

Megaupload could spawn caselaw more destructive than SOPA - davidbanham
http://blog.davidbanham.com/?p=52

======
roel_v
I just wished people who have obviously no expertise whatsoever in law yet
consider themselves to have enough of it to publish about it because they've
read a few Wikipedia articles and a judgement here or there would stop said
publishing already. With nonsensical statements asking 'if fansubs would be
derivative enough to warrant fair use protection' it's a dead giveaway that
the author has no clue whatsoever about copyright law, or law in general for
that matter.

If a lawyer started posting here on HN or on a programming forum elsewhere
claiming that obviously programming language X is better than Y because X has
pointers and Y doesn't we'd laugh him/her out of the room too. Why do we think
it's acceptable to do the equivalent to other fields?

~~~
drzaiusapelord
This is harsher than it should be, but its been bugging me for a long time.
The assumption that geeks are good at everything and that we'll one day take
over and everything will be perfect is too often taken as a given.

Geeks can't do law. Its pathetic when we try, but because this kind of thing
falls into the general category of "politics" its tolerated.

80% of what I've read about SOPA has been wrong (not that I'm defending it).
I'm not even going to go into the commentary regarding how the Megaupload
takedown was illegal. Or how 90% of the commentary on here reddit, and
slashdot just follow the childish "I want to download anything and if you get
in my way, you're the problem" attitude that is not only tolerated but
promoted as reasonable.

Also, geeks can't do fiction, comedy, or movies. We're too obsessed with
quoting aging one-liners and believe tired old memes are hilarious. Geeks take
down Hollywood? Please. I'm not even going to go into geek politics (Ayn Rand,
Ron Paul, anti-progressive, anti-federalism). Or this whole armchair
revolutionary crap like "Twitter and facebook are responsible for the Arab
spring, not people risking their lives in the streets."

We're good with computer crap. Lets stop pretending otherwise. Good self-
learning and analytical skills don't mean "instant expert." Funny how the
"Learn x in 10 years" rule applies to everyone but us.

~~~
SilasX
In fairness, _law_ can't do law either. One of the most basic expectations of
the legal system is that a citizen should be able to know, with confidence,
whether they're breaking the law based on a reasonable search of available
resources on the matter, without having to contact a specialist (lawyer).

Yet lawyers advise you that pretty much everyone is breaking some law.

~~~
roel_v
You're doing _the exact thing_ I and drzaiusapelord are complaining about.
_No_ , what you're describing is _not_ 'one of the most basic expectations of
the legal system'. How would it be possible to capture social rules that have
evolved over centuries and are supposed to cover an almost infinite set of
circumstances and boundary conditions, and on which huge economics interests
and grave personal consequences depend, in a couple of paragraphs of
legislation? How would the case law fit into that? How could that work in a
society where understanding the cooking instruction on a bake-it-yourself cake
set are too difficult for a sizable part of society to understand? Law is not
an algorithm that you can apply to a set of perfectly quantified variables.
Nerds like to think it is, or at least that it should be, but that's just not
how society (and by extension, law) works.

(I've been a nerd my whole life, professional programmer for 15 years and I
did a law degree next to my job. I spend thousands of hours over the last 9
years studying law, and I still don't know shit, or at least not enough to
write opinion pieces on it without supervision of someone more experienced. At
least I've gotten to a point now where I recognize that I don't, and where I
recognize bullshit when I see it).

~~~
SilasX
Really? Every society has always had every non-specialist in violation of some
law despite their efforts to learn what was illegal? And this is an
unavoidable aspect of reality?

~~~
roel_v
Ah, the false dichotomy, another pinnacle of nerd legal reasoning :) (not
using nerd as an insult, just as a general description of a too strictly
logical frame of mind)

The point is not that everybody is always in some form of violation, the point
is in _uncertainty_. There are always cases where to facts don't clearly map
to the rules as they are written down, or where the facts are unclear or open
for interpretation. In those cases, even specialists can't say if something is
'illegal', for a broad definition of the word 'illegal'. Despite the huge
amount of legislation and case law we have nowadays, still not everything is
covered; in the past, there was much more uncertainty than there is today,
because much less was codified. And to answer your question, yes, uncertainty
_at the margins_ is an unavoidable aspect of reality.

This is also what bugs me about the commentary on the Megaupload case: people
claiming that Dropbox might be next, because they too allow for sending data
and don't have a way to search what's available. The fact of the matter is
that it's about _intent_ \- the Megaupload people encouraged copyright
infringement while hiding behind a thin layer of compliance veneer, whereas
Dropbox doesn't, their main use truely is 'personal document storage'.
Everybody who visited the Dropbox and Megaupload websites a few weeks ago
could see so. Now the nerd reaction to the legal aspect is 'oh but there is no
law that indicates the exact boundary between the two, so the Megaupload bust
is illegal'. Back on planet reality however, softer interpretations of
'intent' and 'reasonable' etc. decide what crosses the line and what doesn't.
Could Megaupload know in advance exactly how far they could go? No. Is that
proof that our legal system doesn't work? No. If anything, it shows that
people can get away with much, and that only egregious abuses wrt copyright
infringement are prosecuted.

~~~
SilasX
Yes, there was a false dichotomy, but it was on your side; I was just
objecting to it.

Me: People should be able to tell with confidence ( _not_ perfect 100%
confidence) whether they're breaking the law, yet today, nobody can have
anything close to this.

You: That's an impossible ideal, the law performs about as well as it can be
expected to.

Me: It's _unreasonable_ to expect better? So everywhere people have been that
uncertain of having violated the law?

You: False dichotomy! You prove I was right all along!

Me: Um ...?

~~~
roel_v
To quote from your post:

" _Every_ society has _always_ had _every_ non-specialist in violation of some
law" (emp mine)

The false dichotomy is in the absolutist phrasing of the question. Because
obviously, the answer is 'no, not _every_ society, _always_ and _every_ non-
specialist'. The more nuanced answer is 'yes, _at the margins_ in every legal
system there is some sort of uncertainty'.

You claim

"yet today, nobody can have anything close to this."

which is nonsense. When I shoot somebody in the face because they took my
parking spot yesterday, I can be as close to 100% sure as possible that I am
guilty of 1st degree murder.

But for cases where either the law or the facts can be explained in several
ways, or where there is simply so much factors to consider or things to know
about to have a reasonable idea of what a 'just' outcome is, there is some
uncertainty, which cannot be avoided. Your original claim was "One of the most
basic expectations of the legal system is that a citizen should be able to
know, with confidence, whether they're breaking the law based on a reasonable
search of available resources on the matter, without having to contact a
specialist (lawyer)." Which of course depends on your definition of
'reasonable search', but which for an 'average' definition of 'reasonable'
(i.e., of you ask 100 people, the average of those), is not true. For example
there are many tax related matter that are highly specialized, and for which
it is completely reasonable to expect people to use professional services to
make sure they get it right. Or, as another example, legal procedure - there
are so many rules and customs that it's perfectly reasonable to _not_ expect
an average citizen to be able to figure it out, and require a licensed lawyer
be used to perform certain tasks in legal proceedings. Etc.

~~~
SilasX
You're showing the same kind of insubstantive pattern-matching I've come to
see and expect from supposed legal experts. Here, you see an "extreme"
argument and assume, purely on that basis, that there must be something wrong
with it, and the truth is in some kind of "middle". But let's trace back what
the actual exchange was.

1) I said (trying to start from a more general, uncontroversial figure of
merit) that one sign of a bad legal system is that it fails to let people
know, with (imperfect) confidence, and without "experts", whether they're
breaking the law. This means breaking _any_ law: remember, it's not
praiseworthy that people can be certain about one _particular_ law. What
matters is whether they're certain they're not breaking any law, because you
only need to break _some_ law to be punished, not a _particular_ one. It's
little consolation that my interpretation of the murder laws was correct if
they string me up on bizarre endangered species ones!

(Already you should see the irrelevance of your invocation of "but you can
tell that killing over a parking spot is illegal", but perhaps I go that far
given your legal expert self-identification and your contempt for the "geek"
view!)

2) I then pointed out that currently, you can have no such confidence. This
would be confidence that, "for all people, it is not the case that there
exists one law that they are currently breaking (or breaking on a regular
basis)". I substantiate this by pointing to the standard recommendation from
experts.

3) You claim that it would be unreasonable to expect this of a legal system.
(You further ignore the citing of the principle of "ignorance of the law is no
excuse".) This would suggest that no society has pulled it off. But obviously,
you can't defend such a position, so you substitute it (per the pattern-
matching I mention at the beginning of the post) with the weaker standard that
there is some uncertainty at some margins. But that was never in dispute!

4) So, it is clear that a) the standard I cited is reasonable, and b) many
current legal systems violate it, making them no better at "the law" than the
geeks whose legal expertise you ridicule,

At this point I should add that geeks already have set up existing systems for
"how to do it right". Rather than, say, expect that everyone should closely
follow libraries of laws and cases, they have the RFC system, which provides a
public, since point of reference that is constantly, pro-actively reconciled
with conflicting notions, rather than waiting years for the supreme court to
have someone go through the dance to get a case before them and give them an
excuse to talk about it.

No, it's not perfect, but it satisfies the basic requirements one ought to
expect, in that it allows people to actually learn how to stay clear of
conflict with a reasonable amount of effort and time.

~~~
roel_v
Your claim was that in our current systems 'law' fails to be 'law' because one
cannot be sure (with some margin) not to be breaking any law without
contacting specialized advise. (the 'without specialized advise is irrelevant
btw, because even with such advise one cannot be sure). The only situation
that can be under discussion is at the margins. If you meant that _nobody_ can
ever be sure, then we're arguing different points - but in that case your
argument is so trivial that I don't see why you'd bring it up in the first
place.

My point is that 'law' is not a set of 100% clear rules that can mechanically
be applied to any situation, after which the 'just' result will come out (to
frame this within more common academic terms, I oppose Montesquieu's 'bouche
de la loi' theory of law finding). There will always be cases where a
'reasonable' interpretation of the word of the law needs to be used. For
people at the margins of the known rules (Megaupload), this means they cannot
be sure how far they can go before they break the law. Nor, which is related
but not the same, how far they can go before being prosecuted. This is not a
symptom that law is failing. I'm not sure what your point is with other
societies; if you think there are any that have completely closed systems,
please name it, otherwise I will assume that we agree that there haven't been
any.

The "ignorance of the law" comment is irrelevant, which is why I ignored it.
It's a _procedural_ principle, it has little to do with this discussion. It
just means that you can't use ignorance about the law as an excuse to not be
convicted. It doesn't mean that everybody needs to know everything about the
law.

Finally, if you're suggesting that the RFC process is anything similar to law,
you're basically making my point of you not understanding the profound nature
of law for me. RFC's describe a very narrow, technical, deterministic aspect
or format of internet-related concepts and formats. RFC compliance is
voluntary and there are little to no consequences when people don't follow
them or implement them wrong. The process is opaque, considers only the
interests of those motivated and intelligent enough to participate and the
results still are full of ambiguities and wrong choices. This is like saying
'oh the infrastructure for Google search can't be that hard, after all I can
host a Wordpress blog on the Pentium 3 in my basement'. Even if, for the
casual observer, the two look the same from the outside, their nature is
fundamentally different.

------
pflats
This article is a little hyperbolic.

First, the item in question was Overt Act #28 out of 103. Case law is not
going to rest entirely on this French Sopranos episode.

Even then, overlaying a copyrighted work with translated subtitles isn't
transformative. What's Up Tiger Lily is transfomative. Fansubbing is not.

Finally, any website that allows public upload and sharing knows that
copyrighted works will eventually end up on their servers illegally. It's how
the company handles it from that point forward that matters. This (among
numerous other examples):

    
    
      ppp. On or about January 28, 2010, in an e-mail entitled “activating old countries,” 
      a user of a Mega Conspiracy site asked BATATO: “where can we see full movies?” 
      BATATO replied “You need to go to our referrer sites. Such as www.thepiratecity.org
      or www.ovguide.com[.] There are the movie and series links. You cannot find them by
      searching on MV directly. That would cause us a lot of trouble ;-)"
    

is not the way to handle it.

~~~
Karunamon
Wow. I have yet to read the entire indictment, but the pieces and parts I see
scattered around the internet are pretty damning. If they get extradited, they
are sunk.

~~~
pflats
It's pretty amusing to take the half hour or so and at least skim the Overt
Acts section (it goes from a. to yyyy.)

------
imgabe
I'm not a lawyer. I've only read a lot about SOPA. The problem with SOPA was
never that it allowed copyright owners to take down infringing content (well,
that was SOME people's problem with it, but not the majority I think). The
problem with SOPA was that it allowed said copyright owners to completely
ignore due process, and disabled websites in a way that introduced a huge
security risk to the rest of the internet. In the Megaupload case, due process
was followed, as far as I know. Grand juries were convened, warrants were
obtained, etc. etc. The plaintiffs were forced to prove that they had a valid
case before action was taken, rather than the "shoot first and let the website
owners figure out why they were taken down later, maybe" approach that SOPA
entailed.

