Blog Ipsa Loquitur

The Stop Online Piracy Act (SOPA) is a terrible thing. It’s sort of like a turbo-charged, Mad Max version of the decade-old Digital Millenium Copyright Act, which I’ve written about before. Both SOPA and the DMCA address copyrighted materials posted to web sites, but they go about them somewhat differently.

Consider some scenarios: Viacom sees a clip of South Park on a video sharing site: completely hypothetically, let’s say YouTube. Pre-DMCA and pre-SOPA, YouTube might have been liable for contributory copyright infringement. They’d end up having to fight a “substantial noninfringing uses” battle like Sony v. Universal, the Betamax case. I’m not going to cover that again, but just know that that’s expensive and worrisome, and they could lose and go bankrupt. That’d be bad.

Enter The DMCA

The DMCA gives Viacom a private remedy: they don’t need to call the attorney general. It’s like trespassing. Sure, you can call the police and try to get someone arrested, but you can also just call your lawyer and start a private lawsuit. Under the DMCA YouTube is actually completely immune to copyright infringement suits for the infringing videos its users upload. Viacom has to go after YouTube’s users. But like I said, there’s a private remedy.

Specifically, there’s a DMCA takedown notice. Viacom sends a letter to YouTube, swears that the clip at whatever URL is infringing on their copyright, and orders YouTube to remove it. Viacom’s letter must list specific files at specific addresses, or YouTube can ignore it. For valid takedown notices, YouTube either removes the clip immediately, or they lose that immunity I mentioned. But if YouTube complies with the notice, they’re completely immune to the copyright violations of their users.

Enter SOPA

SOPA takes that general regime, which is unfair to both sides (a conundrum that the civilized among us know as a “compromise”), and makes it much worse for one side. Given that Big Copyright has spent $57 million lobbying for it to pass, you get no points for guessing that SOPA is worse for “everyone who is not an international media conglomerate.”

It takes that DMCA takedown notice thing, and makes it a fire-breathing monster. Now, in our scenario above, Viacom would simply send a letter to a court, swearing that YouTube contains an infringing video. The court, without contacting YouTube, would find the video infringing or not; if it’s infringing, the judge would then order YouTube removed from the DNS record. DNS is the system that lets human beings type “Google.com” into a web browser, instead of 72.14.204.91.

When a judge decides that there is an infringing video on YouTube, she can deactivate YouTube.com. The site just disappears off the internet. Poof. Not the video; the whole site. The Stanford Law Review has a good overview of the law as a whole.

SOPA sucks

So where the DMCA lets a copyright owner nuke any file on the internet, SOPA lets the copyright owner nuke any site on the internet. To say this moves the goalposts a bit is an understatement.

So the collective internet has been rather up in arms about the whole affair. I can’t say I’m surprised. Google, Apple, and Yahoo have gotten in on the act, too.

But not GoDaddy. There’s a giant thread on Reddit calling out GoDaddy for supporting SOPA. Why does GoDaddy support SOPA? Specifically, why does GoDaddy support SOPA when its customers hate it so much? They say:

“Go Daddy has a long history of supporting federal legislation directed toward combating illegal conduct on the Internet. For example, our company strongly supported the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, the Protect Our Children Act of 2008, and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT IP).

Go Daddy has always supported both government and private industry efforts to identify and disable all types of illegal activity on the Internet. It is for these reasons that I’m still struggling with why some Internet companies oppose PROTECT IP and SOPA. There is no question that we need these added tools to counteract illegal foreign sites that are falling outside the jurisdiction of U.S. law enforcement. And there is clearly more that we could all be doing to adequately address the problems that exist.”

Yeah, the Hooters of registrars is really concerned about their image as an upstanding internet company.

Whatever, guys. My domains are registered through secureserver.net, a GoDaddy affiliate; I’m moving them all on December 29th.

Published on under Legal Theory

History is full of tragic loves. Cleopatra and Marc Antony. Elizabeth Taylor and like half of Hollywood. Jennifer Lopez and Marc Anthony. Now, the failed marriage of AT&T; and T-Mobile. AT&T; had this to say for itself:

“The actions by the Federal Communications Commission and the Department of Justice to block this transaction do not change the realities of the U.S. wireless industry. It is one of the most fiercely competitive industries in the world, with a mounting need for more spectrum that has not diminished and must be addressed immediately. The AT&T; and T-Mobile USA combination would have offered an interim solution to this spectrum shortage. In the absence of such steps, customers will be harmed and needed investment will be stifled.”

This is one of the stupidest things I’ve ever read. “There’s lots of competition in the wireless industry. (ED: snort) We were trying to put an end to that, but you guys are being jerks about it. We’re taking our legal team and going home.”

Published on under The News

Abnormal Use is one of my favorite legal blogs, because they cover products liability cases. If your chainsaw falls apart mid-tree and decapitates your lawn gnomes, or if your car’s GPS tells you to drive off a cliff and you somehow think that’s a good idea, you and your bizarre lawsuit will end up on Abnormal Use.

Their Christmas coverage is pretty fantastic, too. Here’s Steven Buckingham on the classic (if being played for 72 hours straight once a year means it’s a “classic”) movie Miracle on 34th Street:

Written and directed by George Seaton, and starring Maureen O’Hara, John Payne, Edmund Gwenn and a young Natalie Wood, the 1947 film is ostensibly a Christmas classic, but really, it’s a cinematic exploration of some of the worst legal malpractice I’ve ever seen.

But please, Steven, tell us how you really feel!

Let’s start out with the most glaring mistake / “legal strategy”: The state calls Santa to the stand. Kringle’s lawyer does not invoke the privilege against self-incriminating testimony. In fact, he waives it while boldly proclaiming, “We have nothing to hide!” Trust me, guy, you’ve always got something to hide. In your case, it’s the fact that your client assaulted the shrink. You might want to sweep that under the rug. Luckily, because the state phoned its performance in, Santa gets away unscathed.

Read the rest at Abnormal Use. And remember, the only thing worse than suing Santa is suing Santa and losing. Merry Christmas!

Published on under Legal Theory

MG Siegler, writing for TechCrunch, on Google’s fatal mistake with Android: making it open-source

Open. Open. Open. Open. Open. Open. Open. Open. Open.

Every chance they get, someone from Google brings this up as a huge advantage of Android over rivals like iOS. Never mind the fact that a good percentage of the time it’s pure marketing bullshit — why exactly isn’t Google Wallet on Google’s own Galaxy Nexus device? — even when it’s true, there are some very real downsides. The user experience angle has been debated ad nauseam. More interesting is what we’re seeing now. A downside for Google.

It’s an article that raises a lot of interesting points, and also the very stupid one that “Google is surprised that its open-source project is being used for other projects.” Even if Google has a silly definition of what it means to be open, that’s not really proof that the Kindle Fire is a failure of Android as a platform.

Published on under The News

From Wired

In February, Super Bowl XLVI will be the first instance of the biggest game of the year to stream live over the web, via NFL.com and NBCSports.com. The game will also be available to stream on Verizon smartphones through the league’s wireless partner’s NFL Mobile app. (If you’re on another wireless carrier, you’re out of luck; Verizon’s got the exclusive.)

Awesome. Every day, we get a little bit closer to that glorious future when first-run TV happens on the internet, instead of just pirated first-run TV happening on the internet. Don’t get me wrong, I’m thankful for Netflix Instant and Hulu and South Park Studios and all that other good stuff.

Published on under The News

A guy named Gilberto Sanchez claims he bought a pre-release copy of the Wolverine movie back in 2009, and uploaded it to popular file-sharing site MegaUpload. (MegaUpload is the one that’s currently in the crosshairs of SOPA, and claims it’s not a bad actor. This has pretty lousy timing.) His punishment? A year in jail:

“Although Fox was able to get defendant’s Wolverine workprint removed from his Megaupload account within approximately one day, by then, the damage was done and the film had proliferated like wildfire throughout the Internet, resulting in up to millions of infringements,” prosecutors said in court documents.

I think the real tragedy here is that millions of people might have sat through this movie. Those poor souls.

Published on under The News