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Comment by googlryas | Hacker News Reader

The terms also don't define "intellectual property". Or "respect". Or "that".

Reasonable belief is a well understood concept. It doesn't need a definition in the terms of service. A judge reviewing a complaint by a party against Samsung will understand what "reasonable belief" means.

> But you still have no digital rights.

I think you're confused. It seems like you want Samsung to not have digital rights. You have digital rights, but not to use someone else's system in a manner which they don't want. If they operate a system, they have a right to specify how users can and can't utilize the system. You have the same rights.

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The problem here is that due process is extremely expensive to obtain. Let's say you have reverse engineered something, but the IP holder claims you stole it, so the provider shuts you down, and now you're losing money and you have to file a lawsuit in a possibly-hostile, far flung jurisdiction, and it may take weeks to get injunctive relief (if you get it), and months or years to settle the case, and all of this while having lost your income and having to foot hefty legal bills. Few will bother. The effect is chilling.

Thus, "reasonable belief", while a legal term of art, is pretty meaningless to users.

> It seems like you want Samsung to not have digital rights.

I wrote nothing of the sort. But now that you put me on the spot, I'll tell you what I want: either that users get better access to due process, or that common carriers to have less power over what they carry (not zero power, just less), or both. While it's true that there are expensive, abusive users out there, we need to strike a better balance for all the users who aren't.

What would "access to due process" look like to you?

Excellent question.

First, I'd like users to get a reasonable amount of time to challenge any suspensions or bans before they take effect, using an internal appeals process. Second, I'd like users to get a reasonable amount of time to further appeal lost appeals, again, internally. Thirdly, I'd like there to be some civil and criminal liability for making false reports, and some civil liability for common carriers acting on false reports. I.e., the costs to common carriers of acting rashly should be a great deal greater than they are currently.

In this system, should Facebook be forced to keep serving child porn, while the child pornographer is going through the internal appeals process?

The appeals process is what determines that it's child porn.

Also, not all of the things described even count as "forced to keep serving child porn". For instance, civil liability for acting on false reports doesn't force Facebook to keep serving child porn.

So a moderator sees a video of 5 year old being raped. Your system needs this content to stay up for a reasonable amount of time for someone to challenge it, and for it to go through an appeals process before the moderator can say that this really is child porn and they can remove the content?

I'm responding to this part:

> First, I'd like users to get a reasonable amount of time to challenge any suspensions or bans before they take effect, using an internal appeals process

I would like to point out that at some point in this debate the goalposts were moved from a civil case to a criminal one, and the liabilities (and harm) are entirely different.

Not really. We were talking about terms of service, and I imagine posting child porn is against the ToS. The system proposed lets the content stay up until an appeal period is over.

Regardless of whether or not cp is against the tos, or there is a legal process in place for takedowns, the law against cp existing will kick in faster as sharing it is a criminal act regardless of why, who, or what posted/hosted it, so it won't stay up. It's a moot point.

The terms of service under discussion are about copyright infringement. The content itself is not illegal, and the dispute is about the rights to post it. Two very different things.

It's not a moot point. Let's say I post child porn on facebook. A cop sees it and I get arrested immediately. Is the post going to magically get taken down? Can cops force me to log into facebook and delete a post? Whatever communication process there is between a cop and facebook, perhaps mediated by a judge, will take some time. In that time, a moderator may have also seen the content, but they aren't allowed to take it down in the proposed system, at least without the appeals going through. The moderator has no idea the person who posted it was arrested - how would they?

And, maybe the child porn isn't actually child porn. Maybe it is totally legal, consenting adults having sex on video, but the adult just looks like a child. Yes, this has actually happened (article in Spanish): https://archive.ph/20140811233956/http://www.eldia.com.ar/ed...

The porn star had to travel to the court to testify that she was 19 during the filming of the scene, otherwise the person may have received 20 years in jail for possessing "child porn". Posting that video on facebook wouldn't be illegal, it would just be against the ToS.

It will be taken down because it's illegal for that content to be posted /at all/.

The proposed system is about who has the rights to post something, and a delay while that's figured out. However /nobody/ has the right to post cp, as it is /always/ illegal.

It is possible for something to mistakenly be identified as CP, so you're right there. I'm arguing based on your original supposition that it /is/ CP.

Also regarding

> I'm responding to this part:

>> First, I'd like users to get a reasonable amount of time to challenge any suspensions or bans before they take effect, using an internal appeals process

Nobody says it has to stay up during the appeals process, just that account suspensions and punishment have to wait. It's possible to have different takedown policies based on the level of accusation.

Just recently, there was a story of man who lost access to his google account (email, etc) because Google accused him of sending child pornography. The images in question? They were pictures his doctor requested he take and send to him. The police looked into it and were very clear that it was _not_ child pornography. It's bad enough the man lost access to his account without warning or the ability to question the charges before it happened. It's even worse the Google did not re-instate the account, because they decided their automated system acted correctly; even though it's been factually shown they they were wrong.

So YES, Facebook should need to give the person the right to defend themselves before acting taking action because of _alleged_ child porn.

I would classify various types of ToS offenses. ToS offenses that are also criminal offenses would have a different appeals path since, among other things, the user would get reported to police. As well, the civil liability on FB/whoever would be that if the claimed offense was false and sustained throughout the appeals internal process, then the user would have basis for a civil suit. A false claim that you put of CSAM would be devastating to your reputation, would it not? Surely you'd want to get made whole following such a devastating false claim!

Let's turn your boogie man around. What should happen if your small business page that you were using to drive revenue out of which you're paying a small payroll were taken down due to false or otherwise incorrect claims that you're violating the hosting company's ToS? You'd take that lying down and say "well, I must have done something!"? Obviously not, not if you knew you hadn't "done something".

I don't like your approach to debating these things. It feels like it's not in good faith. I put effort into my replies and you come back with boogie man retorts.

> "It seems like you want Samsung to not have digital rights."

Never thought I'd see the day people would be arguing vehemently for the rights of multi-billion dollar international conglomerates with an army of highly paid legal staff so that they can arbitrarily mistreat consumers. Has the world gone mad?

But they can't arbitrarily mistreat customers. Which is what the ToS is about.

And I'm merely reminding OP that companies, as just a group of people with a common goal, have rights too, because OP seemed to have forgotten that. I'm not out here shouting it in the drive thru line at a Wendy's.

> But they can't arbitrarily mistreat customers. Which is what the ToS is about.

Users have almost no way to enforce what little the ToSes grant them, and no injunctive relief w/o a great deal of effort beyond the reach of most users.

> And I'm merely reminding OP that companies, as just a group of people with a common goal, have rights too, because OP seemed to have forgotten that.

Stop ascribing to me things I did not write and about which I've already corrected you. Keep things civil please.

Well, people have been arguing that monopolies benefit consumers for literally decades now. The world has gone mad a long time ago.

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