Dozens of law professors: PROTECT IP Act is unconstitutional

Falldog

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#1
An ideologically diverse group of 90 law professors has signed a letter opposing the PROTECT IP Act, the Hollywood-backed copyright enforcement/Internet blacklist legislation now working its way through Congress. The letter argues that its domain-blocking provisions amount to Internet censorship that is barred by the First Amendment.

Jointly authored by Mark Lemley, David Levine, and David Post, the letter is signed not only by prominent liberals like Larry Lessig and Yochai Benkler, but also by libertarians like Post and Glenn "Instapundit" Reynolds.

"The Act would allow courts to order any Internet service to stop recognizing [a] site even on a temporary restraining order... issued the same day the complaint is filed," they write. Such a restraining order, which they describe as "the equivalent of an Internet death penalty," raises serious constitutional questions.

The Supreme Court has held that it's unconstitutional to suppress speech without an "adversary proceeding." That is, a speaker must, at a minimum, be given the opportunity to tell his side of the story to a judge before his speech can be suppressed.

Yet under PIPA, a judge decides whether to block a domain after hearing only from the government. Overseas domain owners (and the speakers who might make use of their websites) aren't offered the opportunity to either participate in the legal process or appeal the decision after the fact. (Affected domain owners may file a separate lawsuit after the fact.) This, the professors say, "falls far short of what the Constitution requires before speech can be eliminated from public circulation."

The law professors also point out that blocking entire domains could "suppress vast amounts of protected speech containing no infringing content whatsoever" if an entire domain is blocked based on finding infringing material on a single subdomain. The Supreme Court has compared such over-broad censorship to "burning the house to roast the pig."

The letter also warns that passing legislation that violates America's free-speech principles will undermine the government's credibility when it tries to promote free speech principles around the world. America's strong support for Internet freedom has "made the United States the world leader in a wide range of Internet-related industries," the professors write. "Passage of the Act will compromise our ability to defend the principle of a single global Internet. As such, it represents the biggest threat to the Internet in its history."
http://arstechnica.com/tech-policy/...essors-protect-ip-act-is-unconstitutional.ars
 

Don the Radio Guy

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#4
There is no constitutional right to steal intellectual property and products. It's also going to be impossible to stop it, do media companies need to figure out a new way to make a living from their work because legislation can't stop what's going on.
 

whiskeyguy

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#5
There is no constitutional right to steal intellectual property and products. It's also going to be impossible to stop it, do media companies need to figure out a new way to make a living from their work because legislation can't stop what's going on.
Their is a constitutional right to being represented in a court of law, however. Basically the government goes to a judge and says they want a domain banned from ISPs, and if the judge agrees (there's always a judge somewhere that will agree) it's blocked that day. It just can be misused so fucking easily it's not a good power to give the federal government.
 

Norm Stansfield

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Their is a constitutional right to being represented in a court of law, however.
If you are referring to the Sixth Amendment, it is about criminal prosecutions only. If not, please be more specific.
Basically the government goes to a judge and says they want a domain banned from ISPs, and if the judge agrees (there's always a judge somewhere that will agree) it's blocked that day. It just can be misused so fucking easily it's not a good power to give the federal government.
The status quo, where the federal government can't do its job and prevent sites from openly distributing stolen content, is pretty bad too. How would you suggest we change that, if not by giving them the power to shut down websites (with judicial oversight, and the opportunity for website owners to appeal).

Please, describe a system that would:
1. Work reasonably well. (at least as well as other theft prevention in a similar value range)
2. Would satisfy you as far as legal representation for the owners.

Personally, I don't see how this law is any more dangerous than any of the other laws giving the government and the judiciary the power to fight crime. Obviously, once you have a combination of corrupt prosecutors and judiciary, it's all going to be misused. But this no worse than any of the other powers they have.

Bottom line, if we want to be civilized, we need a government that can actually stop crime. And our current one is obviously not able to stop this kind of crime. We can fix that, or we can blame studios for not adapting to being stolen from. The fact that so many people think the second choice makes perfect sense is very scary to me.
 

whiskeyguy

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#7
The problem I have with this is how fast and easily it can be done. Imagine it this way. Someone is suspected of selling stolen stereos out of an electronics store. Police do enough due diligence to obtain a warrant. That warrant allows them to enter the store and collect evidence for prosecution... not barricade the entrance of the store for the foreseeable future. Even if they find "obvious" evidence to a crime, the owners have no been convicted yet and their right to function as a business still exists. They are innocent until proven guilty in a court of law.

This law makes it more like a couple cops suspect something of a store, so they go to a judge and receive permission to barricade the doors to the establishment. They then tell the owner to "sue us" if he doesn't like it. Meanwhile, he is facing the consequences (loss of business) of a crime he hasn't been convicted for.

What a warrant in this case should do is simply allow law enforcement to collect more evidence (such as from the company's servers) and then bring that evidence against them in a court of law. If found guilty, the site can be shut down.
 

Party Rooster

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#8
What a warrant in this case should do is simply allow law enforcement to collect more evidence (such as from the company's servers) and then bring that evidence against them in a court of law. If found guilty, the site can be shut down.
The problem with that is by the time the case were to finally be resolved by going through the courts the pirated movie would already be available for free to stream on Netflix. Time is of the essence when a pirated work hits the internet.

I do agree that it defines it too broadly and there doesn't seem like a timely process to appeal a ruling. And I think it's kind of a grey area when you're comparing sites that actively promote illegal trading and sites that don't even host content and just talk about it. A site like Wackbag could be shut down because somebody posted a torrent link before a mod had a chance to delete it.
 

whiskeyguy

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#9
The problem with that is by the time the case were to finally be resolved by going through the courts the pirated movie would already be available for free to stream on Netflix. Time is of the essence when a pirated work hits the internet.

I do agree that it defines it too broadly and there doesn't seem like a timely process to appeal a ruling. And I think it's kind of a grey area when you're comparing sites that actively promote illegal trading and sites that don't even host content and just talk about it. A site like Wackbag could be shut down because somebody posted a torrent link before a mod had a chance to delete it.
As I stated on the Casey Anthony thread, it's better for our society if more "criminals" go free rather than innocent people face unjust consequences. You can't convict someone of a crime before they face their day in a court of law. Even if they gave them 15-30 days to lodge a complaint or challenge the ruling it would be better. At that point a cease and desist can be issued, but not before their side is heard.

This law is one of those that can be grossly misused in the future to silence people who are critical of the government... that's what I'm worried about.
 

boardsofcanada

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http://arstechnica.com/tech-policy/...to-six-strikes-copyright-enforcement-plan.ars

Major ISPs agree to "six strikes" copyright enforcement plan

American Internet users, get ready for three strikes "six strikes." Major US Internet providers—including AT&T, Verizon, Comcast, Cablevision, and Time Warner Cable—have just signed on to a voluntary agreement with the movie and music businesses to crack down on online copyright infringers. But they will protect subscriber privacy and they won't filter or monitor their own networks for infringement. And after the sixth "strike," you won't necessarily be "out."

Much of the scheme mirrors what ISPs do now. Copyright holders will scan the 'Net for infringement, grabbing suspect IP addresses from peer-to-peer file-sharing networks. If they see your IP address participating in a swarm for, say, Transformers, they will look up that IP address to see which ISP controls it, then fire off a message.

The result is "copyright alerts," a series of messages warning users that their (alleged) activity has been detected and that penalties could result if it continues. These notes continue repeatedly—two, three, even four warnings likely won't result in any penalties—but the scheme certainly does have a punitive component.

ISPs have agreed to institute "mitigation measures" (or, as you and I know them, punishments) based on the collected say-so of copyright holders. These measures begin with the fifth or six alert, and they may include "temporary reductions of Internet speeds, redirection to a landing page until the subscriber contacts the ISP to discuss the matter or reviews and responds to some educational information about copyright, or other measures that the ISP may deem necessary to help resolve the matter."
 

boardsofcanada

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#12
There is a full scale assault on the internet being waged by the government, hollywood and the record industry right now.

Say goodbye to a free and open internet. Say goodbye to getting everything for free.

and welcome the neutered, government regulated, censored and soon to cost you EVEN MORE for much less internet.
 

Party Rooster

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#13
Major ISPs agree to "six strikes" copyright enforcement plan
And why shouldn't they? There's plenty of leeway for the errant movie or song download by your kid or someone sapping your wifi. But if you're habitually breaking the law why shouldn't they go after you? And illegal torrent traffic makes up a huge chunk of their bandwidth costs so why aren't they allowed to address it?
 

Falldog

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#14
And why shouldn't they? There's plenty of leeway for the errant movie or song download by your kid or someone sapping your wifi. But if you're habitually breaking the law why shouldn't they go after you? And illegal torrent traffic makes up a huge chunk of their bandwidth costs so why aren't they allowed to address it?
Because bandwidth costs are unnaturally inflated and it's not their responsibility to ensure that those using the network are law abiding citizens.
 

boardsofcanada

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And why shouldn't they? There's plenty of leeway for the errant movie or song download by your kid or someone sapping your wifi. But if you're habitually breaking the law why shouldn't they go after you? And illegal torrent traffic makes up a huge chunk of their bandwidth costs so why aren't they allowed to address it?
Yea, let's just allow Internet service providers to be an extension of the RIAA/hollywood/government that can shake down anyone and shut down any site they want to with minimal proof at any time. You do realize how easy it is to steal someones wireless internet without you having any idea about it right? Because of that its very hard to tell who really is stealing what. Imagine this happened to you and you had to pay for a lawyer to go up against an RIAA lawyer in court. Good luck paying for that.

As far as bandwith you really think that Verizon and Comcast are REALLY hurting because of bandwith usage? They have a practical monopoly in almost every state. Those are just about the only choices you have for the internet. As falldog said the prices are already inflated way out of wack. In America we already pay much more for slower and unreliable internet services than a lot of places in the world. And also, they have already passed legislation that will allow them to start implementing tiered internet packages based on bandwith...AKA you pay more and you get much less.
 

Party Rooster

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#17
Yea, let's just allow Internet service providers to be an extension of the RIAA/hollywood/government that can shake down anyone and shut down any site they want to with minimal proof at any time.
Apparently you missed the part where I addressed that.

You do realize how easy it is to steal someones wireless internet without you having any idea about it right? Because of that its very hard to tell who really is stealing what. Imagine this happened to you and you had to pay for a lawyer to go up against an RIAA lawyer in court. Good luck paying for that.
And you realize how easy it is to secure your wifi connection? It's not really hard to see who's stealing what if you know anything about MAC addresses. And it wouldn't happen to me. After the first or second notice I'd wonder what the fuck is going on. If you're not doing something after six notices then something's wrong with you.

As far as bandwith you really think that Verizon and Comcast are REALLY hurting because of bandwith usage? They have a practical monopoly in almost every state. Those are just about the only choices you have for the internet. And also, they have already passed legislation that will allow them to start implementing tiered internet packages based on bandwith...AKA you pay more and you get much less.
Up until a few months ago when services like Netflix started really catching on bittorrent traffic was the majority of all traffic on the internet.

Why can't people just be honest and say they want the right to steal creative works without paying for them?
 

Norm Stansfield

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#18
The problem I have with this is how fast and easily it can be done. Imagine it this way. Someone is suspected of selling stolen stereos out of an electronics store. Police do enough due diligence to obtain a warrant. That warrant allows them to enter the store and collect evidence for prosecution... not barricade the entrance of the store for the foreseeable future. Even if they find "obvious" evidence to a crime, the owners have no been convicted yet and their right to function as a business still exists. They are innocent until proven guilty in a court of law.

This law makes it more like a couple cops suspect something of a store, so they go to a judge and receive permission to barricade the doors to the establishment. They then tell the owner to "sue us" if he doesn't like it. Meanwhile, he is facing the consequences (loss of business) of a crime he hasn't been convicted for.

What a warrant in this case should do is simply allow law enforcement to collect more evidence (such as from the company's servers) and then bring that evidence against them in a court of law. If found guilty, the site can be shut down.
Your analogy is perfectly valid (websites should be treated pretty much the same way a store would be treated), and it would be lovely except that you're wrong about how a store would be treated if they're selling stolen shit out in the open. Go ahead, give it a try: open up a shop, start openly selling stolen goods, see if it stays open until you're found guilty by a jury of your peers or not.

Trust me, it won't. It will be shut down the second the first cop walks by. And then he'll go to a judge and get a permanent order for you to be shut down, based on nothing but his sworn testimony about what you are doing, without you ever getting the chance to defend yourself. Letting you keep selling until your trial is over would be just as ridiculous as letting websites continue peddling stolen movies while they're on trial. The whole story about letting a suspect keep committing the crime to get warrants, surveillance and collection of evidence only takes place when the cops actually need the extra evidence, not because it's legally mandated.

This law would simply bring the realistic, efficient system that's in place for off-line crimes to the Internet, nothing more.
 

Party Rooster

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#19
As falldog said the prices are already inflated way out of wack.
Of course Falldog says that. He's a communist. :action-sm

In America we already pay much more for slower and unreliable internet services than a lot of places in the world. And also, they have already passed legislation that will allow them to start implementing tiered internet packages based on bandwith...AKA you pay more and you get much less.
You're nuts. The only reason our nationwide speeds aren't the same as a few countries is because we're so spread out and it's hard to provide all that infrastructure. Look in the Speedtest.net thread and you'll see everyone with FIOS or others in populated areas that blows away everyone. And it's unlimited. A more fair comparison is Canada. You pay about the same in Canada but there's bandwidth caps to deal with.

 
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