Combating Online Infringement and Counterfeits Act

Sec. 2324. Internet sites dedicated to infringing activities

‘(a) Definition- For purposes of this section, an Internet site is ‘dedicated to infringing activities’ if such site--

‘(1) is otherwise subject to civil forfeiture to the United States Government under section 2323; or

‘(2) is--

‘(A) primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator, to offer--

‘(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; or

‘(ii) to sell or distribute goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d) of the Act entitled ‘An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes’, approved July 5, 1946 (commonly referred to as the ‘Trademark Act of 1946’ or the ‘Lanham Act’; 15 U.S.C. 1116(d)); and

‘(B) engaged in the activities described in subparagraph (A), and when taken together, such activities are central to the activity of the Internet site or sites accessed through a specific domain name.

‘(b) Injunctive Relief- On application of the Attorney General following the commencement of an action pursuant to subsection (c), the court may issue a temporary restraining order, a preliminary injunction, or an injunction against the domain name used by an Internet site dedicated to infringing activities to cease and desist from undertaking any infringing activity in violation of this section, in accordance with rule 65 of the Federal Rules of Civil Procedure. A party described in subsection (e) receiving an order issued pursuant to this section shall take the appropriate actions described in subsection (e).

Section e provides that domains shall be blocked by DNRs.  That means that the DNR is legally required to block the IP. 

This is an interesting, read alarming bill.  It proposes that if an internet entity is allegedly engaged in what is already an illegal activity and punishable under the law can have their domain name blocked and thus be put out of business without a trial on the merits of the alleged infringement.

Common sense suggests that this proposal is at best illegal.  It proposes as a remedy a kind of prior restraint not on the offender but on domain name registration sites without a court hearing on the merits of the complaint.  It seems little more than yet another attempt by copyright holders to take punitive action without the burden of proving their complaint against an alleged infringement.  One is reminded of Viacom's recent litigation with YouTube wherein the court ruled in favor of YouTube.  Under this proposed bill YouTube would have been put out of business BEFORE the case was heard and Viacom LOST.

Copyrights are important to the protection of intellectual property to be sure.  But this is a very ill considered bill that attempts an end run around well established judicial processes.

Firestorm Erupts After Blogger Says His $400G Income Doesn't Make Him Rich

Todd Henderson, a law professor at the University of Chicago, usually kept his blog posts to matters of corporate law and the markets. But last week he made it personal.

He posted a portrait of his family finances to make his case that those who make more than $250,000 a year are struggling, like everyone else, to make ends meet -- even though people in that income bracket will see their taxes go up if President Obama succeeds in his plan to extend the Bush tax cuts only for low- and middle-income Americans.

“A quick look at our family budget, which I will gladly share with the White House, will show him that, like many Americans, we are just getting by despite seeming to be rich. We aren’t,” Henderson wrote. 

He said he and his wife, a doctor, paid $100,000 in federal and state taxes last year and $15,000 in property taxes. He wrote that they have a mortgage on a house they own a short distance from President Obama’s home, and they are paying off $250,000 in student loans. With an annual income of more than $400,000, he wrote, he and his wife are  far from super-rich.

...

But others disagree -- and none more bitingly than Prof. Bradford DeLong of the University of California at Berkeley, who dismissed Henderson’s posting as whining.

"By any standard they are rich,” DeLong said. "But they don’t feel rich.” 

He said the things Henderson takes for granted — retirement savings, private schools, new cars — are out of reach for most Americans, and he dismissed his complaint as a simple “cash flow problem.”

But Michelle Newton-Francis, a sociology professor at American University, said Henderson's blog had an impact because it showed “the country is redefining what it means to be rich and powerful.”

Common sense - 99% of Americans can NOT afford retirement savings, private schools, new cars and doubtless many of the things that Henderson assumes is his right!  $400,000 IS a lot of money.  It would buy the average house in suburban Boston for cash with money left over!  Henderson understandably doesn't want to pay more taxes.  No one does.  But if he's just getting by, he needs to look at how he's spending his money as he is by the standard of all but a fraction of 1% of Americans, rich.

As to Newton-Francis, it is NOT the country that is redefining what it means to be rich and powerful, it is the rich and powerful that want the other 99%+ of Americans to buy into the idea that they are not rich and powerful.  

Common sense suggests that it is long past time for Congress to begin acting on behalf of the average American not the rich and powerful who view themselves as entitled or big business that thinks shipping jobs overseas is OK. 

Senate GOP blocks bill that would promote less outsourcing

"Washington Post Staff Writer
Tuesday, September 28, 2010; 12:34 PM

Senate Republicans on Tuesday blocked a Democratic plan to encourage companies to bring jobs back from overseas, as a united GOP caucus voted against a motion to debate the measure on the Senate floor.  The motion failed 53 to 45.  The legislation would have raised taxes on corporations that shift operations overseas, costing U.S. jobs. It also would have awarded companies that bring jobs back from abroad by offering a two-year hiatus from payroll taxes for those positions."

So lets go slow.  Item 1, we're just coming out of the worst recession in many years.  Item 2, many middle class workers are still out of work.  Depending on whose numbers you like and on if you think discouraged workers should be counted somewhere between 9% and 19% unemployment!  Item 3, the middle class tax cut will not be extended because most Republicans and a few Democrats think that those making MORE than $250,000 per year should also get a tax cut.  Item 4, more than 90% of the benefits of the recent "small business" bill go to companies with MORE than 500 employees. And now, drum roll please, the Republicans don't think that we should encourage companies to bring jobs into this country or to penalize them for shipping jobs out of the US! 

Words like disgusting seem much to nice.  Common sense suggest that extending tax cuts to the middle class will help in this very troubled economy.  Common sense suggests that encouraging US jobs is, well, simply common sense.  Where have our politicians, particularly Republicans, gone that they've lost any semblance of common sense?

Vatican to pursue new legal strategy in U.S., lawyer says

(CNN) -- The Vatican will embark on a sweeping new legal strategy Monday in responding to allegations of sex abuse in the United States, CNN has learned.

Responding to a Louisville, Kentucky, lawsuit that seeks to depose top Vatican officials -- including Pope Benedict XVI -- the Holy See plans to file a motion Monday denying that the church issued a document mandating secrecy in the face of abuse allegations, as many victims allege, according to a Vatican attorney.

The Vatican's motion also will argue that bishops are not employees of the Holy See, exempting the Vatican from legal culpability in cases of alleged abuse in the U.S., said Jeffrey Lena, the Vatican's U.S.-based attorney.

Talk about people that just don't get it!  It now seems that the Vatican, that's who runs the Catholic church, now tells us that never mind all that money flowing to Rome, never mind that the Vatican appoints local Bishops, never mind that the Vatican exercises direct supervision of those bishops, and never mind any of the other numerous ways in which the Vatican has tried to interfere in the various legal proceedings around the ongoing sex scandal - we, the Vatican, aren't culpable! 

What really offends about this latest move is that it says quite clearly that the Catholic church sees this scandal not as a moral issue, which it most certainly is, but purely as a legal issue.  Now it's not that the scandal isn't a legal issue, it is, but from a religious perspective it is more importantly a moral issue.  The current position says that the Catholic church is about legality not morality.  That is at the root of what's wrong with the church's position.  That's why the sucking sound the Vatican hears are Catholics turning and walking away from an increasingly out of touch and corrupt organization.

Common sense suggests that we need only wait a bit longer and the Catholic church, certainly in the United States, will become completely irrelevant.  Perhaps it's time for that for clearly the Catholic church is no longer focused on morality and the care of it's members!

Voter anger, Republicans, Democrats, and Congress

That special Congressional primary season is much in the news today, as well it should be. 

Various commentators, Republican, Democrat, and Provocateurs (listening to them gives on to quickly conclude that they are about generating controversy and pumping ratings) have much to say.  Republicans say "the country is feed up with the Democrats and their liberal spending ways.  We'll take back congress!"  The Democrats say "the country is not as mad at us as the Republicans think.  We'll do OK."  The provocateurs simply go about baiting both the Republicans and Democrats in the hope of starting a televised food fight on their show.

All of this, however, seems to me to miss the mark.  It seems to me as you might gather from earlier posts that the real issue is incumbents.  It is simply no longer possible to believe that congress is not completely dysfunctional, particularly the senate.  To change it can only be accomplished by changing your congressman.  That's just common sense.  That you might regard your existing congressman as the lesser of two evils, as one surveyed voter remarked, while rational in the short term, insures that congress remains broken in the long term.  Such not now decisions are part of how we allowed problems that might have been resolved with much less difficulty when they first arose to now become crisis.  It is, common sense suggest, long past time to stop the cycle and replace congress in its entirety.

Common Sense, Safety, Consequences, and Payout - Gulf Oil Disaster

The current events in the Gulf of Mexico oil leak has reminded me of something I've long known to be true about technology and consequences.  There is a certain tendency to regard technology as somehow inherently safe. 
There's a sort of "If we can do it once or twice safely then it's safe." 

We see this notion frequently.  For example, oil tankers move oil all over the world every day without serious incident.  Therefore, moving oil by tanker is safe.  But is it?  We know about the Exxon Valdez who's accident destroyed a fishery.  We still don't know how long it might take the fishery to recover.  So are oil tankers safe?  Really safe?

The notion of safety is inexorably linked to consequences and payout. 

Suppose that you engage in an activity that is reasonably safe.  Suppose that the chance of accident is one in a thousand.  Would you view the activity as safe?  So far it's not really possible to say.  If the consequence of failure is small, say the loss of a $10 entrance fee then you might well regard the activity as safe since you are easily able to bear the consequence.  But suppose the consequence is that you and your family die.  Now is the activity safe?  Loosing your life and the lives of your family is a severe consequence.  One that few would risk unless the payout is very large.  Now suppose that the payout for success is that you and your family can live safely in a free society while the consequence of doing noting is that you and your family must live out your lives in an oppressive society.  Now is the activity safe, at least in the sense that you might rationally undertake it?

What does this have to do with the Gulf oil spill?  Consider.  Can oil wells be successfully drilled in deep water?  The answer, demonstrated by many such successful wells is clearly yes.  Can these wells be successfully operated without incident?  Again, based on experience, the answer is clearly yes.  Are they therefore safe?  Now we must deal with consequences and payout.  If the well operates successfully without incident we get oil to fuel our cars, power our homes, and drive our economy.  That's a very significant payout.  But if even one of these wells fails the consequence are an Exxon Valdez oil spill twice a week into the indefinite future and the destruction of a very productive fishery in the Gulf.  That's a very significant consequence.  Moreover, it's a consequence that may last for a very long time, certainly many 10s of years, likely many hundreds of years. 

Is the benefit from oil wells in the Gulf of Mexico that will produce oil for a few tens of years worth the risk of the destruction of a major fishery for many hundreds of years?  Common sense suggest that it probably isn't.  While the risk may be small, the consequence of failure is so large as to outweigh the benefits.

Common Sense Energy, Oil, and Wind

April 20, Transocean's Deepwater Horizon located about 40 miles southeast of the mouth of the Mississippi River explodes and catches fire.  It sinks two days latter.  It has not been possible to activate the blowout preventer and now some 210,000 barrels of oil are spewing into the Gulf of Mexico and will hit the shore sometime in the next few days.  A considerable effort is being made to control the spill but given the amount it is unlikely that serious damage to the biologically rich coast and surrounding waters can be avoided.

Mr Obama, who has recently moved to allow expanded offshore drilling, has said that BP is ultimately responsible for the cost of cleanup.  I find this troubling on several levels.

First, drilling in deep water is inherently difficult and risky as evidenced by similar incidents over the years.  After each incident we are assured again that the industry has learned from this regrettable event, corrected things, and it won't happen again.  Yet, of course, it does happen again.  This is certainly a troubling common sense reality given Mr Obama's proposals.

Second, beyond the issue of inherent safety, Mr Obama seems to regard this disaster as an issue of financial responsibility.  While it's nice to have someone to send the bill to for whatever cleanup is possible cleanup is not a cure as evidence by the continuing aftermath of the Exxon Valdeze where the long term effects are still being felt 20 plus years after the event and many years after an economic settlement.  Common sense and history shows that money will not make the Gulf whole, will not restore biologically critical coastal wetlands, and will not restore the Gulf fishery.


Third, though certainly not Mr Obama's doing, this occurs in the context of environmental, local (not in my backyard), and bizarre native American concerns over potential ice age cultural sites associated with Cape Wind!  Energy generation is never environmentally neutral!  I am reminded in this regard of photos I saw some years ago of the White Mountains all but stripped bare to provide lumber of firewood for Boston.  But we have choices in how we get energy.  We can choose technology that is less destructive such as solar, wind, hydro, and geothermal; or we can choose technology that is more destructive such as oil and coal; or we can choose technology that is actively dangerous such as nuclear.  Common sense suggests that we choose  the least damaging technology.

As I've noted previously, the United States has needed a common sense energy policy for many years.  It's time we look at the harsh reality of history and started to have one.