Tag: law

Copyright being flushed down the drain

ISPs: Tired of being sued for not disconnecting repeat infringers? Implement my DMCA compliance policy!

My comment in response to a Slashdot post about Charter being sued for not “disconnecting repeat infringers” with DMCA takedown notices being the only “evidence” provided:

ISPs are required by the DMCA to have a repeat infringer termination policy and to follow that policy. The exact subtext that lays out this requirement reads: “[for an ISP to be eligible for limited liability status]…it must adopt and reasonably implement a policy of terminating in appropriate circumstances the accounts of subscribers who are repeat infringers,” I propose this as a layman’s version of that policy:

“If a court of law issues multiple judgments (or multiple counts in a single judgment) against you that find you guilty of copyright infringement, and finds that those acts of copyright infringement were performed while directly using our services for access, your high-speed internet account with us will be terminated immediately. DMCA takedown notices are considered to be unproven allegations and will not be treated as proof of infringement without the previously mentioned court order being provided.”

This appropriately balances the interests of the rightsholders and the alleged infringers while following the requirement set forth in the DMCA. A DMCA takedown notice has never constituted proof of infringement; they exist to have allegedly infringing content taken down quickly and a process exists by which the affected person can challenge the notice and force the rightsholders into court if they still want it taken down. The entire problem here is that DMCA takedown notices are being treated as having equal legal weight to a court judgment of copyright infringement when that’s clearly not the case.

I wish someone would email this suggestion to the ISPs so they could implement it and make this stupid crap go away already. If the ISPs did this, rightsholders would be forced to support their allegations in court to disconnect alleged infringers rather than expecting their completely unproven and potentially baseless say-so to automatically result in a permanent disconnection.

The Financial Provider Neutrality Act (FIPNA), my legal solution to the payment processor bias problem

This is not a new problem but it’s becoming a much larger one. Many years ago, PayPal notoriously banned “adult” fiction book sellers (not actual pornography, just books with pornographic descriptions using words) from their service and it caused quite a stir. With the #PatreonPurge, PayPal’s banning of SubscribeStar, and a wide variety of individual de-platforming by other payment processors such as Stripe, we’re seeing overt actions by financial platform providers reminiscent of the days of Hollywood’s anti-Communist blacklists, disrupting free exercise of speech and the ability of mutually consenting parties to engage in beneficial commerce in the age of the internet.

My solution is simple: FIPNA, the “Financial Provider Neutrality Act.” This would be a law (preferably an amendment to the United States Constitution) that forces the provider of ANY financial service platform (banks, card processors, online payment processors, investment firms, etc.) to accept and retain everyone on that platform unless they have actively used that platform to break the law or are otherwise legally barred from opening a bank account with that platform. This protection extends beyond banks to all “financial services platforms” because despite allowing you to have an account in which you may deposit and they retain funds, PayPal and others somehow are “not a bank” and are able to skirt a wide variety of consumer protection laws due to “not being a bank.”

Imagine if every bank in your town closed any bank account you opened shortly after you opened it because they didn’t like your political beliefs! That’s shockingly not far from where we’re heading with this behavior.

I am generally a pretty hard classical libertarian, but the immense control that near-monopoly corporations have over major aspects of the internet represent a colossal threat to our fundamental freedoms. What good is freedom of speech if you are banned from the public square? What good is freedom of speech if you can’t buy dinner because a required third party can block people from giving you the money that they WANT to give you? If you can’t exercise your fundamental freedoms in any effective way then you DO NOT actually have those freedoms.

Arguments about corporations having freedom of speech fall sorely flat here because this is an issue of corporate freedom of speech vs. individual freedom of speech, and the individual’s freedom of speech should always take priority. It’s debatable whether a financial platform is engaging in speech at all; they act as middlemen in transactions that skim money off the top, not as creators or publishers of speech, and if you are cut off from your income by an activist financial platform like Patreon and PayPal have been doing, your freedom of speech IS being curtailed because you can’t speak when you can’t pay for your survival.

I understand that we have hundreds of years of case law that says corporations have the same freedoms as individuals because corporations are groups of individuals exercising their freedoms and I don’t necessarily disagree with that concept. Where I draw the line is when corporate freedoms conflict with individual freedoms, and in such instances I believe that individual freedoms must take precedence and restrictions must be imposed on the corporation to preserve those individual liberties, lest society become like the worst-case example of a democracy: “three wolves and a rabbit decide what’s for dinner.”

See also: Patreon May Have Violated Anti Trust Laws In Sargon Debacle and Patreon + PayPal = Antitrust Violation (I’m done)

UPDATE: George Carlin, as always, puts it best. Here’s his diatribe on political correctness; “political correctness is fascism pretending to be manners.”

Holy crap! You can go to prison for not paying your parents’ medical bills!

I just found this thread on the /r/LegalAdvice subreddit about a concept called “filial responsibility” which basically means that parents and/or their adult children can be held legally responsible for paying medical bills incurred by each other. Apparently 29 states in the USA have filial responsibility laws on the books but I (like many other people) have never heard a thing about them before today.

Filial responsibility is super draconian and scary shit.

Interest in filial responsibility laws have slowly resurfaced after finalization of a Pennsylvania court case where a son was held legally liable for his mother’s $93,000 nursing home bill. Before this case came about, these laws had long since fallen out of any sort of actual enforcement in a similar vein to anti-sodomy or “crime against nature” laws that technically make it a felony to have oral or anal sex with a human. I started digging a bit and found out that these laws could be a nasty time bomb in North Carolina because NC criminal law says that not taking care of your parents if the State decides you should be able to do so is grounds for giving you a criminal record.

That’s right! Don’t pay for your parents’ medical bills? Class 2 misdemeanor, have fun in prison.

I am a firm believer that no person in a free society should ever be held liable for debts (financial or moral) incurred by any other person and that debtors’ prisons should be completely abolished. If you believe the same thing, contact your state government representatives and make sure they know you want these laws stricken from the books.

Law enforcement and NSA/FBI/CIA/SBI use corporations to skirt the Fourth Amendment

I don’t have much to say on this subject (there isn’t much to it in the first place) but this is a trend I’ve noticed for some time now and I wanted to bring it up in a post. I’m not a lawyer, so don’t take any of this as legal advice. Comments would be nice!

Law enforcement and investigative agencies seem to be increasingly using corporations to get around Constitutional protections against search and seizure. The logic most frequently used is that if a corporation takes something or collects something from you, a search warrant can be served on the corporation and your rights relating to those somethings don’t exist anymore, because the warrant was served on the corporation and it is that corporation’s rights which are engaged. It doesn’t matter how they end up with it or that it should be seen as yours; once a business takes something from you, it’s fair game for authorities and you have no recourse.

I have a major problem with this.

On one end, you could take the example of an employer noticing your bag of marijuana, taking it from you, and calling the police. On the other (less tangible) end, you could discuss law enforcement asking Google, Yahoo, or even a torrent tracker for a list of your searches. Either way, the company takes something from you and gives it to law enforcement, bypassing your rights against unlawful search and seizure and depriving you of most legal processes to fight the evidence after the fact. If a cop illegally searches your car and finds weed, you can challenge the search on fourth amendment grounds, but if a co-worker or manager does the same thing and then hands it off to the cops, there is almost nothing you can do about the search. The Google search hand-off is practically the same thing in virtual space.

I would (at a minimum) like to see the law changed to explicitly extend fourth amendment protections to cover situations where a third party is used as a proxy in the seizure. I have no idea how this would work out in practice, but I’m hoping someone who happens upon this will show up with some insightful comments.