Friday, January 20, 2012

An alternative: How to solve online piracy

Recently there has been a lot of fervor over the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA). Each law gives the government more power over the internet. 

OpenCongress described PIPA as follows:
“[This law] establishes a system for taking down websites that the Justice Department determines to be "dedicated to infringing activities." The DoJ or the copyright owner would be able to commence a legal action against the alleged infringer and the DoJ would be allowed to demand that search engines, social networking sites and domain name services block access to the targeted site. In some cases, action could be taken to block sites without first allowing the alleged infringer to defend themselves in court.”

OpenCongress described SOPA as follows:
“This bill would establish a system for taking down websites that the Justice Department determines to be dedicated to copyright infring[e]ment. The DoJ or the copyright owner would be able to commence a legal action against any site they deem to have "only limited purpose or use other than infringement," and the DoJ would be allowed to demand that search engines, social networking sites and domain name services block access to the targeted site. It would also make unauthorized web streaming of copyrighted content a felony with a possible penalty up to five years in prison. This bill combines two separate Senate bills -- S.968 and S.978 -- into one big House bill.”

There is a bill proposed by some of the opposition, called the OPEN Act. I am not a fan of that legislation, but I don’t want to use up words trying to show my opposition to it. There is a different approach proposed.
The Pirate Party, a political party with roots internationally in countries such as the United States, Sweden, Scotland, Canada and the United Kingdom. The international website argues that “All non-commercial copying and use [of copyrighted material] should be completely free. File sharing and p2p networking should be encouraged rather than criminalized.” The group also criticizes the current copyright terms, saying they are absurd and that “nobody needs to make money seventy years after he is dead.” The alternative they propose is “a five years copyright term for commercial use.” Passionately, they argue for “a complete ban on DRM technologies, and on contract clauses that aim to restrict the consumers' legal rights.”  The UK-based political party offshoot follows a similar line, arguing for balanced copyright law. Their website is a bit more descriptive mentioning that the party would support peer-to-peer networks (which the party says supports lesser-known artists) and a right to a “format shift” (copying data from a CD to a portable media device). However, they note that “counterfeiting and profiting directly from other people's work without paying them will remain illegal.” That last provision could run up against those who want to help others.  There is no definite website for the United States pirate party, but their LinkedIn website gives some insight. That website says that want “abolition of the DMCA and related subsequent provisions within copyright law…rejection of the concept of online piracy…reform of copyright…abolition of Digital Rights Management…[and] reform of trademark.” 

I believe that Digital Millennium Copyright Act (DMCA) must be repealed and that non-commercial copying and use of copyrighted materials should be allowed. The government must not use the FBI, Immigration and Customs Enforcement or any other government agency to shut down parts of the internet. This would hurt the sharing of information that current occurs. Big Music would obviously oppose this measure since pirating would be partly legalized but that must be overcome. If these measures were enacted, then piracy online would fall because it would be legal instead. I do not advocate for making it legal for people to pirate and then copyrighted materials of others for a profit or the counterfeiting of goods for a profit. However, counterfeiting of goods that do not cause bodily harm should be allowed or should be focused on by authorities. Those counterfeited goods that cause bodily harm should be focused on by law enforcement.
The software piracy rate was 20% in the United States in 2007, #107 of 107 (nationmaster.com).  In Spain, according to Hollywood Reporter, it is much higher, being “over 77% of the digital content consumed in Spain in the first half of 2011 was pirated, marking a .4% climb from the same period to previous year [and] more than 98% of all digital musical content was downloaded illegally.” In 2010, DailyTech reported that peer-to-peer network piracy rates were 9-13%.  While efforts at trying to cut piracy on the internet like shutting down LimeWire (2010) and Megaupload (yesterday) have seemed to limit the amount of those downloading, people are moving to other sources such as YouTube. One major reason for this approach is because people support legalizing music online.

In 2003, a CBS News /New York Times poll asked 675 adults nationwide (18-30+ years) a number of questions on this topic. An even smaller amount answered the question about music file sharing. When asked "When it comes to sharing music over the Internet for free, which comes closest to your view?” An average of about 17% of all respondents, those 18-29 and those 30 and older said downloading music is always acceptable. Average of 43% of those from same groups said that downloading music should be sometimes acceptable. An average of about 35% said that sharing is never acceptable and about 3% said they didn’t know. The support for downloading was across the board. A poll the same year by the FOX News/Opinion Dynamics Poll of 900 people was a bit more promising. 61% of those 18-34 approved of “approved downloading music over the Internet” and only 35% disapproved of it. However, as age increased, people became more opposed to the idea (probably because they got paranoid or just wanted the status quo). Of those people 32% had downloaded music over the internet without a fee.  A poll of 2,600 Americans in 2007, reported by MSNBC stated an interesting conclusion. They wrote: “Only 40 percent of Americans polled…agreed that downloading copyrighted movies on the Internet was a "very serious offense."… 59 percent of Americans polled considered "parking in a fire lane" a more serious offense than movie downloading.”  

The approach of legalizing downloading is supported by a good mass of the people in every method, rising substantially from 2003 to 2007. On the other hand, Chris Dodd, a major lobbyist for MPAA, which wants this piracy laws in place, says that DMCA did not “break the Internet…deprive anyone of freedom of speech at all. And…did not curtail or stymie creative innovation in new technology.”(Hollywood Reporter) That’s what Big Music says. Privacy Digest had a different tact, writing about erroneous DMCA claims because of the problem in copyright enforcement. Part those problems stem from a component of DMCA, DRM or Digital Rights management. The website explains that DRM “restricts users' ability to share content or to consume it in a proscribed manner…has been largely disliked by end-users…creates a poor user experience and interferes with expected rights (under fair-use doctrine) [and allows] copyright infringement notices are needed precisely after "unprotected" content has already [disappeared].” 

Another website comments in the same vain. Questioncopyright.org notes that criminalizing downloads is not practical because there is a lack of jail cell space and “erodes one's civil liberties.” The major reason is because a phone could be tapped, a house could be put under surveillance and a computer could be seized. In addition, these measures have been used to “censor free speech when that speech is [contrary] to a copyright holder's financial interests” and has negatively affected researchers. Original copyright law, the cite notes, commercial transactions were prohibited but after the DMCA passed, then commercial and non-commercial actions were banned. As the website predicts, DMCA may have been just the beginning of a hard-nosed approach toward copyright, with the possibility of outlawing of peer-to-peer networks in the future. 

A few months after the legislation was passed in February 2001, Robin D. Gross commented on DMCA. On imaginelaw.com, he wrote: “On the controversial Digital Millennium Copyright Act (DMCA) took full effect, criminalizing the act of circumvention of a technological protection system put in place by a copyright holder -- even if one has a fair use right to access that information.” 

Two years ago, the Electronic Frontier Foundation wrote on DMCA as well. They wrote on its unintended consequences, in an article titled “Unintended Consequences: twelve years under DMCA” criticizing the law itself: “anti-circumvention provisions of the DMCA have been invoked not against pirates, but against consumers, scientists, and legitimate competitors…Section 1201 has been used by a number of copyright owners to stifle free speech and legitimate scientific research…a number of prominent computer security experts curtailed their legitimate research activities for fear of potential DMCA liability…the movie studios effectively obtained a "stop the presses" order banning the publication of truthful information by a news publication concerning a matter of public concern...The DMCA, however, prohibits the creation or distribution of these tools, even if they are crucial to fair use...Until 2007, authorized digital music download services also utilized DRM systems that frustrated fair use expectations, and technical restrictions remain common for subscription services…The DMCA has frequently been used to deter legitimate innovation and competition, rather than to stop piracy…The DMCA's anti-circumvention provisions have also threatened to displace "computer intrusion" and "anti-hacking" laws, something that Congress plainly never intended…Years of experience with the "anti-circumvention" provisions of the DMCA demonstrate that the statute reaches too far, chilling a wide variety of legitimate activities in ways Congress did not intend…hindering the legitimate activities of innovators, researchers, the press, and the public at large.”

Panix.com takes a different approach. They note that “Under the old pre-DMCA copyright law, buyers of books, albums, and movie tapes had many rights [called fair use]:
1.  You may make copies for your own use.

2.  You may lend books, albums, and movies to your friends.  You may read a book aloud with your children.  You may invite friends over to dance to the music of your album.  You may view your movie with friends.  You may stand  in front of a room full of students and read the book, and you and the students may talk about the book.

3.  If you are a library, you may buy one copy of a book, and lend it out for free to anyone with a library card.  You may do the same with an album and also with a movie.

4.  You may make copies of parts of the book, the album, and the movie, in order to discuss it, to make fun of it, and even incorporate the part in a new work.

5.  You may sell the book, album, or movie to anyone you wish.

6.  Any time you want to read the book, listen to the music, view the movie, you may, without paying one cent more to the copyright holder.  You may do these things as often as you want.”

 As you can see, the current approach to piracy is not a good one. If the approach gets out of control with new laws such as SOPA or PIPA it is possible that like Russian entertainment producers cited by Hollywood Reporter, the U.S. government will ask Facebook to take down its copyrighted videos that are uploaded to its site. If the government doesn’t ask, it could possibly forcibly shut down Facebook (or parts of it in retaliation for non-compliance. In Spain a current law like SOPA is being proposed and it is unlikely what effect it will have but it is almost certain that Big Music and the entertainment industry will use it in their own efforts to push for more government control over the internet. Howard Zinn writes in his book, A People’s History of the United States quotes Grover Cleveland’s attorney general, Richard Olney, talking about the Interstate Commerce Commission. Olney explains: “The Commission…is or can be made, of great use by railroads. It satisfies the popular clamor for government supervision of railroads, at the same time that supervision is nominal…The part of wisdom is to not destroy the Commission, but to utilize it.” The same is true today with the internet. If the government regulated the internet, then it is possible that there would be collusion with industry just like with the Interstate Commerce Commission. As questioncopyright.org points out, artists, software engineers and others can still make money if there is more freedom of information like the ideas I have proposed. Garden State Community College’s website it states: “There is a great deal of debate about the DMCA and copyright law in the digital age.   If you disagree with the law, learn more about it and become involved in trying to change the law.” I hope you follow that advice and try to change copyright law it for the better, in a way that would benefit the citizenry at large, not the entertainment industry since this issue will affect every person that uses the internet. 

By Burkely Herman, Chief Correspondent

Wednesday, January 18, 2012

Enemy Expatriation Acts: A stain on America

Learning from USWGO about this bill, I decided to investigate further. Theie blog claims that these laws are a repeat of Hitler's actions. I disagree.

The law (House version) is as follows:
HR 3166 IH
112th CONGRESS
1st Session
H. R. 3166
To add engaging in or supporting hostilities against the United States to the list of acts for which United States nationals would lose their nationality.
IN THE HOUSE OF REPRESENTATIVES
OCTOBER 12, 2011
Mr. DENT (for himself and Mr. ALTMIRE) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To add engaging in or supporting hostilities against the United States to the list of acts for which United States nationals would lose their nationality.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘Enemy Expatriation Act’.
SEC. 2. LOSS OF NATIONALITY.
(a) In General- Section 349 of the Immigration and Nationality Act (8 U.S.C. 1481) is amended--
Comments
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(1) in subsection (a)--
(A) in each of paragraphs (1) through (6), by striking ‘or’ at the end;
(B) in paragraph (7), by striking the period at the end and inserting ‘; or’; and
(C) by adding at the end the following:
‘(8) engaging in, or purposefully and materially supporting, hostilities against the United States.’; and
(2) by adding at the end the following:
‘(c) For purposes of this section, the term ‘hostilities’ means any conflict subject to the laws of war.’.
(b) Technical Amendment- Section 351(a) of the Immigration and Nationality Act (8 U.S.C. 1483(a)) is amended by striking ‘(6) and (7)’ and inserting ‘(6), (7), and (8)’.
[http://www.opencongress.org/bill/112-h3166/text]

The senate version is exactly the same (http://www.opencongress.org/bill/112-s1698/text).

The major question is, what does the bill actually do? Well, I looked in the U.S. Code to find out.

Currently the U.S. Code of that section reads as follows:
§ 1481. LOSS OF NATIONALITY BY NATIVE-BORN OR NATURALIZED CITIZEN; VOLUNTARY ACTION; BURDEN OF PROOF; PRESUMPTIONS
(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality—
(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or
(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or
(3) entering, or serving in, the armed forces of a foreign state if
(A) such armed forces are engaged in hostilities against the United States, or
(B) such persons serve as a commissioned or non-commissioned officer; or
(4)
(A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or
(B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or
(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or
(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense; or
(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.
(b) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.

[http://www.law.cornell.edu/uscode/html/uscode08/usc_sec_08_00001481----000-.html]

The text would be amended in both bills to say:
"§ 1481. LOSS OF NATIONALITY BY NATIVE-BORN OR NATURALIZED CITIZEN; VOLUNTARY ACTION; BURDEN OF PROOF; PRESUMPTIONS
(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality—
(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years;
(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years;
(3) entering, or serving in, the armed forces of a foreign state if
(A) such armed forces are engaged in hostilities against the United States,
(B) such persons serve as a commissioned or non-commissioned officer;
(4)
(A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state;
(B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required;
(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State;
(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense;
(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.
(b) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily; or
(8) engaging in, or purposefully and materially supporting, hostilities against the United States.;
(c) For purposes of this section, the term ‘hostilities’ means any conflict subject to the laws of war."

I have major concerns with this legislation. The changes have eeriely similar ideas as other legislation passed in the past. Remember the Smith Act, like (7) in the proposed amendments to the U.S. Code. The Act still on the books is as follows:
"§ 2385. ADVOCATING OVERTHROW OF GOVERNMENT
Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or
Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or
Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof—
Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
As used in this section, the terms “organizes” and “organize”, with respect to any society, group, or assembly of persons, include the recruiting of new members, the forming of new units, and the regrouping or expansion of existing clubs, classes, and other units of such society, group, or assembly of persons."

Under this proposed law, the Enemy Expatriation Act the crime of professing overthrow of the U.S. government expands. Under the Smith Act of 1940, if you advocate abet, advise or say it it is one's duty and is desirible to "overthrow...or destroy...the government of the United States or the government of any State, Territory, District or Possession...by force or violence." you can be imprisoned for 20 years, fined or blacklisted from any future federal government jobs. Also under the 1940 law if you intend to destroy and overthrow government and you "print...publish...edit...issue... circulate...sell...distribute...or publicly display...any written or printed matter [that] advocat[es], advis [es] or [preaches that such action is a] necessity [or is] desirabil[e]...by force or violence" then you can be blacklisted from a government job, put prison for twenty years or fined. Also if you organize, help organize such action or "become...a member of, or affiliate.... with, any such society, group, or assembly of persons" that supports the violent overthrow of government, you
face the same punishment. If it includes two or more people, they face the same punishment.

This law, the Enemy Expatriation Act, would force renouncement of citizenship on a U.S. citizen if they commit treason, attempt to overthrow (violently or non violently) the United States government, conspire to commit treason or overthrow government, destroy by force the government itself or fulfill the vague statement and "levy war against them [the establishment]."

Most of the provisions in the original amended law were in a sense dormant, as the U.S. government had a number of reasons why one would lose their citizenship. Now they have been reawakened in this this legislation. One of the more disturbing revivals is the power to the Attorney General, who "shall approve such renunciation [of citizenship] as not contrary to the interests of national defense." So, if you are considered as not advancing the "interests of national defense" (interests of the military-industrial-complex) your citizenship can be revoked. Under the proposed law if you obtain "naturalization in a foreign state" at age 18, your citizenship can be taken away. At the same age, allegiance can have the same effect. "Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision" can take away one's citizenship. Serving in armed forces "engaged in hostilities against the United States" can remove one's citizenship. It is unsure what "engaged in hosilities" means, which seems to be another ambiguity of the law. Being employed in a "foreign state or a political subdivision thereof" after age 18 (if you are a citizen of that country) and taking an oath or affirmation for such a job removes citizenship. Also, "making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state" removes citizenship ( only good part of the bill).

Of the proposed legislation, the laat part is the most troubling. Under (8), if a U.S. citizen engages in "purposefully and materially support[s] hostilities against the United States" citizenship can be revoked. This could br used for the purpose of stopping peace activists from standing up to the war machine. In (8)(c) this is not clarified as it defines as "any conflict subject to the laws of war." I am not sure what laws of war means but if it is talking about the Hague Conventions in 1899 and 1907, the law is mistaken. In both conventions, treaties came out which required peaceful settlement before war. The later Kellogg-Briand Pact, renounced war as an instument of foreign policy, in a sense outlawing it.

I am concerned about this legislation not only because phrases like "laws of war" are ambigious, but because of the expanded power given to government. My fear is that this law could be used to stamp out peaceful protest and is just a way for the establishment to maintain control. Tell your "Congressmen and Senators to please heed to call" and vote against the Enemy Expatriation Act.
- Burkely Hermann

Names of legislation in Congress:
S. 1698
H. 3166
Use opencongress.org to send letters, or find your specific senators or representatives and sdnd them letters.

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