

Ask HN: For SOPA proponents, what is wrong with DMCA? Why isn't it good enough?  - giberson

Does any one know the details of why SOPA legislation is needed? What is it about the DMCA legislation that isn't enough to fight piracy?<p>I'm asking to better understand the underlying problem statement. We all keep talking about how SOPA will destroy the internet and that we need to stop it immediately. I think the best way to make that happen is to come up with an alternate solution that will improve the position of copyright holders without stifling innovation or leading towards a censored internet. I'm not talking about a compromise, I'm talking about genuinely trying to solve a problem.<p>To do that, we need to know what the problem is--beyond a vague statement of "piracy on the internet".<p>So, what is it about the DMCA legislation that they've already put through that isn't getting the job done? What are the failings of the legislation that prevent it from working? It would also be helpful to know not just how it's failing copyright holders but also consumers--since it seems as a whole we are generally against it too.<p>I'm sincerely asking, this isn't rhetorical or anything. I'm hoping anyone that is(has been) seriously following DMCA/SOPA/PROTECTIP can provide insight on. If there are actually supporters of SOPA here, or if not SOPA itself more legislation focused on digital content and piracy, what explicitly are they looking for.
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pilom
SOPA explicitly does not have the power to silence sites based in the US. This
is because the DCMA already applies to those sites. So SOPA won't block
facebook, or youtube, or google, or any other US based site. The problem
occurs when a site isn't in the US. A rights holder can't send a DCMA takedown
notice to The Pirate Bay for instance.

SOPA gives an alternative for rights holders when faced with a foreign site.
They can ask for the site to be blocked at the DNS level by ISP's. They can
prohibit any US based payment processor from paying the infringing site money.
Rights holders can even ask search engines to block infringing sites.

Basically it stems from "As a rights holder, what can I do to prevent my work
from being stolen internationally?" Some people in congress believe they have
found a way to help rights holders in this position. Unfortunately there are
some extremely serious mostly unintended consequences of these new powers.

~~~
giberson
>Unfortunately there are some extremely serious mostly unintended consequences
of these new powers.

Is this alone from poor wording of the legislation? Could these issues be
addressed by simply reformulating the SOPA legislature? Or do these issues
stem from how violations are determined, or how the process is implemented? Is
there too much left up for loose interpretation?

~~~
pilom
In my opinion the issues stem mostly from how violations are determined.
Basically in the current wording, a rightsholder would go to the US Department
of Justice (I think) and put in a complaint stating that "website X has
unauthorized copies of my work on their site." The DoJ and the rights holder
would then go to a federal judge and say "here is our evidence." If the judge
agreed with the DoJ and the Rights holder, they could issue a court order to
ISP's, payment processors and search engines to block the site. The accused
infringer is never given a chance to face their accuser or even know that they
are under investigation.

~~~
giberson
> The accused infringer is never given a chance to face their accuser or even
> know that they are under investigation.

So, how about if the legislation required a DMCA adherence clause--that before
a site could be taken down an official notice would need to be sent to
administrative contact of the domain. If no official response is received in X
days then the DOJ could issue a black listing. However, if the administrator
does respond either by complying or by issuing a counter claim then the DOJ
could not issue a black listing. The issue would have to be worked out the way
DMCA conflicts are worked out. Now, should the initial DMCA take down notice
be found to be legitimate and the site operator still does not comply in X
days, then the DOJ may issue a black listing.

Would that resolve your concern?

~~~
pilom
What you describe would be orders of magnitude better than the current bill.
That is how most court cases in the US today are run. I accuse you, the court
issues a sopena for you (which you must receive), if you don't show up, you
automatically lose the case. The problem then becomes, there is no way to
internationally issue sopenas. The solution you gave was "if no official
response is received in X days then ..." however a smart infringer could then
sue for something along the lines of "our administrative contact was our
(hosting company, private DNS listing company, at a non-existing building,
made up, etc.), thus it never got to us" there is a way to write law to deal
with all of these cases but it would not be easy to write for international
dealings. (And I doubt anyone in congress understands how DNS records are
listed enough to understand how to write it correctly)

------
wmf
The DMCA doesn't apply outside the US. Given that US laws cannot be applied in
other countries (but they are trying with ACTA), you need to block piracy at
the border. ICE has been doing this with Operation In Our Sites, but SOPA
attempts to streamline the process.

(Some copyright owners mistakenly or optimistically sent DMCA takedowns to The
Pirate Bay, and TPB wrote hilarious ridiculing emails back.)

~~~
giberson
Thanks for that information.

Just addressing SOPA from this angle, would SOPA legislation be okay if it
only applied to domains that did not adhere to DMCA voluntarily or
regulatorily? IE, SOPA wouldn't be capable of black listing any US site,
because US sites have to adhere to DMCA. In addition to not applying to US
based domains, what about for foreign domains if the site operator was
contractually obligated to adhere to DMCA by a legal document that was under
the jurisdiction of the domain registrant. Ie, say some European domain
registrar offered its clients an opt-in option for sites. The opt-in legally
obligated them (in the EU) to adhere to DMCA regulatory operation. Doing so
would mean the domain could not be black listed by SOPA.

Obviously, it seems SOPA is much more that just what you said since Reddit
operates inside the US, however the founder has indicated that with SOPA, it
and similar sites would not be able to operate due to SOPA. So I'm just brain
storming on this specific aspect of why DMCA isn't good enough.

