Would You Rather Just be Waterboarded Now, or Was there a Kafka Sighting at the Federal Trade Commission? Rogue Sites Legislation: Enter the amendments for the 1% (Part 3)

See Also Part 1, Enter the Amendments for the 1% and Part 2, If Google is For It Professional Artists are Getting Robbed

The move is now afoot to amend the rogue sites legislation to death–the latest red herring has–of all things–the International Trade Commission getting into the act.  The ITC may be many things and do yeoman’s work in its areas of expertise, but one thing I feel very confident of is that they don’t have the circus of “Doctor Evil” from Megavideo and the whole dramatis personae of the crazy academics, tech industry NGOs, and their handmaidens descending upon their happy little group of ITC practitioners.

So just in case you were wondering what an action before the ITC might look like, the International Trade Commission recently published a notice of proposed rulemaking in the Federal Register that lays out proposed changes in its rules of practice.  (If you got a vague twitching in the back of your eyelids just now, trust your body.)  Now remember–the ITC gets to set its own rules of practice, and my bet is that they’ll do that regardless of what any ultimate statute says.  And unlike DMCA notices, appearing before the ITC is costly and requires lawyers.  And by the looks of it, a lot of them.

Let’s have a little sampling of what it would be like to have to file an action with the International Trade Commission, shall we?

“19 CFR Part 210

Subpart C—Pleadings

Section 210.12

The NOPR proposed to amend § 210.12 by adding a subsection (12) to § 210.12(a) to require that the

complainant provide in its complaint specific information regarding how issuance of an exclusion order and/or a cease and desist order in an investigation could affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.  The NOPR further proposed adding a paragraph (k) to § 210.12 to provide that, when a complaint is filed, the Secretary to the Commission will publish a notice in the Federal Register soliciting comments from the public and the

proposed respondents on any public interest issues arising from the complaint. Under the proposed rules, these comments would be limited to five pages and would be required to be filed within five days of publication of the notice. The purpose of the proposed amendments to 210.12 was to gather information for the Commission to consider in deciding whether to refer the public interest issues to the ALJ.…….”

Sorry I dozed off.

How about this:

§ 210.8 Commencement of reinstitution proceedings.

* * * * *

(b) Provide specific information regarding the public interest. [Dontcha just bet that EFF and CDT will be all over this part]

Complainant must file, concurrently with the complaint, a separate statement of public interest, not to exceed five pages, inclusive of attachments, addressing how issuance of the requested relief, i.e., a general exclusion order, a limited exclusion order, and/or a cease and desist order, in this

investigation could affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers. In particular, the submission should:

(1) Explain how the articles potentially subject to the requested remedial orders are used in the United States;

(2) Identify any public health, safety, or welfare concerns relating to the requested remedial orders;

(3) Identify like or directly competitive articles that complainant, its licensees, or third parties make which could replace the subject articles if they were to be excluded;

(4) Indicate whether the complainant, its licensees, and/or third parties have the capacity to replace the volume of articles subject to the requested remedial orders in a commercially reasonable time in the United States;  and

(5) State how the requested remedial orders would impact consumers.

(c) Publication of notice of filing. (1) When a complaint is filed, the Secretary to the Commission will publish a notice in the Federal Register inviting comments from the public and proposed respondents on any public interest issues arising from the complaint and potential exclusion and/or cease and desist orders. In response to the notice, members of the public and proposed respondents may provide specific information regarding the public interest in a written submission not to exceed five pages, inclusive of attachments, to the Secretary to the Commission within eight (8) calendar days of publication of notice of the filing of a complaint. Comments that substantively address allegations made in the complaint will not be considered. Members of the public and proposed respondents may address how issuance of the requested exclusion order and/or a cease and desist order in this investigation could affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.

Submissions should: (i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;

(ii) Identify any public health, safety, or welfare concerns relating to the requested remedial orders;

(iii) Identify like or directly competitive articles that complainant, its licensees, or third parties make which could replace the subject articles if they were to be excluded;

(iv) Indicate whether the complainant, its licensees, and/or third parties have the capacity to replace the volume of articles subject to the requested remedial orders in a commercially reasonable time in the United States; and

(v) State how the requested remedial orders would impact consumers.

(2) Complainant may file a reply to any submissions received under paragraph (c)(1) of this section not to exceed five pages, inclusive of attachments, to the Secretary to the Commission within three (3) calendar days…..”

Sweet Jesus.  How many ordinary people do you think will have any idea what to do with this stuff?  An artist is just trying to keep Megavideo from stealing their life’s work.  Does anybody care about that?

How about if we just agreed to be waterboarded straightaway, would that count for anything?

How about getting locked in a room and watching an endless loop of “Fire Fart”, “Chocolate Rain” and “Leave Brittany Alone” with Justin Bieber videos alternating every 20 minutes just to make sure you were watching?

And speaking of Google,  according to Morning Tech: “This has never been a question of Google and the big companies,” Sen. Ron Wyden told MT about Google mulling a departure from the Chamber over its support of SOPA and PIPA. “This is about the future Google. They have been historically called the two guys in a garage. I’m concerned that if SOPA and PIPA pass in their present form, instead of two people in a garage, it’s going to be two people in a garage with a fleet of lawyers upstairs trying to give them some advice about how to start a website without getting in trouble.”

This has now officially stepped through the looking glass–this has always been about an extraordinarily rich and aggressive multinational corporation that will steal anything that is not nailed down.  In Senator Wyden’s world, the important people are not the artists whose property is being stolen to the great profit of the “two guys in a garage”.  In Senator Wyden’s world, it’s apparently not enough for the rich tech company to be able to outlawyer not just artists but countries.  In Senator Wyden’s world, it is not enough that the rich tech company hires fleets of lobbyists to make sure the Congress takes away the rights of anyone who gets in the way of the “two guys in a garage” so they don’t have to bother finding out whether they are trampling on other people’s rights.

Because if there are no enforceable property rights, then there won’t be a need for the “two guys in a garage” to ever hire any lawyers because they can just take anything they want.  Unless, of course, they take any of Google’s stuff.  Such as the data center in The Dalles, Oregon (Senator Wyden’s state) that seems to be a lot more important than Nike. (See Harper’s excellent article on the history of the tax advantaged Google operation Keyword: Evil.)

So until everyone is willing to give up their property rights, then let’s no one give up their property rights.

The only way you could possibly believe that this ITC idea is a serious proposal is if you are the kind of person who would gleefully lock a dog in a room with a supersonic frequency generator.

Or if you really had no idea at all of the effects of your decision making or the harm you are doing.

Or just don’t care.

Welcome to The Man 2.0.