Yes, The Legal & Technical Errors In Homeland Security's Domain Seizure Affidavit Do Matter

from the apologists-gone-mad dept

Terry Hart, who has become the go-to guy for eloquent defenses of the copyright maximalist's legal arguments lately, is at it again with a post supposedly claiming to debunk some of the posts from here on Techdirt concerning Homeland Security's seizure of domain names. Specifically, the posts that he claims to be debunking are the three posts I made highlighting the technical and legal errors in the affidavit ICE special agent Andrew Reynolds used to get a warrant to seize the domains, as well as the post which highlighted how all four songs he named to get "probable cause" for the seizure of the popular DJ blog dajaz1.com were all sent legally for the purpose of promotions.

Hart claims that if there are any errors in the affidavit they don't matter:
Are there errors in the affidavit? If so, do they even matter? The answer is no.
Hart's reasoning is that since Homeland Security only has to show "probable cause" in its affidavit, the various errors don't matter. Now, without a doubt, the standard for probable cause is different than for guilt in a trial. But that does not mean there are no standards. He quotes various Supreme Court rulings, which grant law enforcement leeway in filing the affidavits and reaching the probable cause barriers, and specifically noting that some level of mistakes are allowed. Specifically, he quotes Brinegar v. United States, where the court gives law enforcement some leeway for errors:
These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.
With all due respect to Hart, I believe his analysis falls short on a variety of different factors. First, I believe he greatly simplifies the overall ruling in Brinegar to a level that the Court almost certainly did not intend. It does allow for some mistakes (in Brinegar it was a small one). It does not allow for massive mistakes that undermine the entire probability equation that makes up probable cause. Obviously, it's expected that sometimes errors will be made. But, given the vast number of errors in this affidavit, combined with the seriousness of those errors, and the fact that (especially with dajaz1) they made up the very core of the probable cause argument, it would seem that the "balance" would shift against this affidavit having been properly executed.

Furthermore, among the Supreme Court quotes that Hart uses to support his argument is the idea that mistakes are okay because the affidavits are done "in the midst of haste of a criminal investigation." There was no urgency here, however. These sites had all been operating for years, and there was no likelihood that they would suddenly disappear. There was no reason for haste, and thus, less of an excuse for the sort of errors which may be acceptable under other circumstances. Even Hart admits that the "leeway" is about "the realities of law enforcement." The realities in this case were that there was no such urgency, and thus the mistakes are less excusable than they might be elsewhere.

More serious than this is the fact that Hart seems to ignore the specifics of what was seized and why. He notes, accurately, that seizure is much like an arrest, done prior to a trial, but (conveniently) leaves out the basis for seizures, which is supposed to be about preventing the destruction of evidence. As the Court notes in Heller v. New York, the purpose of content-based seizures is "preserving it as evidence." As we have already noted, that makes little sense in this situation, as the domain names would not and could not be "destroyed," in any meaningful manner -- and it's easy to copy the contents of the site to preserve that as evidence. Agent Reynolds explanation for why a seizure was necessary was that he was afraid that some third party might somehow get the domain name and continue the criminal copyright infringement, ignoring that an injunction could easily prevent that, and the actual likelihood of that scenario happening was close to nil.

However, the biggest flaw in Hart's argument is that he focuses solely on the issue of probable cause for warrants, and pays no attention to the key issue that we brought up: how seizing full domain names without an adversarial hearing, based on a series of legal and technical errors is almost certainly prior restraint, and a violation of the First Amendment. As was made quite clear in Fort Wayne Books, Inc. v. Indiana, when a seizure involves issues of protected speech, a higher bar is required:
Thus, while 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.
This line of thinking goes back through a long, long, long line of cases, many of which repeat the famous line: "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." In seizure cases where expressive speech is part of what is removed from circulation, the bar is higher than your average probable cause. That's why those errors are incredibly important, and the lack of any attempt to avoid First Amendment issues is glaring. Hart doesn't mention any of this, which I find surprising.

Finally, Hart closes his post (somewhat out of character for him) by suggesting our motivations for highlighting the problematic nature of the affidavit, arguing that we really don't care about the errors, and our posts are really just another way of attacking copyright law. I would suggest that Hart focus his analysis on legal issues, rather than playing amateur psychologist. My problem with the seizures is not about copyright law (though, I obviously have serious concerns about copyright law as well), but with the clear issue of a violation of the First Amendment. Separately, while Hart seems fine with it (as do the courts), I remain seriously troubled by the entire seizure process, which is widely abused, in cases where it has nothing to do with taking possession of evidence that might otherwise disappear. Playing those concerns down because there's a copyright element to this and I'm a critic of copyright law as it stands today is simply inaccurate, and seems like a cheap shot designed -- unfairly -- to attack my credibility on the situation at hand.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Marcus Carab (profile), Jan 4th, 2011 @ 11:54am

    I found this paragraph interesting too:

    Other “errors” pointed out include the use and definition of certain terms. For example, the classification of Torrent-finder as a “bit torrent website” is disputed because it “hosts no tracker” and “hosts no infringing content.” But the terms are only descriptive, irrelevant to whether or not probable cause of a crime exists. Even if the terminology is technically incorrect, this is the type of “error” that the law doesn’t care about in warrants.

    How could that distinction be irrelevant to determining probable cause? To use a favourite analogy of those who support these seizures, that's like saying it's irrelevant whether a suspected drug dealer ever actually possessed any drugs.

     

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  2.  
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    Dark Helmet (profile), Jan 4th, 2011 @ 12:10pm

    Re:

    "How could that distinction be irrelevant to determining probable cause? To use a favourite analogy of those who support these seizures, that's like saying it's irrelevant whether a suspected drug dealer ever actually possessed any drugs."

    By my reading, the whole point of allowing insignificant technical errors for probable cause for seizure is to avoid case dismissal based on technicalities of the search/seizure. That way if a cop got the seizure warrant for the white powdery stuff that he thought was cocaine but which actually turned out to be crack, it doesn't negate the warrant because the error was both relatively minor and does not error in determining illegality.

    This was something different. The very special agent pointed to a website and called it cocaine, but it was actually a pack of Skittles, and he only thought it was cocaine because the local Ridalin-pusher told him it was....

     

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  3.  
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    C.T., Jan 4th, 2011 @ 12:16pm

    Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright

    Mike -

    First off, this debate is fascinating. I think you would agree that there is ample room for reasonable minds to disagree on any number of the issues/sub-issues involved here.

    However, I think it is important to point out that the standards applied to seizures of (and injunctions against) items that are obscene or defamatory are quite different to those applied to those that are infringing. As such, I am not sure whether your sacrosanct reliance on Heller v. New York is sound.

    I would suggest taking a look at Eugene Volokh and Mark Lemley's terrific paper "Freedom of Speech and Injunctions in Intellectual Property Cases" -- http://papers.ssrn.com/sol3/papers.cfm?abstract_id=85608

     

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  4.  
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    Jeremy Lyman (profile), Jan 4th, 2011 @ 12:28pm

    Re: Re:

    Nice, I've been trying to pin a good metaphor on this case as well. So far the most apt one I've come up with is the government seizing the name (trademark?) of a newspaper or magazine. Not the printing presses, not the writers or delivery trucks, just the means by which it identifies itself to readers. All because they included a CD sampler in a few editions and no one at the CD company from marketing told legal about it.

    Though now I'm tempted to co-opt your coke and skittles bit instead of music.

     

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  5.  
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    robin, Jan 4th, 2011 @ 12:30pm

    Re: Re:

    The very special agent pointed to a website and called it cocaine, but it was actually a pack of Skittles, and he only thought it was cocaine because the local Ridalin-pusher told him it was....


    best post of the week!!

     

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  6.  
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    Mike Masnick (profile), Jan 4th, 2011 @ 12:43pm

    Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright

    First off, this debate is fascinating. I think you would agree that there is ample room for reasonable minds to disagree on any number of the issues/sub-issues involved here.


    Sure. That's what lawsuits are all about. :)

    However, I think it is important to point out that the standards applied to seizures of (and injunctions against) items that are obscene or defamatory are quite different to those applied to those that are infringing. As such, I am not sure whether your sacrosanct reliance on Heller v. New York is sound.

    I don't believe my reliance on Heller is "sacrosanct." I was merely pointing out the specific part of Heller that discusses the reasons for seizing things -- something that appears to have not been followed at all in this case.

    The bigger issue may be around Fort Wayne Books, but there, again, I believe there's a strong argument that it certainly applies in this case -- and not just because I'm saying it's the same thing as an obscenity case (and yes, I've read the Volokh/Lemley paper many times over the years, but thanks for pointing it out again -- as it is a good read).

    The issue is that much of what was taken down was not infringing at all. That's where the prior restraint issue comes in. Even if you grant the premise that seizures and injunctions are okay when it comes to infringing speech (and I'm not really willing to grant that premise, but that's a different argument), I think you run into serious problems when you realize how much of the speech on these websites was clearly not infringing at all. And that's where Fort Wayne, Heller and many, many, many other cases come into play.

     

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  7.  
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    Marcus Carab (profile), Jan 4th, 2011 @ 1:01pm

    Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright

    Mike, perhaps you and/or C.T. can clarify something about the Volokh/Lemley paper for me -

    Since it is specifically discussing injunctions, to what extent does the cited case law effect this situation, where the content was removed by seizure?

    Obviously the interpretations of the intent and scope of first amendment protections is still relevant, and the arguments made in the paper must have some bearing on seizures that result in similar prior restraint - but how much of that paper can be directly applied to this situation? Is criticizing seizures based on precedents to do with injunctions a difficult legal challenge?

     

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  8.  
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    Anonymous Coward, Jan 4th, 2011 @ 1:32pm

    Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright

    Perhaps someone can explain how the seizure of a domain name seizes content. I thought the associated IP address remained intact and accessible.

     

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  9.  
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    Marcus Carab (profile), Jan 4th, 2011 @ 1:38pm

    Re: Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright

    That is, indeed, a further complication in this matter... Given that most of the content is hosted on foreign servers and thus not subject to U.S. seizure, it certainly seems like ICE committed a bit of a jurisdictional trickery by focusing on the domains while still making it sound like they are talking about the content itself.

     

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  10.  
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    Mike C. (profile), Jan 4th, 2011 @ 1:39pm

    First Ammendment issue - may not be ignored

    I'm actually wondering if Terry isn't ignoring the First Ammendment issues, but assuming they've already been addressed - albeit incorrectly:

    "In my previous post on the subject, I responded to criticisms that the seizures violate due process (they don’t) and the First Amendment (they don’t)." (emphasis mine)

    I looked for this "previous post" and only found one that talks about how copyright works to preserve a creator's First Ammendment rights. I did *not* find anything addressing the First Ammendment rights of any creative content that was siezed despite not being infringing. It's sort of like explaining how to fill a car's gas tank after being asked how a car works. He covered part of the issue, but missed all the important stuff like the internal combustion engine.

     

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  11.  
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    Anonymous Coward, Jan 4th, 2011 @ 1:40pm

    The question is the always the same: Would the minor errors in semi-technical terms (not defined by any standards committee) really change the view of probably cause? Remember, we aren't at the "beyond a reasonable doubt" stage here, only probably cause.

    The smell of weed coming from your car when the cops open the window is probably cause to check your car for drugs (and maybe even weapons). You are not guilty beyond a reasonable doubt, they are only operating on probable cause. That is all that is required to make a warrant work.

    The errors are, at best, issues related to trying to explain non-standard technology in terms to satisfy a warrant. There really isn't much else there. Underlying it all, the warrant is valid on it's face.

    The rest of it gets proven or not in a court of law, but that happened later not now.

     

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  12.  
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    Mike Masnick (profile), Jan 4th, 2011 @ 1:51pm

    Re: Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright

    Perhaps someone can explain how the seizure of a domain name seizes content. I thought the associated IP address remained intact and accessible.

    That's a point that average_joe raised early on as well, but I believe it's mistaken. If you read the full affidavit, at no point does the agent make the case that the DOMAIN NAME itself is involved in the infringement.

    So I don't believe you can argue it both ways: if the affidavit focuses on the content on the server, but then says "and that's why we need to seize the domain name" you can't get away with then arguing that by only seizing the domain name, it's okay, because it had nothing to do with the content on the server.

    In fact, the affidavit itself rejects this very concept by claiming (incorrectly, but still claiming) that seizing the domain name would block access to the server. Thus the affidavit itself makes clear that DHS intended to takedown the content itself. The entire affidavit is focused on that.

     

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  13.  
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    Anonymous Coward, Jan 4th, 2011 @ 2:27pm

    Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright

    Is criticizing seizures based on precedents to do with injunctions a difficult legal challenge?

    I'm neither Mike nor C.T....

    Obviously, the bare facts of a case like Marcus v Search Warrant do not treat with injunctions. Perhaps it's more reasonable to ask what cases like that one have to do with injunctions? For, as Mr Justice Brennan observed in Marcus:

    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.

    So how did Mr Chief Justice Hughes make the leap to injunctions in Near?

    In earlier discussion, I've linked and excerpted from the 1637 Star Chamber Decree. Here's some more: After abolishment of Camera Stellata, the English Civil War—beheading of good ol' Chuck the First—Oliver Cromwell—upon the restoration of Chuck number two, the English enacted the Licensing Act of 1662 (14 Car.II. ch.33).

    That licensing scheme is at the core of what the First Amendment prohibits.

    So, is it going to be difficult to convey that to a post-modern American judge? You tell me, I guess.

     

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  14.  
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    crade (profile), Jan 4th, 2011 @ 2:28pm

    Re:

    The main real difference as I see it would be the motive.

    Check car for drugs / seizing evidence etc = Further investigation / gathering evidence for a trial, any potential harm done to you is a sacrifice in the name of finding out the truth ensuring a fair trial for everyone involved.

    disabling domainname = exacting punishment (not helpful in the investigation or in finding our the truth, the only purpose is to give one party what they want at the expense of the other party before they are actually found to have done anything)

     

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  15.  
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    Mike C. (profile), Jan 4th, 2011 @ 2:32pm

    Re: First Ammendment issue - may not be ignored

    I posted on the article and it appears I was wrong. Here is the article where Terry believes the First Ammendment issue is addressed:

    http://www.copyhype.com/2010/12/feds-seize-domain-names/

    Essentially, the position is that if an adversarial hearing is held "promptly", no violation of rights has occurred. He quotes Heller which indicates that "within 48 days" was apparently an acceptable timeframe. Since it hasn't even been 40 days yet, I guess that means we need to wait a couple weeks before getting our rage on... :-)

    /still disagree with the whole seizure

     

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  16.  
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    jackwagon (profile), Jan 4th, 2011 @ 2:39pm

    content

    Wouldn't it be relatively easy for the defendant to remove the allegedly infringing content from the server in the time between the domain name seizure and the alleged trial?

     

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  17.  
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    btr1701 (profile), Jan 4th, 2011 @ 2:45pm

    Re:

    > ...really change the view of probably cause? Remember, we
    > aren't at the "beyond a reasonable doubt" stage here, only
    > probably cause.

    It's PROBABLE cause, not "probably" cause.

     

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  18.  
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    Nastybutler77 (profile), Jan 4th, 2011 @ 2:48pm

    Re:

    The smell of weed coming from your car when the cops open the window is probably cause to check your car for drugs (and maybe even weapons). You are not guilty beyond a reasonable doubt, they are only operating on probable cause. That is all that is required to make a warrant work.

    The errors are, at best, issues related to trying to explain non-standard technology in terms to satisfy a warrant. There really isn't much else there. Underlying it all, the warrant is valid on it's face.


    You're analogy is good, but let me fix it for you.

    Say the officers think they smell weed coming from your car in a crowded parking lot. They claim probable cause and search your vehicle. After finding nothing, they have your car impounded and move on to the car next to yours and do the same thing, over and over agian, sometimes finding drugs, but usually not until all the cars in the parking lot are now impounded. See the difference?

     

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  19.  
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    Nastybutler77 (profile), Jan 4th, 2011 @ 2:50pm

    Hart doesn't mention any of this, which I find surprising.

    Really? That surprises you?

     

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  20.  
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    Mike Masnick (profile), Jan 4th, 2011 @ 3:47pm

    Re:

    Really? That surprises you?


    Yes. While I disagree with Terry's interpretation on most of this, I've found that he's usually pretty thorough in highlighting the key objections and why he doesn't think they're valid.

    Completely ignoring them... that seems strange.

     

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  21.  
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    Anonymous Coward, Jan 4th, 2011 @ 5:26pm

    Re: Re: First Ammendment issue - may not be ignored

    He quotes Heller...

    Heller, of course, dealt with the seizure of only a single copy of a film:

    A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition.

    Heller isn't distinguished just by the issue of seizing only a single copy. The law governing films has a history. Motion pictures were not afforded First Amendment protection until Joseph Burstyn v. Wilson (1952):

    [W]e conclude that expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments. To the extent that language in the opinion in Mutual Film Corp. v. Industrial Comm'n is out of harmony with the views here set forth, we no longer adhere to it.

    To hold that liberty of expression by means of motion pictures is guaranteed by the First and Fourteenth Amendments, however, is not the end of our problem. It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places. That much is evident from the series of decisions of this Court with respect to other media of communication of ideas. Nor does it follow that motion pictures are necessarily subject to the precise rules governing any other particular method of expression.

    Even after Burstyn, perhaps even today, movies have been subjected to greater restrictions than print.

    Compare with Reno v ACLU (1997):

    As the District Court found, "the content on the Internet is as diverse as human thought." We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.

     

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  22.  
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    Anonymous Coward, Jan 4th, 2011 @ 5:48pm

    Re: Re:

    Your original comment was in the context of First Amendment matters being omitted.

    As noted in his article, such matters were discussed in a prior article.

    Quite frankly, I have to wonder what would have been the reaction here had the affidavit been "perfect" in every respect?

     

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  23.  
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    Anonymous, Jan 4th, 2011 @ 6:18pm

    Re: Re: Re:

    Terry is a lawyer, Masnick is not.

    Perhaps Terry can come here and explain to Masnick why there is no First Amendment issue, and thus, why Masnick is going to lose our bet and have to donate $500 to Musicares.

     

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  24.  
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    Anonymous Coward, Jan 4th, 2011 @ 8:20pm

    Re: Re: Re:

    if the affidavit was "perfect", would these seizures have taken place?

     

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  25.  
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    Hephaestus (profile), Jan 4th, 2011 @ 8:21pm

    Re: Re:

    "This was something different. The very special agent pointed to a website and called it cocaine, but it was actually a pack of Skittles, and he only thought it was cocaine because the local Ridalin-pusher told him it was....
    "

    Nice ...

     

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  26.  
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    Hephaestus (profile), Jan 4th, 2011 @ 8:36pm

    I am so enjoying this.

    Every time something like this happens it gives me hope. This sort of over reaching and pushing the limits is always a sign of the failure of an organization or group. The neat thing is that the people in the group or organization never see it for what it is, an imminent collapse of the system they have created.

    The one thing that worries me is that it is world wide and it seems to span every government.

     

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  27.  
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    Mike Masnick (profile), Jan 4th, 2011 @ 10:45pm

    Re: Re: Re:

    Your original comment was in the context of First Amendment matters being omitted.

    As noted in his article, such matters were discussed in a prior article.


    That is not correct. He discussed the First Amendment issues concerning the seizures -- and I believe his analysis is (at times laughably) wrong. However, he did not discuss the role of the First Amendment in setting the bar for the seizures, which is what this post was talking about.

    Quite frankly, I have to wonder what would have been the reaction here had the affidavit been "perfect" in every respect?

    If it had been perfect, I don't think these domains would have been seized.

    Separately, as stated elsewhere, I still fail to see how a seizure makes sense or is legal in this instance. An adversarial hearing and an injunction could have worked just fine.

     

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  28.  
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    Mike Masnick (profile), Jan 4th, 2011 @ 10:46pm

    Re: Re: Re: Re:

    Terry is a lawyer, Masnick is not.


    Terry has been a lawyer for a few months now. I ran this story by multiple lawyers who have been practicing for decades in this field, and they agreed with me.

    I know you will never agree with me so you will ignore that point, but such is life.

     

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  29.  
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    Anonymous, Jan 5th, 2011 @ 12:38am

    Re: Re: Re: Re:

    Who was it that did the actual removal of the domains?

    Verisign.

    Who were the domain names seized from?

    Verisign.

    A private company. Time to read some more caselaw.

    It amuses me to end, Masnick, that you are so cocky in your belief you've won the piracy war, that you think you're smarter on matters of the law than a DOJ lawyer.

     

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  30.  
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    Jay (profile), Jan 5th, 2011 @ 12:42am

    Copyhype vs Techdirt analysis

    He's attempted to explain this numerous times:

    here is one of those times

    I unfortunately remain critical of Terry Hart's views. He seems to love to mire his posts in the law, not necessarily regarding the effects of such laws, which Mike tends to do (thankfully).

    He sometimes seems to fail in his analysis to regard anyone that is on the "losing" end of an argument. Once you bring in piracy, it's like a switch turns off. I understand that creators have rights, but if you have to subvert one person's rights to give another person priority, it seriously shows defects in the laws.

     

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  31.  
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    Anonymous, Jan 5th, 2011 @ 1:14am

    Re: Copyhype vs Techdirt analysis

    He "mires" himself in the law because it's the only that really matters in this discussion.

    Everything else is just propaganda and grandstanding.

     

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  32.  
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    Anonymous Coward, Jan 5th, 2011 @ 1:22am

    Re: Re: Re: Re: Re:

    I ran this story by multiple lawyers who
    have been practicing for decades in this field, and they agreed with me.


    oh really?

    Well if they are so convinced then I'm sure they won't mind you posting quotes of their opinions and their names.

    Post them right here:

     

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  33.  
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    Jay (profile), Jan 5th, 2011 @ 3:59am

    Re: Re: Re: Re: Re:

    Who brought the takedown request?

    MPAA/RIAA

    Who has been willing to censor Americans in the name of profit?

    MPAA/RIAA

    A trade industry. Time to read your history.

    It amuses me to [no] end, Anonymous, that you are so cocky in your belief you've won the piracy war, that you think you're smarter on matters of pirate history than an economist.

     

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  34.  
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    Anonymous Coward, Jan 5th, 2011 @ 4:22am

    Re: Re: Re: Re: Re:

    Who were the domain names seized from? Verisign.

    A federal agency applied for a court order. Compelled by that order, the private party acted. That's state action.

    The principle is explained in Lugar v. Edmondson Oil (1982):

    [W]e have consistently held that a private party's joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a "state actor" for purposes of the Fourteenth Amendment. The rule in these cases is the same as that articulated in Adickes v. S. H. Kress & Co. in the context of an equal protection deprivation:

    "Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color' of law for purposes of the statute. To act ‘under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents,"

    quoting United States v. Price.

     

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  35.  
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    Mike Masnick (profile), Jan 5th, 2011 @ 4:29am

    Re: Re: Re: Re: Re:

    A private company. Time to read some more caselaw.


    Verisign only did so at the request of the US gov't. Pretending otherwise is just silly and you know it.

    It amuses me to end, Masnick, that you are so cocky in your belief you've won the piracy war, that you think you're smarter on matters of the law than a DOJ lawyer.

    Ah, the lies again. This has nothing to do with supporting "piracy." I don't support piracy. I don't engage in piracy and I don't think it's a good idea.

    Why do you lie?

    As for whether or not my analysis is better than homeland security's? We'll see, won't we?

     

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  36.  
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    Allison Rhine (profile), Jan 5th, 2011 @ 5:58am

    "I would suggest that Hart focus his analysis on legal issues, rather than playing amateur psychologist."

    Nice!!!

     

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  37.  
    identicon
    Anonymous Coward, Jan 5th, 2011 @ 6:32am

    Re: Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright

    Perhaps someone can explain how the seizure of a domain name seizes content

    A domain name is expression. See Taubman v Webfeats (6th Cir, 2003).

     

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  38.  
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    Marcus Carab (profile), Jan 5th, 2011 @ 6:53am

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

    You're a child. And you're getting desperate.

     

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  39.  
    identicon
    felixthecat, Jan 5th, 2011 @ 7:05am

    Who brought the takedown request?

    MPAA/RIAA

    Who has been willing to censor Americans in the name of profit?

    MPAA/RIAA

    A trade industry. Time to read your history.

    It amuses me to [no] end, Anonymous, that you are so cocky in your belief you've won the piracy war, that you think you're smarter on matters of pirate history than an economist.


    Touché

    Now hope on your master's lap, anonymous poodle.

     

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  40.  
    identicon
    Not an electronic Rodent, Jan 5th, 2011 @ 7:06am

    Re: Re: Copyhype vs Techdirt analysis

    He "mires" himself in the law because it's the only that really matters in this discussion.

    Everything else is just propaganda and grandstanding.
    Hmmm an almost cogent argument except that from outside the alledgedly hallowed halls of law, the same law seems on many many occasions to apply differently to someone who doesn't have billions of dollars (or indeed pay the representatives of the US government millions of dollars) and every bit of law, paid for or otherwise is subject to reinterpretation by another judge or a clever lawyer because that's all it is in the first place.. an interpretation of a set of limited rules that can't possibly apply the same to every real-world situation.
    To put it another way I wonder how far I would get having Amazon.com's domain name seized after accusing them of hosting and selling without permission a book I wrote? And what would happen if it turned out I'd sent it to them in the first place?

    To non-lawyer eyes the entire sequence of events seems to be "propaganda and grandstanding" in the part of ICE as it has so far acheived nothing but that so those things seem rather relevant to me.

    Let's face it, it's hadly the first time government organisations have done things like this under dubious circumstances at best and I think the more such things are highlighted and discussed in all their merits or otherwise the better, rather than saying "Well that's just the way it is. It's the LAW so shut up!"

     

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  41.  
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    average_joe (profile), Jan 5th, 2011 @ 7:32am

    Re: Re: Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright

    That's a point that average_joe raised early on as well, but I believe it's mistaken. If you read the full affidavit, at no point does the agent make the case that the DOMAIN NAME itself is involved in the infringement.

    So I don't believe you can argue it both ways: if the affidavit focuses on the content on the server, but then says "and that's why we need to seize the domain name" you can't get away with then arguing that by only seizing the domain name, it's okay, because it had nothing to do with the content on the server.


    I see your point, but I think the answer is that you can't justify seizing the domain name unless the underlying site is involved in the infringement. You couldn't make a case for the domain name without looking at the site. That wouldn't make much sense. The domain name is what people use to access the site, so that's what was seized. If these sites were hosted overseas, then the domain name was all they even could seize. It is a little confusing though, since the domain name and the underlying site as so related to each other.

    In fact, the affidavit itself rejects this very concept by claiming (incorrectly, but still claiming) that seizing the domain name would block access to the server. Thus the affidavit itself makes clear that DHS intended to takedown the content itself. The entire affidavit is focused on that.

    I agree with you that they seized the domain name to prevent access to the server. That was the whole point, wasn't it? ;)

     

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  42.  
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    Anonymous Coward, Jan 5th, 2011 @ 7:52am

    Re: Re: Re: Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright

    I agree with you that they seized the domain name to prevent access to the server.

    It certainly disables any (absolute) URLs pointing to the site via that domain name. That would be both external URLs, and —possibly— internal, absolute URLs.

    I don't know what kind of content management system any of these sites were using, but I am aware of software products from well-known BIG companies that generate absolute URIs for internal links—and totally b0rk generated web content when you move the server to a new domain name. (I'm probably under NDA beyond that, but I am pretty sure that feature is publicly documented in bug-tracking.)

     

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  43.  
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    The eejit (profile), Jan 5th, 2011 @ 8:07am

    Re: Re: Copyhype vs Techdirt analysis

    You mean like the attempts to prosecute Assange?

    Or the continuous moral panics caused by your own congresscritters in order to pass shitty laws?

    Or the Senate's pork donations by Big Business?

    No, that's just THE LUBRUL MEDIUZ HAETIN. [/sarc]

     

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  44.  
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    Not an electronic Rodent, Jan 5th, 2011 @ 8:19am

    Re: Re: Re: Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright

    It is a little confusing though, since the domain name and the underlying site as so related to each other.
    Not really that related, no. Domain name is to website as road sign is to village. If I go stick up the name "Flange" over every sign pointing to the village "Wumbleton" it doesn't change one of the houses in the village. Nor does removing all the roadsigns make the village vanish or become innaccessible. I think that for me is the most odd part of this. Surely someone involved in the seizure knew that and if so that for me points to pure grandstanding rather than any attempt at "justice" of any kind.

     

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  45.  
    identicon
    Anonymous, Jan 5th, 2011 @ 8:34am

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

    Verisign only did so at the request of the US govt
    you weren't privy to the conversation, so you don't know the particulars. But when it comes to any sort of First Amendment issue, all that matters is that it was Verisign.

    You and your supposed team of lawyers need to go read some more caselaw.

     

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  46.  
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    Marcus Carab (profile), Jan 5th, 2011 @ 8:51am

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

    Every time you accuse Mike of supporting piracy, he refutes you, and then you just completely ignore it and wait for another opportunity to make the exact same accusation.

    Care to actually defend your original statement, or perhaps respond to the fact that you are a conscious liar who knowingly levels false accusations?

     

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  47.  
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    average_joe (profile), Jan 5th, 2011 @ 9:03am

    Re: Re: Re: Re: Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright

    Both the domain name and the site were being used to infringe, allegedly. That's what really matters.

     

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  48.  
    identicon
    Anonymous, Jan 5th, 2011 @ 9:06am

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

    Your willfully blind sycophant act is stale.

    Masnick is one of most zealous piracy apologists on the web.

    Anyone can read this conversation and see for themselves:

    http://www.techdirt.com/articles/20101222/00462512375/isohunt-a ppeals-process-begins.shtml#c1622

     

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  49.  
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    Marcus Carab (profile), Jan 5th, 2011 @ 9:33am

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

    Frankly I don't see much in that thread to call Mike a "piracy apologist" - he even acknowledges that some of Fung's actions are highly questionable and have the potential to condemn him.

    But really, I can call you willfully ignorant and you can call me willfully blind until the cows come home, and it's not going to accomplish much. I understand your argument that Mike is a "pirate apologist" - it just seems kind of blunt and simplistic to me, when the reality of the situation seems a little more nuanced. I would suggest that we agree to disagree, except that ball is really in your court: you're the one who can't keep away from this blog where the proprietor and the majority of the community share a similar common philosophy which you are so vehemently opposed to.

    If you really believed that Techdirt is nothing but an echo-chamber of apologists and sycophants, then why do you bother? If we are all really so out of touch and willfully blind, and if everything we say is laughable to the "real" world and irrelevant to the courts, why do you have such a bee in your bonnet about it? I can only assume it's because you don't believe those accusations - I'm guessing you see the logic and the inevitability of some of the ideas discussed here, and that is frightening to you (as the new and unfamiliar so often is to comfortable minds) so you feel the need to deny it and fight it tooth-and-nail, not so much to convince us as to convince yourself.

    Of course, I'm no psychologist - just a guess.

     

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  50.  
    identicon
    Anonymous Coward, Jan 5th, 2011 @ 9:46am

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

    Bantam Books v Sullivan (1963)

    (hat tip: EFF)

     

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  51.  
    identicon
    Anonymous, Jan 5th, 2011 @ 11:29am

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

    My point here is simple: for years Masnick got away with anti-copyright propaganda here with no dissenting views. After seeing how much money piracy has cost my fellow musicians, and seeing him defend anything piracy related, I became very disgusted.

     

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  52.  
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    Marcus Carab (profile), Jan 5th, 2011 @ 11:55am

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

    Okay, that makes sense as a motivation.

    So my issue becomes: where are all your examples? Rarely does a week go by on Techdirt without a story about a content creator finding new success in the market - Mike has given us examples of this on multiple scales in nearly every medium, from sources ranging from his personal and professional acquaintances to complete strangers who have approached Techdirt. The blog has given a platform to these musicians, for they themselves to talk about their experiences and successes (and the joy it brings them).

    I have to weigh that against your off-hand assertion that you and your fellow musicians have been hurt by piracy. Who should I believe?

    Besides, the way you argue here makes it clear that you have no interest in business innovation, and no interest in the desires of the marketplace or your fans - you are only interested in stopping piracy. No matter how morally right you might think your position is, it's still dumb because it's completely impractical. If you admit that this is costing you and your friends money, and meanwhile there are other artists who are succeeding, doesn't it show that your approach is the wrong one?

    Frankly, given your attitudes, I'm not surprised you're failing.

     

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  53.  
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    JonValJon (profile), Jan 5th, 2011 @ 12:16pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:TARD

    Piracy has not cost your "fellow musicians" a dime. Greedy labels on the other hand...

    I want to throw something out here for you as well, and you can call it semantics, I call it intellectual honesty..

    Believe it or not, “piracy” (sharing of copyrighted materials) has existed ever since IP laws became a tool to create a legal monopoly over a given industry. That was the point it stopped being a free market tool, and became a government enforced racket. It is used to control information, ideas, art and even LIFE SAVING MEDICAL PROCEDURES! And who is enforcing these monopolies again, not just the gov, but DHS!! If this doesn’t set off some warning bells for a sensible libertarian or republican, I don’t know what would.

    So what it comes down to is this.. do you support the government using a federal police force to control the dissemination of information? If your cool with that, why not just let them crack down on lemonade stands (tax free profits siphoned off of Big Citrus), farmers who don’t chip their cattle (tax free profits off of Big Brother), and farmers who chose to share seeds instead of buying them (siphoning profits from Big Monsanto)?

    Do you see the slippery slope? Or are you too busy running straight for it?

    You may disagree with sharing of music, etc, but do you really think we should set this dangerous precedent on dealing with the issue? Only a stupid liberal socialist would think that federal law enforcement is the answer to sharing a few bytes of music.

     

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  54.  
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    Nastybutler77 (profile), Jan 5th, 2011 @ 12:34pm

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

    oh really?

    Well if they are so convinced then I'm sure they won't mind you posting quotes of their opinions and their names.

    Post them right here:


    And then if you do, he'll want you to stand on one leg and recite the pledge of alegence backwards.

     

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  55.  
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    Jay (profile), Jan 5th, 2011 @ 12:42pm

    Re:

    I really hope this is satire and not an actual response to my satire...

     

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  56.  
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    Nastybutler77 (profile), Jan 5th, 2011 @ 2:31pm

    Re: Re: Re: Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright

    I agree with you that they seized the domain name to prevent access to the server. That was the whole point, wasn't it? ;)

    Right. It's not like the owner of the server can't get a new domain name and put the contents of the server back on the internet. That's just impossible. Great plan ICE. That'll show 'em who's boss.

     

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  57.  
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    Nastybutler77 (profile), Jan 5th, 2011 @ 2:36pm

    Re:

    Now hope on your master's lap, anonymous poodle.

    I always find it amusing that people who aren't competent enough to figure out how to use the "reply to this" link are often the same ones who make these type of comments.

     

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  58.  
    identicon
    Anonymous, Jan 5th, 2011 @ 4:19pm

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

    Another non-relevant obscenity case? Snore.

     

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  59.  
    identicon
    Anonymous Coward, Jan 5th, 2011 @ 6:48pm

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

    you weren't privy to the conversation, so you don't know the particulars.
    Interesting. You make it sound as if you were privy to the conversation.

    But when it comes to any sort of First Amendment issue, all that matters is that it was Verisign.

    You and your supposed team of lawyers need to go read some more caselaw.
    Caselaw was quoted to you above.
    What is your reply?
    With what other examples of caselaw do you respond?

    Or were you just bluffing and trying to sound important?

     

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  60.  
    identicon
    Anonymous, Jan 5th, 2011 @ 8:52pm

    Re: Re: Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright

    That case doesn't apply to this, as the court ruled that guy's site was non-commercial; the sites ICE seized were commercial sites. Commercial speech falls under different First Amendment protection.

     

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  61.  
    identicon
    Anonymous, Jan 5th, 2011 @ 8:57pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:TARD

    Piracy has not cost your "fellow musicians" a dime.

    Epic fail.

    Just another ignorant freetard talking out his ass about a subject he knows nothing about.

     

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  62.  
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    Jay (profile), Jan 5th, 2011 @ 11:31pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:TARD

    I remember you.

    You're that one guy that always talks about how you helped your friends in the music industry but they failed.

    How's it been? Are you still on your rant about how the music industry is changing for the worst even though there are people making money with new technology?

     

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  63.  
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    Mike Masnick (profile), Jan 6th, 2011 @ 12:17am

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

    you weren't privy to the conversation, so you don't know the particulars. But when it comes to any sort of First Amendment issue, all that matters is that it was Verisign.


    This is (very) incorrect. The warrant and the affidavit came from ICE. It is the US gov't that is the relevant party.

     

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  64.  
    identicon
    Not an electronic Rodent, Jan 6th, 2011 @ 3:51am

    Re: Re: Re: Re: Re: Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright

    Both the domain name and the site were being used to infringe, allegedly. That's what really matters.
    Does the sign itself infringe? The analogy gets stretched there so possibly, but even so seizing the domain name but doing nothing whatsoever about the site itself is still like taking the road signs down while watching the big trucks marked "Niiike" drive on into "Wumbleton" and from the commentary the only legitimate purpose of a seizure is where evidence must be gathered.

    To me then the appropriation of the domain name, if indeed it were infringing in some way in and of itself, should come after guilt is determined not before since it clearly has no relationship to evidence and the argument "because it's the only thing we can get to, it's in another country" doesn't hold water if the standard is that the seizure is for evidentiary purposes - again that would be an argument for the judgement after conviction not before.

     

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  65.  
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    average_joe (profile), Jan 6th, 2011 @ 6:29am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright

    Does the sign itself infringe? The analogy gets stretched there so possibly, but even so seizing the domain name but doing nothing whatsoever about the site itself is still like taking the road signs down while watching the big trucks marked "Niiike" drive on into "Wumbleton" and from the commentary the only legitimate purpose of a seizure is where evidence must be gathered.

    The statute (18 U.S.C 2323) says that they can seize any "property used, or intended to be used, in any manner or part to commit or facilitate the commission of" criminal copyright infringement. I think it's clear that the domain name of an allegedly infringing site fits that description.

    To me then the appropriation of the domain name, if indeed it were infringing in some way in and of itself, should come after guilt is determined not before since it clearly has no relationship to evidence and the argument "because it's the only thing we can get to, it's in another country" doesn't hold water if the standard is that the seizure is for evidentiary purposes - again that would be an argument for the judgement after conviction not before.

    I totally agree that it would be better to have the hearing first. I'm not convinced that justice requires it though. For a while I thought that the First Amendment demanded it, but after doing some more reading, I'm not really sure of that either. I don't think there is a clear answer on either side of the issue, and I won't be surprised if we get some conflicting results in different courts as these issues get tried.

     

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  66.  
    identicon
    Not an electronic Rodent, Jan 6th, 2011 @ 7:09am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright

    I don't think there is a clear answer on either side of the issue, and I won't be surprised if we get some conflicting results in different courts as these issues get tried.
    Nor would I, which is why I find it frustratingly funny every time someone trots out a "but it's 'The Law' so thats IT" argument in the middle of a discussion.

    Might be legal by that definition but seems at best to be in violation of the spirit if not letter of the law and aimed at scoring points (and "who for?" is the question) rather than law enforcement.

     

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  67.  
    identicon
    Anonymous Coward, Jan 6th, 2011 @ 9:38am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright

    I don't think there is a clear answer on either side of the issue, and I won't be surprised if we get some conflicting results in different courts as these issues get tried.

    That's both the virtue and vice of a common-law tradition: Until the precedent has been settled, the courts have great freedom to say, “Except in this case.”

    At least as long as the courts say, “Except in this case” in a somewhat judicious fashion. There are limits, of course. Last summer, a judge in open court decided, “Fuck the Constitution!” Naturally, the judge didn't use the word “Fuck”, but I thought the meaning of the words were clear enough that I forwarded the report of that incident to my U.S. representative. The court corrected its error. And the House did not schedule an impeachment hearing. Those last two facts are not necessarily related.

    At the present time, polls seem to show no more than about 40% support for the First Amendment. That would be depressing to me, if I did not know how long the First Amendment has had low poll numbers. Yet still, over the longer term, in a democracy—in a republic, no great law, no provision of the Constitution, can survive against the deep opposition of the people.

    It's sort of like Congress. The Senate is hopelessly broken at this point: So badly is the Senate broken that it makes the House look functional by comparison. The American people have little support for the Congress as a body. And all that would depress me immensely—without the benefit of historical perspective: In all history, there has scarcely been a parliamentary institution so universally despised as that body that Americans called the “Continental Congress.”

    Well, now that I think about it, perhaps the Long Parliament was as bad. That one that Cromwell dismissed with the famous words, “It is high time for me to put an end to your sitting in this place, which you have dishonoured by your contempt of all virtue, and defiled by your practice of every vice. . . . In the name of God, go!” Yes, that one would have had low poll numbers, if popular polls were fashionable in the Commonwealth back then.

    Winston Churchill once said, “Americans can always be counted on to do the right thing—after they have exhausted all other possibilities.”

    Sorry about all the rambling. This thread has fallen well off the front page.

    When the law is unclear, the precedents yet to be determined, the question must boil down to:   What do you think the law ought to be?

     

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


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