Megaupload could spawn caselaw more destructive than SOPA

http://blog.davidbanham.com/?p=52

by davidbanham • 15 years ago

103 26 15 years ago

blog.davidbanham.com

pflats2• 15 years ago

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.

Karunamon• 15 years ago

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.

pflats2• 15 years ago

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.)

Natsu• 15 years ago

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.

roel_v8• 15 years ago

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?

randomdata3• 15 years ago

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.

roel_v8• 15 years ago

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!

Xylakant2• 15 years ago

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.

endersshadow• 15 years ago

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

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

drzaiusapelord• 15 years ago

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.

SilasX4• 15 years ago

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.

qdog• 15 years ago

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.

imgabe• 15 years ago

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.

Megaupload could spawn caselaw more destructive than SOPA

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