But we're also a news site, so we contacted James Grimmelmann, a copyright scholar at New York Law School, (and judging from his tweets, not a SOPA supporter) to get his expert opinion.
He was skeptical. The new anti-streaming provisions would apply only to willful infringement. "A good-faith belief that one's actions are legal is sufficient to defeat a finding of willfulness," he told Ars. SOPA even codifies this principle by excluding from liability those who have "a good faith reasonable basis" to believe their conduct is not infringing.
"Even if the Representatives are infringing (and I think they have a good fair use defense, and may well have licenses we don't know about), they're unlikely to be willful infringers," he told Ars.
He also pointed out Smith and his colleagues would only be liable if the value of the streaming performances exceeds $1,000, and it's not clear how valuable a few short clips of local news broadcasts are.
A member of the legislature should be held to higher standards than the general public; don't just obey the letter of the law but obey the spirit of the law. This isn't irrelevancies about a person's past or private life, it is directly related to what they're pushing onto other people.
> He also pointed out Smith and his colleagues would only be liable if the value of the streaming performances exceeds $1,000, and it's not clear how valuable a few short clips of local news broadcasts are.
Is the value for the owners, or for the use that the "infringer" gets from them?
> Is the value for the owners, or for the use that the "infringer" gets from them?
I believe it's neither, but rather the value that the owner asserts (and can get a court to agree with). A single copy of a single song isn't worth $1,000, but I believe recent RIAA suits have valued songs as such. Who's to say a few short clips of local news broadcasts aren't worth as much?
Yeah, I can see your point but this too feels like its really reaching for something that's just not there. They should be held to a higher standard but our strong opinions about SOPA seem to be blocking our ability to look at this realistically.
The example in the post can be compared to any one of us embedding a video on a personal site or blog. It's really obvious the guy isn't willfully infringing. We can be technical and argue semantics all day but in the end there really is a big difference between a representative supporting legislation we disagree with possibly technically violating that same legislation with a seemingly innocent video embed and a website that provides a search feature allowing you to access hundreds of thousands of copyrighted files. Big difference.
There is definitely a point to be made about the alleged hypocrisy but in the end nit-picking little things like this and arguing semantics comes off as petty to people and could really do more harm to the opponents of SOPA than good.
> there really is a big difference between a representative supporting legislation we disagree with possibly technically violating that same legislation with a seemingly innocent video embed and a website that provides a search feature allowing you to access hundreds of thousands of copyrighted files. Big difference.
Existing law has been misused, as mentioned in other places in the thread.
There's nothing to say that this law will not be similarly misused.
See, for example, the fact that Google has digital-finger-printing to prevent copyright material being used, even if it's legitimately being used under Fair Use.
Yeah, I agree the law's been misused and SOPA will almost certainly be misused to. My point is that this argument over the representative is kind of petty. This shouldn't be about who's doing what and who's got some double standard. Instead the discussion should just focus on the bill on its own and framing the discussion like has been done in the post makes our side (yeah, our side, for some reason people think I'm for SOPA) look petty or like we've run out of good arguments.
Demonstrating that some people are willing to use weird law to enforce copyright protection, and that some of those people do not understand existing copyright law themselves, is a useful exercise.
The point is to use their language to show how daft the law could be. That's maybe why it feels petty to you, because it is a stupid thing, but it's a stupid thing that they could well end up criminalizing. The politicians talk of "thieves" and "criminals" and "crooks". Using their language it is wrong for someone to have stolen content on their homepage.
What is even more worrying for me, and the way I understand SOPA (note that my understand comes exclusively from reading the news, mostly Hacker News, I haven't read the law), is the fact that copyright holders can cause a website to be "banned" from the internet (i.e. domain unresolvable, deleted from Google, funding cut) without any proof. So, in this case, the whole congressman's website could be "put offline", and fair use/willful infringement wouldn't even matter - unless, later, the congressman would decide to challenge the action in a court of law.
I've heard this response, but I'm not convinced that this explanation really changes the issue substantially, or exonerates the Congressmen in question. As it stands, willful infringement must be proven to land any meaningful award in a copyright case. (A recent example http://arstechnica.com/tech-policy/news/2009/06/jammie-thoma...)
So while factually accurate, I don't entirely see how it minimizes the damage caused by SOPA, as the copyright holders have never had much difficulty demonstrating willful infringement to date.
So while factually accurate, I don't entirely see how it minimizes the damage caused by SOPA, as the copyright holders have never had much difficulty demonstrating willful infringement to date.
I agree with this, but the factual inaccuracy is important. Given that these sites are run by the bill sponsors it would be pretty easy to show they are not willful infringes.
Worse, by publishing this story it makes SOPA easier to defend - the authors can get up and say "look - SOPA won't wreck the internet. I made a mistake and did the wrong thing, and the law explicitly took that into account"
Isn't a potential solution to the question of willful infringement as simple as notifying the Congressperson's office of the problem? If they continue to host the content, they cannot claim ignorance anymore.
In any event Fair Use is an affirmative defense, not a right written into SOPA.
So the only "fair use" component to this discussion is "no, the legislators may never suffer criminal penalties... but they still are at risk of having their domain removed from the internet until they can convince the censors to reinstate it."
And each new piece of media posted to their site opens the operator up to another round of "censored until proven innocent".
I would assume that somebody who participated in the implementation of a law and then broke it, would be the last person to be able to invoke a good-faith belief that their actions are legal.
That's very naive. It would be that someone's staffer who broke the law, that staffer having the good faith belief, and the representative would have good faith belief in his staffer. By the transitive property of good faith belief among people in politics, that would make them all clean.
However, when your 8 year old daughter who shared an Miley Bieber mp3 had good faith belief she was ok because everyone is doing -- that is untrustworthy, and the fact that you have good faith belief in her intentions does not clear you of anything. You'll go to jail or pay a hefty sum.
That's how laws really work. Not the way they common knowledge assumes.
Technically, the way the law works is based on what a jury is willing to accept. As I would not accept the first interpretation and I would accept the second it's something of a grey area.
Telling is the use of words such as "unlikely", "not clear", "probably". This bill is vague enough that we won't actually know its effects until 10 years of litigation have established precedent. Not a great environment for doing business.
I hope some American (preferably in the relevant geographical area for those politicians) is writing short polite letters explaining what those politicians have done, and explaining the consequences under SOPA.
I know that I'm hopelessly naïve for thinking that constituents writing letters to politicians achieves anything. Maybe some satirist should do a sketch on tv?
congressman: Good day, sheeple. With prompting by the content industry, we are considering beheading everyone, because it has been shown that everyone sometimes plays back a tune in their head without paying royalties. We've tried to get you to admit and pay every time you do that, but that didn't work, and we have to do something -- it seems only beheading would solve the problem.
(people frantically writing letters)
congressman: Seems, from everyone's responses, we've gone too far. We've asked our content industry overlords, and they will apparently be ok if we only cut everyone's ears to start with, so that no infringing content can get into people's heads. But if that doesn't work well for music, we're not just going to take your eyes out to avoid infringing on videos -- we'll have to do the full beheading thing then.
(people sighing with relief) Well, that's a reasonable measure.
--
At least, that's my impression of the effectiveness of writing these letters. Congress just keeps introducing horrible bills, and the people have to win every time (which they hardly ever do), because every one of these bills includes the cumulative effect of the previously failed-to-pass bills.
The same thing happened in Germany ,the legislator who spear headed the Piracy Act's website itself had copyrighted images... I wish these people know what they are doing.
I don't agree with this law, but there seems to be this underlying sentiment on HN and other communities that copyright holders don't have rights and that there should be a free-for-all with their content.
No, the underlying sentiment is that copyright holders (especially the big conglomerates) have gone significantly too far with the rights granted to them by the people.
If I release a proprietary software app and users start sharing copies of it for free online, I should have some legal recourse.
I'm really tired of hearing the same old arguments about how somehow this is helping me as a business by giving me "free advertising" and that "it doesn't actually affect sales negatively". It's not and it does. My own stats over the course of 10 years shows me that this is true. Big companies like Microsoft and Adobe can handle it because they have billion dollar budgets. I can't.
The problem isn't necessarily that one copy that's taken. It's the fact that when piracy isn't stopped, people start to first think that it's okay to get your stuff for free..and then they start to expect it, potentially putting you out of business.
Open source falls into a similar category. Except, it's your future job that's getting cheapened. Why would someone hire a software engineer to build an app when they can take a free one and hire much cheaper software mechanics? I've seen it happen already. In 10 years when the current generation (which is used to getting software free and is even more tech savvy than the previous generation) starts taking over current businesses, tech job salaries will be on the decline. I predict a developer union at some point.
I'm not going to take this and just let my business get ruined. I've converted all of my software products to services. Customers essentially are paying per-month for something they would have gotten for a flat-fee.
I don't mind, because it means I can more easily determine my profits for the year and I will make more money in the long-run.
> Except, it's your future job that's getting cheapened.
That is the economically proper result, it just looks bad when comapred to how developers and our employers have been ripping off software users for so long. Every time two or more of us write essentially the same code when implementations already existed but weren't freed, the industry has tacitly coöperated to inflate demand for software developers and pass on the costs of the wasted effort. The free software trend is not in my narrow interest, but I still think it is what should happen.
It seems you're speaking for people my age (I'm 25) and I'd agree with you 100%. I'm seeing far more comments here that support the free for all you describe than those simply frightened by the abuse this bill will likely be used for.
I have to say I'm anti-SOPA or people will start going off on me for lack of actually understanding my point.
But anyway, as far as those who say piracy is free advertising, that's total dog shit. The theory goes that those who pirate wouldn't buy the product anyway but I can easily disprove that. Here's how:
There are tiny minority who actually would never buy the product. They'd be negligible if piracy weren't so common these days.
Then we've got a group who can't afford it. These people will do one of two things: they'll either find a cheaper alternative or save up. Either way it doesn't hurt legit businesses.
That scenario plays out in a world where we've come up with a way to stop the majority of piracy. Currently what happens is that the people who wouldve gotten an alternative or saved up just pirate the damn thing. In this case they're not only hurting business but if they're one of the these Free Software crusaders then they're actually hurting their own movement! Our imaginary person could have chosen to use FOSS or Open Source but they go the pirated proprietary route instead.
There's also an undercurrent or a subtext here (whatever you want to call it) with a free software advocate slant. There are some free software evangelists that believe that by cutting into the profits of corporations, piracy is good. These people are only hurting their own movement for the reasons I've stated above. I see so many who'd force "Free Software" on us all because it is the One True Way. Well I'd say if you love freedom so damn much then let me be free to lock myself into whatever proprietary technology I want. Let me be free to vote with my wallet and to vote with what software I use.
I use Linux. I love it. I also love my Mac too. Im free to choose both and I'd be really angry if I had to choose one over the other because one group wanted to wage war against the other no matter who won.
That's not necessarily true. If you look at the corporate or organizational opposition to SOPA, you'll find eff.org, mozilla.org, etc. These folk aren't necessarily in favor of piracy. More realistically, they're in favor of free speech or free software.
The thing is, I'm so jaded by the piracy supporters' rhetoric at this point, mainly their failure to admit that hundred of millions of people use filesharing/streaming technology to blatantly rip off content-producers, that I haven't even looked into what this latest bill is. They've cried wolf too many times.
If the principles behind SOPA were applied to other things,
- police would close gardening shops if someone says they saw a client bought anything that was later used to grow pot
- pharmacies would be shut down by the police for selling syringes if someone says one of these was used for drugs
- gun producers would be shut down for selling guns if one of them was said to have been used to commit a crime.
And if you think "well, in theory, but of course it isn't going to be used like that" - well, it definitely IS going to be used like that. DMCA is being used like that (and part of the reasons SOPA is being introduced is because DMCA has some fairness provisions that make it harder to abuse , even though it is very easy to use ).
Also, PATRIOT act was for terrorists, and wouldn't be used for anything else, right? That's why 99% of the times it was used have nothing to do with terrorism.
SOPA is designed to be abused the way those people cry about. Make no mistake. And you'll suffer its consequences like the rest of wolf criers, even if you wouldn't know it.
Yeah, you're completely right. But I don't understand why so many are against his comments. He's making a good point that there are a lot of people defending torrent and file sharing sites like they're bastions of freedom and the good guys. The reality is that theyre known to be used for sharing copyrighted files illegally. Some even advertise it. There's really not much of a defense for them, we all know what they do. Hell, even I use them at times which I know is wrong (I'm sorry, I'm only human).
The GP's intent wasn't to support SOPA. Read his comments again, please, as he makes a good point. These sites are fighting SOPA because they know they'll be easily shut down if it passes and they know they're providing copyrighted content.
The difference between people like us here on HN and those that run the sites in question is that our aim would most likely be to disrupt content delivery legitimately through a startup and they're just trying to keep getting that CPC ad revenue. Our reasons for being against SOPA are very different and he sees no defense for the sites in question.
While I see your point, I don't think it's fair to chalk up the opposition to merely piracy supporters. There are a large number of people who fear the broader ramifications, and a lot of organizations, who are against SOPA and not necessarily pirates.
Reading the description of the bill below, it does seem awful. But like I said, up to this point I hadn't even read it, and the reason for that is there's so much noise coming from the pro-torrenting lobby, I just tune out the whole debate these days.
(i should note that i don't live in the USA, otherwise I probably would have read about the bill itself by now)
It's not fair, you're right. However I'm seeing a lot pro piracy people out there and a lot of the top stories on this have been either coming from or somehow supporting the major piracy, excuse me, "peer to peer file exchange and sharing" sites.
I doubt anyone here will say SOPA has any redeeming qualities whatsoever but the comments and stories sometimes stray into the area we're talking about and we're only speaking in the context of those sites.
I agree. You really should look into SOPA though. The bill is dangerous in that it can be abused to shut down legit sites with hardly any evidence for infringement at all.
That said, I agree with your sentiment about the piracy supporters. A lot of people like to rant about freedom this and freedom that but it just doesn't hold up when you talk about piracy. There are a plethora of sites that do just blatantly rip off content producers, often times bragging about it (looking your way, Pirate Bay), while at the same time hiding behind the ideals of freedom.
No one will argue that the net is powerful and it's the freedom of the Internet that's a huge part of its power to empower people but we cannot sit and pretend that these sites should be left alone because that would hurt freedom. Yes, we do need to protect freedom for and on the Internet but using the freedom defense to argue for some of these sites is just ridiculous.
If I produce a piece of data that I charge for and it gets distributed freely on these sites without my authorization that is just plain wrong. No one is entitled to free music, movies, software, etc. they're just not unless it was the original intent of the author to give it away freely. This is real simple stuff and I can't see how people defend piracy like this. "oh but the corporations are evil, they lock me in, restrict my freedom, whine whine, moan, moan". Well you don't have to purposely hurt them or "take them down" just because you believe software, audio, video, whatever should be free. What you do is either use the alternatives made by like minded folks or create your own. Why force an agenda on the rest of us? That's extremism.
SOPA is a bad law and I'm ardently oppossed to it but let's not frame this issue like the poor underdog torrent/file sharing sites are championing freedom and good while the evil corporations are trying to enslave us all. It's just not so (at least in those terms, arguably). Piracy is illegal and has been since before the Internet. What part of distributing paid content on a worldwide scale for free is okay? This isn't about your belief that you're entitled to x, y, and z free. Its about this big "evil" corporations wanting to get paid when you use their product. They obviously are making things people want and enjoy otherwise it wouldn't be piracy that put them out of business, it'd be lack of sales and no one would even want to pirate their product, whatever the product may be.
There's too much talk about the obviously unethical file sharing sites. They're no angels themselves. So instead of framing it in their terms we should be framing it like this:
In an effort to stop piracy (which is not a bad thing) these large corporations and government officials are supporting a bill that has obvious potential for abuse and can hurt legit business owners or content providers in the process. The bill is over-reaching and can hurt future innovation.
Let's talk in those terms instead of defending known violators of existing laws.
But as you can tell from the down votes, there are lots of HN readers who do think people are rightfully entitled to content they had no hand in producing (without paying for it). I've got no idea how they come to this conclusion.
I'm so glad there are some voices of reason here. I don't get that view either! I couldn't believe I was downvoteed for that.
Seriously, guys, if someone creates something that others enjoy and benefit from they can choose to keep it to themselves or distribute it. If they charge money for it they are entitled to do so and we should be lucky they've chosen to give it out at all rather than withhold it.
I really honestly, seriously would like someone who disagrees to explain why I'm wrong. Forget the idealism surrounding "freedom" because that's not at issue and I probably agree with you on that. I'm talking specifically about how taking anything that costs money and distributing it freely (like torrent sites) by circumventing the creator's chosen channel and depriving him/her of their chosen fee is at all okay?
I hate all this rhetoric about "evil corporations" and how everything should be free. It's okay to have that view and put it into practice yourself and with people who feel the same but why do we have to force that belief on everyone like its the One True Way? Live and let live. Some people put food on the table with the stuff they sell. Others give it freely. It's a choice. Maybe businesses do engage in price gouging and other unethical practices but that's not the issue. The issue is simply why do some feel it's okay to distribute paid content by means of piracy? In this context the definition of piracy is circumventing the chosen distribution channel in a way that deprives the original creator of the fee they would otherwise collect.
EDIT: As to the downvotes, I'm beginning to believe that many people are either not understanding the issues discussed in other people's comments as they are too busy thinking up arguments against them as they read. This goes for the original posts too. I'm seeing the comments stray far from the real point of the authors and I'm talking about first replies, not replies to replies or deeper. Let's reflect on what we read before going into automatic "My views don't support this"/knee-jerk reaction mode where we shut out anything that doesn't fit our worldview. You don't have to change your mind, just make sure you at least listen to something different otherwise it's not a discussion but an echo chamber.
Uh, rebuking "Fair Use" as a loop hole is damaging, to the criticism of SOPA, is it not? Specifically the notion that SOPA is unaware of the difference between Fair Use and infringement?
Oh god... Reaching. Grasping for straws. They probably ar clueless but this story is still a sorry excuse for a top story on HN. Did anyone except the OP even read it before upvoting?
But we're also a news site, so we contacted James Grimmelmann, a copyright scholar at New York Law School, (and judging from his tweets, not a SOPA supporter) to get his expert opinion.
He was skeptical. The new anti-streaming provisions would apply only to willful infringement. "A good-faith belief that one's actions are legal is sufficient to defeat a finding of willfulness," he told Ars. SOPA even codifies this principle by excluding from liability those who have "a good faith reasonable basis" to believe their conduct is not infringing.
"Even if the Representatives are infringing (and I think they have a good fair use defense, and may well have licenses we don't know about), they're unlikely to be willful infringers," he told Ars.
He also pointed out Smith and his colleagues would only be liable if the value of the streaming performances exceeds $1,000, and it's not clear how valuable a few short clips of local news broadcasts are.
http://arstechnica.com/tech-policy/news/2011/11/on-wednesday...