Carroll reckons a major issue isn't how the law views our digital data and what we store online, but rather how the data itself is defined. Are your pictures and videos like physical content, or like a bank account, where the bank "owns" it? Exactly how it's defined will have a big effect on legal ownership. Masnick added that the situation is currently in flux, while Samuels added that because laws and policies have a huge effect on businesses (especially small and nascent ones), this uncertainty makes new digital companies harder to grow. The US government seized several digital content sites before it went for Megaupload, and in two cases, the government ended up returning the content. However, the panelists added, this was because they were the only cases that fought back. Responding to the government is often difficult.
These terms can be changed and adjusted -- meaning they're more like the laws of the company than of a country. "I'm a lawyer and I don't read all the terms of service," quipped EFF's Samuels. On stage, the panel outlined that set rules across these instances would help -- and that some companies and services are doing a lot better. There's some competition on giving users better rights (EFF has a Who Has Your Back section where it spotlights notable businesses.)
"I'm a lawyer and I don't read all the terms of service."
Carroll added that it's consumers that have to involve themselves in the conversation -- and demand protection. Since the outcry following SOPA, "they care about the tech community." Masnick said that while "it's easy to be cynical about the government... if a large enough group is interested [then things can change]. Often they're not, and that's when lobbyists win out."
When it comes to modern copyright issues, it's possibly best expressed in our ownership rights of digital music -- the panelists reckon the law is out of date. "It still thinks you bought a physical thing ... and when it's turned into digital information, you have no rights to resell. We need to rethink it now that we've got the cloud," explained Carroll. He added that the laws don't work with the technology we have now. There's a need for a new procedure and it looks like the lawmakers are willing to look at it, although according to Masnick, depending on who they listen to, it could be very good or bad. "I'm worried about this process. There's concern about SOPA ... and getting it back in."
The Techdirt editor outlined what happened following YouTube and Viacom's legal tussles: "You put up a file, a robot detects any copyright infringing music and YouTube takes it down." You can respond with a claim of fair use, and if the rights owner still disagrees they can track down the user and attempt to sue. However, said rights owners feel the balance is not quite right, and apparently want future reforms to force the likes of YouTube to pre-screen videos. For YouTube, a giant Google-owned company, such a process could be possible, but for smaller sites, this kind of policing would be impossible. "We want a thousand more YouTubes," added Samuels. The likes of YouTube could even agree to such stringent controls as it could largely cut out smaller competition.