Well, I think the market actually takes care of that situation -- as we've seen. Basically, because those sites tend to realize that they're better off working with the big content providers, they tend to come up with market-based solutions (Audible Magic, Content ID, etc.) to make those content providers happy in general -- not because the law requires it. It's exactly what has happened naturally in the market place.
Funny how you look to the market, and I look to the law, to cure what ails us. :)
I like that theory, but I'm not sure what encourages the criminally-inclined folks to work with "big content providers" when they're doing so well abusing the law on their own.
The important part you miss is "ability to control such activity", YouTube have no way to control such activity since YouTube cannot know what is and what is not legal, should content ID remove all music from all artists legal or otherwise? should Google remove all videos legal or otherwise?
I think "ability to control such activity" in the statute means they could have controlled it by blocking access to it or removing it if they wanted to, and nothing more. Keep in mind that the DMCA only requires that they were "aware of facts or circumstances from which infringing activity is apparent." It doesn't require that they were aware of such facts or circumstances and had a magic wand to cure it. What they couldn't do was know about it and do nothing. That's not enough, when you know.
Those pose serious concerns to a) Free Speech b) education c) Fair competition on the market place.
By the looks of it, they are legit. I don't think someone without authority to do so could post several seasons of "21 Jump Street" like that. That's particularly funny since I just watched the two-parter pilot of that show this morning on Hulu. I loved that show when it was new. :)
By that reasoning, there is no safe harbor. If I want to destroy any company's safe harbor, I just upload content to their site, and boom, it's gone.
That, obviously, makes no sense at all. Your interpretation means there's no such thing as a safe harbor, and clearly Congress put a safe harbor in for a reason.
The problem, I think is that those who wrote the law put in two contradictory parts: the safe harbor and the "red flags" part. It's tough to see how those two points could ever agree in reality. The courts have held that safe harbors trump red flags for years, and changing that removes all safe harbors, which would lead to a really bad result (third party liability on parties who have no way to get away from it).
That's an interesting point, and I'll give it some thought. I think the other side of the coin is that by your interpretation there is no liability unless the operator is given notice of specific infringement and takes no action. If that's the case, I can set up a site dedicated to infringement, set up a DMCA agent, oblige any takedown requests that come my way, and be above the law. My site could be 100% about infringement while I rake in the dough, and no one could touch me. That doesn't sound right to me. Perhaps there's a middle ground?
Hey AJ. When the Supreme Court legalized VCRs, one of the points that was raised was that 90% of VCR usage at the time was infringing.
So, given your position that a simple majority 50%+ means dedicated to infringing activity, is it your position that the Supreme Court erred in the Betamax/Sony ruling?
That's a great point, Mike. Sets up a nice dilemma. You would do quite well in law school, I'm sure. Not to mention I think you'd enjoy it. Was it that 90% of the usage was infringing, or was it that it was potentially infringing but it was really fair use? I'd have to look it up to see, but I'm leaning towards it being the latter. If so, it's not a great analogy and I've escaped the dilemma. If not, I'll have to get back to you on that one. Well played either way, though.
And I'll bet sugar daddy Sumner gave you a nice shiny new quarter to spew your shill-drivel here! Red herrings? Pot - meet kettle. Have a nice day, you shilly little man.
Who is this Sumner guy and how do I get him to pay me for posting on here? I guess I'm being silly and doing it for free. I guess I need to be monetizing it. :)
This is one case, i think, in which the ends justify the means, or rather, there is nothing wrong with what youtube did, there is something wrong with the law that says youtube shouldn't have been doing it.
But "the ends justify the means" is not a valid defense. I love YouTube as much as the next person. I just simply think they lost their safe harbor and they're getting called out on it. How they operate nowadays is great. It's how they operated a few years back that's the problem.
I do find that surprising. I can't see how the court could find that "a jury could find..." and issue a summary judgement that there is no case to answer.
Send it back to the district court and let's have it out in front of a jury. Sounds like fun to me. And then after that, we can go back to the court of appeals. Fun.
Is this the same Viacom that posted Viacom copyright material upon YouTube servers and later used that as evidence to support their claim againt Google?
How can anyone support such activities?
That little fact doesn't mean YouTube doesn't lose their safe harbor for a host of reasons explained in the brief. It's a red herring.
Probably no surprise that I'm pro-Viacom on this one. There's more to the DMCA than just taking down content once a notice is received.
From the brief:
Section 512(c) excludes a provider of storage services from the safe harbor if it obtains either "actual knowledge that the material or an activity using the material on the system or network is infringing" or "in the absence of such actual knowledge . . . aware[ness] of facts or circumstances from which infringing activity is apparent" and then, in either case, fails to "act[] expeditiously to remove, or disable access to, the material." 17 U.S.C. § 512(c)(1)(A). Under this provision, a service provider that has no knowledge of infringing activity is shielded from liability, but "if the service provider becomes aware of a 'red flag' from which infringing activity is apparent, it will lose the limitation of liability if it takes no action.'" H.R. Rep. No. 105-551(II), at 53.
Congress also incorporated established principles of vicarious infringement liability into the safe harbor, excluding from its protection any service provider that "receive[s] a financial benefit directly attributable to the infringing activity" if the provider had "the right and ability to control such activity." 17 U.S.C. § 512(c) 1)(B). Under this provision, if "the value of the service lies in providing access to infringing material," the DMCA excludes the provider from the safe harbor. H.R. Rep. No. 105-551(II), at 54.
Ouch. How the district court could apply the law and NOT find that YouTube lost their safe harbor is beyond me.
From the brief:
In ruling on the parties' cross motions for summary judgment, the district court acknowledged that "a jury could find that the defendants not only were generally aware of, but welcomed, copyright-infringing material," and that the infringing material "was attractive to users," and "enhanced defendants' income from advertisements." SPA9. It nevertheless granted YouTube's motion, concluding that the safe harbor entitled YouTube to protection "against all of plaintiffs' claims for direct and secondary copyright infringement." SPA33.
No, I didn't. I admitted that it's likely the majority of users are looking for content which is probably infringing. You, however, refused to address why their actions are in any way different from any other search engine's.
I think I've answered that question three times already in this thread, but here it goes again: The difference is that Google can be used merely incidentally to infringe, whereas with these torrent sites, that's the primary purpose.
But as you keep admitting, you're extraordinarily biased.
It seems overwhelmingly apparent to me that they set up a search engine. Why they did it is obvious: torrents are popular, and they want to have a popular site. But if their users were only searching for legal content, I don't think they'd just pack up and leave the internet.
Really, Karl? You don't think maybe they had "helping out the pirate world" in mind when they set up shop? And just why are torrents so popular? Does it have anything to do with piracy?
The have significant non-infringing uses, so I'd say the answer is "no." To anyone who releases their content under a CC license, they're not "piracy sites," they're popular tools allowing users to do exactly what you intended.
But the reality is they are used primarily for piracy.
Apparently not, since following your logic, every technological ability to copy data should have been banneed as soon as it reached the public. You're not pro-reality, you're anti-progress.
People like torrents. They will always find a way to use them. That's reality.
That's a bit extreme. I love technology and progress. A bunch of people "sharing" other people's IP on the internet is not progress. And I hope people use all the torrents they want--just keep it legit.
And according to you, there's no possible way that any search engine ever could be.
And again, it's pretty clear that the sites in question exist to assist others in pirating. Legitimate search engines are great. Pirate search engines I have no sympathy for.
In my opinion, most searches for "Batman" on Google are for infringement. But it's insane to blame Google for that.
You ducked the question. Should I take that as tacit assent that you think the majority of traffic on torrent-finder is for infringement purposes?
Their website only searches for pages on other websites that offer torrents, and only indexes pages with terms that users are searching for. It has no ability to judge whether those websites link to infringing torrents or not. Maybe "the majority" are, but so what? You can't run a search engine under the assumption that your content is, by default, illegal. You'll have nothing to search.
Actually, it seems overwhelmingly apparent to me that they set up that site for the explicit purpose of collating illegal content. They operate under that assumption as priority one.
Notice what you did here. You claimed they were "piracy sites," merely because they offer torrents (whether those specific torrents are infringing or not). And because all torrent sites are "pirate" sites, even the ability to search for torrents is also "piracy."
Are these sites not generally "piracy sites"?
Which means you're against torrents. Not infringing torrents, but any use of the torrent technology itself. Ten years ago, you would have shut down any site with "mp3" in the name, since people back then mainly used MP3's to pirate music. Thirty years ago, you would have made cassettes illegal, because most people were using cassettes to record songs off the radio and make mix tapes. And so on.
I'm not against torrents, I'm pro-reality.
I happen to be one of those insane people who believe people should only be punished for what they can control. Torrent-finder can't control what is on third party websites, so they shouldn't be punished for their content.
You can argue that every single entity that is tangentially involved in any crime (e.g. delivery drivers that drop off newspapers with libelous content) should be considered a criminal, but I don't buy it.
I don't think the torrent search engine sites are sufficiently far removed from the crime to not be considered criminal themselves.
That's what they call "nominal damages." I'm not familiar with the story, but it seems this must have been about the principle of the thing more so than damages. If that's the case, they are probably happy with the result.
No, long-arm statutes only apply if there is a physical presence or contact with the US. And the enforcement of such statutes can only be accomplished through the consent of the foreign country involved. They agree to enforce our law in exchange for us reciprocating and enforcing theirs.
The internet makes it easy for there to be sufficient contact in the U.S. to trigger long-arm statutes, and that's how cases like these are adjudicated in the U.S. I'm not sure how you can argue that the long-arm statutes don't work this way. The caselaw clearly indicates otherwise. There's no mention of such a reciprocal agreement in the cases I mentioned. The courts' analysis about jurisdiction did not include any mention of any agreements. Perhaps you should read the caselaw I cited before we continue down this path. I think you're confusing jurisdiction with enforcement.
In this instance, the US Congress is passing a law which purports to be enforceable worldwide without obtaining any such reciprocal agreements from other nations.
COICA is not enforceable worldwide, it is enforceable only in the U.S. How could we make other countries enforce if we wanted too? That does not make sense to me.
Without reading the case, as I don't have time right now, I'd bet that that jurisdictional ruling is based on a mutual enforcement treaty signed between Italy and the US, and is not merely a unilateral extension of US jurisdiction over Italy.
Such a treaty was not a part of the case. I think you are confusing jurisdiction with enforceability.
However, if that's not the case, then all you've done is point out a court decision which simply does what COICA purports to do: impose US law on the rest of the world. That would completely undermine your position that my fear of a dawning age of American legal imperialism are unfounded and "pessimistic".
It enforces U.S. law on U.S. citizens. No imperialism needed.
Courts around the world do this all the time. However, until COICA, there was no way to enforce the judgement. There have been several courts in France that have indicted US citizens for violation of France's Holocaust denial laws. However, since such speech is protected in the US, they can't extradite US citizens to answer for those crimes. The best they can do is put the person in a database and hope they some day come to France and arrest them then.
COICA allows for U.S. laws to be enforced on U.S. soil. It streamlines the ability to block sites that deal in counterfeiting and infringement via court orders, warrants, and injunctions. Courts already have these tools at their disposal, and they can already use them in this way. I don't see what all the fuss is about.
In the Australian case, if the defamation charge doesn't meet US 1st Amendment protections, they'll never be able to execute the judgment against the US defendant. These rulings are nothing but ineffectual paper tigers.
But with COICA as precedent (if it passes) all they have to do is seize the domains of any site they don't like. How can we possibly object if we're out there doing the same thing to their citizens?
COICA won't be used to shut down sites that contain defamation. That's not what it's for.
Yep, and Congress has drafted a law of its own to ensure that such judgments in other countries don't abridge the constitutional rights of US citizens:
The Senate has now passed an anti-libel tourism bill, which would prevent the US courts from enforcing foreign judgments in libel cases that seem to go against the US First Amendment.
Senate Judiciary Committee chairman Patrick Leahy charged that libel judgments in foreign courts were undermining freedom of speech and of the press and chilling open debate in the United States.
"While we cannot legislate changes to foreign law that are chilling protected speech in our country, we can ensure that our courts do not become a tool to uphold foreign libel judgments that undermine American First Amendment or due process rights," he said in a statement.
So while we're protecting ourselves from the imposition of foreign laws on our citizens that conflict with our own, we're charging ahead with a bill which will impose our laws on all other nations, regardless of what their own laws have to say on the matter.
I'm just not seeing it. COICA only imposes U.S. law on U.S. soil. How could we "impose our laws on all other nations" even if we wanted to? I just don't follow you.
On the post: Viacom Plays The Insane Hyperbole Card In Claiming YouTube Ruling Would 'Completely Destroy' Content Value
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LOL!
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I don't know what they're calling it. That's my word. I don't think they did it on purpose, so I'm going with "mistake."
On the post: Viacom Plays The Insane Hyperbole Card In Claiming YouTube Ruling Would 'Completely Destroy' Content Value
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Funny how you look to the market, and I look to the law, to cure what ails us. :)
I like that theory, but I'm not sure what encourages the criminally-inclined folks to work with "big content providers" when they're doing so well abusing the law on their own.
On the post: Viacom Plays The Insane Hyperbole Card In Claiming YouTube Ruling Would 'Completely Destroy' Content Value
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I think "ability to control such activity" in the statute means they could have controlled it by blocking access to it or removing it if they wanted to, and nothing more. Keep in mind that the DMCA only requires that they were "aware of facts or circumstances from which infringing activity is apparent." It doesn't require that they were aware of such facts or circumstances and had a magic wand to cure it. What they couldn't do was know about it and do nothing. That's not enough, when you know.
Those pose serious concerns to a) Free Speech b) education c) Fair competition on the market place.
Should this be removed?
21 Jump Street
http://www.youtube.com/show/21jumpstreet
Is that legal or illegal?
By the looks of it, they are legit. I don't think someone without authority to do so could post several seasons of "21 Jump Street" like that. That's particularly funny since I just watched the two-parter pilot of that show this morning on Hulu. I loved that show when it was new. :)
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By that reasoning, there is no safe harbor. If I want to destroy any company's safe harbor, I just upload content to their site, and boom, it's gone.
That, obviously, makes no sense at all. Your interpretation means there's no such thing as a safe harbor, and clearly Congress put a safe harbor in for a reason.
The problem, I think is that those who wrote the law put in two contradictory parts: the safe harbor and the "red flags" part. It's tough to see how those two points could ever agree in reality. The courts have held that safe harbors trump red flags for years, and changing that removes all safe harbors, which would lead to a really bad result (third party liability on parties who have no way to get away from it).
That's an interesting point, and I'll give it some thought. I think the other side of the coin is that by your interpretation there is no liability unless the operator is given notice of specific infringement and takes no action. If that's the case, I can set up a site dedicated to infringement, set up a DMCA agent, oblige any takedown requests that come my way, and be above the law. My site could be 100% about infringement while I rake in the dough, and no one could touch me. That doesn't sound right to me. Perhaps there's a middle ground?
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So, given your position that a simple majority 50%+ means dedicated to infringing activity, is it your position that the Supreme Court erred in the Betamax/Sony ruling?
That's a great point, Mike. Sets up a nice dilemma. You would do quite well in law school, I'm sure. Not to mention I think you'd enjoy it. Was it that 90% of the usage was infringing, or was it that it was potentially infringing but it was really fair use? I'd have to look it up to see, but I'm leaning towards it being the latter. If so, it's not a great analogy and I've escaped the dilemma. If not, I'll have to get back to you on that one. Well played either way, though.
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How can one support this sort of activity?
Are you asking how I support Viacom making a mistake like that? I don't. In my mind, that's got nothing to do with Viacom's liability.
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Who is this Sumner guy and how do I get him to pay me for posting on here? I guess I'm being silly and doing it for free. I guess I need to be monetizing it. :)
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But "the ends justify the means" is not a valid defense. I love YouTube as much as the next person. I just simply think they lost their safe harbor and they're getting called out on it. How they operate nowadays is great. It's how they operated a few years back that's the problem.
I do find that surprising. I can't see how the court could find that "a jury could find..." and issue a summary judgement that there is no case to answer.
Send it back to the district court and let's have it out in front of a jury. Sounds like fun to me. And then after that, we can go back to the court of appeals. Fun.
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How can anyone support such activities?
That little fact doesn't mean YouTube doesn't lose their safe harbor for a host of reasons explained in the brief. It's a red herring.
On the post: Viacom Plays The Insane Hyperbole Card In Claiming YouTube Ruling Would 'Completely Destroy' Content Value
From the brief:
Section 512(c) excludes a provider of storage services from the safe harbor if it obtains either "actual knowledge that the material or an activity using the material on the system or network is infringing" or "in the absence of such actual knowledge . . . aware[ness] of facts or circumstances from which infringing activity is apparent" and then, in either case, fails to "act[] expeditiously to remove, or disable access to, the material." 17 U.S.C. § 512(c)(1)(A). Under this provision, a service provider that has no knowledge of infringing activity is shielded from liability, but "if the service provider becomes aware of a 'red flag' from which infringing activity is apparent, it will lose the limitation of liability if it takes no action.'" H.R. Rep. No. 105-551(II), at 53.
Congress also incorporated established principles of vicarious infringement liability into the safe harbor, excluding from its protection any service provider that "receive[s] a financial benefit directly attributable to the infringing activity" if the provider had "the right and ability to control such activity." 17 U.S.C. § 512(c) 1)(B). Under this provision, if "the value of the service lies in providing access to infringing material," the DMCA excludes the provider from the safe harbor. H.R. Rep. No. 105-551(II), at 54.
Ouch. How the district court could apply the law and NOT find that YouTube lost their safe harbor is beyond me.
From the brief:
In ruling on the parties' cross motions for summary judgment, the district court acknowledged that "a jury could find that the defendants not only were generally aware of, but welcomed, copyright-infringing material," and that the infringing material "was attractive to users," and "enhanced defendants' income from advertisements." SPA9. It nevertheless granted YouTube's motion, concluding that the safe harbor entitled YouTube to protection "against all of plaintiffs' claims for direct and secondary copyright infringement." SPA33.
I think that's what they call "reversible error."
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I think I've answered that question three times already in this thread, but here it goes again: The difference is that Google can be used merely incidentally to infringe, whereas with these torrent sites, that's the primary purpose.
But as you keep admitting, you're extraordinarily biased.
It seems overwhelmingly apparent to me that they set up a search engine. Why they did it is obvious: torrents are popular, and they want to have a popular site. But if their users were only searching for legal content, I don't think they'd just pack up and leave the internet.
Really, Karl? You don't think maybe they had "helping out the pirate world" in mind when they set up shop? And just why are torrents so popular? Does it have anything to do with piracy?
The have significant non-infringing uses, so I'd say the answer is "no." To anyone who releases their content under a CC license, they're not "piracy sites," they're popular tools allowing users to do exactly what you intended.
But the reality is they are used primarily for piracy.
Apparently not, since following your logic, every technological ability to copy data should have been banneed as soon as it reached the public. You're not pro-reality, you're anti-progress.
People like torrents. They will always find a way to use them. That's reality.
That's a bit extreme. I love technology and progress. A bunch of people "sharing" other people's IP on the internet is not progress. And I hope people use all the torrents they want--just keep it legit.
And according to you, there's no possible way that any search engine ever could be.
And again, it's pretty clear that the sites in question exist to assist others in pirating. Legitimate search engines are great. Pirate search engines I have no sympathy for.
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You ducked the question. Should I take that as tacit assent that you think the majority of traffic on torrent-finder is for infringement purposes?
Their website only searches for pages on other websites that offer torrents, and only indexes pages with terms that users are searching for. It has no ability to judge whether those websites link to infringing torrents or not. Maybe "the majority" are, but so what? You can't run a search engine under the assumption that your content is, by default, illegal. You'll have nothing to search.
Actually, it seems overwhelmingly apparent to me that they set up that site for the explicit purpose of collating illegal content. They operate under that assumption as priority one.
Notice what you did here. You claimed they were "piracy sites," merely because they offer torrents (whether those specific torrents are infringing or not). And because all torrent sites are "pirate" sites, even the ability to search for torrents is also "piracy."
Are these sites not generally "piracy sites"?
Which means you're against torrents. Not infringing torrents, but any use of the torrent technology itself. Ten years ago, you would have shut down any site with "mp3" in the name, since people back then mainly used MP3's to pirate music. Thirty years ago, you would have made cassettes illegal, because most people were using cassettes to record songs off the radio and make mix tapes. And so on.
I'm not against torrents, I'm pro-reality.
I happen to be one of those insane people who believe people should only be punished for what they can control. Torrent-finder can't control what is on third party websites, so they shouldn't be punished for their content.
You can argue that every single entity that is tangentially involved in any crime (e.g. delivery drivers that drop off newspapers with libelous content) should be considered a criminal, but I don't buy it.
I don't think the torrent search engine sites are sufficiently far removed from the crime to not be considered criminal themselves.
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The internet makes it easy for there to be sufficient contact in the U.S. to trigger long-arm statutes, and that's how cases like these are adjudicated in the U.S. I'm not sure how you can argue that the long-arm statutes don't work this way. The caselaw clearly indicates otherwise. There's no mention of such a reciprocal agreement in the cases I mentioned. The courts' analysis about jurisdiction did not include any mention of any agreements. Perhaps you should read the caselaw I cited before we continue down this path. I think you're confusing jurisdiction with enforcement.
In this instance, the US Congress is passing a law which purports to be enforceable worldwide without obtaining any such reciprocal agreements from other nations.
COICA is not enforceable worldwide, it is enforceable only in the U.S. How could we make other countries enforce if we wanted too? That does not make sense to me.
Without reading the case, as I don't have time right now, I'd bet that that jurisdictional ruling is based on a mutual enforcement treaty signed between Italy and the US, and is not merely a unilateral extension of US jurisdiction over Italy.
Such a treaty was not a part of the case. I think you are confusing jurisdiction with enforceability.
However, if that's not the case, then all you've done is point out a court decision which simply does what COICA purports to do: impose US law on the rest of the world. That would completely undermine your position that my fear of a dawning age of American legal imperialism are unfounded and "pessimistic".
It enforces U.S. law on U.S. citizens. No imperialism needed.
Courts around the world do this all the time. However, until COICA, there was no way to enforce the judgement. There have been several courts in France that have indicted US citizens for violation of France's Holocaust denial laws. However, since such speech is protected in the US, they can't extradite US citizens to answer for those crimes. The best they can do is put the person in a database and hope they some day come to France and arrest them then.
COICA allows for U.S. laws to be enforced on U.S. soil. It streamlines the ability to block sites that deal in counterfeiting and infringement via court orders, warrants, and injunctions. Courts already have these tools at their disposal, and they can already use them in this way. I don't see what all the fuss is about.
In the Australian case, if the defamation charge doesn't meet US 1st Amendment protections, they'll never be able to execute the judgment against the US defendant. These rulings are nothing but ineffectual paper tigers.
But with COICA as precedent (if it passes) all they have to do is seize the domains of any site they don't like. How can we possibly object if we're out there doing the same thing to their citizens?
COICA won't be used to shut down sites that contain defamation. That's not what it's for.
Yep, and Congress has drafted a law of its own to ensure that such judgments in other countries don't abridge the constitutional rights of US citizens:
http://www.google.com/hostednews/afp/article/ALeqM5jEPZqtdlJ7-6D-TH2QM2UGZ-xNtg
The Senate has now passed an anti-libel tourism bill, which would prevent the US courts from enforcing foreign judgments in libel cases that seem to go against the US First Amendment.
Senate Judiciary Committee chairman Patrick Leahy charged that libel judgments in foreign courts were undermining freedom of speech and of the press and chilling open debate in the United States.
"While we cannot legislate changes to foreign law that are chilling protected speech in our country, we can ensure that our courts do not become a tool to uphold foreign libel judgments that undermine American First Amendment or due process rights," he said in a statement.
So while we're protecting ourselves from the imposition of foreign laws on our citizens that conflict with our own, we're charging ahead with a bill which will impose our laws on all other nations, regardless of what their own laws have to say on the matter.
I'm just not seeing it. COICA only imposes U.S. law on U.S. soil. How could we "impose our laws on all other nations" even if we wanted to? I just don't follow you.
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