Of course I own the courthouse, in at least one sense - it's public property. If the public wants a Christmas tree on it, the ACLU will fight against that. I'm not saying the ACLU is right or wrong to do so, but it is a right that the ACLU opposes. Of course, the ACLU's other fights conflict with this one, unlike the right to keep and bear arms.
That's a very valid point, and would be sufficient for me to support the ACLU if it did not vehemently oppose particular rights. (There are others it opposes, of course, such as my right to put up a Christmas tree at the courthouse.) If the ACLU took a neutral position on the Second Amendment, it would gain respect from me. However, its position is directly opposed to individual rights.
That's not what I'm saying. I'm saying that the ACLU needs to find better justification than "someone might get hurt" and "there is no existing legal protection" for why it doesn't stand up for certain rights in order to get any support from me. The ACLU is entitled to its opinion, and I am entitled to call it hypocritical because its opinion is not justified except to those who take it as a given that there is no right at stake. Most of the people who take such things as given, either way, haven't actually thought about it themselves beyond what the suppliers of their views told them to think about.
You're missing my point. As to the Second Amendment, I am not overly concerned that we disagree on its interpretation or the consequences of that interpretation. (As an aside, I generally believe that because it refers to an individual right, the Amendment protects the right to keep and bear individual arms.) What I am concerned about is that you are saying that the ACLU, as a protector of civil liberties, is excusable for ignoring one civil liberty on the grounds that it is not perceived as being legally protected. Your argument is as paradoxical as it is circular. The ACLU exists for the sole purpose of protecting civil liberties that are not receiving sufficient legal protection. The only reason here is that the ACLU is run by modern liberals who want the right to say what they want and to be free from any religious symbols in their daily lives, and it opposes modern conservatives who believe that the only individual rights you have are to form a corporation and to have guns. That's why the ACLU sticks to that interpretation and that's why it doesn't care about any possible right protected by the Second Amendment. It has nothing to do with whether the interpretation is correct.
The ACLU simply ignores those civil liberties that it doesn't believe in, including other things aside from the right to keep and bear arms. It is therefore hypocritical and unworthy of support from any classically liberal believer in inalienable rights.
First off, speech harms people. Giving criminal defendants too fair of a process harms people. Guns do things besides harm people. That argument is not worth the paper it wasn't printed on. If you want to read the Constitution in a feel-good way that doesn't hurt people, go ahead. You'll find that making people feel good was not its intent. Second, as to the wording of the amendment, if you'd read the link I posted or do some further research on your own, you'd find that it is not as problematic as you have been asked to believe. "Well-regulated militia" to the people who wrote it meant "well-equipped civilians" - that is, those who are made regular (as in a regular army) by their equipment and separate from any actual army. Contemporaneous writings, dictionaries, and quotes of those involved in writing the Constitution support this.
If you find it so easy to believe that the Second Amendment was written to provide states the right to keep militias, then please explain two things to me: first, why is the word 'state' in the sense of one of the members of the Union never used in it?; second, why is it surrounded by amendments about individual rights? You are correct that the Constitution was carefully written. Amendments in the Bill of Rights relating to states in any way are at the end, but the Second Amendment is sandwiched between (obviously) individual freedom of speech and religion on one side and (obviously) individual freedom not to house soldiers in time of peace on the other.
You have misread two things. First off, the Supreme Court has not "repeatedly ruled" that the Second Amendment is a collective right, to my knowledge. Can you cite "repeated" case law on the matter? Second, I explicitly said that, because it can be interpreted as an individual right, the ACLU should support such an interpretation. Who do you think convinced the Supreme Court to incorporate the First Amendment through the Fourteenth so consistently, anyhow? This is not asking the ACLU to support all possible interpretations (that's just ridiculous); it's asking them to stick up for individual rights wherever they may be found.
See my response to your sibling, on both points. I'll even add one further: even if the Constitution doesn't have any reasonable interpretation which leads to an individual right to keep and bear arms, that only speaks to the protection of such a right, not to its existence. Even without legal protection, shouldn't the ACLU be standing up for individual rights? Isn't that exactly what it does with other things, where there is no existing legal protection for a particular right? Why is the right to carry a weapon different to the ACLU? All of the reasons presented here and by the ACLU are cop-outs, and the ACLU is okay with that because the people who agree with the ACLU on most things tend to also feel that guns are bad.
The First Amendment only refers to what Congress shall not do, but the ACLU defends the hell out of it in the states. Just because you can interpret a line of the Constitution in one way doesn't mean that you are right, and if there is any interpretation of the text that speaks to an individual right then why is the ACLU not defending that?
I am not going to address how wrong you are, because it's entirely irrelevant to the actual discussion at hand. I'll just point you to one article, written by a man who is widely regarded as being on the short list of preeminent constitutional law scholars. You don't have to agree with him, but when reasonable (and, in fact, brilliant and informed) minds can reach the conclusion that there is an individual right at stake, what justification does the ACLU have for ignoring it? It's hypocrisy, regardless of how you personally feel about the Second Amendment.
I still have my TI-85. I still use it often enough that it's in the top drawer of my desk, right next to my BAII+ (business calculator from TI). I'd love to have a TI-89, but honestly the main reason for that is because it has a true 16-bit processor, making it much easier to write a Lisp compiler for it. The TI-89 also probably has enough memory to justify writing an arbitrary-precision reverse-polish calculator program for it. If you did it right, you'd have all of the benefits of the HP48 with none of the drawbacks.;)
Fry: Who are you people? Al Gore: I'm Al Gore. And these are my vice presidential action rangers. A group of top-nerds, whose sole duty is to prevent disruptions in the space-time continuum.
Fry: I thought your sole duty was to cast the tie-breaking vote in the Senate. Al Gore: That, and protect the space-time continuum. Read the Constitution.
Two things:
1. I have just started stripping down to my underwear every time I fly. There's no sense having to be asked to take off any article of clothing, so just take 'em all off and throw them in the tray. It saves everyone time and embarrassment.
2. Why not use a real man's portable hanger?
I'd even be okay with ZIP codes if it weren't a binary statistic. There's a lot more to the story than whether or not a given ZIP code has broadband access. What portion of the population in a given ZIP code has access? What portion wouldn't pay for broadband access even if it were available? Things like that.
I think 200Kbps is perfectly fair, if not a bit high. What I don't like is the use of one connection per ZIP code as a fair measure of that entire ZIP code having broadband access. Some ZIP codes cover, say, a town of 1,500 people and the surrounding rural area where another 1,500 live. A cable or DSL provider in the town covers only half of the ZIP code's population but, under this measure, the entire ZIP code is deemed to have broadband access. ZIP codes are meant to make delivering mail easy, not to measure the lives of those who receive mail in each one.
The MPAA has disguises on and carries a big bag that says "free money (caution: this money may not be entirely legal to possess)." You take some, which is fake, and walk home. They follow you home and sue you for possession of stolen or counterfeit money. They use the power of subpoena to look around your house until they find the stolen or counterfeit money you got from somewhere else.
This isn't about finding people who download the fake torrents. As I've pointed out elsewhere, this is about identifying people who are downloading movies, suing them, and then finding out which movies they successfully downloaded.
IANAL and I don't know the MPAA's plan, but if I were a lawyer and if I were working for the MPAA, that's probably the strategy I would go for. Not that I'd necessarily take on the MPAA as a client, of course.:)
That matters only for criminal charges. The police could set this up and might have probable cause to search your computer. The MPAA is a private entity that would be suing you in civil court, so they only need enough information to put together the first pleadings of a lawsuit. Then they attempt to subpoena your hard drive, you say "no," and the judge decides what they get to look at to pursue their claims against you. The words "probable cause" don't factor into it, but a similar concept does apply.
That's all well and good until the judge yells at you for deliberately goading the MPAA into suing you. At some point, the judge (or at least the MPAA's lawyers) will ask you why you would download fake torrents and never try to get the real thing, and judges for the most part weren't born yesterday.
I am replying to your comment rather than the very similar sibling, because you posted first. I did not overlook the fact that the thing you downloaded is garbage or the fact that there is no civil claim for attempted infringement (although there may be a claim for civil conspiracy, especially in light of the way that p2p software works, but that doesn't matter here).
Like I said, downloading the fake torrent is legal. The MPAA can still sue you because, as I pointed out, they are acting on information and belief that you downloaded the real thing later on. They are also probably right. They do, of course, have to prove that you actually did in order to recover anything in court, but that's a question of evidence, not a question of you being legally in the right.
Consider this sequence of events. You download the fake torrent and the MPAA logs your IP address. You later find a real torrent of any movie and download it. The MPAA sues you and alleges as I quoted in my prior comment that, on their information and belief, you have infringed their copyright by downloading one of their movies. (Lawsuits start out vague and work their way toward specificity. Saying "he infringed one of our movies!" is probably enough to get the ball rolling.) They then subpoena your computer's hard drive and either find movies on it and win or find that you tampered with it and win by default (because tampered-with evidence is generally assumed to be as bad for the tamperer as can be imagined).
In the unlikely event that you never did any illegal downloading and it was just a fluke that you downloaded a fake torrent of a movie that would otherwise have constituted copyright infringement, you are probably safe.
I don't have a lot of time to work with, but there are a few points going around here that I think ought to be collected in one place:
Entrapment: No, it's not. Entrapment, in order to work as a legal defense, is when the government takes action that induces you to commit a crime that you would not otherwise have committed. Walking up to you on the street and offering you $100 commission to steal a Rolex is entrapment. Putting up a website that purports to sell illegal machinegun parts is not entrapment, because you would have found some website to buy the parts from anyhow. Sending you a brochure to advertise child pornography and waiting for you to order some is questionable. This activity is somewhere between the child porn brochure and the machinegun parts website, but it is not government action so entrapment isn't a defense. It also doesn't matter, because the MPAA is interested in suing you into oblivion in civil court more than it is interested in seeing you behind bars. (After all, behind bars you can't make any more paychecks for the MPAA to garnish.)
MPAA consent to downloading content: Nope. They're uploading fake torrents. You are downloading something else, maybe a dump of/dev/unrandom. They are fine with that.
Downloading fake torrents is legal: Yep, it is. It's just that they're logging your IP address and will file a lawsuit that alleges, "[o]n information and belief, the Defendant has infringed the Plaintiff's copyright by downloading an illegally distributed copy of [the movie you were trying to download when you got the fake torrent]." They know you are going to find a real torrent later and download it, or at least some other movies. They know all they need to: you are a person using a given IP address to attempt to download their copyrighted material and you probably didn't give up when you found out that the torrent they fed you was fake.
Grabbing your IP address from the fake torrent download doesn't help the MPAA: See previous paragraph.
Did I miss anything? These seem to be the main issues being covered in the comments so far. The simple fact is that this tactic will probably work for the MPAA.
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Of course I own the courthouse, in at least one sense - it's public property. If the public wants a Christmas tree on it, the ACLU will fight against that. I'm not saying the ACLU is right or wrong to do so, but it is a right that the ACLU opposes. Of course, the ACLU's other fights conflict with this one, unlike the right to keep and bear arms.
That's a very valid point, and would be sufficient for me to support the ACLU if it did not vehemently oppose particular rights. (There are others it opposes, of course, such as my right to put up a Christmas tree at the courthouse.) If the ACLU took a neutral position on the Second Amendment, it would gain respect from me. However, its position is directly opposed to individual rights.
That's not what I'm saying. I'm saying that the ACLU needs to find better justification than "someone might get hurt" and "there is no existing legal protection" for why it doesn't stand up for certain rights in order to get any support from me. The ACLU is entitled to its opinion, and I am entitled to call it hypocritical because its opinion is not justified except to those who take it as a given that there is no right at stake. Most of the people who take such things as given, either way, haven't actually thought about it themselves beyond what the suppliers of their views told them to think about.
You're missing my point. As to the Second Amendment, I am not overly concerned that we disagree on its interpretation or the consequences of that interpretation. (As an aside, I generally believe that because it refers to an individual right, the Amendment protects the right to keep and bear individual arms.) What I am concerned about is that you are saying that the ACLU, as a protector of civil liberties, is excusable for ignoring one civil liberty on the grounds that it is not perceived as being legally protected. Your argument is as paradoxical as it is circular. The ACLU exists for the sole purpose of protecting civil liberties that are not receiving sufficient legal protection. The only reason here is that the ACLU is run by modern liberals who want the right to say what they want and to be free from any religious symbols in their daily lives, and it opposes modern conservatives who believe that the only individual rights you have are to form a corporation and to have guns. That's why the ACLU sticks to that interpretation and that's why it doesn't care about any possible right protected by the Second Amendment. It has nothing to do with whether the interpretation is correct.
The ACLU simply ignores those civil liberties that it doesn't believe in, including other things aside from the right to keep and bear arms. It is therefore hypocritical and unworthy of support from any classically liberal believer in inalienable rights.
First off, speech harms people. Giving criminal defendants too fair of a process harms people. Guns do things besides harm people. That argument is not worth the paper it wasn't printed on. If you want to read the Constitution in a feel-good way that doesn't hurt people, go ahead. You'll find that making people feel good was not its intent. Second, as to the wording of the amendment, if you'd read the link I posted or do some further research on your own, you'd find that it is not as problematic as you have been asked to believe. "Well-regulated militia" to the people who wrote it meant "well-equipped civilians" - that is, those who are made regular (as in a regular army) by their equipment and separate from any actual army. Contemporaneous writings, dictionaries, and quotes of those involved in writing the Constitution support this.
If you find it so easy to believe that the Second Amendment was written to provide states the right to keep militias, then please explain two things to me: first, why is the word 'state' in the sense of one of the members of the Union never used in it?; second, why is it surrounded by amendments about individual rights? You are correct that the Constitution was carefully written. Amendments in the Bill of Rights relating to states in any way are at the end, but the Second Amendment is sandwiched between (obviously) individual freedom of speech and religion on one side and (obviously) individual freedom not to house soldiers in time of peace on the other.
You have misread two things. First off, the Supreme Court has not "repeatedly ruled" that the Second Amendment is a collective right, to my knowledge. Can you cite "repeated" case law on the matter? Second, I explicitly said that, because it can be interpreted as an individual right, the ACLU should support such an interpretation. Who do you think convinced the Supreme Court to incorporate the First Amendment through the Fourteenth so consistently, anyhow? This is not asking the ACLU to support all possible interpretations (that's just ridiculous); it's asking them to stick up for individual rights wherever they may be found.
See my response to your sibling, on both points. I'll even add one further: even if the Constitution doesn't have any reasonable interpretation which leads to an individual right to keep and bear arms, that only speaks to the protection of such a right, not to its existence. Even without legal protection, shouldn't the ACLU be standing up for individual rights? Isn't that exactly what it does with other things, where there is no existing legal protection for a particular right? Why is the right to carry a weapon different to the ACLU? All of the reasons presented here and by the ACLU are cop-outs, and the ACLU is okay with that because the people who agree with the ACLU on most things tend to also feel that guns are bad.
The First Amendment only refers to what Congress shall not do, but the ACLU defends the hell out of it in the states. Just because you can interpret a line of the Constitution in one way doesn't mean that you are right, and if there is any interpretation of the text that speaks to an individual right then why is the ACLU not defending that?
I am not going to address how wrong you are, because it's entirely irrelevant to the actual discussion at hand. I'll just point you to one article, written by a man who is widely regarded as being on the short list of preeminent constitutional law scholars. You don't have to agree with him, but when reasonable (and, in fact, brilliant and informed) minds can reach the conclusion that there is an individual right at stake, what justification does the ACLU have for ignoring it? It's hypocrisy, regardless of how you personally feel about the Second Amendment.
Show me one instance of the ACLU standing up for the right to keep and bear arms.
I still have my TI-85. I still use it often enough that it's in the top drawer of my desk, right next to my BAII+ (business calculator from TI). I'd love to have a TI-89, but honestly the main reason for that is because it has a true 16-bit processor, making it much easier to write a Lisp compiler for it. The TI-89 also probably has enough memory to justify writing an arbitrary-precision reverse-polish calculator program for it. If you did it right, you'd have all of the benefits of the HP48 with none of the drawbacks. ;)
I'm still waiting for the breast implant bomber. Once someone tries that, I'm going to sign up for a security job immediately.
Fry: Who are you people?
Al Gore: I'm Al Gore. And these are my vice presidential action rangers. A group of top-nerds, whose sole duty is to prevent disruptions in the space-time continuum. Fry: I thought your sole duty was to cast the tie-breaking vote in the Senate.
Al Gore: That, and protect the space-time continuum. Read the Constitution.
Two things:
1. I have just started stripping down to my underwear every time I fly. There's no sense having to be asked to take off any article of clothing, so just take 'em all off and throw them in the tray. It saves everyone time and embarrassment.
2. Why not use a real man's portable hanger?
I'd even be okay with ZIP codes if it weren't a binary statistic. There's a lot more to the story than whether or not a given ZIP code has broadband access. What portion of the population in a given ZIP code has access? What portion wouldn't pay for broadband access even if it were available? Things like that.
I think 200Kbps is perfectly fair, if not a bit high. What I don't like is the use of one connection per ZIP code as a fair measure of that entire ZIP code having broadband access. Some ZIP codes cover, say, a town of 1,500 people and the surrounding rural area where another 1,500 live. A cable or DSL provider in the town covers only half of the ZIP code's population but, under this measure, the entire ZIP code is deemed to have broadband access. ZIP codes are meant to make delivering mail easy, not to measure the lives of those who receive mail in each one.
Nah. All you have to do is put the projector on a rocking platform and jump out of your seat at the right time.
Not quite. It's more like this:
The MPAA has disguises on and carries a big bag that says "free money (caution: this money may not be entirely legal to possess)." You take some, which is fake, and walk home. They follow you home and sue you for possession of stolen or counterfeit money. They use the power of subpoena to look around your house until they find the stolen or counterfeit money you got from somewhere else.
This isn't about finding people who download the fake torrents. As I've pointed out elsewhere, this is about identifying people who are downloading movies, suing them, and then finding out which movies they successfully downloaded.
IANAL and I don't know the MPAA's plan, but if I were a lawyer and if I were working for the MPAA, that's probably the strategy I would go for. Not that I'd necessarily take on the MPAA as a client, of course. :)
That matters only for criminal charges. The police could set this up and might have probable cause to search your computer. The MPAA is a private entity that would be suing you in civil court, so they only need enough information to put together the first pleadings of a lawsuit. Then they attempt to subpoena your hard drive, you say "no," and the judge decides what they get to look at to pursue their claims against you. The words "probable cause" don't factor into it, but a similar concept does apply.
That's all well and good until the judge yells at you for deliberately goading the MPAA into suing you. At some point, the judge (or at least the MPAA's lawyers) will ask you why you would download fake torrents and never try to get the real thing, and judges for the most part weren't born yesterday.
See my other reply to the similar sibling. I believe it covers this.
I am replying to your comment rather than the very similar sibling, because you posted first. I did not overlook the fact that the thing you downloaded is garbage or the fact that there is no civil claim for attempted infringement (although there may be a claim for civil conspiracy, especially in light of the way that p2p software works, but that doesn't matter here).
Like I said, downloading the fake torrent is legal. The MPAA can still sue you because, as I pointed out, they are acting on information and belief that you downloaded the real thing later on. They are also probably right. They do, of course, have to prove that you actually did in order to recover anything in court, but that's a question of evidence, not a question of you being legally in the right.
Consider this sequence of events. You download the fake torrent and the MPAA logs your IP address. You later find a real torrent of any movie and download it. The MPAA sues you and alleges as I quoted in my prior comment that, on their information and belief, you have infringed their copyright by downloading one of their movies. (Lawsuits start out vague and work their way toward specificity. Saying "he infringed one of our movies!" is probably enough to get the ball rolling.) They then subpoena your computer's hard drive and either find movies on it and win or find that you tampered with it and win by default (because tampered-with evidence is generally assumed to be as bad for the tamperer as can be imagined).
In the unlikely event that you never did any illegal downloading and it was just a fluke that you downloaded a fake torrent of a movie that would otherwise have constituted copyright infringement, you are probably safe.
I don't have a lot of time to work with, but there are a few points going around here that I think ought to be collected in one place:
/dev/unrandom. They are fine with that.
Entrapment: No, it's not. Entrapment, in order to work as a legal defense, is when the government takes action that induces you to commit a crime that you would not otherwise have committed. Walking up to you on the street and offering you $100 commission to steal a Rolex is entrapment. Putting up a website that purports to sell illegal machinegun parts is not entrapment, because you would have found some website to buy the parts from anyhow. Sending you a brochure to advertise child pornography and waiting for you to order some is questionable. This activity is somewhere between the child porn brochure and the machinegun parts website, but it is not government action so entrapment isn't a defense. It also doesn't matter, because the MPAA is interested in suing you into oblivion in civil court more than it is interested in seeing you behind bars. (After all, behind bars you can't make any more paychecks for the MPAA to garnish.)
MPAA consent to downloading content: Nope. They're uploading fake torrents. You are downloading something else, maybe a dump of
Downloading fake torrents is legal: Yep, it is. It's just that they're logging your IP address and will file a lawsuit that alleges, "[o]n information and belief, the Defendant has infringed the Plaintiff's copyright by downloading an illegally distributed copy of [the movie you were trying to download when you got the fake torrent]." They know you are going to find a real torrent later and download it, or at least some other movies. They know all they need to: you are a person using a given IP address to attempt to download their copyrighted material and you probably didn't give up when you found out that the torrent they fed you was fake.
Grabbing your IP address from the fake torrent download doesn't help the MPAA: See previous paragraph.
Did I miss anything? These seem to be the main issues being covered in the comments so far. The simple fact is that this tactic will probably work for the MPAA.
I haven't seen that one. Well-stated and simple. Thanks. :)