[thelema314]

A very nice video, except the particular passage referred to has the clause "designed for..., has only limited purpose or use other than, or is marketed for..." violating various laws. I don't think any of his examples would fall under any of these categories.

[stevelosh]

I'm not a lawyer, but it certainly sounds like his examples fit.

Here's the text:

    [A site is illegal if] the U.S.-directed site is primarily designed or
    operated for the purpose of, has only limited purpose or use other than, or
    is marketed by its operator or another acting in concert with that operator
    for use in, offering goods or services in a manner that engages in, enables,
    or facilitates [various illegal stuff]

Group it according to the boolen ORs in there:

    the U.S.-directed site is
    
    (
        primarily designed or operated for the purpose of,
        has only limited purpose or use other than,
        or is marketed by its operator or another acting in concert with that operator for use in,
    )

    offering goods or services in a manner that

    (
        engages in,
        enables,
        or facilitates
    )

Now choose one of each from the OR'ed groups:

    the U.S.-directed site is

    (
    *** primarily designed or operated for the purpose of,
        has only limited purpose or use other than,
        or is marketed by its operator or another acting in concert with that operator for use in,
    )

    offering goods or services in a manner that

    (
        engages in,
        enables,
    *** or facilitates
    )

And we get:

    [A site is illegal if] the U.S.-directed site is
    primarily designed or operated for the purpose of,
    offering goods or services in a manner that
    facilitates [various illegal stuff]

Youtube is primarily designed for the purpose of offering a service: uploading videos.

This service (uploading videos) facilitates various illegal stuff (like copyright infringement).

[tzs]

Your second left parenthesis belongs one line higher. A more clear way to read it is to write out four copies of it, and then in the first copy delete or clauses 2, 3, and 4. In the second copy delete or clauses 1, 3, and 4, and so on. That gives a separate complete sentence for each of the four ways you can run afoul of that section:

    A site is illegal if] the U.S.-directed site is primarily
    designed for use in offering goods or services in a manner
    that engages in, enables, or facilitates...

    A site is illegal if] the U.S.-directed site is operated for
    the purpose of offering goods or services in a manner that
    engages in, enables, or facilitates...

    A site is illegal if] the U.S.-directed site has only
    limited purpose or use other than offering goods or services
    in a manner that engages in, enables, or facilitates...

    A site is illegal if] the U.S.-directed site is marketed by
    its operator or another acting in concert with that operator
    for use in offering goods or services in a manner that
    engages in, enables, or facilitates...

YouTube fails to fall under the first because it is not primarily designed to engage in, enable, or facilitate infringing. It fails to fall under the second because it is not operated for those purposes. It fails to fall under the third because although it does get used for the prohibit activities, it has substantial legitimate use. It fails to fall under the fourth because Google does not market it as an infringing tool--indeed, they discourage infringement.

The section that YouTube (and Reddit, and most other legitimate sites with user content) are in danger of running afoul of is the section that says a US-directed site is a site dedicated to the theft of US property if it:

    is taking, or has taken, deliberate actions to avoid confirming a
    high probability of the use of the U.S.-directed site to carry out
    acts that constitute a violation of section 501 or 1201 of title 17,
    United States Code

Some think this will requires the sites to put a lot of effort into actively monitoring user generated content and taking down things that might be illegal, as opposed to current law where they have only have to deal with things specifically brought to their notice via a DMCA notification. The section is sufficiently unclear that that is a reasonable reading of it.

[zmmmmm]

> YouTube fails to fall under the first because it is not primarily designed to engage in, enable, or facilitate infringing

Why does everyone keep leaving out the crucial "in a manner" words? Read it carefully with emphasis on those words:

    A site is illegal if] the U.S.-directed site is primarily
    designed for use in offering goods or services 
    IN A MANNER that engages in, enables, or facilitates...

It doesn't matter what the site is primarily designed to do, if it executes that purpose in a manner that facilitates bad things then it falls under the definition.

[tzs]

"In a manner that" modifies "offering goods or services". The structure of this is:

    The site is illegal if it is primarily designed for use in X

where X is "offering goods or services in a manner that engages in, enables, or facilitates...".

[zmmmmm]

I agree you can read it that way, but it doesn't change much to me. Any site that accepts user content as its main function still has a primary purpose that enables / facilitates the infringement.

[sunir]

A theoretical parsing of the sentence does not matter. When tested in court, a reasonable reading of the law would not find YouTube in violation. The clear intention of the Act is to burn down sites whose primary purpose is theft of U.S. property, like The Pirate Bay.

The problem is that is YouTube today. A lot of people forget that YouTube built its initial audience by "primarily" being flooded with pirated anime clips. Even if YouTube did not want to be a haven of copyright infringement, it users did. It would be easily arguable that YouTube would violate the law when it first started.

[d0mine]

Even if you're right and SOPA doesn't apply to youtube (that I doubt) The most important take away message is that it doesn't matter if the site is illegal It is sufficient that some copyright-holder thinks it is illegal.

Of cause large corporations will make deals behind the scene or battle in court and their sites will continue to operate. It is similar to software patent situation.

Effectively SOPA is a tool to shutdown any site with a user-generated content at any time. Companies can use it to crush their competitors; government -- to stifle political dissent.

[CamperBob]

YouTube fails to fall under the first because it is not primarily designed to engage in, enable, or facilitate infringing

In whose opinion? Viacom's?

[zmmmmm]

The "in a manner" that you omitted is crucial here. The purpose of the site doesn't have to be for doing the illegal things. The purpose of the site just has to be something that happens "in a manner" that enables or facilitates the illegal things.

So YouTube - primary purpose is uploading videos, not illegal. But YouTube doing that in the "manner" of allowing anonymous internet users to upload anything they want - facilitates the illegal things.

So I disagree with you based on those few words. Even if you think your point stands, I'd posit the language is so dangerously ambiguous that it should be a problem in itself that ensures it never makes it into law.

[aero142]

I find it disturbing that even though I am still against SOPA and the likes, that the opposition seems to be willfully ignoring this portion. Unless I am totally misreading it, it would be very difficult for the likes of Youtube or Facebook to be included.

The language is still dangerous though, because the designed for clause seems to open things up. I can easily see BitTorrent being brought in to be "designed for" downloading illegal movies, because judges aren't likely to think downloading linux distributions is very significant alternative use. The thing that concerns me is that smaller companies or companies outside of the mainstream might not get much credit for having other purposes. Imagine if reddit had r/stealmovies, a judge might not care much about the rest of it if there are thousands of people using it to talk about infringing.

There is enough wrong with this bill to oppose it without resorting to hyperbolic threats.

edit: Thinking about it more, youtube might be a great example. Current youtube won't be brought down with this, but youtube in it's infancy very well might have been stomped out. Imagine explaining to a Judge, "no, you don't understand. Right now it might be used for mostly unauthorized music videos, but showing home videos of cats is going to be HUGE!"

[pkteison]

A farmer has successfully been prosecuted under the -Interstate Commerce Clause- for growing his own wheat on his own land for his own use. http://en.wikipedia.org/wiki/Wickard_v._Filburn

It never left a state, it never left his farm, it was not for sale, it is definitely not interstate commerce, yet he violated the interstate commerce clause (reasoning was that if he had not grown his own wheat, he would have had to buy some, which would affect the market, which would affect interstate commerce.)

It's because of things like this that cause people to interpret legal language in the worst possible imaginable light - 'very difficult' has happened many times.

So I think it's quite reasonable to assume that at some point Youtube and Facebook will be found to be "...marketed by its operator or another acting in concert with that operator for use in offering goods or services in a manner that facilitates [illegal things]"

One ad that says "Post comments without logging in!" would be sufficient to meet the letter of that language. You really think this is a 'hyperbolic threat'?

[toyg]

The problem is actually with the definition of infringing site: "The term 'U.S.-directed site' means an Internet site or portion thereof that is used to conduct business directed to residents of the United States".

By this definition, a Youtube channel of people posting rickroll mashups and served, say, under a .fr domain, without paying Rick Astley, would make Youtube an infringing site as a whole. A Google group dedicated to memes based on captions of The Hurt Locker and served under the .za domain would make Google an infringing site as a whole. A subreddit dedicated to... you get the idea.

[pemulis]

The important part, as the video points out, is the phrase "enables or facilitates."

Google, Facebook, Youtube, and other sites that either allow user-generated content or generate links through web crawlers are "offering goods or services in a manner that (...) enables or facilitates [copyright violations]." Since linking facilitates copyright violation, this affects every site that doesn't manually vet every single link it makes.

[Xurinos]

It looks like the wording of this clause has people in conflict about its meaning. Isn't that enough to suggest that it is poorly written and can result in some judge's interpretation in the wrong direction expanding the law's power?

[hesitz]

I agree. It's unpleasant to see him simply ignore the limiting language. He focuses over half the video on the "enables, or facilitates" clause, spreading the false impression that the provision says _any_ site that "enables or facilitates" could be taken down under SOPA. I am a lawyer, but it doesn't (or shouldn't) take a lawyer to see that the provision has fairly strong requirements other than just "enabling" or "facilitating" other violations.

Sorry, but I think spreading popular arguments along these lines is a bad thing. It leaves the SOPA-advocates with the strong response, "Read more closely, you've misread the provision." Now it may be that the provision as a whole is too broadly written, poorly written, too vague and uncertain, but when the SOPA-opponent makes the original mistake of misreading entirely it's hard to win back the desired position of being an authority on why SOPA is bad.

[dhimes]

He is saying that there are a lot of sites that offer services which could enable or facilitate pirating, because the terms 'enable' and 'facilitate' are not particularly limited in scope.

It seems clear to me.

[hesitz]

What do you mean by "not particularly limited" in scope? It seems to me the intent of the provision is that more is required to run afoul of the provision, e.g., that a site also be "designed or operated primarily for the purpose" of enabling or facilitating illegal activity.

I give you that the provision is ambiguous. If so, then that is the problem. Say "The provision is ambiguous." Don't say that it clearly allows third parties to shut down sites like Youtube or Khan Academy. Whether it does or not depends on which way you resolve the ambiguity. (I don't think anyone really believes the current ambiguity would be resolved in court as you or Sal Khan say it must be. The problem is that there is a small risk it could be interpreted that way, which is too much risk to take with something so important.)

Also, I assume SOPA-advocates would be willing to make this provision more clear, to remove the ambiguity. What is your response if the SOPA-advocates amend the language to unambiguously limit the language to avoid the criticism that "it allows shutdown of _any_ site that merely enables or facilitates", so it clearly also requires that the site have been designed with the purpose of aiding that illegal activity? What is your criticism then? Is SOPA okay then?

[dhimes]

If we need a law, let's put a law in place with clearly limited authority, not one where reasonable people can wholly disagree about what it says.

I've never understood why lawyers tolerate ambiguity in the law. But maybe I'm wrong: how can abuse be prevented if this is passed? If abuse starts, how can it be stopped without court action? I'm still reeling from the '90s when Microsoft considered court battles just another field of play for their business. Be illegal. Drive competition out of business. Fight in court. Lose sometimes and pay fine. Net win.

Let me ask you this; it may seem unrelated, but it's not: When I bought my iphone, I was required to enter a contractual agreement with ATT at the same time. Then Apple changed its TOS for the iphone. I could accept or lose its functionality. If I refused, would I be let out of the contract with ATT? Would I have to go to court to find out?

Unfortunately the business climate today is "do what you can until somebody stops you."

[hesitz]

It's impossible to completely avoid ambiguity and vagueness in law. Lawyers don't enact laws, legislators do. And lawyers don't "tolerate ambiguity"; lawyers exist in large part because it takes experts to know how enacted laws will be interpreted by courts (in part because of their inevitable vagueness and ambiguity). Legislators can and usually do try to lessen ambiguity and vagueness in laws they enact, with varying degrees of success. (Like I said, there will virtually _always_ arise factual situations where a law previously though unambiguous and clear turns out to be not to have been unambiguous and clear _enough_. It is the nature of language and rule-making. E.g., how does one supposedly clear and unambiguous law interact with another clear and unambiguous law when they conflict and require different things? Or another example, how should a court interpret a particular statutory provision that, as written, appears to conflict with the general intent of the Act the provision is in? Interpret the particular provision as it reads in isolation? or interpret the provision in a way that seems somewhat odd when it's read in isolation but which makes perfect sense within its Act as a whole?)

I don't know about your iPhone TOS. You could do some research and/or retain a lawyer to get a legal opinion on what the law requires, which is presumably what a court would do if confronted with your case. If the issue (or a nearly identical issue) has previously been litigated, then the previous court decision will have some (varying) degree of precedential value for your own case.

In case of you and your iPhone issue, this is nothing new. Many everyday situations arise where there simply is no practical way to dispute another party's interpretation of a contract or license. This sort of "do what you can until somebody stops you" has been going on forever. (Class actions exist as one way to avoid this problem in situations where numerous individuals with limited resources are wronged in same way by a more powerful defendant, but the solution they provide is limited at best.)

[dhimes]

While "bug-free" laws may be impossible to write, I do not excuse legislation that is this sloppy. Turar (http://news.ycombinator.com/item?id=3482567) was able to write it as such.

And the idea that I have to retain a lawyer to check for precedent on the terms of service of a mass-consumer-product is simply absurd, and if that is the world in which we live I will take whatever humble measures I can to change it as the opportunities may arise.

[turar]

That are "primarily designed or operated" for pirating, and have "only limited purpose or use other than" pirating? What are some examples of such sites?

[hesitz]

thepiratebay.org is one obvious example. Although this would seem to be a foreign site, it is actually a "domestic internet site" and a "U.S. directed site" under the terms of SOPA. This is because the '.org' domain (along with '.com' and some others) is a domestic top level domain under the terms of the SOPA. See Section 101. Definitions in the bill: http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.3261:

Note that S.103 that we're talking about deals with "U.S. directed sites", among which, presumably most sites with domains of .com or .org would fall, since registrant for those domains is under U.S. jurisdiction, giving U.S. "minimum contacts" sufficient to assert its authority over the site. That's my reading, anyway.

[dhimes]

I don't know of any that conform to what you said. There are plenty that fall under the scope of the wording of the law, however. The second use of the word "pirating" is you interpretation. I have no guarantee that others will make that same interpretation.