If history is any indicator, the public can have their say, but that won't be who the government is listening to. That, or it will be the clusterfuck that was the FCC's public comment period on net neutrality. Hope always springs eternal for me that Senators and Congressfolk will act in good faith (EDIT: toward their constituents), but I'm also realistic in that they probably won't.

If one has the time, click the "facts and myths" link in the article[0]. Or as I like to call it "vague rebuttals, and the straw man arguments that they rebut".

[0] https://www.tillis.senate.gov/services/files/BBDBFA87-17CA-4...

The government officials selling political favors and the company executives buying them are the ones we should be putting in prison here.

That's not to defend this bill. It sounds like rubbish to me.

https://www.youtube.com/watch?v=IeTybKL1pM4

Except that it is something. I go to my tax accountant, have them calculate my taxes, then, when they send me the filled out paperwork I make a copy, send back the originals, and say "No thanks. Didn't really need this". What would we call that? Theft of time? Theft of labor? Breach of contract? (I didn't sign a contract). Breach of implied contract? Does any of this apply to movies/music? It feels similar except there's more than 1 person making a copy and they didn't "pre-order". Do those differences matter? It still feels like taking the product of someone's labor without compensating them for it, same as the tax accountant example.

So take what they offer you or leave it. Anything else is a violation of the law.

And breaking a law I don't agree with definitely won't keep me up at night, in fact if they catch me and force me to pay for all the content I downloaded it will still end up being a more convenient experience as I am very willing to pay in the first place.

Oh no! Good luck enforcing that, it's worked out stellar so far.

It is a very expensive construct, both in public resources (e.g to create, protect, and enforce the law), and towards humanity's progress (i.e free access to books, inventions, etc would benefit the planet).

So for creators to get the benefits of the letter of the IP law, they should respect the spirit of the law, which is to give gated access to everyone.

That's not true: https://en.wikipedia.org/wiki/Right_to_science_and_culture and https://cultureactioneurope.org/files/2015/02/2015UNESCO--Co...

Some examples from the PDF:

> Disability advocates have long expressed concern that copyright law can impede the adaptation of works into formats functional for people with disabilities when copyright holders fail to publish works in accessible formats, such as Braille, or allow others to do so. To resolve that problem, many countries have adopted copyright exceptions and limitations allowing authorized not-for-profit organizations to produce and distribute accessible works to persons with disabilities.

> Problems of translation and linguistic barriers likewise are of concern for speakers of non-dominant languages. Copyright regimes are formally neutral regarding the language of a work. In practice, however, the results are widely disparate, as copyright protection offers little financial incentive to write and publish in most of the world’s languages. People able to speak English, French or Spanish can select reading material from millions of books; however, those unable to speak a globally used language may enjoy access to very few. The vastly unequal distribution of published literary works across languages poses a significant barrier to the right to take part in cultural life for linguistic communities not offering a major publishing market. The issue is not limited to reading for pleasure; that also impacts the ability to pursue education and knowledge, take part in debates on social and political issues and earn a livelihood as a writer.

A journalist's right to fair use of IP is often hampered by the platforms the IP is distributed under. If Google had their way, journalists wouldn't be able to use yt-dlp, or other clients, to include clips from content published on YouTube in their reporting.

Just because it's legal for companies to screw you over doesn't make it right or desirable. If they force us to work outside of the law to protect ourselves and our right to access and make use of our own history and culture that's what we'll do.

And personally, I don't think it should. The purpose of copyright law is to make it economically viable to publish creative works. Ashcanning your own work very much goes against the copyright bargain, but we don't have any legal provision to counteract it yet.

Yes, they might complain that they were going to make that content available in your country after they have extracted as much profit as possible through geofencing, which further erodes their case because then they already made more profit than they would without geofencing.

The secondary argument is, they use that viewing history to influence the production of new shows ("people like shows set in space, lets make more space shows"). I also don't feel this is unreasonable. Ultimately this isn't tracking journalists' movements in an authoritarian regime; its entertainment. If my viewing history leads to the production of more shows I enjoy, who is losing?

Not all tracking is bad. Pragmatically, its not an open-and-shut thing, for me.

Just as an observational aside...

I remember back in the Digg days where people were complaining about how expensive cable TV was and that they would rather pay less for access to only the specific shows/channels that they actually watched.

No judgement, I just find it interesting how things are coming full circle

At no point has the status quo been:

> Here is service which provides any show you want for a reasonable one-time fee for watching that show.

Instead its:

> $200/mo for all cable channels. The show you want to watch is not playing tonight.

Or:

> Here are 7 different monthly subscriptions, each costs $15/mo. One of these services will have the program you want to watch, but good luck figuring out which one. Also 10% of what you want is not available on this "$105/mo multi-subscription", because it's an international cartoon.

What people want is what Netflix had before every Tom, Dick, and Harry decided to set up their own competing company (using their own IP as "exclusives"):

> Here's a $15/mo subscription, everything you could want to watch is here.

Netflix provided exactly that for long enough that people just stopped torrenting entirely. These days people would still settle for:

> Pay $1 for every TV show or Movie you want to watch. Paying the $1 lets you rewatch that episode infinite times until forever. This service contains every show you could possibly want to watch. There is a 4K HDR, lossless-compression mode for $1 extra...you should set aside some time before watching for that to download fully so that it doesn't buffer.

https://www.swissinfo.ch/eng/downloading-and-uploading_what-...

I am going to cancel my Netflix and start pirating because am not going to pay more than Germans for netflix and get an even smaller catalog than they get. Germany already pays more than the US for a much smaller catalog. We just get take to the cleaner just because, no reason whatsoever. The law that would require Netflix to pay a percentage to subsidice Swiss movies hasn't even been voted on yet and if it does pass will push the price even higher.

https://m.imdb.com/title/tt15425948/

[0] I have not heard a lot about the copyright filters since 2018 though. I know the controversial copyright directive has been ratified and implemented, but I don't know if it led to any concrete change up until now.

As for paying more for less in Germany... the problem is that nobody in the TV industry wants to go to sim-ship[0]. Most countries want to have a local-market/local-language TV broadcast and production industry, which is only viable if you let people portion off rights to their work on a country-by-country basis. The subsidy laws you mentioned are part and parcel of the same thing.

[0] A game development term that is short for "simultaneous ship"; in which you ship all languages in every territory all on the same day.

so megaupload with a disclaimer? kim dotcom is still fighting extradition.

Does a red light camera pass constitutional scrutiny? I think it's kind of the same logic: the law in question is constitutional; the new thing is just automating enforcement.

The upload filter might be a bit different, though, because it's mandated on private servers. Is that enough to swing the question? I really don't know.

Would it be? They can make you do all sorts of things on private land. Ever tried to renovate a home in CA?

- The Constitution itself says Congress can enact copyright law, as long as the laws themselves have a finite copyright term[0]

- As amended, the Constitution has a prohibition on "Congress" (state actors) making laws that circumscribe speech

- Since the intent of the 1st Amendment was not to immediately repeal the Copyright Clause, both provisions are valid; the 1st Amendment only protects novel acts of speech. The speaker is free to prohibit further speech that infringes upon their own.

- However, said speakers (copyright owners) are not free to prohibit any and all speech that touches their own. Only stuff that actually harms their monopoly on copying. Fair use is how copyright law passes constitutional scrutiny.

- Because DMCA 512 contains provisions for counter-notices and legal penalties for misidentification; people attempting to use copyright as a censorship tool can be punished for doing so.

- The SMART Act appears to amend DMCA 512, so said provisions would still apply. It also does not mandate upload filters on it's own, it just says the Copyright Office may decide to do so.

Whether or not an upload filter would violate the 1st would require SCOTUS to find that the DMCA counternotice provision is too burdensome for speakers making fair uses of copyrighted content. I'm not sure that would fly, even with very strict upload filters everywhere. Courts don't like having to make emergency judgments on these sorts of things, especially in situations where the remedy to the problem is "just send a counternotice".

If you were able to demonstrate in court that a particular mandate for upload filtering unnecessarily burdened speakers, then you probably might be able to overturn a specific Copyright Office SMART Act ruling. However, that would be a huge pain in the ass at best.

[0] It is currently undecided if this includes lim ©->; the closest attempt to apply "limited times" (Eldred v. Ashcroft) to asymptotic infinities failed. The thing about the Copyright Term Extension Act is that it wasn't just a blanket retroactive extension of copyrights; there were actual Germany-flavored reasons to do so.

I'm also confused as to how anybody expects to create an upload filter system that respects fair use, given how subjective the fair use criteria are. We have already have seen how this works out with sites like YouTube - it simply does not work.

I'm triply confused as to how this interacts with the DMCA safe harbor provisions. If this doesn't override them, as the bill authors say, how does it accomplish anything? Even The Pirate Bay nominally accepts DMCA takedown requests - so if sites can continue with their existing DMCA processes and be safe from being sued, why would anybody bother with implementing the technical measures?

in the absence of an effective predator to bureaucracy besides corruption and more bureaucracy, that's all you get- in other words, you can't stop progress!

The expectation is that fair use, if considered at all, is almost wholly up to rightsholders. Ideally (as is the case on platforms like YouTube) you allow this control to take place well before any legal mechanisms come into play, such that there is no legal recourse.

The groups that want this do not like fair use, either. In their ideal world, fair use wouldn't exist and you'd go to prison the second you opened a BitTorrent client.

Furthermore, there's plenty of other services that don't have a Content ID solution, are under the DMCA 512 safe harbor, and still have enormous amounts of infringing material, because the current notice-and-takedown regime puts all the onus of enforcement on the copyright owner. Speaking of, at one point, Google would not service automated search requests, and would comply with takedowns by... linking the user to the takedown request, which has the infringing link on it. Don't ask me how that is actually within the safe harbor.

The underlying problem is that DMCA 512 is underspecified; it just says you need to take down content when asked and put it back up if the uploader is willing to dox themselves. It does not say how the company goes about taking down content. SMART would change it so the Copyright Office determines how far any company has to go in complying with a takedown notice. If they say "video sites need a perceptual hash upload filter", then any site that hosts video and doesn't have said filters is outside of their safe harbor.

The solution to fair use under DMCA 512 is to tell the complainant to sue you and hand them a service address. I don't think that's changing - though practically speaking, if every substantial similarity is being prosecuted as infringement then you basically lose the right to anonymous fair use. The major publishers don't care because...

- They have dedicated staff to handle actual infringement issues, and have gone over everything with a fine-toothed comb

- They are large enough to be able to absorb even large damage awards, whereas the average independent creative would be ruined by even a modest infringement judgment

These are problems mostly orthogonal to the problem of upload filters, though - copyright is a hellish nightmare regardless of whether or not a few extra people get access to YouTube Content ID.

Also, TPB never accepted DMCA takedown requests, that's actually how they got shutdown. The prevailing narrative at the time was that Sweden had no notice-and-takedown law on the books. But that makes no sense, because that law only exists to disclaim liability, not create it. If you don't have DMCA 512, that doesn't mean you no longer have to worry about takedowns. It means you can be sued for the actions of billions of your users. Furthermore, there were standing EU directives at the time that would have required Sweden to implement a DMCA 512-like law anyway.

In the US our lawmakers just do what they're being paid for. They're paid by the media cartel to improve that industry's profits and protect their ability to act as gatekeepers controlling what we're allowed to see or hear.

Our rights, freedoms, and desires don't matter to lawmakers. Only corporations and a very small number of extremely wealthy individuals have representation in government. The average American citizen and honest grassroots campaigns have essentially zero impact on policy. (https://www.cambridge.org/core/journals/perspectives-on-poli...).

That's exactly what they have done before (eg. region-locked DVD players, Selectable Output Control[0], Macrovision, HDCP, etc.[1]), and all it has ever done is cause pain and confusion to consumers ("Why does my DVD player not work when I hook it to the TV through the VCR, or vice versa?"), with nary a blip in piracy rates.

> That way the "rights holders" are on the hook for piracy.

That's wishful thinking. The rights-holding media companies are never responsible[2], that burden falls solely on "implementors".

[0] https://en.m.wikipedia.org/wiki/Selectable_Output_Control

[1] https://en.m.wikipedia.org/wiki/List_of_Compact_Disc_and_DVD...

[2] https://en.m.wikipedia.org/wiki/DVD_Copy_Control_Association

However, piracy is also 100% a service problem that has been exacerbated by everyone creating their own streaming services and I'm actually really curious how Amazon, Netflix, and Disney get away with "exclusive content." The US vs Paramount Pictures[1] decided that you can't have exclusive theaters that are owned by production companies yet it is entirely fine if they have streaming exclusives. If anything, this is an indicator that the laws haven't kept up and need to be updated to probably apply to streaming as well.

[1] https://en.wikipedia.org/wiki/United_States_v._Paramount_Pic....

I don't think that's always true even now, but it certainly shouldn't be. When something becomes of a part of our culture, and our history, it belongs to all of us. No one is entitled to anything someone else creates until it is shared. Once it is, ownership is also somewhat shared.

If someone wants to write a song and have total control over it they just need to keep it to themselves because once I hear it, I naturally have a right to hum that tune to myself for the rest of the day, or to sing it at the top of my lungs. If someone wants total control over a story they write they should keep it to themselves because once I hear or read it, it's my natural right to be allowed to remember it, think about it, talk about it with others, and retell it in my own words. Before copyright this was the norm. Stories and songs were written and sung, others heard them, repeated what they remembered, added in their own changes and continued to share. If someone designed an illustration, or a bridge, or a garment, once others saw it, they could study it and incorporate those designs into their own works freely. Improving and modifying those designs however they liked.

Telling people that they are forbidden from saying, writing, or re-telling certain things to anyone is a massive imposition on our freedoms. We created copyright knowing it would be a special exception to the norm. It gave special rights and privileges to content creators which would allow them to circumvent our rights and limit what we can say or write or share for a limited time, and in exchange for the brief imposition on our freedoms to reward and encourage creators, copyrighted works were supposed to enter the public domain and after that everyone could freely access and use them.

It's wasn't even a terrible idea, but it's been perverted and corrupted into something that does more harm than good to creativity and progress. Now copyright lasts forever, and if somehow after centuries a copyright does manage to lapse, DRM can still keep those works from ever reaching the public. The copyright on most of what we think of as media doesn't even protect creators at this point, just the corporations who purchased the copyrights from the creative minds responsible for the work. Basically, the contract between creators and the public good has been completely broken. Th media industry paid to have and keep the power of law on their side, but in terms of "entitlement" and morality, they lost the high ground ages ago.

This seems like an intentionally obtuse interpretation of what I'm saying. No one is saying you can't hum a song but you certainly aren't entitled to a lossless download of that song.

The media industry says that you cannot. Doing so can have severe penalties under the law. They wrote those laws. Hum just a few of the wrong notes in a song you're writing and you can be sued for millions. Create a base line too similar to one you've heard in another song and they'll see you in court. Hum a few bars of something on your youtube channel and Content-ID will cause you to lose your income and put your ability to participate on one of the largest global platforms at risk, not because YouTube cares, but because if they aren't hyper-aggressive about enforcing the copyrights of others the media industry will take YouTube to court. We're at the point now where creating an original work in the same _genre_ as someone can open you up to costly court battles (https://www.techdirt.com/2013/08/20/tale-two-hit-songs-inspi...).

It was increases in the accessibility of printing and literacy which caused copyright law to be created. Although we've moved from printing presses and dictation to lossless downloads today it doesn't change the underlying struggle of balancing the freedoms of the average person, the need to support and encourage creators, the harm to progress and creativity caused by limiting the public's access to content, and the desires of certain people to act as gatekeepers for power and profit.

Once you start talking about who is "entitled" to what it's critical to keep in mind what copyright was created to accomplish and what it has actually become.

There is a chilling effect on creativity when this happens. There will be fewer people willing to risk a massive financial burden by creating something independently if sounding too similar to something else could get you sued into bankruptcy by a group that already has essentially endless wealth.

Currently, the industry doesn't even want the burden of dealing with the court system. They put pressure on youtube under threat of legal action to act on their behalf for free. It's the same with ISPs. The DMCA gave ISPs legal immunity from acts of copyright infringement committed by their subscribers, but only under very specific and poorly defined circumstances.

Right now, they are fighting in courts against half a dozen different ISPs to try to define that wording so that they can make unsubstantiated accusations against internet users and if an ISP doesn't cut the accused individual off from their service forever, the ISP can be sued for billions. No court case or evidence proving that the subscriber has done anything will be needed. If they say someone did it often enough, their service has to be cut off forever. Because some users don't have many options for internet access getting permanently kicked off an ISP can mean getting cut off from the internet entirely, but court cases are time consuming for the media industry so they are willing to let that happen if it means they can make your ISP into their free copyright police. So far, in the courts the media industry is winning.

Why not? It wasn't a problem to copy and distribute non-commercially just in my lifetime. Surely society as a whole was not robbed of one of its social and cultural rights to satisfy the greed of some special interests who want nothing more than to co-opt our own traditions and force us to pay rent on them?

The US was built on "piracy" as a copyright-free zone against their then enemy, Great Britain. Ships carried copies of books that sometimes were reprinted and distributed before they were available at large to their own markets because of the efficiency of US enterprise. Russia declares the same, and we get laws drafted in under a week.

Instead of more of these frivolous shakedowns and penny-wringers against the public, the laws we really need written should govern who inherits their senators when a billionaire dies.

While I fully agree, we should try to support independent creators when possible, but even then people are still left with nothing but terrible choices. Should they cut themselves off from fantastic pieces of art and massive parts of their culture? Should they financially support the broken system and greedy industry holding art, culture, and progress hostage? Should they risk increasingly severe legal penalties for accessing content without authorization?

I think ultimately the answer is going to be a combination of everything. Right now, the media industry has the lawmakers working exclusively for them. Until we can get representatives who'll represent us we'll likely have to resort to increasingly creating, sharing, and consuming art outside of copyright law.

Anyone wanting a glimpse at this bill’s future can look at YouTube’s draconian copyright strike engine which ensures artists will live in fear of daring to use a 5 second sample of Major Music Label Intellectual Property.

Attempts to legislate this (rather than curbing corporate greed) will only create a new hydra, one providing ML-resistant protections for media against perceptual hashes, greater anonymity, and the fertile grounds for stronger piracy.

If it is easy to watch $(UK-licensed TV show) from America, people will do it and then the production and distribution companies get exactly 0 dollars and in fact will lose money fighting a losing whack-a-mole war against torrents.

If it is easy to log in to netflix dot com (NOTE: netflix, not (NFLX | DIS | HBO | AMZN | HULU | NBC)) to watch $(show), people will do that and you can let Netflix and production companies fight about the beans.

If I post a video of myself playing moonlight sonata to youtube, and somebody puts a copyright claim (or more than one) against it, then it gets taken down and I suffer the consequences, but there is no mechanism for penalties for what amounts to fraud by the claimant. They should automatically get fined (payed to both me and youtube), and if damages were more severe I should be able to bring them to court to receive larger damages. Claimants should also get strikes the same way posters due, too many false claims and you then have to manually prove the copyright is yours before youtube takes the video down.

The above example was for youtube, but broadly this is how it should work. If copyright protection action cause harm, because of false claims (either accidental or intentional) then the claimant gets punished.

You could try to bring an action joining youtube but google is so wealthy that it's nearly essentially immune to litigation, including by states-- so it would be a waste of time.

- Most YouTube takedowns have nothing to do with the DMCA as YouTube has their own proprietary system. This system is extrajudicial. This system has the type of problems you're raising and little recourse.

I actually think the DMCA takedown process itself is problematic, but YouTube's own private one is a whole extra level of abusive.

People need to remember that laws reforming the DMCA would do nothing to fix YouTube's system, unless they outright banned YouTube/Google from operating an extrajudicial system.

Only in a very narrow sense of "false": if the issuer of the takedown claims they have copyright over something they don't. The statement that they have a copyright on some work is made under penalty of perjury.

The statement that your work infringes on their copyright is not made under any penalties at all, and there are no consequences for falsely claiming infringement.

So if you play the Moonlight Sonata, I can't claim that I own the copyright to the Moonlight Sonata and you're infringing. I can claim that I own the copyright to some actual work I own the copyright to (even if totally unrelated) and that your work infringes it.

How does it define an "online hosting service"? Literally any computer connected to the internet could potentially be considered an online host.

I just find something else to do. I have couple channels on YouTube I watch without recommendations and a couple of twitch streamers.

Recently, I've started reading.