Owners Of Hiphop Blogs Seized By Homeland Security Still Haven't Been Told Why

from the prior-restraint? dept

The saga of the domains seized by Homeland Security's Immigrations & Customs Enforcement (ICE) group continues to get more and more bizarre. We'd already noted that among the domains seized were a bunch of hiphop blogs that artists and record labels regularly used to promote their works and that at least the search engine Torrent-Finder was planning to fight back. As we noted at the time, it seemed like the blogs would have a much stronger case, as there's pretty clear First Amendment problems with the governments' actions.

While it's still not entirely clear what the owners of those blogs are going to do, the NY Times has spoken with some of them and it appears they're certainly exploring their options. I would imagine that the EFF and others have all reached out to them as well. I'm also guessing that the RIAA -- who told ICE to take down these sites -- may actually be getting nervous that it may have pushed too far here. They have to realize that they're going to lose these lawsuits if the domain owners push back. It's classic prior restraint.

What's really scary, though, is that the article notes that the domain owners still have been given no indication of why their sites were seized and may need to wait another 30 to 60 days before they're able to even see the seizure order. That seems ridiculous. You shouldn't just be able to seize a domain name and then tell the owners that they'll find out why nearly three months later. What happened to due process?


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  1.  
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    Rose M. Welch (profile), Dec 14th, 2010 @ 9:36am

    Due process? What's that?

    Or do you think you're in Canada?

     

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  2.  
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    Anonymous Coward, Dec 14th, 2010 @ 9:59am

    "Owners Of Hiphop Blogs Seized By Homeland Security Still Haven't Been Told Why"

    Competitive media is bad for big corporations. You should know that by now Mike. They want to control the media and what people think.

     

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  3.  
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    Anonymous Coward, Dec 14th, 2010 @ 10:01am

    The law works at the speed of the law, not at the speed of the internet. The domains were seized with a court order, which will be released in due course, as is normal under this sort of situation.

    Due process has nothing to do with instant process. I sort of hope this takes as long as the Jammie Thomas case. That would be about right, with all that due process going on.

     

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    Anonymous Coward, Dec 14th, 2010 @ 10:23am

    Re:

    Those blogs were filled with crime! I'm none too surprised that hiphop music was involved.

     

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  5.  
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    Marcus Carab (profile), Dec 14th, 2010 @ 10:28am

    Re:

    So do you not understand basic rights, or do you just have zero respect for them?

    Let's forget about the due process for a minute: what about the massive prior restraint? It's mighty convenient that the courts can completely censor all of this protected speech for weeks or months just by dragging its heels on the procedural side.

    That's *exactly* the sort of thing the First Amendment is supposed to cover - not just direct censorship, but also indirect censorship achieved through alternative means.

    So answer me this question: on what grounds do you think it is right for these blogs to be censored in direct violation of the First Amendment? Or, if you truly don't believe this counts as prior restraint, explain how (and good luck with that).

     

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    Dark Helmet (profile), Dec 14th, 2010 @ 10:29am

    Re:

    "Due process has nothing to do with instant process."

    In what world does less than 90 days to be informed of the reason for seizure equate to "instant process"?

     

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    Anonymous Coward, Dec 14th, 2010 @ 10:31am

    Re: Re:

    Thoughtcrime?

     

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    Anonymous Coward, Dec 14th, 2010 @ 10:43am

    Re: Re:

    The world of lawyers, silly.

     

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    weneedhelp (profile), Dec 14th, 2010 @ 10:48am

    What happened to due process?

    It just gets in the way.

     

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  10.  
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    D. Hope-Ross (profile), Dec 14th, 2010 @ 10:50am

    Due Process?!?

    What about the presumption of innocence? Oh yea, we buried that one with the patriot act.

     

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  11.  
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    Anonymous Coward, Dec 14th, 2010 @ 10:50am

    Re:

    The law works at the speed of the law, not at the speed of the internet.

    And that, there, is one of the foremost reasons why prior restraints bear a heavy presumption against their constitutionality.

    A temporary “stop press” order cannot ever be fully undone. A duly-considered, final judgment correcting the mistake doesn't undo all the damage. The harm is irreparable.

     

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  12.  
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    Marcus Carab (profile), Dec 14th, 2010 @ 10:55am

    Re: Due Process?!?

    Sadly, presumption of innocence hasn't existed in copyright law for a loooong time... in fact "innocence" (fair use) is a complex legal defense. It's not even a protected right, let alone a presumption.

     

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  13.  
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    Hephaestus (profile), Dec 14th, 2010 @ 10:58am

    Has anyone else noticed this.

    We actually do now have real live fashion police. ICE and HomeSec ...

     

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  14.  
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    Jay (profile), Dec 14th, 2010 @ 10:58am

    A question...

    Does anyone know if anything came of the FIRST takedowns this summer? Any seizure orders or warrants?

     

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  15.  
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    Gabriel Tane (profile), Dec 14th, 2010 @ 10:59am

    Re: Re:

    I would like to point out that this is exactly what we were afraid COICA would do. So when we said it was a possibility, and the Copyright shills said "oh no, you're being rediculous"... where are they now?

     

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  16.  
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    :Lobo Santo (profile), Dec 14th, 2010 @ 11:02am

    Re: Re: Due Process?!?

    Hopper: You let one ant stand up to us, then they all might stand up! Those puny little ants outnumber us a hundred to one and if they ever figure that out there goes our way of life! It's not about food, it's about keeping those ants in line.
    -Bugs Life (1998)

     

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    Hephaestus (profile), Dec 14th, 2010 @ 11:05am

    Re:

    "I sort of hope this takes as long as the Jammie Thomas case."

    It will take as long as the first case. It doesn't matter which one. Then this foolishness will end. Between the first, fourth, and fourteenth amendment violations this will set precedents on the confiscation of domain names.

     

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  18.  
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    Ryan Diederich, Dec 14th, 2010 @ 11:08am

    We are here to help you....

    Hi, we are from the government, we are here to help you. You are under arrest for unspecified crimes and we are putting you in jail.

    What crimes you ask? Well, we will tell you in 3 months.

    In the mean time, have fun in prison.

    And no, we wont reimburse you for your lost wages due to your imprisonment...

    /sarc

    if thats not okay, why should this be okay?

     

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  19.  
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    Paul, Dec 14th, 2010 @ 11:16am

    They may be dragging their feet in an attempt to downplay outcry when the reasoning comes out. If everything came out now while its on everybody's mind, there'd be outcry. If in two months when many people forget about this, they may not even care about reading the article.

     

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  20.  
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    Hephaestus (profile), Dec 14th, 2010 @ 11:19am

    Re: Re:

    Got a question ... Which parts of the documents this contry were founded on have been violated by the white house and its lackeys?

    1 st amendment
    4 th amendment
    14 th amendment
    commerce clause

    any others??

     

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  21.  
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    Marcus Carab (profile), Dec 14th, 2010 @ 11:20am

    Re:

    Don't give us too much credit... I wouldn't be surprised if our first attempt at domain seizures is already in the pipeline (and people here aren't even as educated or vehement about the concept of free speech as they are there)

     

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  22.  
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    Hephaestus (profile), Dec 14th, 2010 @ 11:21am

    Re:

    "They may be dragging their feet in an attempt to downplay outcry when the reasoning comes out."

    Either that or they are trying to figure out a way make this a matter of national security so they don't have to explain.

     

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  23.  
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    Anonymous Coward, Dec 14th, 2010 @ 11:34am

    Re: Re: Re:

    Jumping to conclusions is a very, very bad thing to do. What was the content of those blogs? Were they owned by the same people running the other sites? Were they on the same server? Were the hip-hop sites being used as front doors to the other sites, contributing to them?

    You can jump up and down and list of them amendments all you like, but the truth is simple: The seizure was done with a court order, and the delay to reveal the reasons for the seizure are up to and as long as it takes to get a preliminary hearing.

    I am sure that the actions taken were not done randomly, and I am equally sure that the judge that signed the order did so in good faith. Now the site owners get to enjoy the legal system in all of it's glory. It would go faster, but there are so many other people in court arguing about their rights to this or that, so there is a bit of a backlog.

     

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    Amperand, Dec 14th, 2010 @ 11:37am

    wait, wut?

    If a government entity shows up at my house and takes my brand new car away, do I not have the right to know Why? How about my computer, my Sole means of income to feed my family? Or my home?

    Shouldn't I have the right to know WHY my personal property is being seized??

    Also, I'd like to know what I'M going to be charged with for visiting these sites over the last years/months. If it's illegal, I'll be implicated as well, no?

     

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  25.  
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    Derek (profile), Dec 14th, 2010 @ 11:37am

    Re: Re: Re:

    2nd and 5th

     

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  26.  
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    TPBer (profile), Dec 14th, 2010 @ 11:46am

    Just move..

    The sites should just move to servers out of the US jurisdiction and off US dns. That is exactly why I just moved to a .nl dns, I can operate with much less constraint. Mind you I need to do much research on local laws but it cannot be as bad as the US these days.

     

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  27.  
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    Hephaestus (profile), Dec 14th, 2010 @ 11:47am

    Re: Re: Re: Due Process?!?

    Years back when the internet bubble was about to collapse I kept hearing how the people expected CMGI to go to 400!! I am seeing the same sort of we will win this crazy speculation you saw back then from the media types. They have all these laws and international agreements coming down the pipe and it has them drooling over the bright future they are about to have.

    "Those puny little ants outnumber us a hundred to one and if they ever figure that out there goes our way of life! It's not about food, it's about keeping those ants in line."

    Enter the wee little Ants named Torrent-Finder, and a HipHop Blog backed by the EFF.

     

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  28.  
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    Marcus Carab (profile), Dec 14th, 2010 @ 11:58am

    Re: Re: Re: Re:

    Were they owned by the same people running the other sites? Were they on the same server?

    Those two questions betray how poor your understanding of free speech is. Even if the answer to both was "yes", it wouldn't change the fact that this is censorship. Just because someone has participated in unprotected speech, or because they share a platform with unprotected speech, does not mean they lose their rights entirely - they still enjoy the extensive protections of the first amendment. In fact that's exactly what the judicial principle of "narrowly targeted" laws is about when testing the constitutionality of a law.

     

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  29.  
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    Marcus Carab (profile), Dec 14th, 2010 @ 12:01pm

    Re: Just move..

    Well, you're right about that being the pragmatic short-term solution, but ideally people shouldn't need to go to foreign countries to participate in speech that is supposed to be constitutionally protected in the US...

     

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  30.  
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    Gabriel Tane (profile), Dec 14th, 2010 @ 12:02pm

    Re: Re: Re: Re:

    "What was the content of those blogs?"
    First guess: hip-hop discussions. I seriously doubt that a blog would host infringing material itself. And, last I checked, discussing infringed material was not illegal.


    "Were they owned by the same people running the other sites?"
    What would that have to do with the allegations of copyright infringement? It's the actions on the sites themselves which were cited as the reasons for the take-down... not the people running them.


    "Were they on the same server?"
    As we've previously discussed, the servers were never seized... just the domain names. So what do the servers have to do with it?


    "Were the hip-hop sites being used as front doors to the other sites, contributing to them?"
    What do you mean by 'front door sites'? Are we going to start prosecuting websites that link to sites that are infringing? What about the sites that link to those? You do realize that it's called a "web" for a reason, right?


    "You can jump up and down and list of them amendments all you like, but the truth is simple: The seizure was done with a court order, and the delay to reveal the reasons for the seizure are up to and as long as it takes to get a preliminary hearing"
    Why do people continue to insist that judges can do no wrong? Just because the court issued an order does NOT mean that the order is suddenly beyond reproach and in all ways legal and constitutional. I have already cited at least one case where a judge's court order was overturned for being unconstitutional. Just because someone is in charge does not make them right.

    And you're missing one point here... they aren't waiting on a hearing, they're waiting on being told what the illegal activity was that warranted the take-down in the first place. There's no backlog in hearings that would cause a delay in the notification of legal action to be taken.


    "I am sure that the actions taken were not done randomly, and I am equally sure that the judge that signed the order did so in good faith. Now the site owners get to enjoy the legal system in all of it's glory. It would go faster, but there are so many other people in court arguing about their rights to this or that, so there is a bit of a backlog."
    I'm sure they were not done randomly either... but that does not mean that the reason was a valid or just one. In fact, the cynic in me feels that there is a very distinct reason for it.

    I'm glad you're sure the judge signed in good faith, but that doesn't mean he was correct. And I can't believe you're willing to throw out the First Amendment just because 'that's the process'.

    And would you like to cite examples or evidence that it's the overload of people arguing rights in courts that are causing this delay?

     

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  31.  
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    Jay (profile), Dec 14th, 2010 @ 12:04pm

    Re: Just move..

    That didn't work for TVshack that has the pleasure of being hit twice. Now they have to move a third time.

     

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  32.  
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    ppartekim (profile), Dec 14th, 2010 @ 12:20pm

    Re:

    It is the TSA way... Guilty until proven innocent by scan, patdown or both..

     

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  33.  
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    Anonymous Coward, Dec 14th, 2010 @ 12:23pm

    I am equally sure that the judge that signed the order did so in good faith

    I am sure that all prior restraints are presumptively unconstitional. That is, in the absence of any evidence at all, I may presume that the judge who signed the order violated his oath to uphold the Constitution.

     

     

    The use by government of the power of search and seizure as an adjunct to a system for the suppression of objectionable publications is not new. Historically, the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power. See generally Siebert, Freedom of the Press in England, 1476-1776; Hanson, Government and the Press, 1695-1763. It was a principal instrument for the enforcement of the Tudor licensing system. The Stationers' Company was incorporated in 1557 to help implement that system, and was empowered

    "to make search whenever it shall please them in any place, shop, house, chamber, or building or any printer, binder or bookseller whatever within our kingdom of England or the dominions of the same of or for any books or things printed, or to be printed, and to seize, take hold, burn, or turn to the proper use of the aforesaid community, all and several those books and things which are or shall be printed contrary to the form of any statute, act, or proclamation, made or to be made. . . .

    An order of counsel confirmed and expanded the Company's power in 1566, and the Star Chamber reaffirmed it in 1586 by a decree....

    Each succeeding regime during turbulent Seventeenth Century England used the search and seizure power to suppress publications. James I commissioned the ecclesiastical judges comprising the Court of High Commission....

    The Star Chamber decree of 1637....

    The Restoration brought a new licensing act in 1662....

        ——Marcus v Search Warrant (1961)

     

     

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  34.  
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    someone (profile), Dec 14th, 2010 @ 12:23pm

    Bill of Rights

    4th Amendment, Violated:
    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    6th Amendment, Violated:
    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

     

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  35.  
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    Hephaestus (profile), Dec 14th, 2010 @ 12:31pm

    Re: Re: Re: Re:

    Okay 1,4,14th amendments - this articles topic.

    Commerce clause, the health care bill.

    [citations needed below]

    2cnd - right to bear arms. I don't remember any stories where they are passing laws to ban or limit guns.

    5th - unless you are talking about evidence obtained illegally by law enforcement officers. What else is new.

     

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  36.  
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    Hephaestus (profile), Dec 14th, 2010 @ 12:32pm

    Re: Re: Re: Re: Re:

    "unprotected speech" ... if this were sweden that would be illegal ;)

     

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  37.  
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    Hephaestus (profile), Dec 14th, 2010 @ 12:42pm

    Re: Bill of Rights

    "6th Amendment, Violated:
    ... to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; ..."

    I can see this, but what are the rules and the procedures that ICE, homesec, and Justice need to follow in cases like this. Is this delay with in the rules and laws?

     

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  38.  
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    anonymousdirt, Dec 14th, 2010 @ 12:53pm

    Governed?

    We aren't governed anymore as much as we are ruled

     

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    Anonymous, Dec 14th, 2010 @ 1:38pm

    Re: Re:

    Sorry, there's no prior restraint. Absolutely nothing is stopping those guys from having a website to express their views.

    Prior restraint isn't an issue with any of the pirate sites. If it was, Napster, Grokster, and Limewire would have all sucessfully used it as a defense.

    You guys can keep trying to go to the well with this one, and it's going keep getting shot right down.

     

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  40.  
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    Anonymous Coward, Dec 14th, 2010 @ 1:42pm

    Re: Governed?

    A Decree of Star-Chamber concerning Printing, made the Eleventh Day of July last past, 1637.

    In camera Stellata coram Concilio ibidem, undecimo die Julii Anno decimo tertio Caroli Regis.

    THIS Day Sir John Bankes Knight, his Majesty's Attorney General, produced in Court a Decree drawn and penned by the advice of the Right Honourable the Lord Keeper of the great Seal of England, the most Reverend Father in God the Lord Archbishop of Canterbury, his Grace the Right Reverend Father in God the Lord Bishop of London, Lord High Treasurer of England, the Lord Chief Justices, and the Lord Chief Baron, touching the regulating of Printers and Founders of Letters,...

     . . . .

    XXV. Item, That for the better discovery of Printing in Corners without Licence, the Master and Wardens of the Company of Stationers for the time being, or any two licensed Master Printers, which shall be appointed by the Lord Archbishop of Canterbury, or Lord Bishop of London for the time being, shall have Power and Authourity to take unto themselves such Assistance as they shall think Needful, and to search what House and Shops (and what time they shall think fit) especially Printing Houses, and to view what is in Printing, and to call for the Licence to see whether it be licensed or no; and if not, to seize upon so much as is Printed, together with the Several Offenders, and to bring them before the Lord Archbishop of Canterbury, or the Lord Bishop of London for the time being, that they or either of them may take such further Order therein as shall appertain to Justice.

        ——Decree of Star Chamber, 1637

     

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  41.  
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    Mike Masnick (profile), Dec 14th, 2010 @ 1:47pm

    Re: Re: Re:

    You guys can keep trying to go to the well with this one, and it's going keep getting shot right down.


    Ugh. We already explained to you why prior restraint in cases involving those software companies was entirely different. None of those companies had things seized, nor were they prevented from continuing in business. Instead, they all received injunctions against contributory infringement after a full trial. Totally different situation.

    In this case, there's clear prior restraint.

    If you'd like, I'll make a bet on the outcome of this with you, but that would mean you'd actually have to identify yourself and we know you'll never do that, because you'd have to actually be held accountable. And that's something folks like you never want to do.

     

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  42.  
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    ltlw0lf (profile), Dec 14th, 2010 @ 1:51pm

    Re: Re: Re:

    Sorry, there's no prior restraint. Absolutely nothing is stopping those guys from having a website to express their views.

    Sorry...What???

    Taking away the domain name that points to the website is very much stopping those guys from having a website to express their views. How is it not?

    Sure, they can get another domain name (and pay the costs associated with that request) or they could figure out another way to get the word out to their users what their IP address is...but taking the domain name away will do precisely what you say it doesn't...stop those guys from having a website to express their views.

    And you don't understand what prior restraint means. This is very much prior restraint (as in, these guys have to decide next time if their freedom of speech is somehow going to be taken the wrong way and their domain name is going to be taken from them, and thus they should not say what they want to say in order to keep their domain name from being taken.)

     

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  43.  
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    Trerro, Dec 14th, 2010 @ 1:56pm

    The more important question - what can we do about it?

    They're not being told why because the news has a short attention span, so they can just wait until it falls out of the limelight, then announce what they want, knowing that with the exception of the small minority of people who read blogs like this, the general public will have forgotten about it.

    More so than the actual abuses, THIS is the problem, because it's the reason the abuses not only continue, but get worse each time.

    People reading blogs like TD or that follow organizations like the EFF are very aware of what's going on in great detail, and most tech-savvy people have a pretty good understanding of what's going on in general, even if they're not following specific cases.

    Those groups combined, however, are a tiny portion of the populace, and one politicians safely can - and do - ignore in elections. Even worse, if they can shut down a MUSIC blog with no explanation for months with zero penalty, what's to stop them from simply attacking the few sites covering these stories - such as this one for instance? You might say it's impossible for them to do that, but well, 6 months ago, if you told me a government organization responsible for stopping smuggling and deporting illegals was going to shut down the websites of musicians, I would have looked at you funny.

    The question is, how do we fix this? How do we get the general public to actually CARE about their rights enough to fight for them in such a way that politicians have to listen if they want to stay employed?

    Until we can find a good answer to that question, this kind of abuse will continue to occur, and it's only going to get worse as time goes on. At stake isn't just a few blogs and random websites - it's free speech and and the ability to monitor government, without which, a republic simply cannot function.

     

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  44.  
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    Anonymous, Dec 14th, 2010 @ 2:09pm

    Re: Re: Re: Re:

    The sites that were seized over Thanksgiving were also cases of contributory infringement. Don't think the precedence of the previous pirate cases and their guilty verdicts wasn't considered.

    Those "software companies" LOL, weren't able to use prior restrant for the same reason the guys ICE busted won't.
    Like I say, keep trying all you want, but it'll get shot down every time.

     

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  45.  
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    chris (profile), Dec 14th, 2010 @ 2:20pm

    Re:

    Due process? What's that?

    'due process' is more of that pinko bullshit that commies use to justify stealing our money just like 'privacy', 'free speech' or 'fair use'.

     

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  46.  
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    Anonymous Coward, Dec 14th, 2010 @ 2:24pm

    Re: Re: Re: Re:

    these guys have to decide next time if their freedom of speech is somehow going to be taken the wrong way

    LOL. You're hilarious.

    The only thing they have to do is not host illegal content.

    Whatever protected speech they have they are completely free to put up on a website. Zero prior restraint. Zero censorship.

     

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  47.  
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    Anonymous Coward, Dec 14th, 2010 @ 2:58pm

    Re: Re: Re: Re: Re:

    Whatever protected speech they have...

    There appears to be no allegation that the domain names themselves were unlawful. Even if there were such an allegation, trademark law recognizes nominative and other fair uses of an otherwise protected name in protected speech.

    Yet the names were seized. And there was not an immediate adversarial hearing.

     

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  48.  
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    Anonymous Coward, Dec 14th, 2010 @ 3:04pm

    Re: Re: Re: Re: Re:

    .torrent = .crime

     

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  49.  
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    Anonymous Coward, Dec 14th, 2010 @ 3:16pm

    Re: Re: Re: Re: Re:

    You are confusing the right to free speech with the non-existent right to any speech. The owners of the websites are not locked up, they are free to express their opinions anywhere they like, and heck, they are free to obtain other domains names and continue to do so.

    They still enjoy the extensive protections of the first amendment. They can still speak freely. They are not gagged. They are however shut out of a business that was seized as part of a court ordered warrant.

    Remember: If the hiphop sites were part of the overall package, those sites in particular don't have to be doing anything. If they were providing traffic or perhaps a "legal" front end to collect advertising income, then they are part of the deal. Because you don't know (and I don't either), it is hard to judge. It is also as a result hard to jump to the conclusion of any prior restraint or anything else along those lines.

    Nothing (except their own choice) stops the defendants from operating another hip-hop related website right now. By your logic, wikileaks would already be shut down, because they lost their DNS (but not the domain, it seems). Since this is not the case, we know that the hip hop site owners could have easily continued if they so wished.

     

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  50.  
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    Anonymous Coward, Dec 14th, 2010 @ 3:20pm

    Re: Re: Bill of Rights

    You guys both have it wrong.

    First you have "no Warrants shall issue, but upon probable cause". You guys both understand that these actions were taken with a court order, which implies enough probable cause for a judge to sign the warrant, right?

    Second, "to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him". This has no specific time limits set. Taken in literal terms, it would require all witnesses to come with the police to face the accused on the spot. In reality, there is a thing called due process,and part of due process is that things happen over time at the speed of the legal system.

    So neither of those rights have been in any way violated. Sorry.

     

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  51.  
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    Anonymous Coward, Dec 14th, 2010 @ 3:32pm

    Re: The more important question - what can we do about it?

    I think you are somewhat missing it here.

    Readers of TD or EFF are not more aware, they have just ingested much more of one side of the story than the other, and as such, have come to an uninformed conclusion. Of course, they feel informed.

    However, if you look at the two rap sites in question, there are plenty of possibly issues here. Both had a "tube" component to their sites, as well as forums.

    Consider this google search: site:onsmash.com download

    A subdomain called content.onsmash.com appears to have plenty of downloads of copyrighted music. It isn't clear if they had permission. Certainly, I can see some potential issues here.

    Being that none of us have enough information, we need to wait for the legal process to move forward. It is safe to say that these sites were not just "music blogs", rather they were much more - which explains why they cannot easily recreate them on another domain.

    It's the sort of information you won't get from reading TD or EFF posts. The real answers can be found when you start to think for yourself, rather than letting one sided organizations do the thinking for you.

     

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  52.  
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    Anonymous Coward, Dec 14th, 2010 @ 3:34pm

    Re: Re: Re: Bill of Rights

    ... probable cause...

    Fort Wayne Books v Indiana (1989):

    We reverse, however, the judgment in No. 87-470 sustaining the pretrial seizure order.

     . . .

    [W]hile the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved. It is "[t]he risk of prior restraint, which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizure of First Amendment materials" that motivates this rule. These same concerns render invalid the pretrial seizure at issue here.

    (Citations omitted. Emphasis added.(

     

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  53.  
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    ltlw0lf (profile), Dec 14th, 2010 @ 3:37pm

    Re: Re: Re: Re: Re: Re:

    .torrent = .crime

    Think you are missing the sarcasm tags there.

    If you aren't, then please explain how the file Debian_5.0.5-x86-DVD.torrent is a crime? (Sure, Microsoft may consider not buying their software a crime, but no one else does. Except those misguided souls who believe a lost-sale for Microsoft should be a crime.) .torrent != .crime, depending on the license for the file the .torrent points to.

     

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  54.  
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    ltlw0lf (profile), Dec 14th, 2010 @ 3:44pm

    Re: Re: Re: Re: Re:

    LOL. You're hilarious.

    Only in your special mind. Did you ride the short bus to school today?

    The only thing they have to do is not host illegal content.

    Has anyone shown any proof in court that they were hosting illegal content? No, then thank you very much, Anonymous Coward for playing, you'll get your consolation prize at the door as you walk out.

    What is being said here is that their rights given to them under the 4th, 6th, and 14th Amendments of the US Constitution have been violated. The fact that they have lost their website without being told why they lost their website, how can they now speak?

     

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  55.  
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    Anonymous Coward, Dec 14th, 2010 @ 3:47pm

    Re: Re: Re: Re: Re: Re:

    I'm going to kick you out of your house. Just go live in another! No one is stopping you!

     

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  56.  
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    Anonymous Coward, Dec 14th, 2010 @ 3:56pm

    Re: Re: Re: Re: Bill of Rights

    You make the assumption that the sites are shut down only on first amendment issues, which would appear not to be the case (please see content.onsmash.com, search on google). The sites themselves were not just blogs, the blog part appears to be a very small part of the overall sites that included forums, tubes, and downloads.

    Getting informed makes things make much more sense.

     

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  57.  
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    Marcus Carab (profile), Dec 14th, 2010 @ 4:18pm

    Re: Re: Re: Re: Re:

    The sites that were seized over Thanksgiving were also cases of contributory infringement

    What does that have to do with prior restraint? No matter how you want to slice it, and no matter how much infringing content there may have been in total, we do know that at least two of these sites were legitimate hip-hop review and discussion blogs, so the simple fact is that a significant amount of non-infringing, full protected speech was affected by these seizures. But you continually fail to address that, so I ask you again: what is your justification, legal or moral (anything intelligible will do) for the censorship of that protected speech?

    Those "software companies" LOL

    I don't know what that's supposed to mean. Whatever else you might think of them, all three of those entities were legitimate, tax-paying companies that distributed a huge amount of software. They were software companies.

     

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  58.  
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    Marcus Carab (profile), Dec 14th, 2010 @ 4:31pm

    Re: Re: Re: Re: Re: Re:

    The courts have recognized that, for example, a temporary newspaper gag order can still be a violation of the first amendment (or should they just have gone and gotten another printing press?) - so removing access to speech in this way is still deserving of first amendment scrutiny.

    Your Wikileaks comparison is flawed in a very important way. A DNS can be replaced - a domain is unique. This raises a whole lot of questions about whether your "they can just start another blog" excuse really counts - seizing a domain is effectively removing the only way that people can find that content, which is somewhat akin to shutting down a newspaper and telling them to "go start a new one" without any means of communicating the change to their readers.

    Moreover, the fact that they haven't been informed of the reason for the seizures adds extra weight to the prior restraint argument. How can they be reasonably asked to continue their work somewhere else when they haven't been told what they are accused of doing wrong? That's like saying "you still have free speech, as long as you don't run afoul of our secret speech laws" - which is clearly a form of prior restraint.

     

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  59.  
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    Marcus Carab (profile), Dec 14th, 2010 @ 4:36pm

    Re: Re: Re: Re: Re: Re:

    I'd also like to point out that by your argument, YouTube could have its domain seized, and then so could Google for owning them.

    So you're saying it wouldn't count as prior restraint to take over youtube.com and google.com, because they could just go somewhere else?

     

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  60.  
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    AnonymousL, Dec 14th, 2010 @ 4:39pm

    Re: Re: Re: Re: Re: Re:

    LOL

    I'll be surprised if this even makes it past a lower court summary judgement of guilty, much less your fantasy of the Supreme Court.

    Keep dreaming.

     

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  61.  
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    Anonymous, Dec 14th, 2010 @ 4:59pm

    Re: Re: Re: Re: Re: Re:

    Arcara v Cloud.

    Might want to get familiar with it.

     

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  62.  
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    Anonymous Coward, Dec 14th, 2010 @ 5:22pm

    Re: Re: Re: Re: Re: Re: Re:

    Alexander v United States (1993) follows Arcara v Cloud Books (1986). Alexander quotes from Arcara:

    The closure order sought in this case differs from a prior restraint in two significant respects. [...] Second, the closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited-indeed, the imposition of the closure order has nothing to do with any expressive conduct at all.

    (Emphasis added.)

    Contrariwise, in the present cases, the domain seizures do seem predicated exactly on expressive conduct. The situations are distinguished.

     

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  63.  
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    Anonymous Coward, Dec 14th, 2010 @ 5:34pm

    Re: Re: Re: Re: Re: Re: Re:

    LOL

    .dreams = .crime

     

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  64.  
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    Anonymous Coward, Dec 14th, 2010 @ 5:37pm

    Re: Re: Re: Re: Re: Bill of Rights

    http://torrent-finder.info/

    IT'S FILLED WITH CRIME! SOMEBODY CALL THE FBI!!!

     

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  65.  
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    Anonymous Coward, Dec 14th, 2010 @ 6:23pm

    Re: Re: Re: Re: Re: Re: Bill of Rights

    .info is not .com

    The Firefox web browser will automatically fill in a .com tld. Not so for .info. Instead, users must type the .info tld manually—and the .info tld generally has a sleazier rep than .com.

    Further, hyperlinks pointing an old name may be abandoned, rather than being updated to the new name.

    So, the two sites are not equivalent in what matters a lot here: The expressive meaning of the domain name.

     

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  66.  
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    Anonymous Coward, Dec 14th, 2010 @ 7:52pm

    Re: Re: Re: Re: Re: Re: Re:

    Marcus, it would depend. As I said, we can only look at the hiphop sites as cached copies in google at this point (because they are not in the wayback machine since 2008), but it was clear to me that there were signficant music downloads being offered directly on the site. I was unable to determine if they were legal and approved or not, but appeared to reference copyrighted material and the downloads appeared to be free.

    There was also a video tube section, and a forum, either of which could also have been used extensively to trade files illicitly.

    One of the reasons Youtubre is still up and not getting taken down is because they are responsive to DMCA notices, and further, they are not distributing pirated material as a matter of business (anymore). It appears that the hiphop sites in question were not blogs at all, just social download sites.

    If they were only blogs, we might have something to be concerned about. However, these sites appeared to be anything but a typical blog.

     

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  67.  
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    Anonymous Coward, Dec 14th, 2010 @ 7:53pm

    Re: Re: Re: Re:

    Are you still sticking with the idea that these two sites were just blogs?

     

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  68.  
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    Gabriel Tane (profile), Dec 14th, 2010 @ 8:04pm

    Re: Re: Re: Re: Re: Re: Re:

    And out comes the Arcara v. Cloud Books.

    You know what? No. If you're too damned lazy to read the past posts about that, too dense to understand it, or to ignorant to admit when you're wrong... not my problem. If you want to hide behind the ignorance of claiming AvCB, go ahead. When this gets overturned for prior restraint despite your Holy Arcara v. Cloud, I'll pass you the salt for the humble pie.

     

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  69.  
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    Karl (profile), Dec 14th, 2010 @ 8:42pm

    Re: Re: Re: Re: Re: Re: Re:

    Arcara v Cloud.

    Might want to get familiar with it.


    Oh, we are. And you're not.

    Arcara v. Cloud is only relevant where the unlawful activity "manifest[s] absolutely no element of protected expression." It has no relevance in cases dealing with copyright infringement, libel, obscenity, etc.

    Cases that are actually relevant include Ashcroft v. ACLU, Ft. Wayne Books v. Indiana, or (most importantly) CDT v. Pappert.

     

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  70.  
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    Karl (profile), Dec 14th, 2010 @ 8:56pm

    Re: Re: Due Process?!?

    Sadly, presumption of innocence hasn't existed in copyright law for a loooong time.

    Well, that's because 99.99% of all copyright cases are decided in civil courts, where the "presumption of innocence" is not as important.

    That's why I don't buy the comparisons between these cases and Napster, Grokster, etc. The latter were all civil cases. The government was not a party in any of them. No criminal charges were even filed.

    If they were, then it's highly doubtful that Napster, Grokster, or any of the others would have been found guilty.

    Look at O.J. Simpson. He was found innocent of all criminal charges. On the other hand, a civil court found him guilty as hell. Same deal here (except with copyright cases, nobody is hurt).

    You can't use guilt in civil cases to presume criminal guilt. And without criminal activity, the DHS (or its subsidiaries) shouldn't be involved at all.

     

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  71.  
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    Anonymous Coward, Dec 14th, 2010 @ 8:59pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    "Four mouths good, two mouths bad!"

     

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  72.  
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    Anonymous Coward, Dec 14th, 2010 @ 9:00pm

    Re: Re: Re: Due Process?!?

    BUT FREEDOM!?!

     

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  73.  
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    Anonymous Coward, Dec 14th, 2010 @ 9:01pm

    Re: Re: Re: Re: Re: Re: Re: Bill of Rights

    BUT CRIME!?!

     

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  74.  
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    Karl (profile), Dec 14th, 2010 @ 9:16pm

    Re: Re: Re: Re: Re: Bill of Rights

    You make the assumption that the sites are shut down only on first amendment issues

    That is not what the Ft. Wayne case says. It deals with cases "when materials presumptively protected by the First Amendment are involved." That is: If the defendants are not guilty, then the "crime" is actually protected speech.

    That's the case in all copyright infringement cases. It's possible that these sites contain absolutely nothing but criminally infringing content. But until that is determined by an adversarial hearing in a court of law, it is "presumptively protected by the First Amendment," just like libel or obscenity. Any attempt to suppress it is unconstitutional.

    Whether they were "just blogs" is completely immaterial. On the other hand, it does show why the seizures are prior restraint. The seizures don't just shut down (potential) infringement; it also shuts down speech which is not even accused of being infringing. Even if the sites are guilty, the seizures are far too broad.

    Getting informed makes things make much more sense.

    Yes. The more informed you are, the more sense it makes that the government is 100% wrong.

     

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  75.  
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    athe, Dec 14th, 2010 @ 9:29pm

    Re:

    Isn't it the process whereby condensation builds up on your windows or something?

     

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  76.  
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    Marcus Carab (profile), Dec 14th, 2010 @ 10:21pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    One of the reasons Youtube is still up and not getting taken down is because they are responsive to DMCA notices

    Yes, exactly. DMCA notices. The existing method of combating infringement online, which obeys the principle of narrowly targeting the infringing speech and sets out the principle of specific knowledge. It provides copyright holders a means of bringing civil proceedings against an infringer who ignores takedown notices. Nowhere does it say anything about the shortcut of customs stepping in and seizing domain names on behalf of the government.

     

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  77.  
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    Marcus Carab (profile), Dec 14th, 2010 @ 10:24pm

    Re: Re: Re: Re: Re:

    No dummy, I'm sticking with the truth that they contained significant amounts of protected speech, regardless of whatever else they might have contained.

     

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  78.  
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    Marcus Carab (profile), Dec 14th, 2010 @ 10:26pm

    Re: Re: Re: Re: Re: Re:

    Has anyone shown any proof in court that they were hosting illegal content?

    Not just that - nobody has even told them what law they are accused of breaking. So even if they were to "not host illegal content", they have no way of knowing what that means.

     

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  79.  
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    Marcus Carab (profile), Dec 14th, 2010 @ 10:28pm

    Re: Re: Re: Re: Re: Re: Re:

    that's a pretty funny bet to make when we don't even know what they are being charged with yet... you try to sound like some sort of seasoned courtroom old-timer, but I think you are just making it up as you go along.

     

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  80.  
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    Anonymous Coward, Dec 14th, 2010 @ 10:30pm

    Re:

    you're about as dumb as they come.

    Let's censor the internet. It all begins here, with you. People like you don't deserve the internet.

     

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  81.  
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    Marcus Carab (profile), Dec 14th, 2010 @ 10:31pm

    Re: Re: Re: Re: Re: Re: Re:

    (oh and by the way, since the government seized the domains there are presumably criminal charges involved here - and those don't get summary judgements)

     

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  82.  
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    Anonymous Coward, Dec 14th, 2010 @ 11:38pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    BUT COPYRIGHT INFRINGEMENT!!!

     

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  83.  
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    PaulT (profile), Dec 15th, 2010 @ 12:54am

    Re: Re: The more important question - what can we do about it?

    "Being that none of us have enough information, we need to wait for the legal process to move forward. "

    ...which is surely the argument people are making here - until the content was shown to be infringing, the domains should not have been shut down, and even then only after due process had been followed. Whether you like the content of the sites or not, removing the entire domains based on ALLEGED copyright infringement is not the way things are meant to work.

    "A subdomain called content.onsmash.com appears to have plenty of downloads of copyrighted music"

    Indeed. APPEARS. Unfounded assumptions are not what we should be basing things on, and domains should not be removed until they have been shown to be actually infringing, even then only as a last resort.

    "It is safe to say that these sites were not just "music blogs", rather they were much more - which explains why they cannot easily recreate them on another domain. "

    On what are you basing this? For one, how do you know if the content was infringing or not - this wouldn't be the first time the music industry have shut down innocent parties even if there's a grey area somewhere (e.g. if they did contain copyrighted material, were the clips covered by fair use).

    Since we can't even answer that yet, how can you know that a new domain won't be shut down in exactly the same way? Since the domain owners haven't been told, how the hell are they to know what material they should not have been hosting? You blindly assume that free speech would be allowed if only another site was set up, but you have no proof that the same thing wouldn't just happen again.

     

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  84.  
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    Anonymous, Dec 15th, 2010 @ 1:14am

    Re: Re: Re: Re: Re: Re: Re: Re:

    eh?

    Dude, make your case, or don't bother. This isn't a dinner theater mystery.

     

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  85.  
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    Anonymous, Dec 15th, 2010 @ 1:19am

    Re: Re: Re: Re: Re: Re: Re: Re:

    And if you're too lazy to go look up how I took Masnick's ass to the shed about Arcara v Cloud, that would be your problem, not mine.

     

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  86.  
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    Anonymous, Dec 15th, 2010 @ 1:26am

    Re: Re: Re: Re: Re: Re: Re: Re:

    Piracy manifests absolutely no element of protected expression.

    Next idiot please.

     

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  87.  
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    Anonymous, Dec 15th, 2010 @ 1:30am

    Re: Re: Re: Re: Re: Re:

    And your willful ignorance re: Arcara v Cloud is stale.

     

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  88.  
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    Anonymous, Dec 15th, 2010 @ 1:45am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Yes, exactly. DMCA notices. The existing method of combating infringement online

    uh yeah, and when you ignore them, and continue to flagrantly break the law, what might you imagine would be the outcome?

    Were you regularly sniffing glue prior to the age of 11?

    I don't need your life story here; a yes or no answer will suffice.

     

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  89.  
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    Mike Masnick (profile), Dec 15th, 2010 @ 2:18am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    And if you're too lazy to go look up how I took Masnick's ass to the shed about Arcara v Cloud, that would be your problem, not mine.

    Heh. If by "took my ass to the shed," you mean demonstrated your rather complete ignorance and cluelessness of the law, and then when *multiple* people who actually understand the relevant legal rulings clearly explained it to you, you still came back and said "but, but, Arcara prevails!" then, uh, yeah, sure. We've had this discussion at least four times already. In the comments here there's one of them, in which we demonstrate quite clearly why Arcara does not apply here, as the court in Arcara *explicitly* stated that Arcara does not apply to expression.

    In this case, where we're talking about BLOGS -- which are entirely about expression -- bringing up Arcara just makes you look damn foolish.

    http://www.techdirt.com/articles/20101121/23584311958/why-voting-coica-is-vote-censorshi p.shtml

    It does amuse me to no end, however, how much you repeat Arcara as if it's a mantra. I can't wait for the court to either ignore or point out why Arcara is meaningless in this situation, and then watch you magically disappear from the comments.

     

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  90.  
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    Mike Masnick (profile), Dec 15th, 2010 @ 2:22am

    Re: Re: Re: Re: Re:

    I will note that you totally ignored my offer to make a bet on how these cases would come out in court, proving you know you're full of shit on this issue.

    Amusing.

     

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  91.  
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    Mike Masnick (profile), Dec 15th, 2010 @ 2:27am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    uh yeah, and when you ignore them

    The sites in question both claimed to follow through and takedown content when they received DMCA notices.

    Oh look, our anonymous commenter fails again.

    continue to flagrantly break the law, what might you imagine would be the outcome?


    Even if that were the case, then I would imagine the outcome would be to file a lawsuit, during which both parties could make their cases to a judge before the judge and/or jury decided the result.

    Note: that has not happened here.

    Thanks for playing. Maybe return when you've learned something about the law.

    Were you regularly sniffing glue prior to the age of 11? I don't need your life story here; a yes or no answer will suffice.

    For someone so consistently ignorant and blatantly wrong -- even after multiple others who understand this stuff (i.e., actual people who (1) work in the industry or (2) are lawyers who work on this stuff) have explained it to you, that you still continue to rely on the same blatantly wrong info and THEN insult those who repeat it to you, well, you've really taken willful ignorance to a new level of absurdity.

    Though, of course, it explains your desire to remain anonymous and to refuse to come clean on who you really are. Sad life.

     

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  92.  
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    Gabriel Tane (profile), Dec 15th, 2010 @ 4:56am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    And never have we said so... but piracy is expression, no matter how much you want to believe otherwise. And if you stifle protected expression (which a blog is) to stop unprotected expression, that's prior restraint.

    Why would we want to move on to the next idiot when you're more than enough to go around?

     

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  93.  
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    Gabriel Tane (profile), Dec 15th, 2010 @ 4:57am

    Re: Re: Re: Re: Re: Re: Re:

    Dear Pot,

    I regret to inform you that you are of a specifically dark color.

    Sincerely,
    Kettle

     

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  94.  
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    Anonymous Coward, Dec 15th, 2010 @ 5:14am

    Re: Re: Re: The more important question - what can we do about it?

    The answer to all of your points is pretty easy: Authorities were able to reach a level of probably cause sufficient to get a judge to sign the warrant.

    For me, seizing the websites is no different from seizing the crack that a drug dealer has in his pocket, and perhaps seizing the car he was driving to deliver it. The authorities are not going to give the drugs back and say "we haven't 100% prove in a court of law that you are a drug dealer, so keep going until we do". They get search warrants, they turn his home upside down, they collect evidence, etc. He doesn't get the stuff back to keep on working, it gets seized until the end of the process (and even then, may be kept for years after, or never returned depending on forfeiture rulings).

    You also have to consider that, with this being done with law enforcement rather than civil action, that this is a criminal case, not a civil one. This isn't just about a single copyright infringement. Your points might be slightly more valid if we were talking about a civil action, which does not appear to be the case.

    What bothers me the most of the characterizing of these sites are "music blogs". Taking one moment to look at the cache of the sites in question show that the blogging aspect, if at all present, was very minor. It would appear that most of what these sites were doing was supporting remixes, and perhaps commercially profiting from selling it.

    We will find out when they do, at the speed of the legal system.

     

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  95.  
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    Anonymous Coward, Dec 15th, 2010 @ 6:12am

    Re: Re: Re: Re: The more important question - what can we do about it?

    Are you seriously comparing a domain name to crack cocaine?

    Well, it's no wonder you're confused.

     

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  96.  
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    Darryl, Dec 15th, 2010 @ 6:41am

    Do you honestly NOT know why Mike ?? REALLY ??

    They havent been told why, and you guys (mostly) cant work it out ??

    Where have you been ?

    If you cannot work out why, then all is lost, its obvious why, and it has been explained to you here now, and in the past.

    I know your counterargument is that 'yes, they have infringing material, but they also had stuff that was not infringing'. as if that makes any difference, the law is the law.. you cannot have child porn on a legit site, and claim, that as some of the site is ligit, all of it must be..

    Mike, you of all people show know, and be able to explain to your readers why the entire site has been taken down.

    And exactly why that has occured.

    He would be companing a crack house to a domain name.

    The crack is the illegal substance provided by one, and copyrighted property they dont own on the other.

    So you, his analogy is apt.

    If you own a crack house and you mow the lawns, pay the rent, and be nice to the neibours, that does not meen that the activities of that house is illegal, and you can and should lose the right to it, and the proceeds of your crime.

    Do you think if they bust someone with crack, they let them keep their lab, their supply, their cash, their guns, cars, freedom ? Because some of the things they do in their lives is above the law, does not make the things they do agaist the law ok.

    And Mike, you are aware of this !!!! People here have a cloudy and biased opinion of reality, because of you guiding them to that bias..

    How you can say you have no idea why their domain name was,, well it just makes no sense, why you would say something like that, you are supposed to know the law ???

    why distort the facts ??

     

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    Darryl, Dec 15th, 2010 @ 6:50am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    LOL, people 'take your ass to the shed all the time Mike, usually the best comeback you can generate, you're most common by far is "your wrong".

    Really good counter, to a thought out comment,, "your wrong".. good one..

    If we are lucky, you will refer us to a previous article you have written that 'confirms' what you say is true..

     

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  98.  
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    Darryl, Dec 15th, 2010 @ 6:54am

    Would they let the crack dealer, continue to deal, after he was caught, but before court ?

    And Of course, when they bust the crack dealer, they let them free, and let them continue to deal crack, until their court date !!!.. yea right.. im sure they do..

    Its funny how these legal terms are thrown about here, with seemingly little or not actual understanding what those terms mean as legal terms.

     

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  99.  
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    Darryl, Dec 15th, 2010 @ 6:58am

    Re: Re: The more important question - what can we do about it?

    exactly, except I would have to say **MOST** readers of TD or EFF are not more aware, ...

    They have just been biased conditioned.. and its clear who is responsible for that !!!!

     

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  100.  
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    Marcus Carab (profile), Dec 15th, 2010 @ 6:59am

    Re: Re: Re: Re: Re: Re: Re:

    The reasons Arcara vs. Cloud do not apply have been outlined countless times, in this comment thread and several others on Techdirt. There's no need to repeat them here: you clearly have zero to contribute to this discussion since you can't even read and respond to the basic points people are making, and instead just keep parroting AvC like it's a magic word.

     

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  101.  
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    Marcus Carab (profile), Dec 15th, 2010 @ 7:00am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Which is why, if only specific pirated content had been removed, this would be fine. But instead, a whole site was taken down.

    Do you even understand what prior restraint means?

     

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  102.  
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    Marcus Carab (profile), Dec 15th, 2010 @ 7:06am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    When has Mike ever responded "You're wrong"? I usually see the long thought-out comments coming from Mike, often responding point by point to everything someone has said, whereas folks like you are the ones who repeat the same arguments over and over again while mostly ignoring the counterarguments people raise.

     

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    Darryl, Dec 15th, 2010 @ 7:07am

    Re: Re: Re: The more important question - what can we do about it?

    due process was followed, that is why it was a court issued takedown, the due process was followed to the letter.

    If you do not agree with due process that is fine, but you cannot say due process was not conducted in this case, and every case, that they want to lead to a conviction.

    So claiming there was no due process, means you do not understand what due process is.

    Due process does not mean you go to court, it means the correct legal process was followed, they do exactly what the law requires them to do, they build a case, they go to court, they have a judge rule on it, and the Judge, and the court issue the order.. Not the prosecuting group..

    So its not ICE that is taking down the domain, that is an incorrect assumption.

    It is the US court of law that issued the order, and a Judge has ruled on it allready, that there was sufficient evidence of a crime to warrent court and legal action..

    If the judge did not think there was a case, they would disallow the order..

    But that did not happen, due process did though.

     

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  104.  
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    Marcus Carab (profile), Dec 15th, 2010 @ 7:13am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Were you regularly sniffing glue prior to the age of 11?

    Sure, Elmer's glue. I didn't start with the hard stuff until around 13... I can see you've completely run out of valid points, though (well, you've finally noticed anyway - you ran out a long time ago)

    uh yeah, and when you ignore them, and continue to flagrantly break the law, what might you imagine would be the outcome?

    You seem really eager to convict these people without even knowing a single detail about the case, and without even knowing what they are accused of.

     

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  105.  
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    Marcus Carab (profile), Dec 15th, 2010 @ 7:17am

    Re: Re: Re: Re: Re: Bill of Rights

    forums, tubes, and downloads

    Forums? Tubes? Downloads? THOSE CRIMINAL BASTARDS!

    ...

     

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    Darryl, Dec 15th, 2010 @ 7:18am

    Seizure is common practice, deal with it..

    There was a big drug bust here in Australia a few weeks back, what do you think they did ?

    thats right, they took EVERYTHING off them, their house, their computers, their cars, their boats, their bank accounts, the lot..

    And that all happend on the day they were busted, not on the day the went to court.

    So its not at all unusual for this to happen, its also not that hard to work out why.

    Expect more of it, not less, and dont try to blame the law, for doing what the law is intended to do.

    You dont get to pick and choose what laws you are going to obey and what you are going to break.

    And being law abiding in some situations (like a blog) does not make you NOT a criminal if in other situations you are breaking the law. (like illegal file sharing, against copyright law).

    Copyright law, is one of those laws, you dont get to break because you dont like it.. you can of course break the law, but you not liking that law in no way makes breaking it right, honest or legal.. just so you know..

     

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  107.  
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    Darryl, Dec 15th, 2010 @ 7:28am

    We have proceeds of crime rules here

    That means whatever money you make from doing your crime, you lose it all, and anything that money paid for.

    That is why if you get busted, and its clear you make your living from your crime, here at least they take everything, and do you get it back ?? Ever ?? NO..

    Its proceeds of crime, that property does not belong to you..

    And thats fine by me, if someone steals my stuff, so they can have the best stuff themselves. then I dont mind seeing them punished for that.,

    It would not matter if it was expensive camera's or jewery, or a song that I owned the copyright on. They have no right to make money off my stuff.

    That is what the law is about, its just that simple. If you want to use my shit, you pay me for my shit.. otherwise use or make your own..

    your ability to copy or steal, is not the same as the ability to create and to sell. One requires talent, hard work, dedication, time, money, effort and will, the other requires a few mouse clicks.

    who should profit more ?? the thief or the creator ?

     

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    artistrights, Dec 15th, 2010 @ 7:44am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Hi Gabe,

    Serious question...

    Are you suggesting that a store that sells 95% infringing products cannot be shut down by the government if 5% of the sales are of products that constitute protectable expression?

    Put another way, if my website consists of nothing by infringing activity, do I get around criminal copyright enforcement by simply adding a forum?

     

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  109.  
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    Anonymous, Dec 15th, 2010 @ 7:45am

    Re: Re: Re: Re: Re: Re:

    Y'know, for a "tech blog", you sure seem to spend an inordinate amount of time on case law.

    Nothing gets your panties in a twist faster than the looming spectre of the pirates finally being punished for their crimes.

     

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  110.  
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    Anonymous Coward, Dec 15th, 2010 @ 7:51am

    Re: Re: Re: Re: Re: Re:

    As long as you keep calling them blogs, I figure you are far enough off in the weeds that nothing will make sense to you. The courts could find them totally guilty and you would still find weasel words to make it sound like they won.

     

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  111.  
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    Anonymous Coward, Dec 15th, 2010 @ 7:53am

    Re: Re: Re: Re: Re: The more important question - what can we do about it?

    In a legal sense, a domain name used to deliver illegal "stuff" is no different from the car used to ship crack.

    I am not for a second saying a domain name is like crack, just that in legal terms, there similarities between a car used to transport crack and a domain user to provide illicit material.

     

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  112.  
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    Gabriel Tane (profile), Dec 15th, 2010 @ 7:53am

    You know... I knew something was missing here. I thought to myself "even with Mr. Anonymous, this conversation seems too intelligent".

    Ok... let's get started. And by the way, I’ll be correcting your annoying structure, but I’ll leave the spelling errors.
    “They havent been told why, and you guys (mostly) cant work it out ?? Where have you been ? If you cannot work out why, then all is lost, its obvious why, and it has been explained to you here now, and in the past.”
    And here we see classic Darryl-missing-the-point-completely. It’s not about what we, or anyone suspects is going on, it’s about why the domain owners have not even been told what the accusation was. Which is contrary to due-process.


    ”I know your counterargument is that 'yes, they have infringing material, but they also had stuff that was not infringing'. as if that makes any difference, the law is the law.. you cannot have child porn on a legit site, and claim, that as some of the site is ligit, all of it must be..”
    It does make a difference if there was non-infringing material. Go look up ‘prior restraint’. And, to further shatter your little mind, no one here is saying that legitimate content on a site makes all content on that site legitimate… but it does protect the site itself from censorship. We have laws in place already to target the illegal content… laws that were ignored when the domain names were seized.


    ”He would be companing a crack house to a domain name. The crack is the illegal substance provided by one, and copyrighted property they dont own on the other. So you, his analogy is apt.”
    ~sigh~ there are so many things wrong with the analogy of comparing a domain name to a crack house I don’t even know where to begin. But for you, Darryl, I’ll try. 1) One is a physical location, the other is a forum of expression. 2) Possessing copyrighted material is not even on the same level with distributing drugs. 3) Just saying they’re the same does not make it so.


    ”If you own a crack house and you mow the lawns, pay the rent, and be nice to the neibours, that does not meen that the activities of that house is illegal, and you can and should lose the right to it, and the proceeds of your crime.”
    I’m not even sure where you were going with this one… moving along…


    ”Do you think if they bust someone with crack, they let them keep their lab, their supply, their cash, their guns, cars, freedom ? Because some of the things they do in their lives is above the law, does not make the things they do agaist the law ok.
    What part of the domain name is supposed to be the cash, guns, cars and freedom here? And as far as ‘freedom’… ever hear of bail?


    And Mike, you are aware of this !!!! People here have a cloudy and biased opinion of reality, because of you guiding them to that bias..
    Holy shit! That was almost a coherent thought Darryl! I’m so proud of you! But you’re wrong (again). I have modified my opinion on things here many times by finding information from many other sources.


    ”How you can say you have no idea why their domain name was,, well it just makes no sense, why you would say something like that, you are supposed to know the law ??? “
    While he does have a firmer grasp on the law than ~koff~ ‘others’, he has never claimed to be a legal expert.

    OK… on to your next post…


    ”And Of course, when they bust the crack dealer, they let them free, and let them continue to deal crack, until their court date !!!.. yea right.. im sure they do..”
    While you’re still wrong with sticking to the analogy to crack-dealing, have you ever heard of bail?


    ”Its funny how these legal terms are thrown about here, with seemingly little or not actual understanding what those terms mean as legal terms.”
    You’re right… there is an EXTREME amount of misunderstanding on these laws… so why don’t you go brush up on them and come back. That should solve the problem. Also, how about grammar and spelling… you know, as a personal favor.


    ”exactly, except I would have to say **MOST** readers of TD or EFF are not more aware, ... “
    Your opinion is noted and (as usual) laughed at.


    ”They have just been biased conditioned.. and its clear who is responsible for that !!!!”
    Who’s responsible for us knowing what’s going on? You’re right, it’s obvious… it’s called ‘education’, ‘reason’, ‘critical thinking skills’, etc. If you want to pull some “bleep bloop” robot accusation, go call Glenn Beck… I’m sure he’ll oblige.


    ” due process was followed, that is why it was a court issued takedown, the due process was followed to the letter.
    I see by another post you have that you’re in Australia. So how are you an expert on American legal proceedings? Hmm…

    The due process that is missing is the part about telling an accused person what they’re being accused of.


    ” Due process does not mean you go to court, it means the correct legal process was followed, they do exactly what the law requires them to do, they build a case, they go to court, they have a judge rule on it, and the Judge, and the court issue the order.. Not the prosecuting group..
    Except they never went to court. And as I’ve stated before, just because the judge issued a court order does NOT make it correct or even constitutionally-sound.


    ” If the judge did not think there was a case, they would disallow the order.. “
    Because judges are infallible, right?


    ” There was a big drug bust here in Australia a few weeks back, what do you think they did ? thats right, they took EVERYTHING off them, their house, their computers, their cars, their boats, their bank accounts, the lot.. “
    Sorry… the crack- dealing-analogy is just wrong. I’m done with it.


    ” Expect more of it, not less, and dont try to blame the law, for doing what the law is intended to do.”
    We don’t blame the law… we blame the enforcement NOT FOLLOWING THE LAW!


    ” And being law abiding in some situations (like a blog) does not make you NOT a criminal if in other situations you are breaking the law. (like illegal file sharing, against copyright law).”
    And no one here is saying that it has been made legal. Dumbass. Try reading once in a while. For the last freakin time, the legitimate contact is protected by the First Amendment. We’re not saying that legitimizes the infringing content; we’re saying that if you block the protected speech, you’re violating the expresser’s Constitutional rights.


    Tell you what Darryl, we’ll all chip in and see if we can get you some education. Or, even more likely, how about you ask Santa… I’m sure you’ve been a good little boy.

     

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  113.  
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    Anonymous Coward, Dec 15th, 2010 @ 7:54am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Already down to insults and a dismissing attitude? If I was that anon, I would be very insulted.

     

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  114.  
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    Dark Helmet (profile), Dec 15th, 2010 @ 8:00am

    Re: Would they let the crack dealer, continue to deal, after he was caught, but before court ?

    "And Of course, when they bust the crack dealer, they let them free, and let them continue to deal crack, until their court date !!!.. yea right.. im sure they do.."

    No, they don't let him continue to sell crack. They DO, however, inform him what he's being charged with and allow him to keep talking and selling legal goods....

     

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  115.  
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    Gabriel Tane (profile), Dec 15th, 2010 @ 8:04am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    "Are you suggesting that a store that sells 95% infringing products cannot be shut down by the government if 5% of the sales are of products that constitute protectable expression? "
    It depends on wether or not that store can successfully make the case that the selling of music is an expression. If they can and the government agrees that selling music is an expression, then no, the store itself cannot be shut down if that action would block the protected expression of the legal content.


    "Put another way, if my website consists of nothing by infringing activity, do I get around criminal copyright enforcement by simply adding a forum?"
    Thank you... My head is spinning from all of the other analogies floating around here.

    In answer, you cannot get around copyright enforcement by hosting a forum in that same space... but you CAN get around having the whole site taken down. That's the whole point of prior restraint. We have plenty of other laws (DMCA, for one) to force down the infringing content in a targeted manner without affecting the protected speech.

     

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  116.  
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    Anonymous Coward, Dec 15th, 2010 @ 8:10am

    Re: Re: Re: Re: Re: Re: The more important question - what can we do about it?

    In a legal sense, a domain name used to deliver illegal "stuff" is no different from the car used to ship crack.

    No matter how much the automobile advertisers want you to think that a car is an expression of your personal identity, the courts analogize automobiles to ships at sea.

    Otoh, a domain name is quintessentially speech. Educated people identify names as “proper nouns”.

    Ships carry cargo. Names carry meaning.

     

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  117.  
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    Anonymous Coward, Dec 15th, 2010 @ 10:28am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    You are that anon.

     

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  118.  
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    Anonymous Coward, Dec 15th, 2010 @ 10:31am

    Re: Re: Re: Re: Re: Re: The more important question - what can we do about it?

    Legal terms are no different than weasel words.

     

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  119.  
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    Marcus Carab (profile), Dec 15th, 2010 @ 10:40am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    You mean the Anon. who asked me if I sniff glue? Yeah, wow, how horrible of Mike to take such a mature, constructive comment and respond with an insult...

     

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  120.  
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    Marcus Carab (profile), Dec 15th, 2010 @ 10:47am

    Re: Re: Re: Re: Re: Re: Re:

    Law and economics, and their relationship with changing technology, is sort of the core topic of this blog... that's why I and (I assume) most of the other readers come here, because it's important and extremely interesting to us. If you want gadget news go read Gizmodo or Crunchgear - nobody is saying you have to care about this stuff (which you obviously don't, since you clearly can't be bothered to educate yourself on the basic principles involved)

     

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    Marcus Carab (profile), Dec 15th, 2010 @ 10:50am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Ahhh, your problem is becoming clear: poor reading comprehension. That point made perfect sense to me.

     

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  122.  
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    Jay (profile), Dec 15th, 2010 @ 10:51am

    Re: Re: Re: Re: Re: Re: Re: Re:

    Amen brother!

     

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  123.  
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    Jay (profile), Dec 15th, 2010 @ 10:52am

    Re: Re: Re: Re: Re: Re: Re:

    Yeah, good luck with that.

    Especially when these TWO BLOGS IN PARTICULAR had nothing to do with counterfeit goods.

     

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  124.  
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    Jay (profile), Dec 15th, 2010 @ 10:53am

    Re: Re:

    But I ordered that pizza 4 months ago!

     

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  125.  
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    Jay (profile), Dec 15th, 2010 @ 10:56am

    Re: Seizure is common practice, deal with it..

    You really should avoid your double negatives. It makes your sentences funnier.

     

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    Anonymous Coward, Dec 15th, 2010 @ 11:12am

    Re: Re: Re: Re: Re: Re: Re: Re:

    except they were not blogs, no more than youtube is just a hosting company.

     

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    Anonymous Coward, Dec 15th, 2010 @ 11:16am

    Re: Re: Re: Re: Re:

    Please! These sites were not blogs. They were file hosts, tube sites, forums, and download sites. There may have been a small blog component in there somewhere, but everything points to a music download site. Please do a little research, and realize that you started with a false pretense, that these sites are blogs. They are not.

     

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    Anonymous Coward, Dec 15th, 2010 @ 11:19am

    Re: Re: Re: Re: Re: Re: Re: The more important question - what can we do about it?

    Actually, domain names are about the same as a phone number, not much more. As many of your friends here have pointed out, wikileaks should just run on IP addresses. Would that make their information more or less available or important?

    Some courts have even rules that domain names aren't even really property. Please go back and look at the whole sex.com fiacso in the 90s to understand some of the legal implications.

     

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    Anonymous, Dec 15th, 2010 @ 11:35am

    Re: Re: Re: Re: Re: Re: Re: Re:

    No one has done anything of the sort. Karl tried, and quickly got his ass handed to him.

    Like I say, your willful ignorance re: Arcara v Cloud is stale.

     

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    Gabriel Tane (profile), Dec 15th, 2010 @ 11:48am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Wow... what, are you 12? I've seen more mature dialog from playing Halo online.

    AvCB has been proven not-applicable to this situation. You refuse to actually mount a defense other than "LOLOL you're wrong!!!1!" and claims of ass-handing.

    Either man-up with some real points or go away.

     

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  131.  
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    Mike Masnick (profile), Dec 15th, 2010 @ 11:54am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Are you suggesting that a store that sells 95% infringing products cannot be shut down by the government if 5% of the sales are of products that constitute protectable expression?

    The issue, as has been shown over and over again, is that the government may punish the individual for the infringing works, but they cannot then prevent them from offering the 5% of protectable expression.

    The issue here is that the government did the latter. No one is saying there is any problem with -- following a full trial -- an injunction or other punishment being issued to stop specific law breaking.

    The problem is twofold: (1) There was no trial and no guilt has been established. Even worse, those being "punished" still haven't even been told what for. (2) The punishment acts as prior restraint on the legitimate speech as well.

    No one is saying "oh you should be able to distribute infringing works as long as you have a tiny percentage of non-infringing works." We're just saying you can't block the non-infringing works -- and you especially cannot do it without a trial.

    Hope that helps.

     

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    Marcus Carab (profile), Dec 15th, 2010 @ 2:06pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Honestly? I'm not a lawyer or a legal expert. I am simply trying to make detailed readings, carefully consider things, and come up with the best interpretation I can. I rely on a blog like this one and the awesome commenting community to educate me further, and to point me towards other sources, and to generally expand my knowledge and understanding of this field.

    When these seizures happened, I was not particularly familiar with Arcara vs. Cloud. Since then, it's been brought up a lot. Now, some of the people bringing it up are like Karl, who every time goes into great detail explaining why it doesn't apply, and provides links to additional case law to back up his position, as well as interpretations by other legal experts who agree with him.

    Then there's you and the other ACs, who keep saying "Nope. Arcara v. Cloud. You're wrong" over and over again without providing any additional information.

    Seems fairly obvious to me who actually knows what they are talking about, and who is full of shit. So you'll excuse me if I reject your completely baseless argument for which you have failed to provide even a shred of supporting evidence.

     

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    needy, Dec 15th, 2010 @ 3:02pm

    RIAA know full well that they are in trouble over this but also know that there will be no action taken against them. the sad thing is that they are going to get their way regardless of what happens to them because the longer they can keep these sites down, the less chance there is of them returning and the greater the likelyhood that the owners wont be able to afford to reup the sites because of the financial damage already done.
    basically, RIAA are in a win-win position.
    one more strike against 'net' neutrality, internet freedom and privacy. one more strike in favor of censorship!
    what makes me laugh more than anything is that those that are pulling these stunts under the guise of copyright, earn fantastic amounts of money for themselves and their respective industries, but they haven't got the common sense or brains of a rocking horse!

     

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  134.  
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    cthepower (profile), Dec 15th, 2010 @ 3:12pm

    HIP HOP blogers web site

    Join me an other patriots working to stop tyranny where ever we find it..........rtr.org Return the Republic. download infowars movies regarding the coming police state, the obama deception, end games and more at http://infowardvd.com/ distribution of this information is permitted and requested.

    Our freedom is slipping through our hands:

    “There are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.” — James Madison, Speech to the Virginia Ratifying Convention, June 16, 1788

    "The Only Thing Necessary For Evil To Triumph Is For Good Men To Do Nothing." Edmund Burke

    You are welcome to join us in the quest!

     

    reply to this | link to this | view in thread ]

  135.  
    icon
    Jay (profile), Dec 16th, 2010 @ 9:31am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Kind of hard to determine that when the blogs are locked up by prior restraint isn't it?

     

    reply to this | link to this | view in thread ]

  136.  
    icon
    Jay (profile), Dec 16th, 2010 @ 9:36am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    AJ, try again.

     

    reply to this | link to this | view in thread ]

  137.  
    identicon
    MyDaps, Dec 17th, 2010 @ 9:24am

    New chat site hiphop

    New video and flash website with live chat allllll FREE!!!!!!!

     

    reply to this | link to this | view in thread ]

  138.  
    icon
    PaulT (profile), Dec 21st, 2010 @ 2:01am

    Re: Re: Re: Re: The more important question - what can we do about it?

    Well, excuse me for thinking that "due process" should include the target being informed of what they are accused of and being given a chance to defend themselves. It's a shame that you're happy with this situation, though not surprising.

     

    reply to this | link to this | view in thread ]


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