KnightExemplar wrote:I'm glad we agree on funding Open Source projects. I too believe this is an effective way to "combat" piracy. (Although really, its more about embracing the open nature of the internet and finding business models that would work even if piracy were legalized)
I also agree that DMCA is a piece of crap law, but you can't say it hasn't been successful in slowing down Piracy. The number of pirated videos on Youtube seems to be dropping significantly, ever since that AI was added to youtube that automatically detects copyright infringement. This invention was clearly done so that Youtube can remain under "safe harbor" as stated in the DMCA. Similarly, Megaupload and other file sharing sites have released software to music groups to automatically take down links. (which really makes me wonder if the FBI has a case against Megaupload, since this seems above and beyond the DMCA's requirements for "Safe Harbor"). In general, pirate sites have all moved out of the USA, and the ones that are sorta-pirate sites (like Megaupload) work closely with the industry to hamper piracy on their sites.
Anyway, at the end of the day, stopping piracy ultimately means stopping some form of speech. Speech can describe software, and thus to stop the proliferation of some forms of software / media, we'll have to employ something akin to censorship at some level. So yes, I agree that stopping piracy will mean some reduction in civil liberties, but surely a proper balance can be found. The only thing is, by drawing the line right now, then we will never find that balance. I've said this before: I think you're just being too pessimistic again. Its a hard charge to say that we'll never find a proper solution to this problem. Certainly, we'll have to work to find a good solution, and IMO, I think I'm seeing options that are far better than SOPA already.
Again, lets start with the OPEN act. Whats wrong with cutting off advertising and financial services to foreign sites that are dedicated to infringing copyright? Again, by avoiding the ISP and DNS blocks, the sites are not really "censored". Additionally, OPEN works with the foreign sites by notifying them of a complaint before taking action. I admit that I don't know much about the ITC vs Federal Judges, the proposal seems like a decent place to start.
Reading your reply, I think we agree on more than it would appear initially. Which makes me feel kind of silly replying with such a large wall of text full of disagreements. Still, it seems we might agree on a decent amount.
Youtube was never the major hotbed of piracy here- the piracy that these companies actually worry about (rightly or not) is through torrents, or ftp, or sites like MU, or IRC, or usenet. The DMCA cut down on Youtube copyright infringement (and even then, not particularly effectively- you can still find loads of copyrighted material on Youtube), but as far as I know it didn't do anything significant for the others. Sure, it moved all of the sites outside of the US, but that just made it harder to enforce laws on them in the first place- making the job harder, not easier. Pirates adapted, and went right back to what they were doing before. So, to me, the DMCA (which would probably be considered very mild copyright protection by most of congress these days) gave us a lot of negatives (used for censorship, used when no copyright applies at all, etc.) with very little, if any, practical reduction in piracy.
I think the issue, with respect to finding a reasonable compromise between protecting speech and preventing piracy is that copyright infringement is just so easy to do with speech. And unlike other forms of speech that we do protect against- slander, or the classic "yelling fire in a crowded theater"- it has many of its consequences without being heard by a large quantity of people at once- it's not broadcast in the same manner, and can be made very difficult to trace. This means that anything that legislates against piracy is going to need a very significant
capacity to limit speech. There was the free speech flag* a while back that communicated a copyrighted number (which is it's own problem in itself) with five separate bands of solid colors and three written characters. How do you legislate against that without fucking up everything else? If you use broad enough language to confidently catch those cases, you're also going to include far too many cases that should be protected**. If you use narrow enough language to avoid including things that you shouldn't, then the infringers will just dance around the specific wording. That's why I don't think a reasonable compromise can be reached on that front. I don't think it's conceptually impossible- there obviously exists an ideal balance between civil liberties and copyright protection- I think it's impossible to legislate that balance into law.
Speaking specifically towards OPEN, I'll admit to not having read much on it (all I know is from your own post, and a link you gave way back- but that was dearth of information), but what you list already has some things I think are worth worrying about. If you look at how the whole Wikileaks situation broke down with respect to their ability to receive funding, you'll see that it appears to be very possible for people with enough power and influence to bully things into happening their way on that front. Giving even a little bit of that power to the media companies is something that I can very easily see as being able to be abused. It's also going to run into a similar issue that SOPA/PIPA suffered from: how do you define a site that is facilitating copyright infringement? SOPA/PIPA went outright crazy with it and basically made it "any site that we can find any single instance of infringement, no matter how minor and unrepresentative of the site"- how does OPEN define that? Just like with the civil liberties vs free speech bit, if they use overly broad language it will hit sites that it shouldn't, if they use overly narrow language, then the pirates will get around it, defeating the whole point. I don't know that it's possible to capture the balance on this front either- however, I will say it's probably possible (if highly unlikely), unlike the civil liberties case. I don't know about the ITC vs. judges either, but that could very well be another issue to worry about. As well, as I had said earlier, any copyright protection law that passes through the US government is going to end up with the RIAA/MPAA/other big copyright companies burying their fingers deep inside of it. Even if we could somehow craft legislation that did work, and did avoid unacceptable consequences- which I very much doubt, but even if we did- I have no faith that it would retain those traits after getting through our legal process. The media companies just have too much to gain by fucking up the legislation, and the members of congress have too much to gain by letting them do it.
As a side issue, I think if the US government is going to tackle copyright in any legislative sense, it is absolutely required
for it to first address the ridiculous ways in which copyright has been extended and broken in the past few years. They need to fix the DMCA, they need to shorten copyright terms, they need to fix the penalties for illegally downloading files; they need to fix the whole system on the side of society. Until it is fixed, anything moving towards stronger copyright protection is just going in completely wrong direction that things should be going. Copyright laws have been moving in the direction away from society's benefit for decades (probably centuries actually, but I didn't check)- piracy, while undeniably having some actual negative consequences for some markets, is practically the only way society gets those rights back. Perhaps it goes too far, perhaps rights that don't exist are taken- I wouldn't wholly disagree- but in the end, it's the only counterbalancing force available to society to fight these abuses. If you take that away, then we're still left with our broken system, but the citizenry now has no recourse- legal or illegal. That is a very dangerous situation to create. As such, I don't think I could support any copyright protection bills before this fundamental and critical grievance is addressed. I have no ability or willingness to trust lawmakers if they say they'll fix it right afterwards- it must be fixed first, or possibly concurrently (though that'd be a very big law if it covered both). I don't think that's something that can be, nor should it be, compromised on.
* I'd link to it, as I think it's a beautiful and simple example of just how difficult and complicated this process can be, but
I don't know how well that'd mesh with the forums rules- you can search for "free speech flag" on your favorite search engine and it'll be in the top results. On that note, if a mod sees this bit and thinks it's OK, could you say so? Not important enough to bug one of you over, but if you're passing through, well... It never hurts to ask.
** Not specifically related to copyright, but another wonderful example of how broad terminology in legislation can have far reaching effects: I'm drawing a blank on getting the name of the act, but it was an early internet era bill detailing FBI and other law enforcement rights with respect to data left on a server. Since email was always something retrieved from a server back then, the law allowed them to access emails that were left on a server for more than 100 days (or some similar number) as abandoned property- viewing it as the same concept as abandoning something without claiming continued ownership. That made sense for the era it was written in. Nowadays though, due to the terminology used, it means they can access any email on a gmail, yahoo, hotmail, or other webmail account after 100 days with impunity- this is broken. Broad language can have very dangerous consequences down the line.