[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.

[hesitz]

Please understand I wasn't necessarily defending SOPA as written; I was merely objecting to people who were naively saying, "This is what it says and there is no other way of interpreting it". (Mostly, perhaps, because I think it's dangerous to assume SOPA-advocates intend this SOPA provision to apply in a nefarious (or ridiculous) way. Ascribing ill-motives to your opponents is not helpful when trying to resolve things in way that's acceptable to both sides. . .) Also, it's not clear to me that Turar rewrote it, seems to me he's simply rephrasing what he sees as part of its meaning and asking how it makes sense. . . It is virtually always dangerous to look at a single provision of a statute in isolation. It is often important to know how it interacts with or how its own interpretation is affected by other provisions in its Act or other laws that already exist.

Regarding interpretation of your TOS: it's a complicated world. It would be nice if the general public was aware of and expert in the law of contracts and licensing, specifically as applied to software and in context of mass-consumer-products. Unfortunately, we live in a complicated world. Moreover, in many cases (perhaps "most" if they're ones that actually get to court and have lawyers on both sides) there simply is no absolute answer as to "what the law requires".

It's often hard for non-lawyers to understand just how incapable language is of defining a system of rules that can be definitively applied to always determine a single result in every situation. The truth of the matter is that in many cases even a lawyer who is expert in a field can't tell you "what the law requires". The lawyer can give an "opinion" regarding how the law applies to your specific factual situation. That opinion would presumably include an indication of different possible legal outcomes, along with the lawyer's confidence-level in each possible outcome. . .

But tell me, how would it have helped you if you yourself were absolutely certain (and correct) that Apple was misapplying its TOS and was in breach of contract? Even if you were right, contesting their decision is not an economically viable route for you. As I said in previous comment, this sort of disparity in "bargaining power" has been common for decades if not hundreds of years, it's a condition of the modern world. Yes, it's unfortunate and it would be nice if things worked differently. How exactly to change things is not so clear. Class actions arose as one method of addressing the problem, but as I said earlier they're not a very good solution. . .

On a slightly different note: As technical people here at HN, it's sometimes interesting to think of the big picture of computing as a whole, how amazing it is that a computer runs at all (much less that they run "well"), given the complexity of an OS, all the different types of software that run on it, and the prevalence of bugs in even simple systems. Increase this by orders of magnitude for all the computers running and cooperating on the internet and it becomes even more amazing. The legal world has an analogous wonder, I think. How can it be that a society runs at all when governed by a system of laws that is necessarily (and obviously) imperfect for its intended purpose (too complicated, incapable of unambiguously determining a single outcome in many cases, etc.)? I don't know, but things keep on working, more or less. Of course, improving the way things work is always a good goal. . . .

[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.