Megaupload could spawn caselaw more destructive than SOPA | Hacker News Reader

Megaupload could spawn caselaw more destructive than SOPA

blog.davidbanham.com

103 pointsdavidbanham26 comments

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?

If you want to use an analogy, it seems more akin to a lawyer publishing his very first PHP program, full of bad structure and MySQL exploits. But everyone has to start somewhere. We all made those mistakes at one point or another and by publishing more and more software, we eventually saw the error of our ways, developed better habits, and eventually could be considered "experts."

This is no different. The article may very well be full of errors, but as he continues to work on his law skills, he will get better. The flaw is our thinking that everyone should be perfect on day one. It takes a lot of time to become good at what you do. We should be nurturing his early efforts, not scolding him for trying.

Writing articles claiming x y and z is not 'working on your skills'. He's claiming things that are flat-out nonsensical, and portraying it as if he knows what he's talking about. One doesn't learn about law by writing a lot of articles on it. He could write 20 articles like this every day for 20 years and still be writing nonsense. "Early efforts" are not writing blog posts acting as if you know stuff, it just wastes everybody's time. As is evidenced by the upvotes this is apparently getting - there are probably people believing what he's writing!

The publishing is for peer review. If you write your first PHP script with errors galore and nobody else ever sees it, you might be left thinking what you have done is perfect. Posting it invites people to show you your errors in thinking. By writing about how he interprets the law, he will receive feedback about the errors he has made, and can take steps to correct those errors.

The portrayal of truth goes back to the old joke:

    If you ask "how do I do X in Linux?", you will not receive a
    response. If you state "Linux sucks, it cannot do X",
    you will be flooded with solutions to your problem.

If you make bold statements, people will be keen to correct you. That is how you learn.

This is such nonsense I can't tell if I'm being trolled or if you're serious. If everybody who wants to learn something needs to do so by writing egregiously bad article so that people who do know something about it can correct it, nobody who knows anything could get anything done because they'd have to correct all the 'learners'. Are you seriously suggesting that this guy's post will get criticism that will help him learn about law? Where is he going to get it - here on HN? Please. How many lawyers do you think there are that surf around the web correcting anonymous strangers' blog posts? How do you become a surgeon in your world? By cutting people open until they stop dieing?

If he's serious about learning, he should just go to law school like everybody else, not waste everybody's time with this nonsense.

I guess I just do not understand your point.

- When someone writes a poor program, we celebrate their attempt. The fact that they tried at all puts them well above the efforts most people are willing to put in.

- When someone writes a poor article, we blast them for not having everything just perfect. Only those with decades of industry experience are worthy of writing that perfect article.

This makes absolutely no sense. What is wrong with someone writing an article that is full of flaws, like someone who writes a program that is full of flaws? It is a personal blog, not a prestigious legal journal. Who cares if he made some errors?

I don't think this person is going to be gunning to pass the bar exam any time soon. Learning about the legal system is a valid hobby like any other. The learning process requires many mistakes in the beginning. You do not have to be perfect in your understanding from day one.

You are entitled to your opinion, but I, for one, hope we see more people learning about the legal system as a hobby. It can only yield positive results.

"When someone writes a poor program, we celebrate their attempt."

No, we don't, at least not when they present their result as 'fact', for asfar as the analogy is holding up.

"When someone writes a poor article, we blast them for not having everything just perfect."

I'm not doing any such thing. "not having everything just perfect" is skipping over a counterargument, or interpreting an opinion wrong without that having material effect, or something like that. This article is complete and utter bullshit, yet is presented as 'fact' or at least as a 'respectable opinion'. I could write something of the same level about oncology (of which I know absolutely nothing) with an afternoon time and a computer with access to Wikipedia.

"Who cares if he made some errors?"

Not me, as long as everybody knows about it. However the fact that its getting upvoted here, and the fact that most people hear only what they want to hear when it comes to this whole SOPA circus, is a strong indicator that people are really believing his nonsense. This echo chamber is horrible to watch, and you're right I really don't give a flying fuck, if it weren't for the fact that people form opinions based on stuff like this. Look at it this way: why would you care that Fox 'News' reports on a completely distorted view of reality? Are you saying that that's not damaging either?

Well, aside from the fact that the authors analysis may or may not be wrong, the problem he points out certainly does exist. How does a cyberlocker assert who owns copyright or not. Megaupload certainly was shady, but actually, in germany it might be perfectly legal to rip your sopranos DVD, upload it to Megaupload and share it with friends. We do have legal provision for sharing media with friends (actually, we pay a couple of cents for each empty CD or DVD we buy that is supposed to compensate for that). Sharing an episode with the rest of the world remains illegal, but how can the hoster know? It's certainly clear that megaupload targeted those users, but actually, so does my cable provider. Practically noone needs 200MBit connections if not for filesharing.

> 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?

Certainly not. If it were a lawyer who needs to be genuinely interested in my field of work because it directly influences his field of work, I'd be willing to put up with a couple of false statements as long as the general questions remain valid. And whether we like it or not, those lawyers that try to put the megaupload staff in jail may be after our own startup just as fast if we stray too close to the border to what interested parties consider illegal. And those interested parties push the border further and further deep into what used to be plainly technical territory. See SOPA/PIPA or other similar laws that try to push for solutions that are obviously (to us) not technically feasible or even damaging to the underlying technology. Thats why we as well need to try and understand what's going on on the lawyers side of things and why we need to assert how we think things may turn out. Certainly, we do make mistakes and may have incorrect ideas of how the law works, but I still think it's important to write that up and put it up for discussion. You're certainly right to point out errors, but that's just part of the process.

Your DVD example wouldn't be legal. Germany is a member of the Berne Convention[1].

[1]: http://en.wikipedia.org/wiki/Berne_convention

Well, let me counter with another wikipedia link: http://de.wikipedia.org/wiki/Privatkopie (sorry, no english translation). Basically, the idea was that with the creation of tape machines it's impossible to control private copying and sharing without criminalizing large proportions of the population and thus a better form of payment for the rights holder was required.

So the deal is that we germans pay for each device that can be used to copy copyright-protected media a certain fee. A copy/fax machine costs roughly 10 euros in fees, the DVD writer as well, high-end dvd copiers up to 1000 bucks, the raw media a couple of cents, harddrives, ... - regardless of whether it's used to copy media or only for backups. In turn the private copying and sharing is allowed within reasonable bounds (usually family and good friends, a common limit seems to be around 7 copies that you can give away). I'm not allowed to crack "effective" DRM schemes or protected media - whatever "effective" in this context means, but CSS has so far not been ruled effective afaik. Otherwise, this is completely legal and does not depend on the method of sharing nor does it depend on where the actual file is located.

Nor does it contradict the Berne Convention which basically treats how copyright is asserted and some minimum protection durations, but not every detail. For example american fair use permissions seem to allow for far more uses than the german "Zitatrecht" which can be actually quite limited (up to protecting single phrase or parts of phrases). (disclaimer: I'm interested in german copyright law, but I'm certainly not a lawyer)

So my example holds: If I store my ripped version of a dvd on a cyberlocker and share it with my brother, that's legal. If I share it with my ex-roommate with which I've been sharing a flat for 8 years an whom I call a good friend, that's just fine. If I share it with you, that's illegal and no one will be able to tell.

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.

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.

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).

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?

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.

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 ...?

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.

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.

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.

Yes, of course it's still a basic expectation: http://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat. Granted, it's been somewhat weakened nowadays, but the default is still that we're held responsible for compliance whether we know the law or not.

I wasn't aware I had to subscribe to any particular political viewpoint to be a geek (I am totally down with Fedaralism, anti Rand,Paul, and progressive).

This article on law might be bad, but it's likely most articles on law are bad. I'm pretty sure that John Yoo's law opinions were pretty damn wrong, for starters.

But yeah, if it doesn't say "I am a lawyer and this is why I think this" and go into some caselaw, I'll probably take it with a pail of salt.

Also, I know there are plenty of geek lawyers, but few(if any) of them spend their days filling up reddit/hn with silly stuff.

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.

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.

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.)

It's odd that our best hope in avoiding some crazy precedent lies in the fact that they've got so many things to charge MU with that they don't need to pick anything the least bit unorthodox.

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.

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