There’s probably no more controversial issue on the Internet than that of uploading copyrighted material. In the U.S., copyright owners have taken various approaches that include civil suits against file-sharers, and these have generated flashy trials and extraordinary penalties.
In the EU, some countries (like France) have proposed very strict enforcement of a “cut-them-off” policy. The argument is that the harm done by piracy to the copyright holder is irreversible and can’t be allowed to continue through a long legal process. On the other hand, Internet advocates want Internet access to be viewed as a “right” that can be withdrawn only through a legal process like a trial.
While this may seem an exercise in terminology, the question of whether Internet access is a right is really fundamental. If the Internet is merely a privilege, then it can be withdrawn as soon as the party that grants the privilege (the ISP) says it’s been abused. If the Internet is a right, then legal action is required.
This contrasts with the leaked terms of a copyright treaty here in the U.S. called the Anti-Counterfeiting Trade Agreement, which support a right of the ISP to shut off service without specific legal review. The rumor is that this treaty is being pushed on U.S. trade partners.
There’s a lot of shallow thinking on both sides of this issue, and it creates glaring inconsistencies in the treatment of Internet access and Internet piracy, compared with the “physical” equivalents.
Should we allow someone to confiscate online services used to deliver pirated content with fewer legal steps than would be required to confiscate the truck that carried a load of illegally copied DVDs?
I don’t think so, but that doesn’t mean we have to accept illegal DVDs because we can’t seize the truck out of hand. Copying and sharing content online should be as illegal as selling those DVDs out of a truck, and it is. Reasonable enforcement wouldn’t hurt the Internet, it would help it by removing an issue that jury trials have proved doesn’t have much public support.
There’s a solution to all of this, which is to define those “fair and impartial” procedures the EU demands. It may be inconvenient to use them, and we may need to streamline the enforcement, but the EU confirms the notion of due process of law, and that’s the lesson we need to draw for the world. If the Anti-Counterfeiting Trade Agreement text that was recently leaked is authoritative, its “ISPs do what they need to do” provision fails that test of due process, and we should forget it instantly.
Instead, let’s establish in each country what we’d call in the U.S. an “administrative law judge.” Set a standard of proof of copyright infringement that must be met in a complaint for the judge to take action. Set standards to describe the level of risk that continued misbehavior might create for the copyright owner. Give the judge a list of actions based on proof and risk, and make the process subject to judicial review as usual.
The leaked trade treaty is right in one respect: We need to address this problem across the full scope of the Internet and in a uniform way. To do that, we must link each administrative law process across national borders with treaties to harmonize proof standards and permitted actions. Make each country responsible for enforcement of the law locally and also for interconnecting only where there is a treaty link to the other country, so scofflaws can’t flee to countries that become havens for pirates.
We may finally be in the home stretch of a long and divisive debate, and we need to be sure we don’t lose sight of reality at this last stretch. Content is the future of the Internet, and we need to protect it -- and the rights of the Internet community.
— Tom Nolle, software engineer and founder ofCIMI Corp.
Tom Nolle got my propositions the first time I brought them up. You did not. It seems to me you never came up with a "real world" counter-example in which I did not poke large holes. Your inability or unwillingness to deal with the abstract is painful. All that's proven is that you make personal attacks when your arguments fail you and that you reply before thinking.
Do not contact me. Do not address me. Do not acknowledge my existence. I believe you are offensive and your positions have little grounding in reality, and the more you try to make your points, the more you prove me correct. You however dont see it. AGAIN, when you reply to OTHER people in the future, I strongly suggest you have a third party reviewing your postings for your own benefit.
By the way, your preferred ISP is being sold to a group of { devout (Jews | Moslems | Catholics | Lutheran | [any other religioius sect] | [any organization]} who promise to provide unprecedented levels of services in exchange for the highest levels of moral behavior. Moral Guardians will be provided the latest decrypting software and network sniffers, with read access to all files. Customers will not be provided secured http to any other than registered secured http providers. Customers not acquiescing to Tier I service may be provided a downgraded level of service with looser morals. Those wishing the loosest moral environment will be provided 1200 baud modems (or two cans and a length of stringth).
Congressional leaders applauded the purchase as another nail in the coffin of the old Internet and assuring the success of Internet II, under the "Legal and Decent Internet Act".
I won't even attempt to describe this little scenario as good or bad. I am asking "would they, should they, could they? in your opinion.
I'd be happy to summarize my views on this issue; first with background and then with my position.
First, the Internet has unquestionably created avenues through which traditional illegal actions are facilitated. Identity theft is one, and copyright infringement through content piracy is another.
Second, because of these new risks, there is pressure from content producers (music and TV/movie studios in particular) to crack down on the online behavior that exacerbates their risk of loss due to piracy. Since preserving the credibility of ROI to those who invest to create content (whether talent or money) is critical to having content to distribute, there is increased interest in taking very proactive steps to reduce piracy.
Third, legal action in the form of civil or criminal complaints for infringement has proved an unpopular and uncertain remedy for home-based file sharing where it was quite effective against commercial copying of physical media. Judgements of hundreds of thousands of dollars against school kids or housewives seems extreme to the public, who are after all the ultimate arbiters of law through their support of legislators.
Fourth and finally, the lack of effectiveness of the traditional remedies has led to suggestions that copyright infringement through illegal downloading/uploading of content be curtailed by giving the ISP the right to cut off services to those who are involved at least in the uploading or sharing side of the picture.
My position is that while it's acceptable in a "justice" sense to allow ISPs to suspend services for violations of the terms of use and contract, there are two problems with this remedy. First, it ignores the fact that access to the Internet is a critical element in the exercise of personal freedom of expression and access to information critical to be a successful member of society. The Internet, in that sense, is a "right" as the EU/EC comment recently states. Second, the step ignores the fact that the ISP is being allowed to convict the user of a criminal act which is piracy or copyright infringement and then suspend service as a penalty. That, in my view, violates the due process clause of the US constitution and similar principles in the laws of other countries. Thus, we have to find another way to accomplish the goal.
My suggestion was to create an "administrative law judge" with expedited power to hear cases of infringement and rule promptly, and with that a set of clear policies on how infringement would be proved and what the remedies of both parties would be if proof was provided.
Hope this helps!
As an aside, I don't want for a moment to discourage Ira or anyone from commenting on this topic or any other topic I post on. My views are nothing mroe than my personal views, and the same constitutional framework I would appeal to to justify due process guarantees equal representation to all. I do occasionally say "agree to disagree" in my responses when I believe that no progress toward agreement is being made or likely to be possible, simply because it only uses up space and occupies other readers to little benefit.
The protracted thread Ira Winkler drew me into has become a serious impediment to reading the many worthwile comments to your original entry. I wonder if you won't take an opportunity to dispassionately summarize the highlights in the (earlier) replies.
I am trying to help you see your rights need protection. Why don't you want protection? There is a threat here to seven of the first ten constitutional amendments directly or implied.
This topic started with how ISP's might shut down your Internet access without legal recourse. And that this principle might be extended world-wide. That is a political disenfrachisement because it would be enacted into law and reduce our current rights. It is natural to me to see a disenfranchisement as a commonplace among past segregationist laws and Nazi anti-Jewish lawmaking.
First they came for the communists, and I did not speak out—because I was not a communist; Then they came for the socialists, and I did not speak out—because I was not a socialist; Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist; Then they came for the Jews, and I did not speak out—because I was not a Jew; Then they came for me—and there was no one left to speak out for me.
Why don't you discuss your contentiousness with your colleagues? I am tempted to say that you're acting like a dog chewing your own tail. And you really haven't added anything to the conversation.
Honestly, you're a lost cause when you cant even acknowledge that bringing racism and Nazis into a discussion of copyright laws is offensive.
Take a moment, step back, and think about what people in the real world think. There is a difference between making examples of what overstretching boundaries can lead to, and that Nazis. Why dont you give your posts to an impartial third party to read before you post them next time?
Your accusation that I extrapolated "businesses choosing not to facilitate likely criminal activity with Nazis and racism is again offensive." is wrong and poor grammar too boot.
I used the previous examples because they represent the abuse of power to short change the rights of citizens. I don't know why you find that I relate this potential abuse to the abuses of racists and Nazis offensive.
Your restaurant example is limited in scope and I believe it is wrong headed and short sighted. Why isn't an employee (which I assume represents an employee of the ISP) calling the police before anything else? You are dealing with a criminal. Confrontation would most likely get you an argument or gun fire in the neighborhood where my father ran his grocery. Are you assuming a white collar criminal can not be violent or vindictive? Also, you may want to consider if you can determine whether your supposed cokehead is baiting you with snuff.
I will cite you a counter-example of suspected child abuse. Several types of professionals are obligated to report suspected child abuse. In some states at least. As a school principal, would you ban a parent from school instead? As a teacher, would you decline to prepare a report card? Some photo processing employees even find it possible to report a suspicious set of photographs.
I believe businesses use their terms of service to absolve themselves from a social responsibility to work with police authorities when there is a seeming crime. This responsibility (to the social compact) can expose a business to financial risks its executives do not want to assume. Terminating service is a less expensive alternative with corresponding lesser impact. Yet relying on the wording of a TOS may excessively limit a law abiding citizen's rights (the ones unspoken and not disparaged by the constitution).
There are two faces to this coin. I may have left you confused about which one I was dealing with at a given moment in time. For instance, the balance between reporting criminal behavior and violating a right to protection from illegal search and seizure seems fraught with issues to me. The answer rests with a thoughtful legislature, not the law offices of the ISP's attorneys.
I live in a suburb of Cleveland. There is plenty of public discussion about Cleveland/Imperial Stranger in terms of the responsibility of the citizen to report crime and to be protected from retaliation. Even suspicious behavior like a person sneaking around is worth a phone call in my opinion.
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