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Whoa Shelly Roche…Stealing Does Not Equal Free Speech

By 27 September 2010 27 Comments

Last Thursday Shelly Roche posted this video on her site bytestyle.tv:

Roche reports that the bill, Combating Online Infringement and Counterfeits Act (S. 3084), gives the Department of Justice the power to blacklist websites by blocking their domain name, effectively turning the website off.

She states,

“The bill would grant the Department of Justice unprecedented power to block any Internet domain it determines to be, quote, ‘dedicated to infringing activies.’  Naturally these infringing activities are broadly defined and of course decisions by the DOJ are not subject to judicial review.”

However, the problem is that “infringing activities” and the websites that they occur on are not as broadly defined as Roche implies.  The language is broad, but we’re talking about the Mississippi here, not the Atlantic.

You can find a copy of the bill here.

The bill defines both the websites it takes aim at and “infringing activities” in Sec. 2324.  The websites the bill points the finger at are those that are considered to have “no demonstrable, commercially significant purpose.”

Now obviously, there are millions of websites that exist that do not have a clear value to anyone other than the owner or possibly only a small group of individuals.  A large percentage of those websites will also not have a significant commercial purpose.  But, you can’t just take that one part out of the context of the rest of the bill.  That’s what we call eisegesis – the process of inserting ones own ideas into an interpretation of the text.

You see the “infringing activities” the bill refers to has to do with intellectual property.  We find that fairly clearly written without the need for interpretation in Sec. 2324(a)(2)(A)(i).

“Goods or services in violation of title 17, United States Code, or enable or facilitate a violation of title 17, United States Code, including by offering or providing access to, without the authorization of the copyright owner or otherwise by operation of law, copies of, or public performance or display of, works protected by title 17, in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays.”

For those that are unaware, Title 17 of the U.S. Code deals with copyright.  Additionally, Sec. 2324(a)(2)(A)(ii) goes on to include distributing counterfeit materials that are trademarked.

So let’s try to find some English in all of these words.

Essentially, an Internet site must show that it has no obvious commercial purpose and that it has a focus on offering or providing access to unauthorized copyrighted or counterfeit materials or services.  Websites that exhibit both characteristics will be considered to be a site that is “dedicated to infringing activities”.  Sites that are defined as such will essentially forfeit their ownership of their domain name to the U.S. government. And the government will turn off the domain name, essentially shutting down the site.

Now are there some broadly defined items in the bill?  Sure.  Is it so broad that it isn’t clear that this bill is specifically talking about intellectual property theft?  Not a snowflake’s chance in hell.  Spreading this notion is like…  Well it’s like burning water in a microwave.

Roche also has concerns with whether or not the bill takes a hop, skip, and jump over that whole “due process” thing in the Constitution.  “No person shall . . . be deprived of life, liberty, or property, without due process of law.”  But this bill has been drafted as a modification of U.S. Code Title 18 under the “Crimes” subsection.  Title 18 deals with crimes and criminal procedures.  So simply because this section of the U.S. Code is being modified does not imply that due process would not occur.

Furthermore, there is some evidence that the focus of this bill is aimed at fighting IP crimes off U.S. shores.  This past July, Howard Berman (D-Calif) stated that he was working on a bill with Patrick Leahy (D-Vt), the bill’s author, that would look to improve “international intellectual property enforcement efforts.”

It’s a fair concern to wonder ultimately what the bill’s focus will be.  What is not a legitimate concern is that this bill somehow allows the government to shut down random websites because they disagree with the contents of the site and that it is “taking aim at your Internet freedom” or that the “bill will end free speech online.”

Theft of intellectual property is a crime.  It is wrong, and so is armed robbery.  We wouldn’t argue that preventing armed robbery would end free speech.  Would that make sense to anyone?

This looks like legislation that will be looked at more closely in 2011.  We will keep our eye on its progress.


  • Crosbie Fitch said:

    If someone burgles your house, takes a copy of your diary, and then removes it as they abscond, then that is THEFT of intellectual property, but just you try getting the police to help you recover it.

    If you publish your memoirs as an e-book and a purchaser thereof makes a few copies to share with their friends, then that is the infringement of an 18th century privilege your publisher enjoys – a reproduction monopoly established by The Statute of Anne in 1710 for the benefit of her Stationers’ Company. This was copied by James Madison and unconstitutionally passed in 1790 as the US Copyright act – the annulling of the right to copy in the majority, to leave it, by exclusion, in the hands of a few – an instrument of injustice (per ‘Rights of Man’ by Thomas Paine).

    Preventing copyright infringement is therefore a derogation of the right to free speech.

    Securing the author’s natural exclusive right to their writings (against theft or copying by burglars) is NOT a derogation of the right to free speech – we can have no liberty to speak that which we do not know, nor liberty to communicate or copy that which we do not have.

  • Nick R Brown (author) said:


    Thanks for the comments, but what you’re arguing is whether or not IP law should exist or whether it should exist in the way that it does.

    That’s beside the fact. The fact is that good or bad, right or wrong, IP law does exist. While it exists in the form it does, it must be followed until it is altered.

    Furthermore, the post really has nothing to do with IP law. It’s pretty much strictly focused on a misread of the bill which is central to Roche’s comments.

  • Garrett said:

    “Theft of intellectual property is a crime. … We wouldn’t argue that preventing armed robbery would end free speech. Would that make sense to anyone?”

    Nope doesn’t make sense at all. I completely agree with you (in fact it would probably take an instance of armed robbery to effectively steal intellectual property from someone!) But we aren’t talking about theft, we’re talking about copyright infringement (aka Piracy). Theft involves taking things away from someone, copyright infringement involves making more of things unlawfully. These two things are completely unrelated. To use your words, “Spreading this notion[copyright infringement is like theft] is like… Well it’s like burning water in a microwave.”

    This video helps to explain better:

    Link in case the embedding doesn’t work: http://www.youtube.com/watch?v=IeTybKL1pM4

    Now when you consider that COICA talks about stealing a domain name from someone in response to them unlawfully distributing something… well then that puts things into better perspective doesn’t it.

  • Nick R Brown (author) said:

    Sure, we are talking about licensing really. And the taking of that thing without license is a crime right?

    But this is hardly the point of the post. The point is that this bill applies specifically to websites involved in “unlawfully distributing something,” as you put it, and not to any site on the web.

    You make a fair point about “stealing” the domain name. Two wrongs don’t make a right, certainly. But at the same time, the socially excepted standard in this country is that the government has a right to take the steps necessary to prevent the rule of law the citizenry has agreed to abide by from being violated.

    Putting someone in a cell for no reason would be a bad thing. But as a response to them breaking the law it is seen as reasonable punishment because it is the act of taking that person out of and away from society. Removing the domain of someone breaking the law could also be argued as a reasonable way of removing the crime doers tools from society.

    The police wouldn’t go shut down a chop shop and leave all of the criminals tools behind because there was a fear that would be considered theft. That would simply be the police removing the means necessary for the criminals to commit crime.

  • Crosbie Fitch said:

    Not so long ago Nick, someone liberating a slave was considered to have stolen property from the cotton farmer.

    Reclamations of liberty do tend to be perceived as theft by those with privileges derogating from it.

    Whereas slavery suspends all liberties from a few, copyright suspends a few liberties from all. So it’s a little more socially tolerable.

    Remember that copyright even suspends the author’s liberty to copy their own words. Moreover, if they produce a work for hire or sell their copyright to a publisher, they no longer even have the privilege of copying their own words.

    Would you still call it theft for an author to make a copy of their own book – contrary to their employer’s or publisher’s privilege?

    Copyright indoctrination corrupts our language into a newspeak Orwell would be unsurprised by. We use ‘right’ in place of privilege, ‘steal’ in place of copy, ‘theft’ in place of infringement, and ‘piracy’ in place of cultural liberty.

    Prior to 1710 every individual could share and build upon mankind’s folk lore, folk tales, and folk song. Today only the likes of Disney are permitted such cultural liberty. Human beings must sit back on their couches, pay through the nose, and consume, but not touch, the content that is delivered to them by multinational publishing corporations. ‘Soma’ as Huxley would term it, but ‘content’ works just as well.

  • George Ou said:

    @Crosbie Fitch

    When you start comparing copyright to slavery, you’ve gone off the deep end. You’ve trivialized the meaning of slavery and equated it with what most people consider reasonable limitations like copyrights.

    Nothing forces an author to give away their copyright. They can sell it at a fee but they can’t simultaneously benefit from the sale of that copyright and continue to benefit from that copyright. You make it sound as if the author is a victim in this case when the author has already been paid in full for his/her copyright.

    As for Disney, they don’t stop you from writing your own works based on Grimm. You just can’t write your work based on Disney’s copyrighted work. Now those changes in copyright law that effectively make them indefinite are problematic since the purpose of copyrights (and other Intellectual Property rights) were always meant to be finite. That doesn’t mean that all copyrights, even when they have sensible time limits, are wrong.

  • Garrett said:


    “Sure, we are talking about licensing really. And the taking of that thing without license is a crime right?”

    Yes it is sir, and it is a seriously growing problem. Without restating the details of the fundamental argument of an unstoppable force (piracy) meeting an immovable object (established content business regimes), I think some of the biggest problems I see with COICA include two major factors.

    First, the empowering of the DOJ to take a serious action (appropriating what could be likened to a voice or identity of a person… their domain name) without the due process of law (a conviction in court).

    The second is the fact that this bill tries to force the first issue using an internet filter.

    The idea behind this bill is valid and noble. The problem is this “tool” (COICA) is too powerful and too hard to correctly implement to apply to what many see as an insignificant problem (as opposed to child pornagraphy where society is willing to suffer potential due process injustices).

    China has internet content filters (as do many other repressive regimes) Australia is struggling with potentially implementing one too. In a society such as the US where so many value their freedom this solution will not be accepted except against the most egregious of crimes (such as child pornography).

    Copyright infringement does not fall in that category. I sympathize with all those who are suffering because of piracy and the struggles they are having with trying to act within the law to fight it, but this expansion of power is too disproportionate to be accepted by many who value their rights.

    Very Respectfully,
    Garrett Heaton

  • Crosbie Fitch said:

    @George Ou

    I think I was contrasting the quite different way in which liberty is abridged today than it was a century or so ago.

    Instead of brutal coercion by slave owners, today we have the kindness of the judicial system dragging youngsters through the courts to fine them millions of dollars for sharing music, imprisoning cinema goers for pointing their iPhones at the cinema screen, recording industry lawyers’ litigious extortion bankrupting thousands of families unable to afford to defend themselves, and soon, households to be disconnected from the Internet merely upon accusation.

    So today, yes, it’s a lot more civilised. The enforcement of copyright’s suspension of individuals’ liberty is removed from the crude agricultural environment and hygienically institutionalised behind closed doors – and there but for the grace of God go us all.

    One of the Founding Fathers, Thomas Paine, had this to say about privileges in his book “Rights of Man”:

    It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few . . . They . . . consequently are instruments of injustice.

  • George Ou said:

    @Crosbie Fitch

    Nobody has had to pay millions or even tens of thousands of dollars. The people who got those fines are being used by the anti-copyright crowd. Those people who get those big fines have been offered settlements in the few thousand dollar range but they choose to make a fight out of this. The million dollar fines are obviously ridiculous, but it’s even more ridiculous that people choose to avoid reasonable settlements.

    Nobody has a right to film a theater work in any civilized nation, but let’s get real that nobody goes to jail for it.

    When you get down to it, copyrights and intellectual property will generally belong to the few. That doesn’t give the mob a right to take it. There are many things (wealth being one of them) that belong to the few and I would argue that this is an even more drastic disparity in wealth than copyright owners. Would you argue that the masses have the right to take wealth from the wealthy? You’re basically arguing that denying those masses the ability to take from the minority is denying them of their rights and that’s ridiculous. I’ve lived under that type of mob rule in communist China and I can attest that it doesn’t work.

  • Crosbie Fitch said:

    @George Ou

    You can finesse everything I write as hyperbole, as no doubt apologists for injustice would have done in centuries past, but at some point your suspension of belief must give way to the rising tide of reality.

    Emmanuel Nimley: Graduate who used iPhone to record blockbusters inside cinema is jailed for six months in landmark ruling. Not everyone is so enthusiastic to mete out Queen Anne’s 18th century ‘justice’, see Why I am not ashamed of Emmanuel Nimley.

    This is nothing to do with envy of others’ accumulation of wealth through the exchange of their labour in a free market, but the exploitation of monopolies obtained through the abrogation of everyone’s liberty to share and build upon their own culture, upon mankind’s science, technology, and arts.

  • George Ou said:

    @Crosbie Fitch

    The Nimley case, as you noted, is unique. Based on what I’ve read on a high level, the prosecution of that case seems to be far too excessive. The problem here is that you’re taking the other extreme that any enforcement of copyright protection is a violation of human rights.

    I think copyright enforcement needs to be applied but not over the top.

  • Crosbie Fitch said:

    I cited the Nimley case because it was the most recent.

    This has been going on for years.

    Try a search:






    Yes, copyright is an intrinsic “violation of human rights”, I’ve already agreed this, that it’s a derogation of the natural right to copy from the individual’s liberty. Imprisoning people for pointing their phones at films is extremely offensive. Suggesting that people should have their cultural liberty restored to them is rather kind I’d say. What do copyright holder’s lose except an ability to sue, fine, bankrupt, levy, disconnect, or imprison members of the public? Authors and artists retain the right to exchange their labour, their intellectual work in a consequently free market – and if you have a thousand fans commissioning your work at $10 each, that’s a pretty good deal compared to a 1% royalty from a publisher (if you’re lucky).

  • George Ou said:

    @Crosbie Fitch

    If we go with your extreme of zero copyright protection, why would anyone pay for an artist’s work other than a few generous people? Do you honestly think creators can survive under this regime? Not everyone can make a living selling live performances especially when they lack mass appeal.

    Like I said, I personally oppose criminal penalties for copyright infringement or outrageous fines. I do think that there should be some reasonable penalties for the unauthorized distribution or taking of copyrighted content.

  • Crosbie Fitch said:

    @George Ou

    On the article of yours that you linked to you say “Now I want to be clear that I am not talking about pirates that are making mass illegal duplications and selling them. Those people need to be severely fined and jailed.” It’s a bit of a challenge to reconcile that with “I personally oppose criminal penalties for copyright infringement or outrageous fines”.

    Bear in mind that every youngster auditioning artists’ work via BitTorrent is typically engaged in mass illicit duplications and selling them in the sense of exchanging their valuable bandwidth (sale/commerce is exchange).

    Civilisation cannot progress if mankind has perversely enacted laws that prohibit cultural or technological exchange.

    If copyright and patent holders’ only source of income is obtained through the exploitation of their privileges then they cannot survive without them – so yes, they need to stop being parasites and find something productive to do that people will pay them for willingly, not through extortion, monopoly, or licensing people’s liberty back to them.

    Creators, intellectual workers, authors, inventors, sure, the last things these productive people need are laws that prevent them exchanging, improving, or building upon culture and technology. They can then exchange their labour in a free market.

    Copyright and patent are the regime. Their absence is the absence of a coercive regime, a restoration of cultural and technological liberty, leaving us only with our natural rights to be protected by law (not privileges).

    As for live performances, who said anything about performances having to be live? A musician can perform in a recording studio as well as in a concert hall. A thousand fans can pay $10 a piece for the recording of a studio performance as much as of a live one. The privilege of a monopoly in copies thereof may well be lucrative to whoever can win that favour from their Queen, but it remains an instrument of injustice. The musician is still able to exchange their labour in performing their music for $10,000 from their thousand fans. If they do not have a thousand fans they are in the same predicament as any craftsman with insufficient demand for their products or services. There is no right to be paid for your labour, only to be free to exchange it for whatever the market will bear. I have no right to be paid for my comments here. Indeed, instead of giving them freely I could have withheld them and instead invited you to commission my participation in discussion with you. There’s nothing wrong in commerce concerning intellectual work, only in the grant of mercantile privileges such as monopoly. Have you not heard “Free as in free speech, not as in free beer”?

  • George Ou said:


    “Bear in mind that every youngster auditioning artists’ work via BitTorrent is typically engaged in mass illicit duplications and selling them in the sense of exchanging their valuable bandwidth (sale/commerce is exchange).”

    That’s your words, not mine. I’m not playing that game. Like I said, I don’t think jailing illicit file traders is a practical or justifiable solution.

    “Civilisation cannot progress if mankind has perversely enacted laws that prohibit cultural or technological exchange.”

    You just keep coming up with more and more euphemisms for theft. Taking someone else’s work is not “cultural or technological exchange”, it’s just theft of someone else’s work. Copyrights don’t prevent you from sharing your own work or using creative commons for your creations. A free and just society provides creators a choice.

    Intellectual property protections were enacted to facilitate more culture and more technology. Before we made laws to protect intellectual property, people simply kept technology as a trade secret. By giving them a limited duration monopoly, they were encouraged to eventually give the technology away. Now the recent enactment of endless copyright renewals are problematic for sure, but that doesn’t make reasonable copyright protections a bad thing.

  • Crosbie Fitch said:


    It is strange that I am the one who must convince you how draconian and severe the measures are that copyright holders will resort to. If I can recognise the exchange of bandwidth as commerce do you think industry lawyers will hesitate to do so too?

    While the weapon exists the unscrupulous will wield it, and copyright is indeed a weapon, a most iniquitous instrument of injustice.

    If you wish to believe that cultural liberty is theft, that prohibitions against people’s use of their own culture and technology constitute incentives to do so, then such doublethink is your choice, but religious dogma will not get you to the moon. For such progress you must abandon your geocentric programming and dare to consider the heresy of heliocentricity.

    The comfort of the blue pill, or the paradigm shift of the red pill?

  • George Ou said:

    @Crosbie Fitch

    It seems like you’re hoping that the RIAAs will take a harder stance so that you can argue for the other extreme of zero protection. Again, I don’t subscribe to either extreme.

  • Crosbie Fitch said:

    @George Ou,

    The copyright maximalists WILL take a harder stance: DMCA, ACTA, COICA (and others like INDUCE). There will be more injustice to come. I’m expecting ‘possession of unlicensed copies of copyright protected works’ to become a crime comparable to ‘possession of a proscribed narcotic with intent to supply’. And I’m expecting you to have your work cut out arguing for leniency, shorter jail terms.

    This trajectory is not a matter of hope, but inevitability.

    I am not in the business of hoping or lobbying for ever more draconian legislation, but in solving apparently intractable problems, inventing what is necessary, and arriving, when the impossible has been eliminated, at what must be the truth (however incredible or ‘extreme’ you might find it).

    The monopoly of copyright is at an end. It cannot be resurrected through argument. However, for the sake of fundamentally innocent people the world over, it can be argued to be abolished – sooner rather than later.

  • PirateRothbard said:

    The author should check out Kinsella’s “Against Intellectual Property”.

    It was really ground breaking for me. I don’t think IP is real property, perhaps you will be convinced if you read it.

  • Paul Lockett said:

    Nick R Brown: “But at the same time, the socially excepted standard in this country is that the government has a right to take the steps necessary to prevent the rule of law the citizenry has agreed to abide by from being violated.”

    So would you be ok with, for example, the government placing snipers by the side of roads and executing drivers spotted travelling at any speed above the speed limit? For that matter, would you be ok with the death penalty for any infringement of the law, no matter how minor?

    I’d like to hope that in any civilised society, the standard you present would be reliant on the steps being taken by the government being proportionate to the offence. What we’re seeing with this bill and others like it, is a excessive and silly response to an infringement of the law which the vast majority view as trivial.

  • Nick R Brown (author) said:

    @Paul: Really? Do you think that I believe that placing snipers on highways to kill speeding drivers is a socially accepted method of enforcing traffic law? I mean I struggle to even give a serious response to the rest of your comment after that.

    I will say that what you believe is the vast majority is certainly not the socially accepted standard.

    If anyone justifies theft, they are doing so because it is going unseen. If you removed all the employees and cameras and security methods out of Best Buy you may have a portion of individuals that came in the store actively engaging in theft because no one can see them do it. But that still doesn’t make it not a crime.

  • Paul Lockett said:

    Nick R Brown: Do you think that I believe that placing snipers on highways to kill speeding drivers is a socially accepted method of enforcing traffic law?

    No. It was a rhetorical question, intended to highlight the flaw in believing that it is generally accepted that the government has a right to take the steps necessary to prevent the rule of law the citizenry has agreed to abide by from being violated. By your own response, it is clear that you don’t even believe it yourself.

    I will say that what you believe is the vast majority is certainly not the socially accepted standard.

    It certainly is. You will find that out in the world, the overwhelming majority of people view copyright infringement as a trivial issue.

    If anyone justifies theft, they are doing so because it is going unseen.

    Maybe, but we’re not talking about theft, we’re talking about copyright infringement. Now, you may seek to equate copyright infringement with theft and I could explain why that is incorrect (it is, in fact, far more comparable to trespass than theft), but in this instance, I think it is irrelevant. The simple fact is the vast majority of people recognise that it isn’t theft; it is socially accepted to be a completely different and far less serious breach of the law than theft.

  • Nick R Brown (author) said:


    “intended to highlight the flaw in believing that it is generally accepted that the government has a right to take the steps necessary to prevent the rule of law the citizenry has agreed to abide by from being violated. By your own response, it is clear that you don’t even believe it yourself.”

    Excuse me, “reasonable steps,” which are also dictated by what is deemed to be socially acceptable. Staying on the speeding example, most states have a fine somewhere in the neighborhood of $50-$200 for a minor speeding offense. That dictates that society feels that a fine somewhere in that range is an acceptable punishment for violation of minor speeding laws.

    We do provide the government the right to use reasonable enforcement for law that is passed.

    And I’m sorry, you can justify it in your mind all your want, but if you are taking content that you do not own or have a license to that is only being offered for sell (and not for free) by its creator or the third party that the creator has hired to sell their product then that is theft.

    Still, once again, that argument is really neither here nor there. The point of the post which seems to keep getting missed is that the bill in question does not apply to all websites and providing the government with some ubiquitous right to shut down any website they choose.

  • Paul Lockett said:

    Nick R Brown: We do provide the government the right to use reasonable enforcement for law that is passed.

    What is being proposed with this bill is not a reasonable or proportionate response to what is a generally viewed as a trivial infringement of an archaic law.

    As for the rest of your post, you can continue to delude yourself that copyright infringement is theft and attempt to propagandise on that basis, as many do, but you’re probably best off not wasting your time, because people aren’t falling for it. You might as well go further and describe copyright infringement as murder and give yourself a more interesting challenge.

  • Adam said:

    Well said Paul! i agree with you whole heartedly, the vast majority of people do not see copyright infringement as theft in my experience. often even those with a vested interest will admit the difference. I also agree with Crosbie, copyright needs to die so that a real marketplace can take its place. something like: http://www.kickstarter.com/ perhaps. they seem to be doing very well there. i would love to see what a large company could do with the business model if they just embraced it instead of fighting to maintain their monopoly priveledges.


  • Edgaras said:

    Well said both of you, Crosbie and Paul. And funny to read the denial of pro-IP crowd when they are confronted with facts that government already jails people for copyright infringement etc. Then they claim, that these cases are somehow UNIQUE.

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