 8 Apr 2015 @ 9:19am

and still nothing is done or is gonna be done to try to mend the completely broken copyright laws. they need disbanding completely and start from scratch, without the continuous interference of the entertainment industries. they want everything to their advantage but no one else, according to them, should have any rights whatsoever!
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nasch (profile), 8 Apr 2015 @ 9:25am

Re: Re:
there would also have to be a balance on the other side of the scale where if it IS proven to be infringing that there is a cost associated with that, not just a takedown.

At least on YT, there's the three strikes and you're out (lose your account). That's a pretty substantial cost IMO.
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nasch (profile), 8 Apr 2015 @ 9:35am

Re: Re:
I'd like youtube to spell out some clear guidelines of what can make a video qualify as "fair use", and then I can see the stick I'm being measured against, as opposed to the invisible stick I'm being beaten with.

I was hasty in my earlier reply and didn't finish reading... there are no clear guidelines on what is fair use, which is one difficulty with copyright law. This isn't Google's fault - the law just doesn't have cut and dried rules for what is and what is not fair use.
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nasch (profile), 8 Apr 2015 @ 9:44am

Re: Not a libertarian viewpoint
I was thinking the same thing - wtf are self-professed libertarians doing supporting copyright?
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nasch (profile), 8 Apr 2015 @ 9:50am

Re:
I advocate for a copyright's automatic expiration one year from the date it is no longer available for sale to the public.

That won't do much. Big publishers would make 10 copies a year and sell them in one physical store to satisfy the requirements.
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John Fenderson (profile), 8 Apr 2015 @ 10:41am

Re: Re: Re:
But the takedowns aren't legal actions. They follow the rules that Google has laid out. Google could, if they wanted to, provide guidance for what counts as fair use in the application of their own takedown rules.
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nasch (profile), 8 Apr 2015 @ 10:48am

Re: Re: Re: Re:
Google could, if they wanted to, provide guidance for what counts as fair use in the application of their own takedown rules.

They could, but then if that guidance should conflict with actual law, somebody would run into a problem.

- takedown request
- user relies on Google guidance to contest based on fair use
- rights holder doesn't back down
- court finds not fair use
- oops

AND/OR

- takedown request
- user relies on Google guidance and decides it isn't fair use
- video is taken down
- might it have been fair use if contested? We'll never know.

I'm sure Google decided it was better to just not stick their neck out on fair use in the first place.
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Sheogorath (profile), 8 Apr 2015 @ 4:25pm

Re: Live by the sword, die by the sword
[...] a simple phone call will likely be enough to fix this [...]
You mean Google has actual real humans that can answer phones in its employ? Wow, I never knew that!
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Sheogorath (profile), 8 Apr 2015 @ 4:28pm

Talking of copyright maximalism and overreach, I've just found a perfect description of Prince.
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nasch (profile), 8 Apr 2015 @ 4:57pm

Re: Re: Live by the sword, die by the sword
You mean Google has actual real humans that can answer phones in its employ?

Not for people like you and me, but I'm sure a US Senator can get in touch with someone there.
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Sheogorath (profile), 8 Apr 2015 @ 6:11pm

Re: Re: Re: Live by the sword, die by the sword
I know that, but this site seems to be amputating my comments lately. The sarc mark off this one, a winking smiley face emoticon from another...
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Anonymous Coward, 9 Apr 2015 @ 5:10am

Re: Re: Re:
No one's going to believe an asshole who openly trolls the site, promised to leave the site for the rest of the year then blatantly switched IP addresses just to troll the site again.
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Mike Masnick (profile), 9 Apr 2015 @ 5:31am

Re:
How exactly would you fix the DMCA so that this wouldn't likely happen with ContentID, Mike?

I didn't say this problem wouldn't happen if the DMCA changed. Just that if the DMCA were fixed that it *could* allow the rules of ContentID to work better.

For example, if the DMCA were switched to notice-and-notice instead of notice-and-takedown, not only would it better serve the First Amendment, but it would enable ContentID to be set up similarly, such that identified videos could first lead to a notice, allowing the uploader to respond to the notice within a certain time frame, before the video was taken down. As such you'd avoid situations like the above.
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Pragmatic, 9 Apr 2015 @ 5:32am

Re: Re: Re: Re: Re: Live by the sword, die by the sword
Yeah, but who WROTE the damn laws?

The content industry. We need a government by the natural persons for the natural persons, corporations be damned.
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Pragmatic, 9 Apr 2015 @ 5:36am

Re: Re: Not a libertarian viewpoint
Have you ever pointed out to a Libertarian that a) there's no such thing as a free market and b) the only way to create a more fair, more open market is via pro-competitive legislation and enforcement?

Have fun. I did.
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PaulT (profile), 9 Apr 2015 @ 6:13am

Re: Re: Re: Re: Re: Live by the sword, die by the sword
Likewise in that flawed analogy, those to blame are still the ones wielding the gun, not the people who make the ammo, even if poor manufacture caused the bullets to misfire in some way.

Do the laws need fixing? Yes. Does that absolve others of wrongdoing at far greater levels than the government? No.
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nasch (profile), 9 Apr 2015 @ 7:29am

Re: Re: Re: Not a libertarian viewpoint
Have fun. I did.

How much spittle did you get on you? Or did you have the foresight to stand back?
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Pragmatic, 9 Apr 2015 @ 7:41am

Re: Re: Re: Re: Not a libertarian viewpoint
Lesson learned: always bring an umbrella to such discussions. Most of the spittle is generated by the speed at which they change the subject.

I'm friendly enough with the small "L" libertarians, they're not actively promoting a corporate agenda. It's the anarcho-capitalists who think we can run a Jennifer Government-style society and make it function as intended that I have the problem with. Small L's generally understand the limitations inherent in a consumer economy where regulation is too damn light and the incumbents lock out competition.
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Sheogorath (profile), 9 Apr 2015 @ 5:16pm

Re: Re:
And then there's the sites with zero availability on mobile (Vimeo again). They don't seem to get that there's no competition where they're not available. Idiots!
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