Andy on the Road

21 September 2010

New Senate Bill to Combat Online Piracy

Filed under: lawsandsausages — Andy @ 1:21 pm

Apparently we’re not out of the legislation woods yet.  Here’s a new bill introduced late yesterday by Senators Leahy and Hatch: S. 3804,  the “Combating Online Infringement and Counterfeits Act” (THOMAS | PDF).  Analysis to follow, but it sounds like it hinges on prosecution of foreign websites by allowing the Department of Justice to bring infringement actions using in rem jurisdiction.  On first impression, I agree in spirit with the bill, but I worry about the shift from viewing copyright infringement as a series of discrete torts to looking at a website being more generally “dedicated” to infringing activity.  The definition seems tailored enough (at first read), but heavy-handed application is hardly implausible.  That said, I have faith in the CCIPS‘s prosecutorial discretion.  I’d be far less sanguine were this law to have a civil action as well.

According to the BNA the bill is slated to be marked up in committee on Thursday.  I’m no expert on legislative procedure, but that strikes me as a decidedly fast track.

Update: more from Wendy Seltzer, ZDNet, The HillThe Hollywood Reporter, Billboard, Slashdot, Wired, BoingBoing… apparently I was a little late to this party.  Some very bright people here are raising some serious concerns, mainly around how easily the DoJ can bring these actions, and how little the website is involved in the dispute.  I’m inclined to believe the transparency elements of this would mitigate this concern, but this could certainly benefit from some form of website notice procedure.  More to follow.


  1. I support this bill. No one reads my blog but I’m rather informed on these issues. Nihilism towards copyright shouldn’t be allowed to function under the false guise of “free speech”. Commercial piracy operations who flaunt “free speech” as a shield to their illegal activities not only endanger our US Constitutional civil liberties of speech, but they are wedging one constitutional issue against another.

    Copyright is Constitutional. Article 1 Section 8 is known as the “Copyright Clause”. Concerning copyright, it exists in our Constitution “ promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” By allowing faux “free speech” arguments to run roughshod over arguments for the Constitutional rights of creators, this scenario eventually devolves into a New Crusades to “liberate” society from “enslavement” by “evil copyrights”.

    Without strong measures to reverse our course current course on the Internet, the real danger is that a Marxism of Creativity will gain a populist foundation that will set us back in ways worse than any “Cultural Revolution” we’ve seen before. Yet, in periods of Nihilism, the arts have always suffered. Beethoven may have been obscure if he’d been born in the Dark Ages. And today, not since the Holocaust have we seen so many people of a select group forcibly stripped of their livelihoods in a public euphoria of false morals. Hundreds of thousands of jobs have been lost as illegal downloading outnumbers legal more than 20 to one. Without a bill like 3804, it will only get worse.

    Comment by Jeremy Soule — 22 September 2010 @ 7:57 pm

    • Thank you for coming to the site, Jeremy.

      You make an awfully large leap here to “copyright nihilism,” and I do not think that free speech and copyright are inherently contradictory. (I’m a pretty avid supporter of both.)

      I have to dispute your assertions of constitutional law. The “Copyright Clause” as you call it (I think patent scholars may take umbrage with that characterization – I usually call it the “Progress Clause”) is one of several clauses in Art. I Sec. 8, a section listing the powers of Congress. Copyright is a power granted to the legislature to implement at their discretion, not the assertion of some inherent personal right. This is in contrast to the personal rights found in the Bill of Rights (such as the First Amendment), protecting the people against government intrusion.

      Copyright policy is therefore a reasoned question of policy, and one that we must approach empirically, judging our actions against our stated goal of furthering the progress of science. The policy cannot be blind to the speech rights of others, as that would put a congressional power ahead of a personal right. Instead, we must give protections to spur creation and dissemination of expression, but also must not stretch these protections to the point where the speech of others is unduly restrained. Balance is the name of the game here, and employing needlessly hyperbolic phrases like “Marxism,” “Cultural Revolution,” and “Holocaust” do not help us find a balance.

      Comment by Andy — 22 September 2010 @ 8:26 pm

  2. Thanks for approving my comment and taking a listen to my point of view! I enjoy your posts. For me, finding a balance requires perspective and sometimes some rather strong illustration is part of this process. This issue of speech and intellectual property is huge… and therefore appropriately sized with things like the Cultural Revolution. Mao almost killed music in China with his “innovative” ideas. Murray Lerner’s Oscar-winning film “From Mao to Mozart: Isaac Stern in China” clearly provided some anecdotal evidence into the follies of trampling the arts with “progress”. Teachers were forced from their professions (by gunpoint in those days rather than bittorrent) but the effect was that an entire generation couldn’t perform Beethoven at a world-class level. The disruption of WW2 also shook the arts community to its core. No major output came from the Arts during these extremely challenging times.

    Yet Music (and IP in general) is again under serious threat. The “enemy” in this case may have far more hubris than Mao–as they certainly want to control the world’s information, and therefore… us. Yet, tech companies seem to associate any notion of establishing protections for creators as a “setback” to their wallets and plans for global domination. And as a result, they are working around the clock to stir up public fear by making the “leap” of saying that imminent social dangers lurk as a result of Senator Leahy’s bill.

    The Pirate Bay is a portal that has facilitated the distribution of billions of dollars in files. It has affected tens of thousands of artists. I speak from experience, as in March 2006 I was one of their “Top 20” most downloaded artists. More than 100,000 copies of my project went out illegally within hours. And the TPB is just one website. I believe these sorts of sites are what 3084 is hoping to target. So if I make an “awfully large” leap to say that mass downloading on sites like The Pirate Bay amounts to nihilism, is it an equally large leap to say that if we shut down a foreign website like this that it somehow infringes on a First Amendment right? Does the US constitution protect foreign presses?

    We can also debate for years as to the proper shade of red before we post a stop sign that would prevent more accidents and deaths at an intersection. Is this the “empirical” approach that we should take concerning copyright? Real people, such as myself, are being hurt on a daily basis by a lack of copyright enforcement. Does the new “progress” have the moral authority to stomp out creators’ rights? Should artists become “farmers” and shun our intellectual professions just as Mao suggested? For if we are unable to compete with mass piracy (and who really can), what other options do we have as artists to earn a living?

    Comment by Jeremy Soule — 22 September 2010 @ 11:26 pm

  3. […] the subject will follow, but it’s worth nothing that the Senate Judiciary Committee held over S. 3804 today, which according to their Committee Rules means it’ll be at least a week before the […]

    Pingback by No action on S.3804 today « Andy on the Road — 23 September 2010 @ 3:25 pm

  4. […] Comments No action on S.3804 … on New Senate Bill to Combat Onli…Jeremy Soule on New Senate Bill to Combat Onli…Andy on New Senate Bill to Combat […]

    Pingback by Further thoughts on S. 3804: I’m more scared than I was yesterday « Andy on the Road — 24 September 2010 @ 11:58 am

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