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The author of SOPA is a copyright violator (vice.com)
383 points by seanmalarkey on Jan 12, 2012 | hide | past | web | favorite | 39 comments

This really goes to show just how easy it would be to be accused and shutdown as a copyright violator. In this case it was probably an issue of the web designer recklessly searching for a Texas-y background and Congressman Smith unknowingly using the copyrighted image. Sure, it's irresponsible, but it's an understandable mistake to make.

Enter sites with untold volumes of user-submitted content. To begin, it's unlikely that the site owner will be able to police the content due to the sheer scale of it. But what's worse is that if content (like this copyrighted image) is found on the site, there is no immediately clear way to know if its use and publication is licensed or not. (I know this is basically a rehash of our old arguments.)

Considering that the owner is a US Congressman with extensive knowledge of copyright law (or so I assume) - he should have been paying attention to what happens on his freaking website, which is nothing more than his business card to the whole world.

Failing to do so, talking about scale doesn't make much sense, since if a US Congressman, that happens to be the author of SOPA, can't handle it - what chances are there for any website to be on the lookout for violations?

Actually, this stuff is absolutely impossible to police completely. Major content producers (networks, studios, etc.) know this in their bones, and carry what's known as E&O - Errors & Omissions insurance - for this exact reason.

Given the complexity of copyright law, the vagaries of content "creation", and the pressure of constant deadlines, these really are errors and omissions. And given the nature of a business that relies heavily on freelance creatives, the risk of an entirely honest missed-licence or a misattributed credit is so pervasive that distributers (who are the first people to get sued) won't accept material from producers who don't have E&O, and who can't indemnify their distribution partners. At the same time, underwriters won't issue E&O policies to producers who make too many "mistakes".

All this puts pressure on producers to make serious efforts to respect the law as mush as humanly possible, while acknowledging that perfect compliance isn't realistic. So pro-SOPA people aren't going to look a this and think "Gosh, maybe we're wrong". They're going to think "This happens all the time, and it's why we carry insurance."

Combining copyright law with the mechanisms to ensure that copyright industries follow their own rules has one effect: it drives up the risk and complexity - and thus, the cost - of producing commercial content. For established producers this is actually seen as a good thing, as it provides them with a barrier to entry, not to mention another line-item they can pass on (with mark-up!) to whoever is hiring them.

Indeed, that's the whole point. In their view, if you don't have the money and organization to sustain the lawyers and insurance policies "needed" to produce content then you should just focus on buying popcorn. When it comes to actually making media you should "leave it to the professionals".

By the way, that popcorn costs twenty bucks. After all, we've got lawyers to pay.

Hmm maybe if you dig deeper past Lamar Smith, you'll find insurance companies? :-)


Top 10 Interests Funding Industry #10: Insurance - $50,300

So pro-SOPA people aren't going to look a this and think "Gosh, maybe we're wrong". They're going to think "This happens all the time, and it's why we carry insurance."

That sounds exactly like the way of the dinosaurs: instead of solving a problem like a good engineer would by redesigning the system, they "solve" it by throwing more money at it. It's like deliberately forming a cancerous tumor around a pimple to conceal the pimple.

>Actually, this stuff is absolutely impossible to police completely.

Then it can't be a law.

Think of the power a law that everyone breaks gives the government! They must love it.

Mostly the executive branch, but others too.

Everyone who has sung "Happy Birthday" is also a pirate. Yes, really.



Sure, there's some evidence that they may have done some iffy things with the registration, but you'd have to go through an expensive trial to prove that, so good luck.

I wonder if that is the reason most big restaurant chains, like TGI Fridays, have their own version of a song for their crew to sing when someone has a birthday there.

Yes, it is.

Source: http://interact.stltoday.com/forums/viewtopic.php?printertop...

EDIT: At first I thought Snopes said that, but I was wrong. Here's a different source saying the same thing.

Why on earth is ryanklee's comment dead? He's right - it's not violating copyright to sing a song for non-commercial purposes. Hell, you can even cover a song in a paid live performance and not have to pay royalties. You just can't record it and sell the recording without ponying up.

edit: looks like the live commercial performance thing is not true in the US, according to snopes. I guess those guys don't have cover bands...

That's because the venue pays them on your behalf!


"As a performer, you do not have to pay performance royalties. These are paid by the venue which hired you to perform. However, if you record your show and sell it as a live album, you will need to pay for the compulsory licenses, discussed later in this article."

Now, you could try to argue that it's innocent infringement (or maybe even fair use), but you have to do that in court.

From unhappybirthday.com:

"Did you know that if you sing any copyrighted song: ...at a place open to the public ...or among a substantial number of people who are not family or friends You are involved in a public performance of that work?"

For example, singing "Happy Birthday" at a restaurant....

EDIT: I had to turn on showdead to read that comment you mentioned. He mischaracterizes what Snopes said. I'll let Snopes speak for themselves: "performing a copyrighted work in a public setting such as a restaurant or a sports arena technically requires a license from ASCAP or the Harry Fox Agency (although such infringements are rarely prosecuted)." As you can see, the problem there is public performance not just commercial use.

He doesn't mischaracterise it at all. He says it's fine for non-commercial use in response to someone who says everyone singing it is a pirate. The uses you describe are commercial uses, value-adding to commercial ventures, not a bunch of friends singing happy birthday, which is what the 'everyone's a pirate' comment is implying. The wrong comment went dead, methinks.

His assertion is incorrect. Any public performance, whether "for profit" or not, requires a license.

See also the time ASCAP went after the Girl Scouts for royalties over campfire songs, which can hardly be construed as "commercial uses" under any reasonable definition. You will note their concern is over "public performance." Maybe I wasn't nitpicky enough when I said everyone, but I don't know any people who have only sung "Happy Birthday" privately and never sung it in school, a restaurant, or any other public place. Anyhow, as for the Girl Scouts:


"Things heated up in March [1995], when Ascap sent a mailing to 6,000 camps (out of 8,000 in the United States) and informed them that they had to pay royalties for public performances. But Ascap did not specify what it meant by ''public performance,'' and of necessity did not include a list of its four million songs. (Ms. Bergman says they are available on the Internet; a computer printout of the material is five feet high.)

It did, however, include a schedule of annual fees that went as high as $1,439 for large year-round camps."

And yes, ASCAP eventually backed off after the bad PR nightmare they generated by demanding that Girl Scout camps either pay them fees or tell the kids they're not allowed to sing. From the same article:

''What does the word 'nightmare' mean to you?'' she said. ''We're fighting for our lives. We have to do a lot of work to tell people that we're not greedy songwriters.''

How do you define non-commercial? What if you're rich and have hundreds of other rich people at your birthday party? What if one of the people singing Happy Birthday at your party is a professional singer? What about singing Happy Birthday as customers in a crowded restaurant? What if a band wants to sing Happy Birthday to itself or to an audience member while on stage? What if the audience spontaneously sings Happy Birthday to someone (band, speaker, etc.) on stage? How about someone recording your friends singing Happy Birthday at your small, private party, then posting it on YouTube (or any of the other scenarios gets uploaded)?

No, not really... according to the snopes link:

"""Does this mean that everyone who warbles "Happy Birthday to You" to family members at birthday parties is engaging in copyright infringement if they fail to obtain permission from or pay royalties to the song's publisher? No."""

I was trying to avoid having to nitpick every bit of it, which is why I gave references. How many people have only sung "Happy Birthday" at home, but never in a restaurant or any other public place?

Here's the rest of your quote, starting right after that "no" -

"Royalties are due, of course, for commercial uses of the song, such as playing or singing it for profit, using it in movies, television programs, and stage shows, or incorporating it into musical products such as watches and greeting cards; as well, royalties are due for public performance, defined by copyright law as performances which occur "at a place open to the public, or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered." So, crooning "Happy Birthday to You" to family members and friends at home is fine, but performing a copyrighted work in a public setting such as a restaurant or a sports arena technically requires a license from ASCAP or the Harry Fox Agency (although such infringements are rarely prosecuted)."

In my opinion, this is really the heart of the matter. It doesn't just give power to the executive branch. If you create and pass a law that potentially makes a significant percentage of the population into criminals, you have a bargaining chip of unprecedented power.

The greatest power that criminal prosecutors have is discretion - the power to charge or not charge any person with a crime. They can, and do on a daily basis, threaten charges that carry significant penalties and essentially force their target to enter into what they call a non-prosecution agreement. These are voluntary agreements, essentially saying that the government will not prosecute you if you follow the terms of the agreement. There are no rules for what the government can ask of the target in these agreements. They can quite literally require anything the government wants of the target - even things that a judge could not legally impose upon a guilty defendant to do as part of a criminal sentence.

They can't throw hundreds of millions of people in prison - there simply aren't enough prisons - but they can have hundreds of millions of people doing whatever they want them to do.

In my opinion, when Alexis Ohanian goes before Congress, this should be something that is brought up. Just yesterday (http://hackerne.ws/item?id=3451934) we saw how Congress doesn't understand why this law would be so difficult to enforce and how broad it really is. It's something that they can actually relate to, as I imagine they all have websites of their own and having them block within the United States would be catastrophic for their future election plans.

They'll just do the same thing they did with insider trading and other laws, they'll exempt themselves.

I think what's most interesting about this is it is a great indicator of the public perception of copyright. If even the creator of the harshest pro-greed-based-copyright legislation can't uphold the most modest of copyright provisions, I think that's a clear indicator that copyright is in need of reform in the opposite direction he proposes.

He himself can't respect the very laws he champions on his own public facing website.

Which is worse: someone supporting SOPA because they know nothing about copyright or someone supporting SOPA because they know a lot about copyright?

While it's possible that he authored his own political website, I would strongly suspect this is a proxy blame. I am all for blaming Lamar Smith as much as the next guy. My issue is assigning a state to an individual when another individual performed the state changing action. The furthest it is fair to place that assignment is shared with the entire group.

edit, apparently downvoting is the same as disagreeing here too. sigh. guess this teaches me to share my honest thoughts and to continue chasing integers.

I agree that it's unfair to accuse Congressman Smith of directly and maliciously using pirated content. However, the irony of the matter is that under his own proposed bill, the congressman's site would be blacklisted regardless. One reason SOPA is such a bad idea is because it does precisely what you take issue with by assigning the label 'copyright infringer' to the congressman without any due process.

Exactly, that this law is even discussed and brought to public attention is unthinkable.

With this law the accuser becomes the judge and the executioner. It's like the police shooting first, asking questions later. It's like silencing political opposition in the name of progress. It's like detaining prisoners indefinitely without trial ... oh wait!

My issue with SOPA, etc. is the whole "Punish you first, possibly irreparably, then find out if you're guilty later" aspect of it that carries no consequences if it is abused as such.

The entire point of SOPA is to enshrine proxy blame as law, friend.

> edit, apparently downvoting is the same as disagreeing here too. sigh. guess this teaches me to share my honest thoughts and to continue chasing integers.

Sad, isn't it? Some people even seem to think that up/down votes are primarily for rating opinions. Pretty awful idea, if you ask me. I think HN very much needs some kind of discussion on this, and preferably an official policy discouraging it.

Still, it's worth pointing out (from the Guidelines):

> Resist complaining about being downmodded. It never does any good, and it makes boring reading.

I think he was downmodded because of his spectacular failure to understand that the process of blaming A for the acts of B is exactly the point of SOPA... so complaining that we shouldn't apply to Smith the same process that Smith wants to apply to everyone else looks very short-sighted at best (and at worst, just partisan).

Actually, in this case, we're blaming A for the acts of B, in B's role as an employee or contractor working on behalf and at the direction of A.

In the case of SOPA, when a large user-generated content site is blocked because of one piece of copyrighted content, then individuals A through ZZZZZ are being punished for the acts of a completely unrelated B who just happened to use the same free service they did.

And that is one of the core reason why SOPA is a flawed concept.

Great sleuthing. Now how do we get the bigger outlets to run with the story? This could cause some PR damage for the SOPA supporters.

Nobody is free of sin. So, it is dangerous to permit an act like that.

It's really easy to understand how something like this could happen. I'm sure it was a mistake by the web designer and not intentional however under SOPA he would be facing the same repercussions that everyone is worried about even though it was a mistake.

Prime example of why SOPA is so god awful.

When I was a teenager I participated in a program offered through 4H (4-h.org) every year where we would visit out State Capital and hold a mock legislative lesson over the corse of a week. Depending on what portion you had signed up for you might play the part of a Lobbyist, Legislator, Senator, Whip or even the Speaker of the House. We would have the actual representatives and lobbyists there to give presentations and offer advice while we argued bills on the floor and made our back room dealings that would decide what bills would be killed or passed (Our advisers were not very happy when one year we legalized prostitution! LOL).

You could think of it as sort of a YCombinator of politics.

Once you understand exactly how the system works you realize why it seems that so many of our representatives seem to be absolutely clueless as to what the bills they are proposing actually do or what implications they may have.

The general gist is this:

Lobbyist: This is what I'm proposing <Insert> overly simplified explanation of the proposed legislation similar to how you would explain the inner-workings/programming of a software to your grandmother </Insert>

Lobbyist: We have a draft of the bill ready it's important to your constituents because <Insert> Three Points: from overly simplified explanation</Insert> do I have your support on this issue?

Representative: Sure send the draft to my office and I'll look it over (70% never actually will)

Rince and repeat for each representative until it has enough support to make it through committee and to the floor.

Result: 70% of the representatives only have a paragraph explanation of what they are voting on. The other 30% are the ones who actually understand the bill and will either fight for or against it.

Bill passes even if it's BAD, BAD, BAD for the State or in the case of Washington, The Country.

If someone manages to lookup the guys ip, then please do check out on http://www.youhavedownloaded.com/

Is there any provision under SOPA with which we can somehow blacklist Lamar Smith's toupée?

runs off to write her Representative

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