Actually, I can think of no reasonable construction of the proposed legislation
Gah! Don't you get it? We're not talking about reason here. We're talking about a law that could unreasonably subject web sites, like Wikileaks, to its terms. Is it "reasonable" that the DMCA is being used to prevent third-party companies from refilling ink cartiges? Are all the other inumerable abuses of IP laws chronicled here at TechDirt "reasonable"? Of course not. That's one of the reasons that TechDirt exists, to decry the abuse of existing IP laws. We already have enough bad IP laws. There's no need to add another one.
There is no aspect of potential human conduct that any law can ever prevent. All the law can do is no more than impose sanctions for such conduct.
Your post appears to acknowledge the inherent conflict between human nature and law, yet overlooks that this is the very reason to be concerned over an abridgement of free speech to save a business model.
And the "fairness" associated with the unauthorized taking of an author's work is....?
As my mother used to say, "Who said life was fair?" The purpose of copyright law is to "promote the progress", not to gaurantee riches to an author. If, in trying to guarantee fairness for content creators, free speech is trampled on, free speech wins every time.
BTW, I have never heard of a country named "America". I presume you meant to say "United States of America".
Oh, please. Maybe there are other countries in the Americas who actually have the word "America" in their name, but I can't think of any. We don't say "America" because we think we're awesome or that we don't know there are geographic regions with the word "America" in them; we say America for the simple reason that it's shorter than saying "United States of America". Lighten up, Francis.
Under the terms of the proposed legislation the responsibility for defining terms would ultimately rest with the federal judiciary, and not the Department of Justice.
You misunderstand me. By "people who have a history of abusing power", I didn't mean the DoJ, or even the legislative branch, but any arm of government. The DoJ doesn't have a monopoly of twisting laws to suit their own needs. The government shouldn't have the power to censor a web site, a book, or a person standing on a soap box in the town square. Of course there are rare cases where speech is restricted, but protecting a business model falls way short of these cases.
If what they proclaim is truly heartfelt, then it seems to me that they should be engaged in a discussion about how to stop the "bad actors"
Oh, and BTW, you don't have to read TechDirt more than a few days to see that one of the common themes is that if you're asking how to "stop the bad actors", you're not asking the right question. That misguided mindset is the very foundation of the disconnect between the big media companies and the technical and economic realities of today. You...can't...stop...piracy. No matter what you do. So, instead of spending all of your time trying to "stop the bad actors", you should be trying to figure out how to make money given that there's this thing called "The Internet" which isn't going away any time soon.
What the poposed legislation does attempt to do is to identify certain sites that exist for no realistic purpose other than to actively facilitate the intentional infringement of works protected under copyright law.
The (huge) problem with this statement is that the definition of this "realistic purpose" is subjective and would be left in the hands of people who have a history of abusing power. The simplest way to prevent government from abusing power isn't to ensure proper safeguards, but to not give them the power in the first place.
There are many who post articles and comments on this site who proclaim that they do not support the illegal download and upload of works preserved by copyright law. If what they proclaim is truly heartfelt, then it seems to me that they should be engaged in a discussion about how to stop the "bad actors"
You're missing the point. This is not a discussion that is totally within the realms of copyright infringement. It also encompasses freedom of speech and censorship which (by far) trumps any IP issues.
"There is a certain set of bloggers out there who think music is nothing more than a hobby, that it should be free. But I think Canadians as a whole are more open to supporting their creative industry and so we're finally at the point where Ottawa is going to act. I refuse to believe that this brand-new digital era is going to make beggars of creators and send them back to the 1800s."
- Graham Henderson
I guess I missed the day in history class where they went over the moment in the 1800s where humanity started to support the arts. All of that stuff in museums must not be nearly as old as they said they were.
Graham Henderson is claiming some bloggers believe music should ONLY be a hobby.
Right, but what CHT is saying is that even if this allegation were true, that there really were a bunch of bloggers out there saying that music should only be a hobby, would that really be such a bad thing?
The problem of course isn't that the real opinion isn't that people shouldn't make money from music, just that there shouldn't be any expectation of a guarantee of making money from music. There's a huge distinction between these two ideas, but people like Graham Henderson like to conflate the two ideas in their attempt to remain relevant.
"All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident."
- Arthur Schopenhauer
Patents by definition provide a monopoly and I can see how it's legitimate to make a patent settlement be removal of a product from the market rather than a direct cash payment.
My understanding of pay-for-delay is that the patent on a drug has expired, opening up the door for other companies to manufacture generic versions of the drug. In this case, your explanation above does not apply because you're no longer dealing with a patent monopoly. The only way for your explanation to make any sense is if other companies are granted the privilege to manufacture generics before the patent has expired. I honestly don't know if this is the case, but if even it is, I would think it's a clear case of collusion because the patent holder is paying a company not to do something they have a right to do in order to maximize profits at the expense of the consumer.
IANAL, but as a pure point of law, it still seems to be anti-competative in both cases.
The innovator company pays the generics company, which is challenging the patent, to stay off the market for a period of time less than the remaining life of the patent.
This sentence is almost perfectly wrong. With pay-for-delay, it's not the generics company who is challenging the patent in court. It's the opposite; the patent holder is challenging the generics company's granted right to manufacture generics. And pay-for-delay does not apply before generics are authorized. It's the opposite; the generics company is sued after the life of the patent is over.
If you have some information which contradicts there statements, please provide. Because, based on the information provided in the linked posts and articles, you appear to be talking about something other than pay-for-delay.
I'm usually not the kind of person who thinks that the government should step in and fix a particular problem, but I don't understand why this issue wouldn't get picked up by some enterprising politician as their pet cause. Who could possibly object to reform or legal action that would prevent this kind of sickening practice? (Other than someone who would benefit directly from big pharma, of course.)
If you combine the already-complex healthcare regulations with the already-complex patent system, you end up with a nightmare of incomprehensibility to most people. But pay-for-delay is simple, straightforward, and obviously immoral and (in any rational view of the issue) illegal. A politician could explain what's going on, in simple terms, in a matter of minutes. It just seems like anyone who championed this issue would have automatic, almost universal support from the public. They could ride it to election, reelection, or at least notoriety.
This is the kind of thing that makes people cynical of the system. How could something like this go on if not for corruption?
Product Endorsement Representatives, also known as "actors", has been a viable marketing tool used by most companies, for as long as advertising has existed.
The difference between most actors involved in advertising is that people know they're actors. See a commercial on TV with a non-celebrity? Actor. Hear non-celebrity on a radio commercial? Actor. Invited to an event where people are walking up on the street and giving interviews to the press? You can bet the presumption is that they are part of the general public and not being paid to endorse the product.
People who are paid to spread the good word about a product are EVERYWHERE!
So are thieves, rapists, and murderers. It doesn't make it right. What in the hell does how common something is relate to whether or not it's moral?
when the instructions given refer specifcally to those extras?
Ah, good point. Triply damning. Damning for trying it in the first place, damning for thinking they could get away with it, and damning for trying to cover it up.
Either way, the fact that no one saw a problem with this before it got this far is pretty damning.
It's doubly damning. It's damning that they thought it was OK to do this in the first place and it's damning that they thought they could get away with this. So, did they give each extra a fake name to use? If not, didn't they consider that some reporter would use their smart phone and google the name of the interviewee? If you're going to try and lie to the public, at least put some effort into it. Sheesh.
(And how did they find out that they were extras and not real people anyway? Didn't the author of the linked article think that this might be relevent? Apparently not. Instead of answering the question on most peoples' minds who are reading the article i.e. how was Netflix busted, instead we get boilerplate paragraphs about Netflix's entry into Canada. Nice journalism there, 570News.com.)
I'm not sure what all the legal aspects of this are, but to me the issue is more about the complexity of the content rather than distinguishing between a fact and an opinion. That the home team's score in last night's game was 4 is a fact. But I think that ABC company rates XYZ company as a "Buy" is just as much of a fact. Yes, it's also opinion, but it's an opinion that can be reduced to a single phrase: "ABC says buy XYZ". If your opinion is so small as to meet the requirements for a fair use quote, then I'm thinking that it probably shouldn't qualify for copyright.
1. This is merely proposed legislation within the Senate. It will undergo vetting in the Senate, after which (assuming it is still "alive") it would be passed to the House who would have an independent "crack at it".
This point seems to boil down to "Don't worry about it. All of your concerns will be addressed in later versions." I'm sorry, but I don't buy that. The same kind of weak intellect who would think that a "no demonstrable, commercially significant purpose." clause makes any sense will be reviewing and amending the draft. You'll just end up with some other silly wording that could be exposed as fundamentally flawed within minutes of its release.
2. The standard in this proposed legislation is much more demanding than simply a tangential relationship. Search engines such as Google would not break into a sweat. Torrent sites that may be located in the US would have to stock up on Arid. Torrent sites outside the US would have various activities within the US curtailed.
Again, I'm not buying it. No matter what the safeguards are, this is the kind of power that the government should not have.
3. Contrary to what is read here and on many other sites critical of the DMCA, "abuse" is not the norm. It is the exception, but as the exception it is the one that makes the news.
When there are so many exceptions that exceptions become unexceptional, you have a problem. You can't look at this in terms of percentage. Is it OK if 5% of people get fucked by the DMCA? 4%? .01%? Using your own example, you'd apparently support segregation because it only affected a minority of Americans. Besides, the examples on TechDirt are only the ones that make the news. What about all of the other examples that don't or the chilling effects which change people's behavior, but don't end up in a lawsuit?
4. No system is perfect. Mistakes will be made. But to decry laws because mistakes will inevitably arise drives one to the position, if they are anti-mistake, to do nothing.
Doing nothing, especially when it comes to lawmaking, is highly underrated. When a proposed law is meant to solve a problem that will inevitably be solved by a business model change anyway, then that law is a waste of time and effort and doing nothing is better.
To equate copyright law with censorship of political speech is over the top, and to call the Senators hycoprites because they express views against the censorship in foreign countries of speech that suppresses political dissent and discourse is unfair
One thing that I think is not accounted for in your statement is the subjective nature of what a copyright issue is and what political speech is. If you enact a law that allows the US government to shut down a web site because it has some tangential relationship to infringement, then you're basically giving the government the power to shut down any web site it doesn't like. And the common answer to this concern -- "Oh, we don't have any intent to use this new law for that! Just for this! -- is nothing short of pathetic.
On a daily basis, TechDirt provides examples of where the DMCA and "IP" laws are stretched so far from their original intent, it's just sickening. Given these examples, do you really trust the US government to not abuse this power? Leahy's comments are not just hypocritical; they're an example of the worst kind of hypocrisy, doublethink hypocrisy. In his heart of heart, Leahy must know his two statement are mutully excluse, but it's justified in his mind because "Well, we're the good guys. We know better, so anything we do must be OK." This is the kind of attitude that gives America a bad name.
What if you could use the broken patent system in the US to actually fix the broken patent system? If you had enough money up front, you could set up a not-for-profit company that basically acted as a patent troll, but had as its mission statement patent reform.
Step 1: Apply for and get a ridiculously broad patent.
Step 2: Sue patent abusing companies.
Step 3: Profit (of course).
Step 4: Invest half the profit in applying for more ridiculous patents and the other half in lobbying Congress for patent reform which would eliminate ridiculous patents.
Rinse and repeat.
(BTW, I don't think it's wrong for BoA to try and prevent fraud, but what's ridiculous of course is this particular technique has been granted a patent. How funny would it be if some group sued BoA for infringement of a "nickle and dime your customer with lame service fees" patent?)
On the post: A Look At The Technologies & Industries Senators Leahy & Hatch Would Have Banned In The Past
Re: Re: Re:
Gah! Don't you get it? We're not talking about reason here. We're talking about a law that could unreasonably subject web sites, like Wikileaks, to its terms. Is it "reasonable" that the DMCA is being used to prevent third-party companies from refilling ink cartiges? Are all the other inumerable abuses of IP laws chronicled here at TechDirt "reasonable"? Of course not. That's one of the reasons that TechDirt exists, to decry the abuse of existing IP laws. We already have enough bad IP laws. There's no need to add another one.
On the post: A Look At The Technologies & Industries Senators Leahy & Hatch Would Have Banned In The Past
Re: Re: Re: Re:
Your post appears to acknowledge the inherent conflict between human nature and law, yet overlooks that this is the very reason to be concerned over an abridgement of free speech to save a business model.
On the post: A Look At The Technologies & Industries Senators Leahy & Hatch Would Have Banned In The Past
Re: Re: Re:
As my mother used to say, "Who said life was fair?" The purpose of copyright law is to "promote the progress", not to gaurantee riches to an author. If, in trying to guarantee fairness for content creators, free speech is trampled on, free speech wins every time.
BTW, I have never heard of a country named "America". I presume you meant to say "United States of America".
Oh, please. Maybe there are other countries in the Americas who actually have the word "America" in their name, but I can't think of any. We don't say "America" because we think we're awesome or that we don't know there are geographic regions with the word "America" in them; we say America for the simple reason that it's shorter than saying "United States of America". Lighten up, Francis.
On the post: A Look At The Technologies & Industries Senators Leahy & Hatch Would Have Banned In The Past
Re: Re: Re:
You misunderstand me. By "people who have a history of abusing power", I didn't mean the DoJ, or even the legislative branch, but any arm of government. The DoJ doesn't have a monopoly of twisting laws to suit their own needs. The government shouldn't have the power to censor a web site, a book, or a person standing on a soap box in the town square. Of course there are rare cases where speech is restricted, but protecting a business model falls way short of these cases.
On the post: A Look At The Technologies & Industries Senators Leahy & Hatch Would Have Banned In The Past
Re: Re:
Oh, and BTW, you don't have to read TechDirt more than a few days to see that one of the common themes is that if you're asking how to "stop the bad actors", you're not asking the right question. That misguided mindset is the very foundation of the disconnect between the big media companies and the technical and economic realities of today. You...can't...stop...piracy. No matter what you do. So, instead of spending all of your time trying to "stop the bad actors", you should be trying to figure out how to make money given that there's this thing called "The Internet" which isn't going away any time soon.
On the post: A Look At The Technologies & Industries Senators Leahy & Hatch Would Have Banned In The Past
Re:
The (huge) problem with this statement is that the definition of this "realistic purpose" is subjective and would be left in the hands of people who have a history of abusing power. The simplest way to prevent government from abusing power isn't to ensure proper safeguards, but to not give them the power in the first place.
There are many who post articles and comments on this site who proclaim that they do not support the illegal download and upload of works preserved by copyright law. If what they proclaim is truly heartfelt, then it seems to me that they should be engaged in a discussion about how to stop the "bad actors"
You're missing the point. This is not a discussion that is totally within the realms of copyright infringement. It also encompasses freedom of speech and censorship which (by far) trumps any IP issues.
On the post: Challenge To Graham Henderson: Please Point Out Who Believes Music Should Just Be A Hobby
No art before 1800's
- Graham Henderson
I guess I missed the day in history class where they went over the moment in the 1800s where humanity started to support the arts. All of that stuff in museums must not be nearly as old as they said they were.
On the post: Challenge To Graham Henderson: Please Point Out Who Believes Music Should Just Be A Hobby
Re: Re: And so what?
Right, but what CHT is saying is that even if this allegation were true, that there really were a bunch of bloggers out there saying that music should only be a hobby, would that really be such a bad thing?
The problem of course isn't that the real opinion isn't that people shouldn't make money from music, just that there shouldn't be any expectation of a guarantee of making money from music. There's a huge distinction between these two ideas, but people like Graham Henderson like to conflate the two ideas in their attempt to remain relevant.
On the post: Another Smart Copyright Ruling In Spain: Google Not Liable For User Upload
Re: Re: Leading the way
- Arthur Schopenhauer
On the post: Court Won't Rehear Pay-For-Delay Patent Lawsuit; We Pay, They Delay
Re: Seems legitimate to me
My understanding of pay-for-delay is that the patent on a drug has expired, opening up the door for other companies to manufacture generic versions of the drug. In this case, your explanation above does not apply because you're no longer dealing with a patent monopoly. The only way for your explanation to make any sense is if other companies are granted the privilege to manufacture generics before the patent has expired. I honestly don't know if this is the case, but if even it is, I would think it's a clear case of collusion because the patent holder is paying a company not to do something they have a right to do in order to maximize profits at the expense of the consumer.
IANAL, but as a pure point of law, it still seems to be anti-competative in both cases.
On the post: Court Won't Rehear Pay-For-Delay Patent Lawsuit; We Pay, They Delay
Re: Nothing disgusting here
This sentence is almost perfectly wrong. With pay-for-delay, it's not the generics company who is challenging the patent in court. It's the opposite; the patent holder is challenging the generics company's granted right to manufacture generics. And pay-for-delay does not apply before generics are authorized. It's the opposite; the generics company is sued after the life of the patent is over.
If you have some information which contradicts there statements, please provide. Because, based on the information provided in the linked posts and articles, you appear to be talking about something other than pay-for-delay.
On the post: Court Won't Rehear Pay-For-Delay Patent Lawsuit; We Pay, They Delay
Cause
If you combine the already-complex healthcare regulations with the already-complex patent system, you end up with a nightmare of incomprehensibility to most people. But pay-for-delay is simple, straightforward, and obviously immoral and (in any rational view of the issue) illegal. A politician could explain what's going on, in simple terms, in a matter of minutes. It just seems like anyone who championed this issue would have automatic, almost universal support from the public. They could ride it to election, reelection, or at least notoriety.
This is the kind of thing that makes people cynical of the system. How could something like this go on if not for corruption?
On the post: Lameflix: Netflix Hires Actors To Give Interviews Pretending To Be Excited About Canadian Netflix Launch
Re: Product Endorsement Representatives
The difference between most actors involved in advertising is that people know they're actors. See a commercial on TV with a non-celebrity? Actor. Hear non-celebrity on a radio commercial? Actor. Invited to an event where people are walking up on the street and giving interviews to the press? You can bet the presumption is that they are part of the general public and not being paid to endorse the product.
People who are paid to spread the good word about a product are EVERYWHERE!
So are thieves, rapists, and murderers. It doesn't make it right. What in the hell does how common something is relate to whether or not it's moral?
On the post: Lameflix: Netflix Hires Actors To Give Interviews Pretending To Be Excited About Canadian Netflix Launch
Re: Re: Wait...what?
Ah, good point. Triply damning. Damning for trying it in the first place, damning for thinking they could get away with it, and damning for trying to cover it up.
On the post: Lameflix: Netflix Hires Actors To Give Interviews Pretending To Be Excited About Canadian Netflix Launch
Doubly damning
It's doubly damning. It's damning that they thought it was OK to do this in the first place and it's damning that they thought they could get away with this. So, did they give each extra a fake name to use? If not, didn't they consider that some reporter would use their smart phone and google the name of the interviewee? If you're going to try and lie to the public, at least put some effort into it. Sheesh.
(And how did they find out that they were extras and not real people anyway? Didn't the author of the linked article think that this might be relevent? Apparently not. Instead of answering the question on most peoples' minds who are reading the article i.e. how was Netflix busted, instead we get boilerplate paragraphs about Netflix's entry into Canada. Nice journalism there, 570News.com.)
On the post: If Financial Ratings Are Opinions, Would Reporting On Those Opinions Be Factual?
Both opinion and fact
On the post: Patrick Leahy Against Internet Censorship In Other Countries, But All For It At Home
Re: Re: Re:
This point seems to boil down to "Don't worry about it. All of your concerns will be addressed in later versions." I'm sorry, but I don't buy that. The same kind of weak intellect who would think that a "no demonstrable, commercially significant purpose." clause makes any sense will be reviewing and amending the draft. You'll just end up with some other silly wording that could be exposed as fundamentally flawed within minutes of its release.
2. The standard in this proposed legislation is much more demanding than simply a tangential relationship. Search engines such as Google would not break into a sweat. Torrent sites that may be located in the US would have to stock up on Arid. Torrent sites outside the US would have various activities within the US curtailed.
Again, I'm not buying it. No matter what the safeguards are, this is the kind of power that the government should not have.
3. Contrary to what is read here and on many other sites critical of the DMCA, "abuse" is not the norm. It is the exception, but as the exception it is the one that makes the news.
When there are so many exceptions that exceptions become unexceptional, you have a problem. You can't look at this in terms of percentage. Is it OK if 5% of people get fucked by the DMCA? 4%? .01%? Using your own example, you'd apparently support segregation because it only affected a minority of Americans. Besides, the examples on TechDirt are only the ones that make the news. What about all of the other examples that don't or the chilling effects which change people's behavior, but don't end up in a lawsuit?
4. No system is perfect. Mistakes will be made. But to decry laws because mistakes will inevitably arise drives one to the position, if they are anti-mistake, to do nothing.
Doing nothing, especially when it comes to lawmaking, is highly underrated. When a proposed law is meant to solve a problem that will inevitably be solved by a business model change anyway, then that law is a waste of time and effort and doing nothing is better.
On the post: Patrick Leahy Against Internet Censorship In Other Countries, But All For It At Home
Re:
One thing that I think is not accounted for in your statement is the subjective nature of what a copyright issue is and what political speech is. If you enact a law that allows the US government to shut down a web site because it has some tangential relationship to infringement, then you're basically giving the government the power to shut down any web site it doesn't like. And the common answer to this concern -- "Oh, we don't have any intent to use this new law for that! Just for this! -- is nothing short of pathetic.
On a daily basis, TechDirt provides examples of where the DMCA and "IP" laws are stretched so far from their original intent, it's just sickening. Given these examples, do you really trust the US government to not abuse this power? Leahy's comments are not just hypocritical; they're an example of the worst kind of hypocrisy, doublethink hypocrisy. In his heart of heart, Leahy must know his two statement are mutully excluse, but it's justified in his mind because "Well, we're the good guys. We know better, so anything we do must be OK." This is the kind of attitude that gives America a bad name.
On the post: BofA Patents A Way Of Denying Overdraft Fee Refunds
What if...
Step 1: Apply for and get a ridiculously broad patent.
Step 2: Sue patent abusing companies.
Step 3: Profit (of course).
Step 4: Invest half the profit in applying for more ridiculous patents and the other half in lobbying Congress for patent reform which would eliminate ridiculous patents.
Rinse and repeat.
(BTW, I don't think it's wrong for BoA to try and prevent fraud, but what's ridiculous of course is this particular technique has been granted a patent. How funny would it be if some group sued BoA for infringement of a "nickle and dime your customer with lame service fees" patent?)
On the post: French Culture Minister Caught 'Pirating' Photo Off Of Website
Re:
- George Orwell, Animal Farm
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