'Tis The Season: Congress Looks To Sneak In Unconstitutional Copyright Reform Bill Into 'Must Pass' Spending Bill
from the if-you-have-to-sneak-around... dept
If you have to sneak your transformational copyright bill into a "must pass" government spending bill, it seems fairly evident that you know the bill is bad. Earlier we talked about how the White House is trying to slip a Section 230 repeal into the NDAA (military appropriations) bill, and now we've heard multiple people confirm that there's an effort underway to slip the CASE Act into the "must pass" government appropriations bill (the bill that keeps the government running).
What does keeping the government running have to with completely overhauling the copyright system to enable massive copyright trolling? Absolutely nothing, but it's Christmas season, and thus it's the time for some Christmas tree bills in which Senators try to slip in little favors to their funders by adding them to must-pass bills.
We've detailed the many problems with the CASE Act, including how it would ratchet up copyright trolling in a time when we should actually be looking for ways to prevent copyright trolling. But the much larger issue is the fact that the bill is almost certainly unconstitutional. It involves the executive branch trying to route around the courts to set up a judicial body to handle disputes about private rights. That's not allowed.
At the very least, however, there are legitimate concerns about the overreach of the CASE Act, and, as such, those supporting it should at least be willing to discuss those issues honestly and debate them fairly. Slipping them into a must-pass government spending bill certainly suggests that they know that they cannot defend the bill legitimately, and need to cheat to make it law.
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Filed Under: appropriations, case act, christmas tree bill, copyright, copyright troll, must pass, spending
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None shall pass.
But this is a must-pass bi...
None shall pass.
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Oh great
Merry Christmas everyone!
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Re:
More like a lump of coal.
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Is this bad?
Say we lost section 230, that would result in twitter, facebook, and other "platforms" going down most likely. And it would improve the incentive to self-host websites. Is that a 'bad' thing? The only thing that would make it absurd would be if ISPs were held accountable for hosted content, but that can even be worked around using P2P and encryption...
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Re: Is this bad?
Except that they would be sued for not stopping piracy, libel, and sex trafficking...
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Re: Re: Is this bad?
Uh, who is "they"? You mean they'll sue me for participating in a P2P network? We've already had U.S. Supreme Court cases about this. P2P is not illegal unless you use it for an illegal purpose. Nor can it be made illegal in principle without violating the First Amendment.
P2P is "peer to peer" by definition, so the third party exception does not (necessarily) apply, and it's very difficult to attack these networks from a legal perspective since they also have extensive legal uses and there are no pressure points beyond the parties to the transaction (usually individuals). Suing Bob and Alice just isn't as worth while as suing big corporations.
It's also a lot easier to pressure a third party who has no stake in the content to take it offline than having to directly sue the individual who wrote the content and is far far more likely to fight back.
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Re: Re: Re: Is this bad?
"You mean they'll sue me for participating in a P2P network?"
No, he means the ISP will be encouraged to block all P2P connections, and you'll not have a choice other than complying.
"P2P is not illegal unless you use it for an illegal purpose"
Something does not have to be illegal for your ISP to decide you can't use it, and the lack of net neutrality means that they will be happy to traffic shape your connection to dial up speeds even if they don't ban you outright from using them, as they have done in the past.
"It's also a lot easier to pressure a third party who has no stake in the content to take it offline than having to directly sue the individual who wrote the content and is far far more likely to fight back."
So, exactly what he said - they will pressure a 3rd party (your ISP) who already has an incentive to minimise P2P usage rather than go after the pirates. Again, this has happened before.
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Re: Re: Re: Re: Is this bad?
Re: Re: Re: Re: Re: Is this bad?
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Re: Re: Re: Re: Re: Is this bad?
Erm, did you mean to type something there?
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Re: Re: Re: Re: Is this bad?
"No, he means the ISP will be encouraged to block all P2P connections, and you'll not have a choice other than complying."
...complying, that is, with the increasing demand for a VPN would be my guess, at which point the ISP can try to block p2p protocols as much as they like.
Even so the main result of blocking or throttling p2p remains that what really gets affected are game, program and OS updates - while as per usual pirates do not get impacted much or at all. With caveats as per usual visavi the US ISP/Telco monopolies who have shown exactly how many fucks they give about the consumer as per below.
"...and the lack of net neutrality means that they will be happy to traffic shape your connection to dial up speeds even if they don't ban you outright from using them, as they have done in the past."
Ah, the US version of the free market. Just smell that feudalism in the air...
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Re: Re: Re: Re: Re: Is this bad?
"...complying, that is, with the increasing demand for a VPN would be my guess, at which point the ISP can try to block p2p protocols as much as they like."
Meaning that they will just charge extra for the plan that allows VPNs, or restrict VPN usage to certain providers or do all sorts of other stuff that
"Even so the main result of blocking or throttling p2p remains that what really gets affected are game, program and OS updates - while as per usual pirates do not get impacted much or at all."
Bear in mind that the hare-brained scheme I was responding to had nothing to do with piracy, it was the idea that after shutting down the major social media sites and returning to the utopia of self-hosted websites that never really existed, attempts to hold sites responsible for their hosted content could be bypassed with encrypted P2P.
There's a fractal of bad ideas at work here.
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Uhh, yes?
And it would improve the incentive to self-host websites. Is that a 'bad' thing?
Do you have the time, money and expertise to host and run your own website? Because a vast percentage of people do not, which would mean if they either hosted their own content or it wasn't hosted then it wouldn't be up, period, and adding to the problem with no 230 to shield web site owners from third-party liability the only person who could 'safely' post on a given site would be the owner, such that you'd go from large platforms where people can easily communicate and share content to many isolated sites effectively useless for communication.
So yes, it would indeed be a 'bad thing'.
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Re: Uhh, yes?
I do have a website I set up.. it's not hard..
Set up a VPS, pay what, $5/month for a nanode? Type some HTML, maybe CSS if you want to get fancy. Stick them in /var/www/mysite.com, edit a few nginx.conf files, type service nginx restart and you're up and running!
It's really not that hard.
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Re: Re: Uhh, yes?
Good for you, you can do it and can spare the time and money to run it, that's still no reason to try to dump all that on millions of other people who might not have the time, money or expertise to do so.
Might as well argue that walking a couple of miles to get groceries on a regular basis isn't that hard so what would be the problem with outlawing vehicles?
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Re: Re: Uhh, yes?
"Set up a VPS"
With whom? What magic part of not having section 230 do you think will make your host immune from liability for your actions?
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Re: Re: Uhh, yes?
And yet without 47 USC 230, the VPS provider would have to consider the possibility that it could face liability for what you put there. Even if it's a longshot, the slight risk multiplied by the number of users and damages could easily discourage it from doing so until the changes to the legal landscape were better understood.
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Re: Re: Re: Uhh, yes?
Only an American VPS provider would have to consider that. And even American VPS providers would only be liable if they moderated the content on their service; they'd be fine if they had a "common carrier" policy.
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Re: Re: Uhh, yes?
You realize that may as well be black magic to the majority of internet users, right?
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Re: Re: Re: Uhh, yes?
Even if it weren't, the hard part of setting up a website is not the server config. It's the design, content and reach of the site. We all know that most people can't do that side of things, which is why platforms are popular in the first place.
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Re: Re: Uhh, yes?
Anyone can set up a shitty website, which is what you did. Something truly functional and useful is far more difficult. Even a "basic" forum" such as what we have right here is beyond you ideas of what it takes to build a site.
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Re: Re: Uhh, yes?
Yo dude, a VPS is NOT hosting your own website.
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That depends. Do you own or operate a hosting company? Because hosting companies would likely get more business if people didn’t have outlets like Twitter, DeviantArt, and so on.
Otherwise: 230 going down and taking a good chunk of the Internet with it (in one way or another) is a bad thing. Anyone who tells you otherwise is selling you a load of bullshit in a gift-wrapped box.
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Re:
I don't know. I kind of want to see a return to individually operated websites without the censorship imposed by big tech.
I wonder what the web would look like as a bunch of smaller websites instead of a few huge ones.
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Censorship imposed by big tech
Well, the other option is censorship imposed by not-yet-big-tech (most of which will stay small or fade out). If you want to see the fringes of unmoderated forums, check out 4chan/b. Enjoy the gore, the racism and hate speech the rekt threads and the occasional lolicon / furry porn.
Note that you're not seeing child porn or unchecked commercial spam there, both of which also come with uncensored internet forums.
You may not like the way Twitter or Facebook moderate. Heck, topics of crap moderation choices by Facebook make TechDirt pages frequently. But you're going to be under someone's moderation policy no matter where you go.
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Re: Re:
I must say, that's one of the sillier contributions that has been made to this discussion. How could you not be aware that you just POSTED that comment in .... an individually-operated website without any censorship imposed by big tech?
Best of both worlds. Here already, and you the individually-operated website was able to allow you (and me) to post, simply because of Sec230. Without that, any malicious poster could put the poor individual website-operator on the hook for billions of dollars damages and criminal charges--sex crimes and other felonies!'
I agree with you, to this extent: I completely avoid the big community sites, and prefer the smaller, more-human-feeling websites that are enabled by Sec230. Which is why I read, and post, at Techdirt.
So long as the legal protection provided by Sec230 survives, the web we prefer can survive. But if Sec230 goes away, only the monoliths, twitface and booker, will be able to afford the risks and the legal defense teams.
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NeoCities is a thing.
Taking away 230 would leave Twitter, Facebook, and all other U.S.-based websites in an unenviable position. They would have to either shut down, overmoderate, or not moderate at all to avoid legal liability for third-party content. Which one of those would you rather have instead of what we have right now?
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Re: Re:
I don't know. I kind of want to see a return to individually operated websites without the censorship imposed by big tech.
In which case you'll be happy to know that there is absolutely nothing stopping that from happening right now, people just don't care to because it would be a huge pain in the ass, be vastly less useful and people consider any 'censorship'(read: moderation) to be acceptable if not desirable in general even if it screws up at times.
I wonder what the web would look like as a bunch of smaller websites instead of a few huge ones.
Incredibly worse in numerous fashions, from creativity, communication and culture, all of which would suffer significant blows from gutting the major platforms and siloing everything else on individual sites.
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Re: Re:
"I kind of want to see a return to individually operated websites without the censorship imposed by big tech"
Ah, you're one of those - nostalgic for a time that never really existed. The platform you choose to use has always had that power...
"I wonder what the web would look like as a bunch of smaller websites instead of a few huge ones."
There are still hundreds of millions of those sites around, you know... They will be killed by what you wish for as easily as the ones you dislike.
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Re: Re: Re:
More like that time is now. Hosting your own crap is no harder than before, and someone not doing the work for you is hardly censorship.
How about a return to the day when companies decided how they serve their customers without it having to be a bullshit conspiracy theory? When if people thought they could do it better than a company they put up or shut up
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Re: Re: Re: Re:
"Hosting your own crap is no harder than before"
It's easier than ever before... due to platforms that will be as affected by the removal of section 230 as any social media giant.
"How about a return to the day when companies decided how they serve their customers without it having to be a bullshit conspiracy theory?"
People dealing with reality would be nice, but I'd rather it not require the destruction of the modern internet to achieve.
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Re: Re:
How does anybody find it when there are no search engines, and you cannot get a DNS service to give your site a memorable name. You don't need a DNS service to get online, just an IP address. Also, how do you attract people to you site without being able to get others to link to your site. Hint, without section 230, linking to another site also becomes risky.
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Re: Re:
It would have to be self-hosted web sites. Without 230, the web host could be liable for whatever you decide to put up on your web site, so they're not going to be willing to host a site from just anyone. You'll have to run it out of your house (AWS won't host it either, because they could also be liable), and your ISP is going to demand you get a business level connection if you start getting any significant traffic.
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Re: Re:
How do you propose to find these smaller websites without a search engine? You know, a service supplied by "big tech" that "imposes censorship"...
Did you really think this through? I doubt it...
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Re: Re:
"I wonder what the web would look like as a bunch of smaller websites instead of a few huge ones."
Well, that's not going to happen if you remove section 230 - the exception to the communications decency act which preserves 1A online.
The only reasonable survivors will be Big Tech, and mainly because they are able to branch into other things than social platforms.
As a small platform owner, you're screwed the very second someone posted something in defiance of the CDA and your army of moderators didn't catch it.
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Re: Is this bad?
"Say we lost section 230, that would result in twitter, facebook, and other "platforms" going down most likely"
I would have a lot of extra collateral damage you'¡re not considering, and you would lose the ability to complain about it online. For example, Amazon might remove their user reviews telling you that the product you're about to buy is shit, because Amazon decided they're rather not get sued for every bad user review, and you wouldn't be able to warn anyone else about the scam without taking on personal liability (and as we've seen, some people have few qualms about suing for accurate negative reviews).
"And it would improve the incentive to self-host websites"
Websites that would lose the ability or incentive to host comments. So, you end up with a bunch of non-interactive websites screaming in to the void. Not exactly a good thing.
"The only thing that would make it absurd would be if ISPs were held accountable for hosted content, but that can even be worked around using P2P and encryption..."
What do you think the next step in removing net neutrality would be? Those monopoly ISPs you can't choose not to use might just decide you can't use them if you try using those things.
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Re: Is this bad?
lol, no, self-hosting websites would be the target for a new legal cottage industry.
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Re: Is this bad?
Could it be worked around with P2P and encryption? I mean if it's on the Internet it's findable. And if you want anyone to participate you're going to have to make it easy to access.
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Re: Re: Is this bad?
If there are search engines to build the indexes through which stuff is found.
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I guess it's not that must-pass.
Didn't we just have the nation's longest federal government shutdown over a Very Stupid Thing?
Maybe we're looking to break the record?
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Re: I guess it's not that must-pass.
Longest? Yes.
But: Most "expensive"? Yes. Affecting the most employees? No.
For instance, the one under Obama lasted half as long as Trump's 2018 year-end funding crisis, but affected more than twice as many employees.
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Re: Re: I guess it's not that must-pass.
If you are going to shut down the government, make sure you lay off half the people first so the government can't function anyway, then when you shut it down it's not as big a deal.
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Laying off half the government
I think soldiers stop getting paid during government shutdowns, and we're not very keen on laying off our troops.
But history has countless incidents of legions going without for too long until they get pissed off. The too long part makes them notable.
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Re: Laying off half the government
Bonus Army
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Leave it to Congresscritters to poke a hole in the condom.
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Oh joy
I look forward to getting this nonsense in my country soon then, in the interests of "harmonisation".
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Wait, so what happens if the Supreme Court strikes down the CASE Act as unconstitutional? Does that invalidate the entire spending bill or just that one part?
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Re:
Just the one part.
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SCOTUS and the CASE act
SCOTUS is captured beyond making reasonable adjudications, so our best hope is that it would be decided with prejudice by a district court.
Considering how many federal courts have been similarly captured, they can't be relied on to adjudicate fairly either.
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Re: SCOTUS and the CASE act
Its still likely SCOTUS will strike down the CASE Act as unconstitutional. SCOTUS is not captured beyond making reasonable adjudications and federal courts are not captured aswell.
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How likely is the CASE Act to be put into the government appropriations bill ?
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Re: Maybe...?
It probably has a better Chance than the repeal for section 230. But it largely depends on whether or not the CASE act still has momentum. The bill passed easily through the House, but It’s been over a year since the bill have made any meaningful advancements. Even in the event of the CASE act passing, it’s on extremely fragile constitutional grounds. One lawsuit straight to the courts would send the Small Claims Court straight into an early grave.
As of now, I hope that the Senate should pass anything... but these stupid additions.
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I'm curious, do you guys even consider the rest of the world when writing articles about 230? I just wonder how the rest of the world keeps operating without 230 and not being sued into oblivion! And why should 230 disappearing affect the rest of us not in the US?
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Re:
Sorry, wrong thread - should have been in the 230 not CASE thread.
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Re: Re:
I'll answer it anyway - as with net neutrality, the issue is pretty much moot because the different legal systems in place discourage or outlaw the behaviour that these rules are needed to address in the US.
However, section 230 disappearing in the US will have a widespread fundamental effect on the way the internet currently operates, as anything that operates from the US or has them as a major commercial target will need to make some significant changes (and that's a lot of them). This may or not be good for everyone else in the long run, but it will affect everyone as they try to adapt.
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Re:
Most other countries did not have rulings as dumb as Stratton v Prodigy to make them need such a law.
One could argue that it shouldn't. But it certainly will, given how many of the services you use (such as Techdirt) are located in the US or depend on US infrastruture.
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Re: Re:
"Most other countries did not have rulings as dumb as Stratton v Prodigy to make them need such a law."
It's not even really about the ruling specifically, but the way legal systems are set up. While the US has a focus on individuals suing for pretty much anything, other legal systems have different attitudes baked in, which naturally don't allow for some random 3rd party to be sued for something they didn't do. If you can't sue company X because person Y did action Z on their property to begin with, there's no need for a section 230 to spell it out.
Same thing with net neutrality - effective regulation and strong pro-consumer protection laws mean that there's no ability or incentive to abuse a lack of net neutrality in other countries, and effective competition means that most companies won't try even if they technically could. Because these are relatively weak in the US, net neutrality has to be encoded in order to prevent abuse.
"One could argue that it shouldn't. But it certainly will, given how many of the services you use (such as Techdirt) are located in the US or depend on US infrastruture."
Exactly. For example, if section 230 means that Amazon are going to be held directly liable for things that happen on AWS, they can just make it so that US regions are walled off from the rest of the world and apply different standards. But, that affects a huge number of sites that are currently hosted on those regions and would require some significant changes on the part of those other countries. Similarly, if they are going to be held liable for user reviews, they can just disable them from amazon.com without affecting the rest of the world, but the infrastructure is shared to such a degree that they might end up just disabling it for everyone, even though there's no liability outside the US.
Those are just the simple things, for a company that already has physical business presence and datacentres outside the US. But, then, what about all the businesses that don't but are still used by the rest of the world?
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Why do we have Congress again?
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Re:
Because it is one of the three branches of government specified within our founding documents to exist.
Granted, due to the actions of a few, its functionality has been diminished for time time now but that in no way supports any thoughts of deletion.
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Thoughts of deletion
No, but there are historical examples of pressure from outside to make an assembly get their shit together.
Kings have locked the Enclave of Archbishops in, and besieged it with increasing unpleasantness until they decided upon a pope.
Meanwhile here in the US, 2020 the fourth box of liberty ominously waits, unopened, as unrest multipliers proliferate.
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Re: Thoughts of deletion
Providing a recall method is a double edged sword, is it better than nothing? Maybe term limits is a place to start.
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Recall methods
This is a blue-sky idea, but maybe an annual check-up election that gives the people the option to oust their elected representative. If (say) three-quarters of voters choose to eject the incumbent, then he's removed from office. Immediately.
One problem with this is elections are expensive. We'd have to find a way to make them cheaper. I still haven't ruled out secure online elections but for now they are a unicorn. But I don't know if they're a mathematical impossibility.
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Re: Recall methods
One problem with this is elections are expensive. We'd have to find a way to make them cheaper.
One idea I've seen floated, and I believe is actually used though I'm not sure where, would be to have the government fund elections and set hard limits on spending. Every candidate gets X amount of money to use on advertising/promotion and no more, which would somewhat limit the ability of would-be politicians from just spending their way to victory and help to keep the costs down.
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Re: Recall methods
"I still haven't ruled out secure online elections but for now they are a unicorn."
They will remain unicorns. The "secure" online election is a logical impossibility, not just a practical one.
The thing about paper ballots is that everyone can monitor them without possessing the ability to alter them.
The same does not hold true for a voting machine where the only people capable of ensuring the votes have been properly tallied will also be in the position of access authority to alter them.
All it takes is for regulatory capture to catch the people responsible for ensuring election security and "all your ballots are belong to us" becomes the new catchphrase.
Thus online voting is only acceptable if the topics are of a kind where it's unlikely there'll be massive interest vested in a specific result by entities capable of persistently mustering great amounts of political or fiscal leverage.
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Fantasies of online elections
My idea was if there was a giant data block where any one person could process it with their private code and confirm what he (she) voted. (And couldn't easily determine the private codes of friends / neighbors / rivals)
Another process could tally all the votes without revealing how specific persons voted.
Then this block would be publicly accessible to anyone who wanted to make sure their own vote got counted.
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Re: Re: Thoughts of deletion
"Maybe term limits is a place to start."
Term limits are themselves a double edged sword. The only thing potentially worse than people constantly campaigning for the next election could be what they decide to do in their final term where they know there's no consequences for their career whatever they decide to do.
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Facebook and Google will survive, nomatter what happens section 230 protects millions of small websites, forums and blogs, Liberal. Conservative and random, eg local news, charity's, non profits .
Removing section 230 is a massive attack on free speech,
Yes we could all cycle to work or grow are own food but most people travel by bus or drive a car and shop in a supermarket
People use websites like daily beast, newer, new York Times, CNN etc unless you are a great writer and willing to write every day your blog will get a tiny amount of readers.
The reason Facebook is so popular is its easy to use and to
Put up content .
Google made Gmail easy
Facebook provides a free social media service to millions of users and small company's who do not wish to figure out self hosting and maintaining a website 24,7
Whether u like it or not Facebook provides a useful service
We can just hope that trump does not erase section 230 in
the time he has left in power
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Re:
Are you sure, as even the giants cannot survive a concentrated legal attack, especially if the attorney generals decide to put feathers in their caps. Even the no moderation choice would destroy them because they would lose most of their users.
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Re: Re:
"Are you sure, as even the giants cannot survive a concentrated legal attack"
They will both be fine. The nature of the companies might change, and they are forced to concentrate on their non-social media and non-UGC businesses, but they will still be around.
"Even the no moderation choice would destroy them because they would lose most of their users."
Always remember that customers != users. Both companies have massive business units that are paid for by something other than the end user.
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Re: Re: Re:
Both companies rely on advertising, and that revenue is dependent on the number of users. Lose users and you lose revenue.
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Re: Re: Re: Re:
"Both companies rely on advertising"
Both companies run their own ad networks, which provide services to other companies as well as their own platforms, and both have businesses that don't rely on advertising in any way.
Again, the companies will be fine. They won't necessarily look anything like they do now, but they will be fine. Unlike a great many others.
"Lose users and you lose revenue."
Yes, and you're not a particularly great business if you're relying on a revenue stream.
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