Secondary liability for service providers and hosts on the internet remains a serious threat to the open web. Service providers should not be held accountable for the content of their users.
This effort to bring back parts of SOPA, combined with a recent push by state attorneys general[1] to compromise Section 230 of the CDA are extremely concerning to me.
That was actually one of the key points of SOPA -- it extended DMCA-style service provider protection to payment providers and ad networks. As for the "streaming" provision, that was (inartfully) meant to penalize the day 0 crowd, especially for unreleased media. It was not intended to penalize people downloading, watching, or what people who read this site consider "streaming."
The language could and should have been cleaned up then; it all got lost amidst the SOPA screaming. Penalties for "streaming" are covered by the DMCA inside the US. It's how YouTube and UStream can exist. And I think we've seen precisely how many felonies and how much jail time resulted from cover songs and Justin Bieber lip dubs since that law passed 15 years ago.
But right now someone outside the USA can take another party's shady (or well-intentioned stream) of a pay per view, wrap ads from an ad network around it, and accept PayPal in order to see the "unrestricted stream" (scam). And there's no legal framework to deal with it.
That's obvious scammy theft regardless of where you stand on copyright. And all the "good guys" (ad networks, payment providers) remain liable whether they respond to takedown requests or not. SOPA let people take down the ads and PayPal links if they couldn't get the site down. It gave PayPal and Google the same kind of process and liability protection for payments and ads that YouTube already enjoys for video.
This needs to get fixed and techdirt, boingboing and others need to hire someone with minimal legal expertise (optimally Congressional litigation support experience) if they're going to keep hammering this for pageviews and anti-copyright cred.
The justice system still sets the parameters and manages the procedures by which sentences are handed down. If a court determines you're going to prison for 10 years, you're going -- the private company manages your environment for that time.
And given that private parties also manage your medical care, hospital stays, air travel, car manufacture, work environments, home building, and thousands of other mechanisms and environments that determine your safety and quality of living, I struggle with finding a moral difference when it comes to prisons.
You could argue that these other things are voluntary and prison isn't, but it's involuntary even if run by government; most inmates would opt out either way.
And I think it's highly naive, this distinction between private companies as greedy, interested parties and government agencies and functionaries as objective arbiters of truth and goodwill. Either way you have ridiculous salaries, internal power struggles, marketing/perception, budget committees, and cynical people inured to the hard realities of the lives they affect.
A prison is a place where people are deprived of liberties. A society can justify depriving people of liberties. A private interest should not have the right to do so.
Yes, it's not the private interest who condemns the prisoner, but they run these facilities at a profit, turning what should be a rehabilitating environment into an environment that is designed to promote full prisons to enrich an individual.
A good prison should work at a financial loss because there should be a societal benefit to rehabilitating inmates. If a higher prison population turns into a financial incentive, there is no incentive to help inmates or even reduce recidivism.
This is especially true when you consider how many minor offenses can send people to jail in the US. It is also interesting to consider that when slavery was abolished, many plantations turned into for-profit prisons; or that the incarceration rate of the US is the highest in the world.
The government delivers citizens into the hands of private management all the time: required insurance policies, training programs, licensure, etc. Mandating that every obligatory service be not only funded, but implemented, by government would extend its rolls of employees, budgets, laws and legal complexity, competencies, and requisite voter knowledge beyond any reasonable possibility.
You seem to be ascribing a negative to the mere profit focus of a private company, rather than the outcome. We could do the same for insurance, medical practice, automobiles, plane travel, lodging, and everything else important; but we don't, because private companies in the open market perform better.
Would you then deliver everything important into the hands of government monopoly, despite everything we know about the benefits of competition, for the moral premise rather than results? And if you think the results weigh against private prison companies, might we restructure the government/private arrangement before nuking wholesale the notion of the market?
WRT the incarceration rate, I'd have to see something linking that to private companies running prisons, rather than problems with the justice system itself.
Consider the abysmal performance of government-run schools, among others, as a counterpoint.
Well, the basic idea is that a government prison would have the goals of society in mind (both security and rehabilitation) whereas a private prison's profit motive benefits most from having as many prisoners as they can get for as long as possible.
Actual rehab runs contrary to that; facilitating a state of affairs that results in more prisoners (repeat and new) for longer periods is going to be a primary goal.
What solutions are there that aren't simply large carrots (bonus' for prisons when repeat offense rates fall?) or large sticks (penalties/fines for the opposite)?
Agreed that that's the basic idea behind government-run anything -- its ostensible adherence to the benefit of society. But that's the naivete I was referring to: in the end there is no "government" per se, just a bunch of self-interested individuals. They all stand to benefit from overemphasizing a need for their department, bigger budgets, better benefits, tenure, and the political clout to influence those things.
There will always be undesirable incentives. Say we reverse things and pay the company more for reformed prisoners who make parole earlier. Now the incentive is to err on the side of leniency and potentially release more dangerous criminals earlier. You might then counteract it by penalizing the company even more if one of their parolees ends up back in the tank within X period of time; that might help, but depending on the parameters it could make them so gun-shy that we're back where we started -- holding people for longer -- but with a more complex system with more opportunity for schemes and loopholes.
It's not an easy problem by any means. As I said, I want to find some studies; I'm open to what the results show, but I'm very wary of trusting government simply because their purported goal is social benefit.
It starts to become a problem when judges and district attorneys own shares of the companies that run the prisons. This creates a clear conflict of interest (the more people they can convict, the more money they will make) which so far doesn't seem to be noticed as you read about such circumstances at times.
That's fair, and unquestionably a conflict of interest. However, it's not an irrevocable quality of a prison run by a private company (and therefore evil "by definition").
OTOH, purchase of shares is at least an above-board, traceable interaction. Government officials have always gotten perks and kickbacks from private companies, rich individuals, NGOs, and their own budgets that are either off the books or disguised as something else, and therefore less transparent.
I haven't seen (or yet hunted for) a study of publicly run vs. privately run prisons, in terms of treatment, costs, etc.; but I'd be curious, to say the least.
>And I think it's highly naive, this distinction between private companies as greedy, interested parties and government agencies and functionaries as objective arbiters of truth and goodwill.
Higly naive?
A government agency can be greedy or good.
A private company is by definition greedy. It exists to make money.
Unlike the second, which does what the owner/director likes, a government can be controlled by a vigilant voting population, that eagerly participates in political debates and raises issues.
The issue isn't that the company is private, the issue is with the fact it's a for-profit entity. This leads to a host of perverse incentives such as providing the lowest possible level of care for the most money possible and a lack of effort put into curbing recidivism (repeat business!!).
There are juvenile facilities that are run by non-profits and they exhibit lower rates of recidivism with a cost far lower than public prisons still.
Those incentives are often there when a private company and the government make a deal.
It's certainly not a problem with for-profit entities in general, though: Apple and Ford and IKEA and every other private manufacturer has those same incentives -- decrease cost and quality and increase price, with a corresponding interest in recidivism.
Obviously in government scenarios -- defense contracting, roads, schools, prisons, utilities -- local or regional (or temporal) monopolies suppress the competition that keeps other companies' base desires in check on the open market.
There are a lot of pressures to the contrary and obvious reasons it's the initial path of least resistance to grant such monopolies, but I wonder if there's a better way to structure deals like these to encourage competition at the same time.
I quite agree that the way it currently works, private prisons are the worst. However the root of the problem is not that they are private, but rather that they are still paid by the government. Private prisons have all the incentives in the world to hold prisoners for as long as they can, because they know government is paying and it's paying with taxpayers money. That is, bureaucrats by definition cannot be nearly as careful with taxpayers money as taxpayers would be themselves. That is not even mentioning various corruption possibilities.
Now, for a moment, imagine private prisons and systems of law that are directly financed by each and every person and which have competitors. Most people's objective is to stay safe, not keep others in prison longer. This objective, together with the fact that they actually can see and decide how much of their income goes into imprisonment would serve as a powerful incentive for private law enforcement companies to focus on safety and prevention instead of incarcerating people (especially when it comes to victimless crimes). It's one thing to just vote and make a certain drug illegal, imprisoning all who's caught in possession, knowing full well that money one has paid in the form of taxes are gone anyway. It is a completely different thing to decide whether to have some additional money this month or pay for the imprisonment of someone whose lifestyle you dislike.
>I quite agree that the way it currently works, private prisons are the worst. However the root of the problem is not that they are private, but rather that they are still paid by the government. Private prisons have all the incentives in the world to hold prisoners for as long as they can, because they know government is paying and it's paying with taxpayers money. Now, for a moment, imagine private prisons and systems of law that are directly financed by each and every person and which have competitors.
How would this change anything, if not for the worse?
In this version, they have an incentive to keep the legal system churning even more prisoners, so they can get paid more, build more prisons etc. That will end in a huge witch-hund, revamped racism, worse drug laws etc.
People will not have the option "not to pay", because the law says those people have to be put in jail, and the jail is private (e.g municipal).
And as for the prisoners themselves, they will get even worst treatment, they will try to make money out of them (forced prison labour), and they will try to keep the costs as minimum as they can, e.g shoving them in cells with 10 and 20 people, like in some Latin American hell hole.
>It is a completely different thing to decide whether to have some additional money this month or pay for the imprisonment of someone whose lifestyle you dislike.
Yes, so the "good people" in conservative states, say, might also say: "Why pay to keep in prison all these people? Make more offenses punishable by execution, and make execution procedures faster and cheaper, so we cat get rid of those n... (the n word), for, say $10K per head".
So you might get pressure to get some people off for lighter crimes, but you'll also get pressure to execute people for things that would get 20-30 years or life currently.
> People will not have the option "not to pay", because the law says those people have to be put in jail, and the jail is private
I think you misunderstand the idea. The only system in which you have to pay is when you have a government collecting taxes. If you don't pay, you're gonna get in trouble.
By contrast, in a polylegal system with no central body issuing laws, people choose law firms with the set of laws they like the most, voluntarily. If at some point they dislike how a firm does its business and protects its customers interests he may switch to a different firm (how conflicts are resolved between customers of two different firms is a more interesting question, which for the sake of brevity I'm gonna leave out for now).
My objective as a customer is to be safe, not treat prisoners like shit and make money off them. Thus, if I don't like how my law firm treats prisoners, I stop paying immediately. Note: I don't need to vote or convince anyone it's a bad thing, I simply stop financing bad things.
> Yes, so the "good people" in conservative states, say, might also say: "Why pay to keep in prison all these people?
Exactly. Then don't go to conservative states and don't become a client of such a conservative law firm. These laws may be brutal, but if some group of people voluntarily decides to live by them, not forcing me to live by them too, why should I be against it?
Sicily inadvertently created the conditions where a "polylegal system" took form in the 1810s during its transition from feudalism to capitalism. As government-sponsored police forces were sparse, private police forces formed that would protect from bandits and enforce contracts (src: https://en.wikipedia.org/wiki/Sicilian_Mafia#Post-feudal_Sic... ). I think history pretty much shows what resulted from this.
>By contrast, in a polylegal system with no central body issuing laws, people choose law firms with the set of laws the like the most voluntarily. If at some point they dislike how a firm does its business and protects its customers interests he may switch to a different firm (how conflicts are resolved between customers of two different firms is a more interesting question, which for the sake of brevity I'm gonna leave out for now).
The whole "how conflicts are resolved between customers of two different firms" is the core idea behind law enforcement! If the same rules do not apply to all (and you opt for rules from the law issuing body you want based on your preferences) then there's now "law" among citizens.
Oh, and those "private law --issuing-- firms"? They would also have to have the means to enforce that law. So even if some poor black or latino population could not afford to pay them, a rich white majority will very much afford. Would they be able to enforce those laws to the non participating poor?
The problem is that you try to mix to things that are not compatible, absolute individual choice (at the consumer level even) and law. Law is that which is above individual choice, for it is a trans-individual (social) agreement, and that's the only way it can make sense.
This whole notion is ill-thought. It's not like the government is the problem with prisons. That's the "all I have is the liberal hammer, all problems are governmental nails" notion.
For one, the US has the highest incarceration rate of the western world (or the world, period). That's a problem not due to government. All the other countries have government made laws too. Most don't even allow private prisons at all.
Others countries have so nice prisons that you could spend your vacations there -- and even less crime than the US does, while maintaining a highly competitive economy and even more equality (so less poor people and more vibrant middle class). E.g skandinavian states. So government is not at all incompatible with a perfectly good legal and prison system. If anything, it's the contrary.
>Then don't go to conservative states and don't become a client of such a conservative law firm. These laws may be brutal, but if some group of people voluntarily decides to live by them, not forcing me to leave by them to, why should I be against it?
For a lot of people their home state, and where they have their roots, home, family, property etc means a lot to them. You propose they jump state just so the racist majority (or the richer racist minority) can have the prison system it likes? Wasn't the civil war partly about putting an end to this crap?
If you would like to understand this question and accept the possibility that your assumptions and conlusions might be wrong, I suggest you start with this article "Law As A Private Good" http://www.daviddfriedman.com/Academic/Law_as_a_private_good... by David D. Friedman (he's an economist AND a law professor).
That is an outright horrifying idea. What Friedman is suggesting in this article is basically applying the model of inter-state diplomacy to criminal law. That is an inherently unfair and inequality-promoting system.
Happen to be a poor man who opposed the death penalty? Too bad. The rich guys' law corp. is pressuring your law corp. to accept it in cases of inter-corporation conflicts, and - while your firm is very much against it - they represent lower-class people and simply can't afford to purchase the anti-tank weapons they'd need to survive a war with the other corp.
(Did I mention the other guys have tanks? Of course they do; they have the liquid funds and it's a sound investment.)
And what about this idea that inter-corporation conflicts are to be resolved by arbitration or ad-hoc negotiations? That spits in the face of the very basic concept of law where you're supposed to know if something you're doing is illegal or not. Would you really want to live in a world where anything you do can get you thrown in jail at any time because the corporation representing you decided it's cheaper to settle? I sure wouldn't.
It's horrifying until you realize that all the same things you fear actually happen today, except that the entity doing those things is a monopoly which is less accountable and more hostile to the public than any corporation ever could be. When you dislike something a government does, you can't just stop paying and hire another government - you have to wait n number of years and then vote hoping the next candidate is going to keep his promises (and they never do). When you dislike something a corporation does, you can stop paying it (recent successful example related to the current thread: godaddy and SOPA).
>It's horrifying until you realize that all the same things you fear actually happen today, except that the entity doing those things is a monopoly which is less accountable and more hostile to the public than any corporation ever could be.
That's only the way one sees it if you have a market bias.
For what it actually is, is an organization setup by the people (in most countries people literally died and fought to be able to set up their own government and state) and controlled by the people through voting off and on and through participating in it.
It's not perfect but far better than the alternatives were private interests play it out. And we had those, historically, only instead of corporations the private interests at the time feudal lords and large land-owners.
The effectiveness of government, and the purer representation of the people, only depends on one thing: the people's vigilance and participation in politics. People withdrawn into their own private affairs do not deserve neither freedom nor a state, and they don't get one, either. They get "career politics" to fuck them over. But that's not a flaw of democracy: it's a flaw of the people not taking care of it.
It does happen today - to a point. (The extent this happens depends greatly on your state and government.) And I dislike it when it happens today. What you're advocating is basically taking the instances where the current system fucks up and embracing them, making them not only legitimate, but the focal point of the entire system.
The system as set up is meant to make everyone - both rich and poor - equal before the law; in theory at least. Granted, it's not as perfect as that in practice. But what you're suggesting is basically allowing the rich to pay their way to their own laws, and if they happen to run afoul of some of those - to pay their way out of them. That is not a version of justice I can get behind.
It's not clear to me that a private system of law would have any prisons, private or otherwise. At most, I'd expect very temporary jails for pre-trial, but the risk of having to pay restitution for kidnapping in the event that the suspect was found not guilty would make insurance very expensive. ;)
I agree. You'd still have to figure out what to do with violent sociopaths, repeatedly breaking laws and not showing any signs of change. I would probably agree to pay to keep em locked until (if ever) they are considered not dangerous to the society.
private or government, I fail to see a difference. The increased incarceration in some states is pushed by the unions that represent the guards and other persons working the prisons, California is a great example.
I think a better complaint is when prisons become tools of the political class. They create a feedback loop by having stricter and more laws than increase the prison population. That in turn means more prisons, more guards, more support persons, all who are unionized. They in turn pay more dues which becomes more contributions via ad buys or direct to the coffers of the legislator. Let alone all those union dues payers making their own contribution.
Ask yourself, as a prison guard which benefits you more? Legislators legalizing pot or those who don't want it legalized? The same with about any law. If not asked at the individual guard level then ask at the union level.
I do not think the unions are the only ones to blame. If so why are the unions a problem in California (a state with private prisons) while not close to as much of a problem in places with government prisons?
My theory is that the owners and the unions work together towards the same goal. The owners get a very powerful lobby group in the unions.
I haven't read the child pornography laws, but criminal infringement requires a commercial objective. The prosecution has to prove both intent and an attempt to make money.
Think about the starving artists - decades of downloading have crippled the entertainment industries so much thay there are no new artists, songs, movies, video games, software comlanies, television shows -- oh, wait...
The "streaming" to which it refers could mean any of a number of different things depending on the context you choose to read it in. Those contexts include:
(a) "Streaming" as laypersons define it; literally viewing unauthorized streaming content from a service like Youtube.
(b) "Streaming" in the SOPA analysis, as Zittrain and (unfortunately) Techdirt are discussing in the article linked from this WaPo post.
(c) "Streaming" in the Klobuchar bill, which makes a very specific change to copyright law that isn't nearly as sweeping as SOPA.
(d) "Streaming" as described in the Commerce report.
I assume the WaPo is referring to (c) or (d), since that's the interpretation that squares with the headline. But then why is it talking about Justin Bieber and SOPA?
Specifically: the Klobuchar bill closes a loophole in the copyright law that results from streaming being classified as "public performance" and not "distribution". Like other criminal infringement statutes, it requires the infringement to be commercial in nature to be prosecutable --- you have to build a business on your unauthorized streaming to have committed a felony. Unlike (as I understand it) SOPA, the Bieber Youtube upload would not be a crime in the Klobuchar bill.
The Commerce report doesn't even advocate for Klobuchar; it merely recognizes the loophole in the law, which obviously does exist: you can build a Pirate iTunes Music Store and be charged with a felony, but build a Pirate Netflix and it's a misdemeanor. That is, in fact, a weird legal result.
Finally, Bieber's opinion about his fans uploading unauthorized copies of his work is probably not relevant. Bieber sold his commercial interest in those works to recording companies, for spectacular amounts of money. It's easy for him to advocate for his fans right to traffic in unauthorized copies of his tracks; they're not his property anymore, and infringement is someone else's problem.
Thank you for this. Onc clarification: the "Bieber YouTuBe upload" takedown scenario remained a DMCA issue. The non-commercial = non-felony language was actually made even more explicit under SOPA.
Yeah, try killing this one too. And the one after this. After that. Followed by another one. See where this is going? We have to remove the root, not the leafs.
Neither of those are criminalized; this is an example of the kind of confusion the WaPo article has created by being absurdly imprecise about "streaming".
This effort to bring back parts of SOPA, combined with a recent push by state attorneys general[1] to compromise Section 230 of the CDA are extremely concerning to me.
[1] http://www.techdirt.com/blog/innovation/articles/20130724/12...