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What is the Intention of Justice? Notice and Stay Down is the Government’s Responsibility

September 21, 2015


Let’s get back to justice…what is justice?  What is the intention of justice? The intention of justice is to see that the guilty people are proven guilty and that the innocent are freed.  Simple isn’t it?  Only it’s not that simple.

From …And Justice for All, written by Valerie Curtin and Barry Levinson.

There is a new term in our lexicon:  Notice and stay down.  What does it mean?

It is a way of encapsulating a distortion of the law that large multinational corporations are using to their immense profit by middlemaning the theft of other people’s property in the weaponized Internet.

In the late 1990s, the large ISPs had a legitimate concern.  If they are providing ways for the many to connect with each other over the Internet by means of a technology that also enabled them anonymously to send digitized property by means of that technology–such as a file that contained a copy of a sound recording or an image–they need to be protected from responsibility for things like copyright infringement.

They needed a zone in which they could operate, a zone that came to be called the safe harbor.  The deal essentially was that if you didn’t have a reason to know there was bad behavior going on with your users, a reason waiving like a red flag, then the government would provide a little latitude to reasonable people acting reasonably, assuming you otherwise qualified as an online service provider.

If a copyright owner thought there was infringement going on that didn’t qualify for the safe harbor, then the thought was that they shouldn’t have to file a lawsuit, they could just send a simple notice to the service provider.  If it turned out that there was a bona fide dispute, then the parties could go to court and hash it out.  The notice was perceived as an inexpensive remedy that would be available to artists who did not want to take on a lawsuit as well as large corporations with litigation budgets.

Sounds very civilized, don’t it?  Sounds like something that could be considered to be just.

The one thing that nobody thought was that there would be an amoral multinational corporation whose business model is in large part built on exploiting that safe harbor in a way that it seems inconceivable was the intention of the Congress.

Now we have that company–Google–bleeding copyright owners dry through exploiting this loophole while reaping great profits for itself.  Profits that it uses to hire an army of lobbyists to perpetuate its ability to bleed artists dry.  The circle of life.

And if you struggle against the “whack a mole” reality of the safe harbor, then the Google PR team suggests that there’s something wrong with you.

To be clear, Google is not the only one who benefits from the safe harbor.  But Google is the only company that Morgan Stanley estimates grosses $6 billion a year from YouTube.  That supported Kim Dot Com’s advertising business.  That profits from the sale of advertising for counterfeit goods.  No, Google is in a class by itself when it comes to exploiting the “safe harbor.”  Google behaves in a way that we would like to think hardly could have been contemplated by the U.S. Congress.

So now when we ask that some common sense be applied to this grotesque distortion of the law–this unjust distortion of the law–we are told that it’s not up to government to tell us what their law means, we are supposed to tell them how we would like to amend the law so that when you send a notice for the same work on the same service 100,000 times it stays down.

Whack a mole is not automatic–someone has to decide to repost the infringing file knowing it is infringing.  That actually defies the entire purpose of the safe harbor–that is not a little latitude for reasonable people acting reasonably.  Whack a mole actually describes a crime that should be investigated by the FBI.

Let’s get back to justice.  Not only are we being asked to tell lawmakers what their law means, the U.S. Government has utterly failed artists with the fundamental justification for the sovereign common to our jurisprudence and political theory.  It failed artists in the basic tenet of the social contract theories embedded in our Constitution.  The Congress failed to protect artists, failed to enforce the laws, and permitted the most blatant crony capitalism to reign supreme, essentially overseeing and giving legitimacy to one of the largest income transfers of all time.  You may think that’s a little soft–I’m being diplomatic.  The Congress permits Google to commit what I believe to be crimes, all day, every day.

And that’s the other point.  Unlike Socrates who suggested that citizens could vote with their feet, we cannot escape the Internet.  It can’t be said that we should just move to another country as Plato writes in the Crito.  Instead of protecting us from companies like Google and the criminal enterprises it supports through traffic and the sale of advertising, the government actually allows Google to install the gigabit Google Fiber so that massive theft can be accomplished even more massively.

So I would beg pardon here–I do not feel that it should be necessary for artists to tell the Congress what we would accept in the way of parameters for “notice and stay down”, at least not initially.  I think artists have the undisputed right to ask–actually to demand–of the Congress, what was their intention.

The safe harbor is their law.  They wrote it.  They voted for it.  They presumably have some idea what it is supposed to mean.  Many who voted for it are still in the Congress.  Isn’t the place to start a coming clean about what Congress intended?  Why should artists have to tell the Congress what the Congress’s intention was?

If it was the intention of the Congress (and President Clinton who signed the law) that the current state of play was the plan all along, then let them say that.  Google is on track to receive over 300 million take down notices this year alone.  If this was the Congressional intention, then let them say that.  If their intention was there should be no upper limit on the number of takedown notices any one company could receive in a year, then let them say that.  And explain themselves.

And let’s be clear–Google does not view these hundreds of millions of notices as a design defect, although that would be a perfectly reasonable starting place.  Google views 300 million notices as a feature set.

Neither should the starting place be some guess on the part of artists as to how many notices are too many, which is inherent in the “notice and stay down” concept.  The starting place should be whether there are too many being sent already and what is the punishment.

Because what is the intention of justice?  That the guilty are proven guilty.  But if lawmakers won’t tell us what it means to be guilty much less prosecute the politically connected wrongdoers, then what justice is that?



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