I normally stay away from making such blanket statements about politicians, but this time I feel it’s totally justified. Senator Orrin Hatch, R-Utah, is a big fucking idiot. Unlike his peers, the idiots that drive around in rice burners and still listen to Limp Bizkit, Orrin Hatch is the head of the Senate Judiciary Committee, which makes him a particularly dangerous idiot.
During a discussion on methods to frustrate computer users who illegally exchange music and movie files over the Internet, Hatch asked technology executives about ways to damage computers involved in such file trading. Legal experts have said any such attack would violate federal anti-hacking laws.
“No one is interested in destroying anyone’s computer,” replied Randy Saaf of MediaDefender Inc., a secretive Los Angeles company that builds technology to disrupt music downloads. One technique deliberately downloads pirated material very slowly so other users can’t.
“I’m interested,” Hatch interrupted. He said damaging someone’s computer “may be the only way you can teach somebody about copyrights.”
The senator acknowledged Congress would have to enact an exemption for copyright owners from liability for damaging computers. He endorsed technology that would twice warn a computer user about illegal online behavior, “then destroy their computer.”
Wow, that sounds sort of like… hmm… cyberterrorism, perhaps? Now, I don’t have a real problem with prosecuting P2P file sharers because, in my heart of hearts, I know that it is indeed a violation of copyright laws and as such should probably be prosecuted (though any effort to do so on a large scale would backfire horrendously). But to damage/destroy people’s computers (and presumably it would only result in screwing with your software, unless they develop cool viruses that adversely affect hardware) totally without due process (at least he’s offering to warn us twice) seems sort of un-Constitutional. Two amendments in particular seem like they would apply:
Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment VII: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
And there is no doubt a load of case law that makes punishment and loss of property in total absence of a trial and due process and all those other fun American things pretty much totally illegal. What’s more, given the international scope of file sharing, such measures would presumably be used on people anywhere in the world (so long as they were sharing files P2P), far exceeding the jurisdiction of the United States government.
So, to review, Orrin Hatch is a fucking idiot. If you’d like to tell him that yourself, please feel free (after all, our elected representatives love to get mail from the American voter.
104 Hart Office Building
Washington, DC 20510
Tel: (202) 224-5251
Fax: (202) 224-6331
You can also use this nifty little form to send him a quick note telling him how much you appreciate his concern for the average American even in the face of massive media conglomerates.
He’ll thank you for it.
About Sen. Hatch’s comments:
1. Unless the Senator has proposed a federal program to develop “computer destroying” software, the Fourth Amendment wouldn’t apply. It protects individuals from unreasonable searches, etc _by the government_. The Fourteenth Amendment applies this protection to State action, but I don’t believe that has been proposed either.
2. The Seventh Amendment probably wouldn’t apply either. We have no “suit at common law” here for which jury trial is being denied. In fact, copyright holders are seeking to avoid having to sue.
3. What was discussed is a modification to the Copyright Act to give copyright holders additional means of enforcing their copyrights against infringers. Currently, copyright holders can obtain injunctions against infringers to prevent future infringing use and can also sue to recover damages. I presume the idea is that of extending an additional right to disable a computer engaging in infringing activity.
4. I suspect this would probably be held constitutional under Congress’s power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” in Article I Section 8 of the Constitution. The Supreme Court has in the past given Congress broad discretion in determining how this grant of power should be exercised.
5. The amendment would probably have to include safeguards similar to those granted to individuals whose property is seized pending trial, such as the right to a quick hearing on the merits, allowing the recovery of damages against the company which disabled the computer if there was found to be no infringement, etc.
Even if constitutional, I think this proposal is a terrible idea on policy grounds - but the current situation isn’t viable either. The recent _Grokster_ decision allows P2P software manufacturers to structure their software so as to avoid liability for contributory or vicarious infringement by users. Prosecuting individual downloaders is simply not feasible, and I’d be willing to bet that any escalation in technological protection will eventually be won by the hackers. Any ideas on a solution?
Left by Dan on June 18th, 2003
http://www.hatchmusic.com/
Left by Scott on June 18th, 2003
Dan, Orrin Hatch said straight up that he was interested in destroying a P2P filesharer’s computer. Not to seize their computer, or perform some sort of temporary injunction, but to _destroy_ it. And not only that, but he’s suggesting that a corporate entity be given the power to do so (good call on the 4th amendment, though I think the fact that the 7th amendment wouldn’t apply is a problem in and of itself).
I also don’t buy the “[p]rosecuting individual downloaders is simply not feasible” argument. Now, I might be wrong, but isn’t that how just about every law we have works? I mean, in the “war on drugs,” we prosecute individuals that sell and consume drugs, as well as cartels that produce the drugs. We don’t prosecute Boeing for making the airplanes that are being used to smuggle the drugs, right? Because that would be crazy. I don’t see why the RIAA/MPAA should get special consideration just because they happen to produce something that is more easily stolen and reproduced. The legal means are there to prosecute people, and I say use them. And all the while, perhaps address problems in the business model that are driving people to P2P (because, as the newly launched Apple Music program has shown rather convincingly, people are willing to pay for downloaded music so long as the service fits the consumer’s needs).
The _Sony Betamax_ standard that the Supreme Court uses (from what I understand) in these situations says that as long as a product has significant non-infringing uses then the product itself is not infringing, right? So the decision to allow P2P software makers to avoid liabilty is simply following that precedent.
I’m going to shutup now and let people that understand law better than I talk about that (if they would, which would be cool). I avoided the domestic legal aspects of political science like the plague, which is unforunate because it leaves me sort of unprepared in these discussions.
Left by John on June 18th, 2003
“If we can find some way to do this without destroying their machines, we’d be interested in hearing about that,” Hatch said. “If that’s the only way, then I’m all for destroying their machines. If you have a few hundred thousand of those, I think people would realize” the seriousness of their actions, he said.
In context, I think that the senator’s point was that we need to find a way to prevent infringement. He seems to have been making a worst-case scenario, not endorsing the idea of destroying computers. Of course, that’s not what the headlines say.
As for prosecuting individual downloaders - I think the “war on drugs” analogy is apt. How well is that working? Though using an argument similar to Hatch’s, if there were a few hundred thousand REALLY stiff penalties handed down to individual downloaders, people might see the cost-benefit analysis a bit differently (I probably would).
You’re right on the _Sony_ holding. Actual knowledge of _specific acts_ of infringement is required for contributory infringement liability. Just selling VCR’s (which were found to have substantial noninfringing uses) wasn’t enough, even though Sony knew in general that some people would use them to infringe. The other element is material contribution to the infringing acts of another.
The important thing about the recent _Grokster_ case was that it distinguished Napster. Since Napster stored users’ file lists on its own servers it was deemed to have actual knowledge of specific acts of infringement AND to have materially contributed to the infringement by providing the server space. The Court was influenced by the fact that if Napster shut down their computers, the service would cease - so they were still in a position to aid or hinder the infringement. Result - Napster was on the hook for contributory infringement and folded. In _Grokster_, the District Court found that Grokster (a branded KaZaa Media Desktop) and Morpheus (based on Gnutella), being true P2P, ran without any further input from the companies. Therefore they were more like copy machines or VCR’s. Even if the companies folded, the infringement could continue. Hence, no liability - the case was dismissed on a Summary Judgment motion.
I’m actually writing a paper now on the implications of the case. I agree that the best result would be a rethinking of the music business model. If it’s less hassle (financially and otherwise) to legally own the music, I think most of us would do so - Apple’s service being a good example. The biggest problem is that it’s so much easier to pirate music now than copying videocassettes ever was.
It will be interesting to see what happens. One thing that will NOT happen, though, is Congressional approval of “destroying” computers. I really don’t think that’s being advocated by anyone.
Left by Dan on June 18th, 2003
Hatch has an interesting and checkered past in regards to online freedom.
http://www.theregister.co.uk/content/archive/14179.html
http://www.usatoday.com/life/music/music186.htm
It sure does sound like Hatch is advocating exactly that. Let’s quote your quote:
“If that’s the only way, then I’m all for destroying their machines.”
Being someone who literally works the front line of the practical enforcement of the thing, I think the situation is well on its way to resolving itself, suprisingly. The RIAA, MPAA, SPA, Universal, Sony, and the host of others I regularly receive complaints about for infringing content have gotten hip to the idea that they can use technology to help them protect their copyright, no legislation necessary. They’re using notification companies that take advantage of some cool technology to locate people sharing material and send DMCA notifications to their ISPs. The situation is resolving itself rather quickly. For example, the University had gone from the half-dozen complaints per week average for the past few months to only one in the last week and a half.
We’re approaching a sweet spot where the cost of sharing (viz the liklihood of a DMCA notice and the subsequent hassle) outweighs the restrictions being placed on the legitimate business models. As some RIAA flunkies have noted ( http://www.pbs.org/newshour/forum/june03/copyright.html ), in the past, there have been a number of attempts to legally sell music online, however, what he fails to note is that those options weren’t good choices at all because the music industry was again trying to restrict the options of the consumer so heavily that the consumer had _less_ rights to media purchased online than if they did on a CD at a store. And why exactly are we supposed to want to use their system?
When the music industry finds the balance between protection of copyright and protection of the consumer’s rights (something the RIAA has not been particularly good at in the past: http://www.boycott-riaa.com/article/5877 ), you will see a huge explosion of online content begin to develop to the point where the entertainment industry will again see a shift of their revenue source as they have so many times in the past when they tried to * cough * VCRs * caugh * restrict innovation.
Left by Jordan on June 18th, 2003
I understand the concern, but I don’t think he’s as dumb as you think he is. Yes he is coming on a bit strong here, but I think that was his intention. Just look at how much your panties are bunched up now. It worked - he just wanted to bring some attention to a big problem that has pretty much stayed in the Who Gives A Shit column of the newspapers.
The funny thing about all of this is that Bill O’Reilly kept saying, on his show tonight, that the government knows how to make computers explode, as in kaboom. For an issue that has gotten little attention, as court case after court case has come and gone, this recent new tidbit has certainly caught everyone’s attention. Just remember - the bite doesn’t always have to live up to the bark.
Left by Adam on June 19th, 2003
I love this country! We still have little pockets of non-diversity like Utah that allow the nation to be regionally diverse in opinion and response. Hatch is a Senator from Utah which to me means that he can ruffle the nation’s feathers with his comments and yet still look really, really good to his constituents who are mainly very conservative Mormons.
At first blush I thought that his ideas/comments were something that you’d expect from an eight-year-old boy on a Saturday afternoon, but the guy has come farther along in life than I have and therefore deserves a closer hearing.
First, his idea may be a pretty bad one, but this being the place that it is, he should be allowed to toy with a very bad idea, no? I think it is a good thing to have nuts, radicals, Hatchs and such, because they can throw out these zany ideas at times like these when everyone is thinking the same thing over and over again and nothing seems to be working. Besides, people who are more conservative-minded can just realize that it isn’t going to happen and have a laugh. Then again, if it actually is the best idea, we can give it a shot and see what happens. Whole societies have made mistakes before and we’ve survived and are probably better off because of it.
On another note… John, you’ve got some nice tough skin there, pal. It seems like you were wanting to vent and even though a lot of venting didn’t happen in the discussion you’ve remained a good sport. I just mention it because it’s not something I can do well. Also, I’m just really suprised and happy with all of these comments. Wantingseed commenters rock.
Left by David M on June 19th, 2003
Adam, note I didn’t think he was dumb, I thought he was an idiot. A fucking idiot at that. There are plenty of smart, scary people in the government that fit that label. I say “fucking idiot” while some others prefer “Republicans.” To each their own, I suppose.
(in case you missed it, that was deeply tongue-in-cheek… I kid because I love…)
Left by John on June 19th, 2003
Haha, yes, but EVERYONE inside that little Beltway north of Virginia scares me - some more than others.
>>”Adam, note I didn’t think he was dumb, I thought he was an idiot. “
id·i·ot
1. A foolish or stupid person.
Hmm, now I’m wondering if I’m not understanding your comment. Maybe you mean that he is MORE than dumb (I really wish we could use and … i’m tired of all caps).
Left by Adam on June 19th, 2003
Fair enough, Adam. But in colloquial use (or, failing that, how _I_ meant it), was that an idiot is a person that does or says stupid things, without regard to his or her intelligence. There are plenty of smart people that do idiotic things.
Oh, and BTW, wrap text in underscores for italics, asterisks for bold. It’s a little undocumented feature.
Left by John on June 19th, 2003
Jordan-
I’ll quote your quote of my quote of CNN.com’s quote of the senator.
“If that’s *the only way* “
This doesn’t really sound like advocacy to me. Put in another context, if “the only way” to prevent the spread of an incurable and highly infectious fatal disease was to imprison and quarantine infected individuals for the remainder of their lives, I might be in favor of it despite the injustice of imprisoning innocents. Even so, my strong preference would be for a less extreme solution. I think Sen. Hatch meant his comment in the same spirit. By the way, he released a statement today clarifying his remarks.
http://www.senate.gov/%7Ehatch/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=205147
Left by Dan on June 19th, 2003
*how* _neat_!
Left by Adam on June 19th, 2003
none of your big-fuckin-idiot senator.gov pages work. not for me at least.
Left by cd-r on January 4th, 2004
They all seem to work for me, and besides, the internet changes, so links posted months ago (like these) may not always work.
Left by John on January 4th, 2004