Karl's Favorite Techdirt Posts Of The Week

from the good-news-bad-news dept

Handling the "favorites of the week" post this week is Karl, one of our prolific commenter's who's known for calmly responding to questionable claims from other commenters with thorough, detailed insights and a firm grasp of the law and case law.

When Mike asked me to do a "Favorites of the Week" post, I joked that hopefully I'll be able to do "favorite posts" and not "bad news." A lot of the breaking news this week amounted to more of the same, and all bad: more third-party liability, the government lying about Wikileaks, ICE ramping up their seizures, even libraries teaching kids to hate a free press. Stuff like this is always going on, and it can't last forever, but after a while you get too saddened to think about it.

So, in 2011's spirit of optimism, I'd like start off with artists who are doing something right.

The obvious winner is Paulo Coelho, who heard that his books were banned in Iran, so he immediately offered them as a free download. This shows us that free public use of your art does not just make your work more valuable, it is also a tool to fight censorship and is a fundamental part of free expression. It's not about creating art for free; it's about keeping it from being imprisoned.

Honorable mention goes to Jono Bacon from the band Severed Fifth, who is using an open source model to "reinvent the music business." Now, the "reinventing" claim is a steaming pile of hyperbole, but it's awesome to see more artists realize that "open culture" is not their enemy. And this band is actually practicing what they preach: their album will be released under a CC-BY-SA license, which means that anyone can make money off of it... even you, faithful reader.

And I have to mention Deadmau5, who realized that a connection with his fans is more important than management relations. But it should be noted that Deadmau5 is not any sort of copyright abolitionist. In 2008, he took legal action against a Fruity Loops user called DirtyCircuit, who (unintentionally?) used uncleared Deadmau5 samples that were bundled with the software. As a result, Fruity Loops removed all melodic samples. I mostly like the Techdirt story because it led me to YouTube videos of Deadmau5 pranking his fans on Minecraft.

Of course, for every person who is doing something right, there are two who are downright clueless. They're not bad people, mind you; they just don't know what's going on.

Such was the case when Jim D'Addario defended his support of seizing music blogs. Mike responded by focusing on counterfeit goods, but, as I pointed out in the comments, that's the least worrisome thing about the seizures. Many of the seized domains had absolutely nothing whatsoever to do with counterfeit products. This shows another bad result when you conflate counterfeiting with file sharing: companies can't object to horrible file sharing laws without undercutting their support for anti-counterfeiting efforts. Assuming they're even aware of it at all, of course. I genuinely think Jim D'Addario has no idea music blogs were seized and I'm guessing a lot of the companies on the list didn't either.

As a side note: One of the "counterfeiting sites" that Jim D'Addario mentioned is Alibaba.com. When I went to that site, I found a ton of cheap, shoddy merchandise -- most of it is crap, some of it is probably "grey market," and a couple of things might be counterfeit. But ironically, the one thing I did not find is counterfeit D'Addario guitar strings.

Of course, Jim D'Addario is far from the most clueless man in the industry. As usual, that honor goes to the heads of the RIAA, who this week claimed that a .music gTLD would "enable wide scale copyright and trademark infringement." As Marcus Carab pointed out, their attitude seems to be "ALL MUSIC = crime unless it is explicitly and completely controlled by us."

But it's even more ridiculous than that. The ability to get a .music gTLD would be available only to official members of the music community, deliberately to ward off pirates and cybersquatters. Constantine Roussos, the man behind the dotMusic campaign, is also the man behind FightPiracy.org. He's certainly no friend of piracy or enemy of the recording industry, despite the RIAA's assumptions. When it took aim at Roussos, the RIAA set its phasers to "stupid."

There's one final story that I'd like to mention, to complete this compliment sandwich. That is how ACS:Law is continuing to screw the pooch in court. There's nothing particularly surprising about this, but it makes me smile. It's like a cross between Boston Legal and the Keystone Cops. Hopefully the USCG suits in Minnesota will crash and burn too.


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    Anonymous, Jan 22nd, 2011 @ 12:08pm

    Why don't you contact Jim D'Addario, show him caches of these "blogs" you claim are just innocent victims of the big, bad gummint, and get his reaction?

    Looking forward to that.

     

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      Karl (profile), Jan 23rd, 2011 @ 9:00am

      Re:

      Why don't you contact Jim D'Addario, show him caches of these "blogs" you claim are just innocent victims of the big, bad gummint, and get his reaction?

      As soon as I get his email address, I intend to do exactly that.

       

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    Anonymous Coward, Jan 22nd, 2011 @ 12:46pm

    So, persons such as Mr. D'Addario are "clueless".

    Does this mean that those who disagree with his comments are "cluemore", or merely presumptuous?

    BTW, 82 domain names, and only domain names, were seized, with (IIRC) five of them being associated with allegedly copyright infringing content. The remainder were associated with the sale of counterfeit goods.

     

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      Marcus Carab (profile), Jan 22nd, 2011 @ 2:09pm

      Re:

      So if 82 people were arrested for a crime, and only 5 of them were innocent, would that be acceptable?

       

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        Anonymous, Jan 22nd, 2011 @ 2:19pm

        Re: Re:

        God, you're really being a box of hammers here, aren't you Marcus?

        If you and Karl's lips weren't attached to Masnick's rectal exit portal, you'd realize you were living in fantasy land, and that ALL the seizures (and likely many more) are perfectly legal and will stand.

        You can't break copyright law and say, "but I was doing something legal too!"

        Or, "BUT THE FIRST AMENDMENT!" and expect that to let you just skate.

        You really look foolish when you continue to be willfully blind to the facts.

        Watch the last 3 minutes of this, and realize that you're listening to someone that actually knows what they're talking about.

        http://www.youtube.com/watch?v=OWZY_LujUhc

         

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          The eejit (profile), Jan 23rd, 2011 @ 1:14am

          Re: Re: Re:

          Okay then, how is the seizure of US domains the province of Customs, which deals with import/export? Or immigration? Is illegal music the sole province of Mexicans and Muslims?

          And I've just watched the whole damn thing, and the guy contradicts himself at least twice. So no, he doesn't know what he's talking about. Thanks for playing.

           

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            Anonymous Coward, Jan 23rd, 2011 @ 2:52am

            Re: Re: Re: Re:

            how is the seizure of US domains the province of Customs

            First of all, if ICE has been designated to help with an aspect of law enforcement by gov, then they will do that. After 9/11, all law enforcement agencies are mandated to work in concert with each other.

            But to more specifically answer your question, when American IP is being infringed upon, unless you can show that all instances of production and consumption are only happening within US borders, then ICE has every right to be involved.

             

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          Marcus Carab (profile), Jan 23rd, 2011 @ 9:41am

          Re: Re: Re:

          Okay, I watched your video. That stammering confused answer from ICE is supposed to impress me?

          Firstly, he flat out lied. He claimed all the sites were involved in the sale of counterfeit goods. That's not true. Oh wait, he realized and took it back immediately afterwards. Yeah, this is really convincing.

          The video does not address any of the points people are raising against this. Neither you nor anyone else has explained why this isn't prior restraint.

          You look really foolish when you say absolutely nothing at all.

           

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            Hephaestus (profile), Jan 23rd, 2011 @ 1:55pm

            Re: Re: Re: Re:

            "The video does not address any of the points people are raising against this. Neither you nor anyone else has explained why this isn't prior restraint."

            Funny that, avoiding all the constitutionally relevent points and focusing on counterfeit shoes. Makes me wonder if he is into the same things as J. Edgar Hoover. :)

             

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            Hephaestus (profile), Jan 23rd, 2011 @ 1:55pm

            Re: Re: Re: Re:

            "The video does not address any of the points people are raising against this. Neither you nor anyone else has explained why this isn't prior restraint."

            Funny that, avoiding all the constitutionally relevent points and focusing on counterfeit shoes. Makes me wonder if he is into the same things as J. Edgar Hoover. :)

             

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          Karl (profile), Jan 23rd, 2011 @ 10:52am

          Re: Re: Re:

          ALL the seizures (and likely many more) are perfectly legal and will stand.

          As soon as the sites get an opportunity to contest the seizures, we'll see whether they stand.

          You can't break copyright law and say, "but I was doing something legal too!"

          You also can't break obscenity law and say, "but I was doing something legal too!"

          Yet if you try to shut down a bookstore that sells obscene material, with only a warrant and prior to an adversarial hearing, it's prior restraint.

          You really look foolish when you continue to be willfully blind to the facts.

          Watch the last 3 minutes of this, and realize that you're listening to someone that actually knows what they're talking about.

          I watched the whole thing. Thanks for the link, I didn't know video of his speech was even available.

          It seems to be the same speech that Techdirt already covered. Mike raised a lot of questions there, but I'll put together my own list.

          - There are very specific rules regarding injuctions for online entities, which are ennumerated in 17 U.S.C. 512(j). Those rules were specifically set up by Congress to limit the liability of exactly the kind of sites that were seized, and limit injunctions to be available only for the infringing material itself, and not the site as a whole. Why were those rules not sufficient?

          - Furthermore, 17 U.S.C. 512(a) through (e) removes any liability (civil or criminal) for these websites, provided they comply with certain conditions (e.g. notice-and-takedown). In some of those cases, it seems that the sites did, in fact, comply - and in at least one (dajaz1.com), the material was explicitly authorized. Why was no thorough attempt made to determine if that was the case?

          - If these sites were guilty of infringment, it would have to be for contributory or vicarious infringement. But these types of infringements have never been found to be criminal infringement. Additionally, 17 U.S.C. 506(a)(2) specifically says that "evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright." Why is the ICE taking criminal measures against non-criminal activity?

          - For the government to take potentially protected expression (e.g. fair use or authorized expression) out of circulation, as was the attempt here according to the affidavits, an adversarial hearing must be held prior to seizures or preliminary injunctions. If this is not done, it is prior restraint, and unconstitutional. Why was this issue not even addressed in the seizure affidavits?

          - In general, for civil forfeiture in criminal cases, 18 U.S.C Part I, Chapter 46, Sec. 983 states that the government must send a written notice to the property owners "as soon as practicable, and in no case more than 60 days after the date of the seizure." Failure to do so means the government must return the property, and moreover that it cannot seize the same property in the future. In the case of the first eight domain names seized in June, forfeiture proceedings were not commenced until six months after the seizures; prior to that, the domain owners were not even notified of the siezures, nor given any opportunity to contest them. Forfeiture proceedings have not started against the domains seized in December, and like the first eight, they have not been given any opportunity to contest the seizures. Why have the domain name owners been denied their day in court?

          - On a different note: In the video, Morton claimed that the seized domains were getting more traffic than the original sites were. Does it not occur to him that people are going to those sites because they are outraged at what ICE did? Isn't it possible that the seizures resulted in more public sympathy for the sites in question, and for file sharing in general?

          Until those questions are answered, I remain unconvinced of either their legality or effectiveness.

           

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            Anonymous, Jan 23rd, 2011 @ 11:15am

            Re: Re: Re: Re:

            My goodness. I could go all tl;dr on you, but that was quite a missive.

            At any rate, the judge disagrees with you.

            This is why I told you guys to watch that video. So that you would realize that outside of Masnick's Fantasy FUDworld, an actual investigation and due process occurred.

            It's been 2 months since these seizures took place and none of the owners have challenged them.

            And they're not going to. Most just ran and hid the sites in a foreign country.

            Bring on COICA.

             

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              Anonymous Coward, Jan 23rd, 2011 @ 11:39am

              Re: Re: Re: Re: Re:

              "Masnick's Fantasy FUDworld"

              Because if copy protection laws didn't last 95+ years, artists would starve, no art or music would ever be produced, and the world would come to an end.

               

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              Karl (profile), Jan 23rd, 2011 @ 12:05pm

              Re: Re: Re: Re: Re:

              At any rate, the judge disagrees with you.

              The judge rubber-stamped the seizure orders (literally), and did not even address any of what I brought up. Neither has ICE. They haven't "disagreed" with these points, they've ignored them.

              It's been 2 months since these seizures took place and none of the owners have challenged them.

              None of the owners have had the opportunity to challenge them. The fact that it's been two months doesn't mean the seizures were OK, it means that the government isn't letting people have their day in court.

              Some have said they will contest the seizures when they get the opportunity. That they haven't had the chance is downright scary.

               

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                Anonymous, Jan 23rd, 2011 @ 1:42pm

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

                Sorry Karl, but you're delusional if you think you know the law better than a Federal judge.

                And it appears Joe has demonstrated exactly why, below here.

                Please stop believing everything Masnick says. Your life will be a lot less complicated.

                 

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                  Marcus Carab (profile), Jan 23rd, 2011 @ 3:26pm

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

                  Again, Karl doesn't claim he knows it better than the judge - but the judge has not addressed any of the questions he raises. It seems like the judge did not consider a vital side of this issue when approving the affidavit, since the first amendment aspect would normally be at least discussed on the record, with the judge providing some explanation of their reasoning.

                  If the judge or ICE know better, they should be able to quickly and simply provide satisfactory answers to these questions and concerns about the affidavit that have been raised by multiple parties. Instead, ICE has evaded the questions and provided nothing.

                   

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                    average_joe (profile), Jan 23rd, 2011 @ 4:05pm

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

                    If the judge or ICE know better, they should be able to quickly and simply provide satisfactory answers to these questions and concerns about the affidavit that have been raised by multiple parties. Instead, ICE has evaded the questions and provided nothing.

                    It's not up to the agent in an affidavit to explain away possible constitutional arguments that the defendant might raise down the road. Those arguments can be raised by the defendant later. If the seizure warrant is unconstitutional, it should be a simple matter to get the warrant quashed. I just checked the docket in the tvshack.net et al. case (those domain names were seized this past summer), and no such motions have been filed yet.

                     

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                      Hephaestus (profile), Jan 23rd, 2011 @ 10:45pm

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

                      "I just checked the docket in the tvshack.net et al. case (those domain names were seized this past summer), and no such motions have been filed yet."

                      Please, and bite my hairless white german ass. When will a bunch of illegal aliens, people in foreign lands, poor people trying to get by, and US based foreign college students importing crap knock offs going to complain? This is simply picking on the weak first in a attempt to expand further. With the threat of financial ruin are they actually going to fight this?

                      Until actual arrests occur the this entire venture of ICE and homesec is not worth discussing and will continue.

                       

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              Rose M. Welch (profile), Jan 23rd, 2011 @ 3:05pm

              Re: Re: Re: Re: Re:

              Most just ran and hid the sites in a foreign country. Bring on COICA.

              Because an American law is going to affect a foreign problem how?

               

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            average_joe (profile), Jan 23rd, 2011 @ 12:35pm

            Re: Re: Re: Re:

            No offense, but Mike's claim that you have a "firm grasp of the law and case law" made me laugh out loud.

            There are very specific rules regarding injuctions for online entities, which are ennumerated in 17 U.S.C. 512(j). Those rules were specifically set up by Congress to limit the liability of exactly the kind of sites that were seized, and limit injunctions to be available only for the infringing material itself, and not the site as a whole. Why were those rules not sufficient?

            The rules regarding injunctions under section 512 are irrelevant to whether or not a hearing is needed before the seizure of a domain name may take place.

            Furthermore, 17 U.S.C. 512(a) through (e) removes any liability (civil or criminal) for these websites, provided they comply with certain conditions (e.g. notice-and-takedown). In some of those cases, it seems that the sites did, in fact, comply - and in at least one (dajaz1.com), the material was explicitly authorized. Why was no thorough attempt made to determine if that was the case?

            Absolute nonsense. Complying with notice-and-takedown is necessary, but not sufficient, to escape liability. How thorough the investigations were or were not is pure conjecture. You simply cannot know the details of the investigation unless you were a part of it.

            If these sites were guilty of infringment, it would have to be for contributory or vicarious infringement. But these types of infringements have never been found to be criminal infringement. Additionally, 17 U.S.C. 506(a)(2) specifically says that "evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright." Why is the ICE taking criminal measures against non-criminal activity?

            The implication of these domain name seizures is that the underlying sites were being used for criminal infringement, plain and simple. Bringing up secondary liability under civil infringement is misdirection. It's irrelevant. Section 506 does require more than just reproduction or distribution to prove willfulness. So what? That just means the mens rea of willfulness will have to be proved.

            For the government to take potentially protected expression (e.g. fair use or authorized expression) out of circulation, as was the attempt here according to the affidavits, an adversarial hearing must be held prior to seizures or preliminary injunctions. If this is not done, it is prior restraint, and unconstitutional. Why was this issue not even addressed in the seizure affidavits?

            The property being seized is a domain name. It is not potentially protected speech that can't be taken out of circulation without an adversarial hearing, it is presumptively protected speech that enjoys that exception. You're misstating the test and then saying the seizures fail the test. Classic strawman.

            In general, for civil forfeiture in criminal cases, 18 U.S.C Part I, Chapter 46, Sec. 983 states that the government must send a written notice to the property owners "as soon as practicable, and in no case more than 60 days after the date of the seizure." Failure to do so means the government must return the property, and moreover that it cannot seize the same property in the future. In the case of the first eight domain names seized in June, forfeiture proceedings were not commenced until six months after the seizures; prior to that, the domain owners were not even notified of the siezures, nor given any opportunity to contest them. Forfeiture proceedings have not started against the domains seized in December, and like the first eight, they have not been given any opportunity to contest the seizures. Why have the domain name owners been denied their day in court?

            Another strawman. That rule applies to "nonjudicial" forfeitures. This is a judicial forfeiture.

            On a different note: In the video, Morton claimed that the seized domains were getting more traffic than the original sites were. Does it not occur to him that people are going to those sites because they are outraged at what ICE did? Isn't it possible that the seizures resulted in more public sympathy for the sites in question, and for file sharing in general?

            That's possible, but it's not relevant to the legality of the seizures.

             

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              Richard (profile), Jan 23rd, 2011 @ 2:44pm

              Re: Re: Re: Re: Re:

              If the law is that complicated then how on earth are ordinary (non-lawyers) supposed to comply with it...??
              Needs abolishing...

               

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              Karl (profile), Jan 23rd, 2011 @ 7:57pm

              Re: Re: Re: Re: Re:

              No offense, but Mike's claim that you have a "firm grasp of the law and case law" made me laugh out loud.

              Whatever. I never claimed to be a lawyer, but even I can read the law and see why these seizures are wrong. If that makes you laugh, then have at it.

              The rules regarding injunctions under section 512 are irrelevant to whether or not a hearing is needed before the seizure of a domain name may take place.

              That would be relevant if that question was regarding pre-seizure hearings. It was not.

              Let's hear more from Title 17, this time specifically about impounding infringing articles. That is dealt with in 17 U.S.C 503, which in turn references 15 U.S.C. 1116 (d)(2) through (11). That section specifically states that ex parte seizures are not allowed unless "an order other than an ex parte seizure order is not adequate."

              In other words, ex parte seizures can only be granted if "safe harbors" are insufficient.

              So, the question was why ICE can totally disregard that entire section of the law. If they're allowed to do that, why have those laws in the first place? Why did Congress create Section 512 if law enforcement can just ignore it?

              Complying with notice-and-takedown is necessary, but not sufficient, to escape liability.

              Well, when the law says "A service provider shall not be liable," I tend to think of that as "escaping liability." Complying with notice-and-takedown is the most common requirement, but the others (mostly having to do with disabling infringing users' accounts) are all there in 17 U.S.C. 512.

              Section (j)(3) of that law even makes it clear that ex parte injunctions are not allowed:
              Injunctive relief under this subsection shall be available only after notice to the service provider and an opportunity for the service provider to appear are provided, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the service provider’s communications network.

              You could possibly argue that the domain names were seized for the "preservation of evidence," but that's a huge stretch. A domain name is not evidence of anything except having a domain name. A simple record of the website it pointed to would suffice as evidence (it is in fact used as evidence in the affidavit), and if not, then that evidence is actually destroyed by the seizure itself.

              It would be even more of a stretch to suggest that taking away a domain name has "no material adverse effect" on a website. Having a "material adverse effect" is the entire point, in fact.

              The implication of these domain name seizures is that the underlying sites were being used for criminal infringement, plain and simple. Bringing up secondary liability under civil infringement is misdirection.

              Secondary liability is the only possible thing some of these sites could be guilty of. Which would mean that vicarious or contributory infringement is "criminal infringement" in the eyes of ICE. That is a problem. ICE couldn't just seize Napster's domain, why should they be able to seize these?

              It is not potentially protected speech that can't be taken out of circulation without an adversarial hearing, it is presumptively protected speech that enjoys that exception.

              Authorized content and fair use are presumptively protected expression. More importantly, so is expression that is not even accused of being infringing - such as the majority of the expression on the blogs and forums.

              The property being seized is a domain name.

              One intent of the seizures, as the affidavit clearly states, was to prevent access to the websites themselves. I don't know why you aren't willing to admit this. I mean, right in the video Morton brags about other sites "voluntarily" shutting down - clearly the intent was to chill speech.

              Another strawman. That rule applies to "nonjudicial" forfeitures. This is a judicial forfeiture.

              From 17 U.S.C. 506(b), Criminal Offenses:
              Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323 of title 18

              From 18 U.S.C. 2323, Forfeiture, destruction, and restitution:
              The provisions of chapter 46 relating to civil forfeitures shall extend to any seizure or civil forfeiture under this section.

              ...which brings us back to 18 U.S.C. Chapter 46, of which I quoted Sec. 983: General rules for civil forfeiture proceedings.

              I don't see how I'm creating a "strawman."

              That's possible, but it's not relevant to the legality of the seizures.

              Thus, "on a separate note." That wasn't a question about legality, but about the wisdom of such seizures. Morton brings that up as if it's some kind of victory, as if it's evidence that ICE is "winning the hearts and minds" of the public. I think he's got his head up his ass. All this is doing is making people angry at the government, and more willing to break the law.

               

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                Karl (profile), Jan 23rd, 2011 @ 8:12pm

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

                The rules regarding injunctions under section 512 are irrelevant to whether or not a hearing is needed before the seizure of a domain name may take place.

                Also: Why do you think this is "irrelevant?" If an injunction against a domain name is not allowed in any situation, with or without a hearing, why should an ex parte seizure be allowed?

                 

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                  average_joe (profile), Jan 23rd, 2011 @ 8:54pm

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

                  Also: Why do you think this is "irrelevant?" If an injunction against a domain name is not allowed in any situation, with or without a hearing, why should an ex parte seizure be allowed?

                  That rules that apply to seizures are distinct from the rules that apply to injunctions. Regardless, injunctions are allowed against domain names. Do you just make this stuff up?

                   

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                    Karl (profile), Jan 24th, 2011 @ 5:11am

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

                    Regardless, injunctions are allowed against domain names.

                    Not really. They weren't granted in Napster or Grokster, for instance - they only issued an injunction against the infringing activity on those sites. (They might have been able to comply if the damages hadn't forced them out of business.)

                    Injunctions are granted against domain names in trademark cases, where the domain name itself is confusingly similar to a trademark. That's not the case here.

                     

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                average_joe (profile), Jan 23rd, 2011 @ 8:50pm

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

                Whatever. I never claimed to be a lawyer, but even I can read the law and see why these seizures are wrong. If that makes you laugh, then have at it.

                It was Mike that said it, not you. It just makes me laugh because, IMO, you butcher the law with your strained interpretations of it. If Mike considers you to have a "firm grasp," I'm very skeptical of his so-called expert lawyer friends that he claims exist and back up his side of the argument. Funny how his expert friends don't just come on techdirt and post themselves.

                That would be relevant if that question was regarding pre-seizure hearings. It was not. Let's hear more from Title 17, this time specifically about impounding infringing articles. That is dealt with in 17 U.S.C 503, which in turn references 15 U.S.C. 1116 (d)(2) through (11). That section specifically states that ex parte seizures are not allowed unless "an order other than an ex parte seizure order is not adequate." In other words, ex parte seizures can only be granted if "safe harbors" are insufficient. So, the question was why ICE can totally disregard that entire section of the law. If they're allowed to do that, why have those laws in the first place? Why did Congress create Section 512 if law enforcement can just ignore it?

                Did you notice that Section 503 is titled "Impounding and disposition of infringing articles"? That section deals with impounding articles such as phonorecords or master tapes, or the records documenting the manufacture or sale of such. Such articles or documents are not what is being seized by ICE, so that section does not apply.

                Well, when the law says "A service provider shall not be liable," I tend to think of that as "escaping liability." Complying with notice-and-takedown is the most common requirement, but the others (mostly having to do with disabling infringing users' accounts) are all there in 17 U.S.C. 512. Section (j)(3) of that law even makes it clear that ex parte injunctions are not allowed: Injunctive relief under this subsection shall be available only after notice to the service provider and an opportunity for the service provider to appear are provided, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the service provider’s communications network. You could possibly argue that the domain names were seized for the "preservation of evidence," but that's a huge stretch. A domain name is not evidence of anything except having a domain name. A simple record of the website it pointed to would suffice as evidence (it is in fact used as evidence in the affidavit), and if not, then that evidence is actually destroyed by the seizure itself. It would be even more of a stretch to suggest that taking away a domain name has "no material adverse effect" on a website. Having a "material adverse effect" is the entire point, in fact.

                The accusation here is criminal infringement. The necessary implication is the sites have lost their safe harbor under section 512 since that section does not protect criminal infringement. Injunctions under section 512(j) only apply in civil cases, not criminal cases. Regardless, the rules you cite for injunctions only apply to sites that haven't lost their safe harbor. The domain names are evidence, and by the fact of their seizure, they cannot be transferred out of the U.S.'s jurisdiction. Thus, the evidence has been preserved.

                Secondary liability is the only possible thing some of these sites could be guilty of. Which would mean that vicarious or contributory infringement is "criminal infringement" in the eyes of ICE. That is a problem. ICE couldn't just seize Napster's domain, why should they be able to seize these?

                The is no secondary criminal infringement. The sites can be guilty of direct infringement, of aiding or abetting infringement, or of conspiracy to infringe. The agent's affidavit argued direct infringement and conspiracy to infringe. ICE could have seized Napster's domain if there was probable cause to do so.

                Authorized content and fair use are presumptively protected expression. More importantly, so is expression that is not even accused of being infringing - such as the majority of the expression on the blogs and forums.

                The blogs and forums were not seized. Fair use and authorization are defenses and therefore not the presumption.

                One intent of the seizures, as the affidavit clearly states, was to prevent access to the websites themselves. I don't know why you aren't willing to admit this. I mean, right in the video Morton brags about other sites "voluntarily" shutting down - clearly the intent was to chill speech.

                The intent was to seize an instrumentality of crime. The effect on the speech on the server is incidental and irrelevant.

                From 17 U.S.C. 506(b), Criminal Offenses: Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323 of title 18 From 18 U.S.C. 2323, Forfeiture, destruction, and restitution: The provisions of chapter 46 relating to civil forfeitures shall extend to any seizure or civil forfeiture under this section. ...which brings us back to 18 U.S.C. Chapter 46, of which I quoted Sec. 983: General rules for civil forfeiture proceedings. I don't see how I'm creating a "strawman."

                The part of section 983 you're quoting says that it specifically applies to "nonjudicial" forfeitures. These are not nonjudicial forfeitures, so it doesn't apply here.

                Thus, "on a separate note." That wasn't a question about legality, but about the wisdom of such seizures. Morton brings that up as if it's some kind of victory, as if it's evidence that ICE is "winning the hearts and minds" of the public. I think he's got his head up his ass. All this is doing is making people angry at the government, and more willing to break the law.

                Perhaps.

                 

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                  Mike Masnick (profile), Jan 24th, 2011 @ 2:14am

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

                  It was Mike that said it, not you. It just makes me laugh because, IMO, you butcher the law with your strained interpretations of it. If Mike considers you to have a "firm grasp," I'm very skeptical of his so-called expert lawyer friends that he claims exist and back up his side of the argument. Funny how his expert friends don't just come on techdirt and post themselves.

                  Heh. They do. Pay attention.

                  The accusation here is criminal infringement. The necessary implication is the sites have lost their safe harbor under section 512 since that section does not protect criminal infringement. Injunctions under section 512(j) only apply in civil cases, not criminal cases. Regardless, the rules you cite for injunctions only apply to sites that haven't lost their safe harbor. The domain names are evidence, and by the fact of their seizure, they cannot be transferred out of the U.S.'s jurisdiction. Thus, the evidence has been preserved.

                  Huh? Can you explain how this evidence has been "preserved" in a manner that couldn't have been preserved without seizing the domains?

                  The is no secondary criminal infringement. The sites can be guilty of direct infringement, of aiding or abetting infringement, or of conspiracy to infringe. The agent's affidavit argued direct infringement and conspiracy to infringe. ICE could have seized Napster's domain if there was probable cause to do so.

                  Yes, well, that's a pretty big problem, isn't it? Given that the folks who operated these sites did not directly infringe on anyone's copyright, nor did were they involved in a conspiracy to infringe.

                  That's sort of a problem for your argument.

                  The is no secondary criminal infringement. The sites can be guilty of direct infringement, of aiding or abetting infringement, or of conspiracy to infringe. The agent's affidavit argued direct infringement and conspiracy to infringe. ICE could have seized Napster's domain if there was probable cause to do so.

                  How? Seriously. How are they guilty of *direct* infringement?

                  The blogs and forums were not seized.

                  Why do you keep making this false claim? The affidavit itself indicated the intent was to shut down the site. Why do you always ignore this?

                  AJ, you seem to be bending over backwards here to defend the indefensible. Can I at least ask a simple question: whether or not these seizures were legal, do you feel they were right? Think carefully.

                   

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                    Anonymous Coward, Jan 24th, 2011 @ 5:04am

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                    AJ, you seem to be bending over backwards here to defend the indefensible. Can I at least ask a simple question: whether or not these seizures were legal, do you feel they were right? Think carefully.

                    Masnick— Don't blame the guy for arguing sharply and strenuously. It makes for a better argument. And the government lawyers sure aren't going to pull their punches.

                    Meanwhile, I'm somewhat sorry that I simply haven't had the motivation to argue as sharply and strenuously as I might. Truth is, while I am absolutely convinced that this precedent (if sustained) will surely be used to suppress political dissent, we aren't there yet. I see no real sign that the government intended the instant seizures for political purposes. For now, it's just a legal argument, not yet a civil war.

                    Further, I'm not totally convinced that the legal system is the best tool to strike these seizures down. If we use technical means to take these decisions out of the hands of a corrupt judiciary, then core political speech may be better protected. But technical means will take at least five or ten years for widespread adoption—and people in America won't have the motivation to deploy those measures if the courts uphold the First Amendment.

                     

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                    average_joe (profile), Jan 24th, 2011 @ 6:16am

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

                    Heh. They do. Pay attention.

                    Good deal. The more lawyers arguing the law, the better. :)

                    Huh? Can you explain how this evidence has been "preserved" in a manner that couldn't have been preserved without seizing the domains?

                    The domain name now safely resides in the control of the district court. Before it was seized, it could have been transferred to someone else by the alleged criminal. Now it can't.

                    Yes, well, that's a pretty big problem, isn't it? Given that the folks who operated these sites did not directly infringe on anyone's copyright, nor did were they involved in a conspiracy to infringe.

                    That's sort of a problem for your argument.


                    I agree that in the torrent-finder.com case, the site's operators probably were not direct infringers. I'm not sure you could say the same of the other seven dozen or so sites that had their domain names seized. I suspect that if torrent-finder.com fights this, the feds will be happy to change their theory of liability to one that fits the facts--accomplice liability. As far as conspiracy goes, the agent threw that out, but he never really explained it. The agent did say that he was only releasing the information he thought necessary to get the warrant, so until the rest of the investigation comes to light, we don't know what the feds have.

                    How? Seriously. How are they guilty of *direct* infringement?

                    As I indicated in the previous response, I agree that torrent-finder.com is probably not actually liable for direct infringement and the agent got that wrong. That doesn't mean that warrant is fatally flawed though. More importantly, that one case does in no way affect the legality of the seizures in general.

                    Why do you keep making this false claim? The affidavit itself indicated the intent was to shut down the site. Why do you always ignore this?

                    The statute says that any property used to commit criminal infringement can be seized. The domain name fits this definition, and that's what was seized. The effect on the site was incidental. I'm not ignoring it. I admit that the site was affected. I just don't see how that negates the authority to seize the domain name under 18 U.S.C. 2323. Besides, I think the servers themselves could also be seized.

                    AJ, you seem to be bending over backwards here to defend the indefensible. Can I at least ask a simple question: whether or not these seizures were legal, do you feel they were right? Think carefully.

                    I disagree that it's indefensible for the simple reason that it's not conclusive whether or not these seizures are unconstitutional under the 1st or 5th Amendments. You keep talking like that's a foregone conclusion, but it's not. I'm keeping an open mind. You're locked in to your position and you've got a closed mind.

                    To answer your question, I don't have a problem with the seizures, as long as they are legal.

                     

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                      Mike Masnick (profile), Jan 24th, 2011 @ 10:20am

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

                      The domain name now safely resides in the control of the district court. Before it was seized, it could have been transferred to someone else by the alleged criminal. Now it can't.

                      Again, easy enough to get an injunction to stop this. Or, if it was transferred to someone else to get it later. Remember, it's in control of Verisign and there's no way around that. So, no, your argument makes no sense. There is simply no reason to claim that seizing the domain "preserves evidence." It does not.

                      I agree that in the torrent-finder.com case, the site's operators probably were not direct infringers. I'm not sure you could say the same of the other seven dozen or so sites that had their domain names seized.

                      Curious: can you explain how dajaz1 is a direct infringer? Thanks.

                      I suspect that if torrent-finder.com fights this, the feds will be happy to change their theory of liability to one that fits the facts--accomplice liability.

                      As already discussed the standards to prove accomplice liability are much higher, and Agent Reynolds came nowhere close to showing probable cause of accomplice liability in the affidavit. You can't possibly support an effort that lets you prove a lower standard of probable cause, and when it's proven that there was no violation there, allow them to change it later, can you?

                      The statute says that any property used to commit criminal infringement can be seized. The domain name fits this definition, and that's what was seized. The effect on the site was incidental.

                      No offense, AJ, but I am greatly troubled by your assertion that preventing any sort of speech is "incidental." That's not how the First Amendment works, and it bothers me that you think it does.

                      I disagree that it's indefensible for the simple reason that it's not conclusive whether or not these seizures are unconstitutional under the 1st or 5th Amendments. You keep talking like that's a foregone conclusion, but it's not. I'm keeping an open mind. You're locked in to your position and you've got a closed mind.

                      It's not that I have a closed mind, it's that I respect the core principles of free speech and due process. I am also not saying that it's a foregone conclusion. I admit that people like yourself seem perfectly willing to twist the basic principles of the law to support indefensible positions, and sometimes the courts agree.

                      I have trouble respecting anyone who argues otherwise, as it makes me question their moral character. You seem so focused on the specifics of the rules and the wording therein, that you seem to miss on the main principles. To you, this all seems like a game. To me, it's about people playing games to rip up rather important principles on which this country was built.

                      I find it shameful.

                       

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                        average_joe (profile), Jan 24th, 2011 @ 10:47am

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

                        Again, easy enough to get an injunction to stop this. Or, if it was transferred to someone else to get it later. Remember, it's in control of Verisign and there's no way around that. So, no, your argument makes no sense. There is simply no reason to claim that seizing the domain "preserves evidence." It does not.

                        Under the statute (18 U.S.C. 2323) the property can be seized. Period. It is not necessary that it be seized for the purpose of preserving evidence. By being seized, the property is taken away from the criminals using it, and it no longer is being used to facilitate the commission of crime. Another way to describe that situation is "preserved." But you call it whatever you like.

                        Curious: can you explain how dajaz1 is a direct infringer? Thanks.

                        As I've mentioned, I'm not familiar with any case other than the torrent-finder.com case. I haven't followed the story of the blogs that were seized. Sorry.

                        As already discussed the standards to prove accomplice liability are much higher, and Agent Reynolds came nowhere close to showing probable cause of accomplice liability in the affidavit. You can't possibly support an effort that lets you prove a lower standard of probable cause, and when it's proven that there was no violation there, allow them to change it later, can you?

                        The agent purported probable cause of direct infringement, not accomplice liability. He walked through how he thought torrent-finder.com fulfilled the elements of criminal infringement under section 506. He assumed that in-line linking and framing were the same as hosting the content yourself. I believe he was wrong in that assumption. That doesn't render the seizure warrant ineffective. The technical merits are not decided in a warrant hearing. There is no lower standard of probable cause here as you suggest. Either the agent recited facts that are sufficient for probable cause, or he didn't.

                        No offense, AJ, but I am greatly troubled by your assertion that preventing any sort of speech is "incidental." That's not how the First Amendment works, and it bothers me that you think it does.

                        Be troubled all you want, I'm not offended in the least. Your wrong, though. The incidental effect of a statute or an action on speech is something that courts debate all the time. That's exactly how the First Amendment works.

                        It's not that I have a closed mind, it's that I respect the core principles of free speech and due process. I am also not saying that it's a foregone conclusion. I admit that people like yourself seem perfectly willing to twist the basic principles of the law to support indefensible positions, and sometimes the courts agree.

                        You contradict yourself. If you think the only way a court could agree that it's not unconstitutional is by twisting principles and indefensible positions, then you have already closed to your mind.

                        I have trouble respecting anyone who argues otherwise, as it makes me question their moral character. You seem so focused on the specifics of the rules and the wording therein, that you seem to miss on the main principles. To you, this all seems like a game. To me, it's about people playing games to rip up rather important principles on which this country was built.

                        I find it shameful.


                        I actually don't care which way this turns out as I think both sides have good arguments. I think your problem is that you start with your conclusion and then work your way back. I prefer to come into these things more neutral. If my indifference disgusts you, I'm OK with that.

                         

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                          Mike Masnick (profile), Jan 24th, 2011 @ 11:54am

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

                          Under the statute (18 U.S.C. 2323) the property can be seized. Period. It is not necessary that it be seized for the purpose of preserving evidence. By being seized, the property is taken away from the criminals using it, and it no longer is being used to facilitate the commission of crime. Another way to describe that situation is "preserved." But you call it whatever you like.

                          You're playing games. One minute you claim that this was necessary to keep it as evidence, and then you claim that it's not necessary.

                          You do this a lot. One minute domain names can be seized because they're not blocking content, and the next the content on the site needs to be blocking.

                          It's tough to take you seriously when you change your argument any time people pin you down.

                          As I've mentioned, I'm not familiar with any case other than the torrent-finder.com case. I haven't followed the story of the blogs that were seized. Sorry.

                          Um. Wow. Ok. So why did you claim they could be direct infringers?

                          Again, it's difficult to take you seriously when you make claims and when confronted say you haven't actually looked at the case. Shocking.

                          The agent purported probable cause of direct infringement, not accomplice liability. He walked through how he thought torrent-finder.com fulfilled the elements of criminal infringement under section 506. He assumed that in-line linking and framing were the same as hosting the content yourself. I believe he was wrong in that assumption. That doesn't render the seizure warrant ineffective. The technical merits are not decided in a warrant hearing. There is no lower standard of probable cause here as you suggest. Either the agent recited facts that are sufficient for probable cause, or he didn't.

                          You don't find this troubling? You don't find it sickening that one would use a certain misinterpretation of the law to stifle speech, and then when later confronted on it, say he actually meant some other law that has a higher standard? Really?

                          Be troubled all you want, I'm not offended in the least. Your wrong, though. The incidental effect of a statute or an action on speech is something that courts debate all the time. That's exactly how the First Amendment works.

                          The point was not how the First Amendment works, it's that you seem to think taking someone's domain is "incidental." Scary. And wrong.

                          You contradict yourself. If you think the only way a court could agree that it's not unconstitutional is by twisting principles and indefensible positions, then you have already closed to your mind.

                          I have done no such thing.

                          I actually don't care which way this turns out as I think both sides have good arguments. I think your problem is that you start with your conclusion and then work your way back. I prefer to come into these things more neutral. If my indifference disgusts you, I'm OK with that.

                          AJ, don't make statements that are obviously untrue. It looks bad on you.

                          Again, the fact that you are focused on the game of this rather than what's actually going on is, to me, sickening.

                           

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                            average_joe (profile), Jan 24th, 2011 @ 12:23pm

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

                            You're playing games. One minute you claim that this was necessary to keep it as evidence, and then you claim that it's not necessary. You do this a lot. One minute domain names can be seized because they're not blocking content, and the next the content on the site needs to be blocking. It's tough to take you seriously when you change your argument any time people pin you down.

                            I never said that it was necessary to seize the domain name to preserve as evidence. I said that seizing it does in fact preserve it as evidence. You are trying to put words in my mouth in order to discredit me. Show me exact quotes where I have contradicted myself. Otherwise, your claim is conclusory and unsupported.

                            Um. Wow. Ok. So why did you claim they could be direct infringers? Again, it's difficult to take you seriously when you make claims and when confronted say you haven't actually looked at the case. Shocking.

                            Here's what I said, "I agree that in the torrent-finder.com case, the site's operators probably were not direct infringers. I'm not sure you could say the same of the other seven dozen or so sites that had their domain names seized." As my quote indicates, maybe they can, maybe they can't. I don't know.

                            You don't find this troubling? You don't find it sickening that one would use a certain misinterpretation of the law to stifle speech, and then when later confronted on it, say he actually meant some other law that has a higher standard? Really?

                            The other crime doesn't have a "higher standard." You're making that part up. Sure, it is troubling that the agent thinks in-line linking and framing are the same as hosting the content itself. I never said it wasn't. I'm only pointing out the fact that it doesn't matter--not at this point of the proceedings. I'm sure agents make technical mistakes all the time.

                            The point was not how the First Amendment works, it's that you seem to think taking someone's domain is "incidental." Scary. And wrong.

                            The domain name is incidental to the speech on the server, legally speaking. I'm not sure how it could be anything but otherwise.

                            I have done no such thing.

                            If the only way a court could agree that it's not unconstitutional is by twisting principles and by taking indefensible positions, then how is it you think your mind is open on the subject? That makes no sense to me.

                            AJ, don't make statements that are obviously untrue. It looks bad on you.

                            How is what I said not true? Please explain. Without more, I have no idea what you mean.

                            Again, the fact that you are focused on the game of this rather than what's actually going on is, to me, sickening.

                            I'm aware of "what's actually going on," Mike. Don't be silly. Unlike you, I don't have a problem with the laws being enforced, even the ones I don't agree with.

                             

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                              Anonymous, Jan 24th, 2011 @ 5:10pm

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

                              At one point Joe I thought TF was only guilty of contributory infringement, but I came to realize that they are actually guilty of direct infringement.

                              The question seemed to rest on whether or not a site had the infringing material on their server. I don't think that matters.

                               

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                                average_joe (profile), Jan 24th, 2011 @ 5:23pm

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

                                At one point Joe I thought TF was only guilty of contributory infringement, but I came to realize that they are actually guilty of direct infringement.

                                The question seemed to rest on whether or not a site had the infringing material on their server. I don't think that matters.


                                Maybe so. It's certainly debatable. The caselaw I've read suggests that in-line linking and framing may give the appearance that the infringing content is being presented by the linking or framing site, but the underlying HTML tells the true tale of where the content is coming from. I believe the Ninth Circuit refers to it as the "server test." It doesn't matter where the content appears to come from, it matters where the content actually comes from. The case I'm thinking of was Perfect 10 v. Google/Amazon. I think the other argument is that if I'm going out of my to in-line link or frame the infringing content, it reaches a point where I may as well be hosting the material myself. The agent's theory isn't frivolous, IMO. Good point.

                                 

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                              Mike Masnick (profile), Jan 24th, 2011 @ 11:41pm

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

                              Unlike you, I don't have a problem with the laws being enforced, even the ones I don't agree with.

                              And that, right there, is what I find sickening.

                              I'm at a loss. I guess I knew there were people so depraved out there, but I'm sort of shocked that you seem to admit it so nonchalantly, as if abusing people's fundamental rights are no problem to you, so long as a law has been passed.

                              I'm sorry. I'm truly sorry. I really hope that one day you will find some basic moral courage. Until then, I'm somewhat disgusted that you seem to feel that way. I honestly don't feel comfortable speaking to you any more.

                               

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                                Anonymous, Jan 25th, 2011 @ 2:59am

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

                                LOL

                                you are truly a ridiculous person, Masnick.

                                I bet there's a pirate flag in every room of your home...

                                 

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                                  Mike Masnick (profile), Jan 25th, 2011 @ 3:17am

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

                                  you are truly a ridiculous person, Masnick.

                                  I bet there's a pirate flag in every room of your home...


                                  Huh? I am not in favor of piracy. I do not support it, I do not partake in unauthorized file sharing.

                                  I've discussed this with you before. I'm not sure why you continue to argue otherwise. I spend a ton of time and effort helping artists make a lot of money. We've discussed this as well, and your retort is that the bands you work with are losing money.

                                  So, please, tell me, where do you get off claiming I'm supporting piracy when I'm the one helping people make more money and the folks listening to you are making less money?

                                  It's a simple question.

                                   

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                                average_joe (profile), Jan 25th, 2011 @ 7:12am

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

                                And that, right there, is what I find sickening.

                                I'm at a loss. I guess I knew there were people so depraved out there, but I'm sort of shocked that you seem to admit it so nonchalantly, as if abusing people's fundamental rights are no problem to you, so long as a law has been passed.

                                I'm sorry. I'm truly sorry. I really hope that one day you will find some basic moral courage. Until then, I'm somewhat disgusted that you seem to feel that way. I honestly don't feel comfortable speaking to you any more.


                                LOL! I don't know who you are trying to sway with your rhetoric, but it just makes me laugh.

                                 

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                  Karl (profile), Jan 24th, 2011 @ 6:52am

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

                  It was Mike that said it, not you. It just makes me laugh because, IMO, you butcher the law with your strained interpretations of it.

                  "Butcher" is a strong word. I read whatever you (or anyone else) sends my way and try to see if it's correct. That's why I like these discussions: I learn more.

                  And I've learned enough to see through these seizures. If even a lowly noob like me can do it, then there's a serious problem with these seizures.

                  That section deals with impounding articles such as phonorecords or master tapes, or the records documenting the manufacture or sale of such.

                  18 U.S.C. Chapter 46 - exactly like 15 U.S.C. 1116 - was also intended to be used for impounding articles such as phonorecords or master tapes. You can't have it both ways: either the laws against seizing counterfeits apply (in which case the seizures are unwarranted), or else they do not (in which case the seizures are unwarranted).

                  The necessary implication is the sites have lost their safe harbor under section 512 since that section does not protect criminal infringement.

                  If the sites actually complied with the law under Section 512, then yes, they are protected against charges of criminal infringement as well. Indeed, how can you be guilty of criminal infringement if you can't even be guilty of civil infringement?

                  So, in order to be criminally liable, the sites must first lose their "safe harbor" protections. That's the entire point: ICE never determined that they lost them in the first place.

                  The domain names are evidence, and by the fact of their seizure, they cannot be transferred out of the U.S.'s jurisdiction.

                  Except that those gTLD's are only administered by companies within the U.S.'s jurisdiction. You can't move a ".com" domain overseas; they still have to go through Verisign.

                  If ICE intended to keep the sites themselves within the U.S.'s jurisdiction, they utterly failed - since the seizures caused those sites (and others) to deliberately set up domain names overseas.

                  The agent's affidavit argued direct infringement and conspiracy to infringe.

                  And the actual activities that these sites engaged in have never been shown to be either direct infringement, or "aiding and abetting" infringement. They've only been considered secondary infringement in tort cases. If they are convicted of direct infringement or "aiding and abetting," they will be the first in history to be so.

                  The blogs and forums were not seized.

                  I don't know why you keep going on about this. The intended effect was to shut down the sites entirely. That is very, very clear from the affidavit, and from the video that some A.C. posted above. Morton actually gloats that most sites did not set up shop somewhere else; and he said he was very prepared to do "a Wac-a-mole operation" if they did.

                  The intent was to seize an instrumentality of crime. The effect on the speech on the server is incidental and irrelevant.

                  And case law is very clear: When a First Amendment can even possibly be used as a defense against that crime, then "the effect on speech" is of primary importance. It is not "incidental and irrelevant." It is prior restraint.

                  The part of section 983 you're quoting says that it specifically applies to "nonjudicial" forfeitures.

                  The only other relevant section is Sec. 985, Civil forfeiture of real property. (And again, this section is obviously intended for "impounding articles such as phonorecords or master tapes, or the records documenting the manufacture or sale of such." The fact that it mentions lis pendens and restraining orders, but not injunctions, should be a clue.)

                  That section does not give actual time frames (e.g. "30 days,"), so I assumed the lengths in 983 also applied.

                  But even if not, those seizure laws were not followed. 985(b)(1)(B) says under normal circumstances, "the owners or occupants of the real property shall not be evicted from, or otherwise deprived of the use and enjoyment of, real property that is the subject of a pending forfeiture action." 985(c)(1)(C) requires "serving notice on the property owner, along with a copy of the complaint." And 985(d)(1)(B)(i) states:
                  Real property may be seized prior to the entry of an order of forfeiture if [...] the court issues a notice of application for warrant, causes the notice to be served on the property owner and posted on the property, and conducts a hearing in which the property owner has a meaningful opportunity to be heard;

                  Ex parte seizures are covered in 985(d)(1)(B)(ii), and are to be used only when "less restrictive measures such as a lis pendens, restraining order, or bond would not suffice." It is the "nuclear option" of seizures, used only in the face of impending destruction of evidence.

                  And even with an ex parte seizure, you must still grant an adversarial hearing:
                  If the court authorizes a seizure of real property under subsection (d)(1)(B)(ii), it shall conduct a prompt post-seizure hearing during which the property owner shall have an opportunity to contest the basis for the seizure.

                  I don't know about you, but six months does not seem "prompt" to me.

                  So, to sum up:

                  Congress passed laws specifically dealing with online infringement. ICE completely ignored those laws, and instead used laws designed for seizing physical property - laws which are prior restraint if they silence protected speech. They didn't even use the default seizure rules, but used a flimsy pretext to get the "nuclear option" of ex parte seizure. Then kept the seizure orders under seal from the defendants for months on end before giving the sites any opportunity to contest them. All to combat infringement that has never been considered criminal.

                  These were not federal agents making a good faith attempt to stop crime. This was a deliberate and egregious attempt to route around safe harbors and the First Amendment. It was censorship, plain and simple.

                   

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                    average_joe (profile), Jan 24th, 2011 @ 8:36am

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

                    "Butcher" is a strong word. I read whatever you (or anyone else) sends my way and try to see if it's correct. That's why I like these discussions: I learn more.

                    And I've learned enough to see through these seizures. If even a lowly noob like me can do it, then there's a serious problem with these seizures.


                    Butcher is a strong word. I didn't use it carelessly.

                    18 U.S.C. Chapter 46 - exactly like 15 U.S.C. 1116 - was also intended to be used for impounding articles such as phonorecords or master tapes. You can't have it both ways: either the laws against seizing counterfeits apply (in which case the seizures are unwarranted), or else they do not (in which case the seizures are unwarranted).

                    The section you quoted specifically says it applies only to nonjudicial seizures. These were not nonjudicial seizures. Therefore your claim that notice was mandated by the section you quoted is false. Even if notice is required, the government can always ask the court ex parte to extend the deadline that notice must be given. Perhaps that's happened here. We would have no way of knowing.

                    If the sites actually complied with the law under Section 512, then yes, they are protected against charges of criminal infringement as well. Indeed, how can you be guilty of criminal infringement if you can't even be guilty of civil infringement?

                    So, in order to be criminally liable, the sites must first lose their "safe harbor" protections. That's the entire point: ICE never determined that they lost them in the first place.


                    Right, if they complied with the law under section 512 they wouldn't be liable. The accusation here is of criminal infringement. This necessarily means that the section 512 safe harbors would be lost. ICE did determine that the sites lost their safe harbors. That is the necessary implication, as I've indicated.

                    Except that those gTLD's are only administered by companies within the U.S.'s jurisdiction. You can't move a ".com" domain overseas; they still have to go through Verisign.

                    If ICE intended to keep the sites themselves within the U.S.'s jurisdiction, they utterly failed - since the seizures caused those sites (and others) to deliberately set up domain names overseas.


                    The seizure put the domain name into the district court's control, and it removed an instrumentality of crime from the criminal's control. That was the point.

                    And the actual activities that these sites engaged in have never been shown to be either direct infringement, or "aiding and abetting" infringement. They've only been considered secondary infringement in tort cases. If they are convicted of direct infringement or "aiding and abetting," they will be the first in history to be so.

                    We'll see exactly what the government argues when that day comes.

                    I don't know why you keep going on about this. The intended effect was to shut down the sites entirely. That is very, very clear from the affidavit, and from the video that some A.C. posted above. Morton actually gloats that most sites did not set up shop somewhere else; and he said he was very prepared to do "a Wac-a-mole operation" if they did.

                    The intended effect, as explicitly laid out in the affidavit, was to seize property used to facilitate criminal infringement under 18 U.S.C. 2323. That's exactly what was done. The incidental effect on the underlying site doesn't make the seizures illegal. The servers themselves could have been seized too.

                    And case law is very clear: When a First Amendment can even possibly be used as a defense against that crime, then "the effect on speech" is of primary importance. It is not "incidental and irrelevant." It is prior restraint.

                    The caselaw is clear, but your understanding of it is not. Such property can be seized. Read Heller.

                    The only other relevant section is Sec. 985, Civil forfeiture of real property. (And again, this section is obviously intended for "impounding articles such as phonorecords or master tapes, or the records documenting the manufacture or sale of such." The fact that it mentions lis pendens and restraining orders, but not injunctions, should be a clue.)

                    That section does not give actual time frames (e.g. "30 days,"), so I assumed the lengths in 983 also applied. . . .


                    Real property means real estate, or what we civilians call "immovables." That section has absolutely no bearing on any of this. You're killing me with this stuff, Karl.

                    So, to sum up:

                    Congress passed laws specifically dealing with online infringement. ICE completely ignored those laws, and instead used laws designed for seizing physical property - laws which are prior restraint if they silence protected speech. They didn't even use the default seizure rules, but used a flimsy pretext to get the "nuclear option" of ex parte seizure. Then kept the seizure orders under seal from the defendants for months on end before giving the sites any opportunity to contest them. All to combat infringement that has never been considered criminal.

                    These were not federal agents making a good faith attempt to stop crime. This was a deliberate and egregious attempt to route around safe harbors and the First Amendment. It was censorship, plain and simple.


                    Congress very recently amended 18 U.S.C. 2323 to allow for the seizure of property used to facilitate criminal infringement under 17 U.S.C. 506. The office of "IP Czar" was also created with the mandate to enforce IP laws. It's far from "censorship, plain and simple." It's law enforcement exercising their mandate.

                     

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                      Karl (profile), Jan 24th, 2011 @ 10:20am

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

                      Butcher is a strong word. I didn't use it carelessly.

                      Well, thanks for the insults. Let's just stick to debating the actual law, and not sling idiotic personal attacks, shall we?

                      The section you quoted specifically says it applies only to nonjudicial seizures.

                      Granted, I may have quoted the wrong section. But regarding infringement, the whole of Chapter 46 is targeted towards seizing the same types of goods as is 15 U.S.C. 1116. That was my point.

                      ICE did determine that the sites lost their safe harbors.

                      As far as I can tell, they did not. Perhaps I missed it - wouldn't be the first time. Can you point me to any part of the affidavit that shows evidence that the sites did not obey DMCA takedown notices (or other safe harbor requirements)? If not, they haven't met their burden showing the sites were guilty of any infringement.

                      The seizure put the domain name into the district court's control, and it removed an instrumentality of crime from the criminal's control. That was the point.

                      So, you admit that the point wasn't to "preserve jurisdiction." It was to remove it as "an instrumentality of crime" - i.e. prevent the public from accessing it.

                      Sounds a lot like "suppressing" to me.

                      In any case, I don't buy it. That whole section of the affidavit reads like some sort of Mad Libs version of a seizure warrant:
                      Less restrictive measures such as a lis pendens, restraining order, or bond would not suffice to protect the Government’s interests in preventing the __________ (verb), __________ (verb), or continued unlawful __________ (verb) of the __________ (noun).


                      Such property can be seized. Read Heller.

                      I responded to Heller elsewhere. I think it's clear that it doesn't apply to these seizures.

                      Real property means real estate, or what we civilians call "immovables."

                      If the civil seizure laws in 983 don't apply, and the civil seizure laws in 985 don't apply, what civil seizure rules do apply?

                      It's far from "censorship, plain and simple." It's law enforcement exercising their mandate.

                      All censorship was "law enforcement exercising their mandate" at one point or another. That doesn't mean it's not censorship.

                      And you still haven't answered my question. If law enforcement isn't required to obey Section 512, why are those laws still on the books?

                       

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                        average_joe (profile), Jan 24th, 2011 @ 11:26am

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

                        Well, thanks for the insults. Let's just stick to debating the actual law, and not sling idiotic personal attacks, shall we?

                        Personally, I like you. I just don't think you have a grasp of the law. I barely have a grasp myself.

                        Granted, I may have quoted the wrong section. But regarding infringement, the whole of Chapter 46 is targeted towards seizing the same types of goods as is 15 U.S.C. 1116. That was my point.

                        I thought your point was that there is a 60 day limit to give notice.

                        As far as I can tell, they did not. Perhaps I missed it - wouldn't be the first time. Can you point me to any part of the affidavit that shows evidence that the sites did not obey DMCA takedown notices (or other safe harbor requirements)? If not, they haven't met their burden showing the sites were guilty of any infringement.

                        The agent recited facts to sustain probable cause under section 506. If there is criminal infringement, it is necessarily true that the safe harbors have been lost. The defendant can raise the safe harbors later as a defense. The agent had no duty to rebut this potential defense. It just doesn't work the way you think.

                        So, you admit that the point wasn't to "preserve jurisdiction." It was to remove it as "an instrumentality of crime" - i.e. prevent the public from accessing it.

                        Sounds a lot like "suppressing" to me.

                        In any case, I don't buy it.


                        The property can be seized because the it fits the definition of section 2323 as property used to facilitate criminal infringement. The statute requires no further justification, nor does it require that the seizure be for the purpose of preserving evidence.

                        I responded to Heller elsewhere. I think it's clear that it doesn't apply to these seizures.

                        Perhaps so, perhaps not. I think it's anything but "clear."

                        If the civil seizure laws in 983 don't apply, and the civil seizure laws in 985 don't apply, what civil seizure rules do apply?

                        I was wondering if you were going to ask that. Chapter 46 is the right place to be, it's just that the 60-day notice rule you were quoting doesn't apply to these seizures since these seizures are not nonjudicial. I think, but don't really know for sure, that since this is a judicial seizure, we're on the judge's time schedule. I see nothing in Chapter 46 that puts a deadline on the judge.

                        You know, the owners of the domain names can file to have them returned: http://www.law.cornell.edu/rules/frcrmp/Rule41.htm#Rule41_g

                        All censorship was "law enforcement exercising their mandate" at one point or another. That doesn't mean it's not censorship.

                        And you still haven't answered my question. If law enforcement isn't required to obey Section 512, why are those laws still on the books?


                        The question just doesn't make sense. If the site is criminal, it necessarily doesn't have safe harbor. Safe harbor is a defense to be raised by a defendant later. The government doesn't have to rebut a defense that hasn't been raised in an application for a seizure warrant. That makes no sense.

                         

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                          Anonymous, Jan 24th, 2011 @ 5:16pm

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

                          You know, the owners of the domain names can file to have them returned

                          Indeed; But as I pointed out above, they haven't.

                          And they won't.

                           

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                          Karl (profile), Jan 24th, 2011 @ 9:29pm

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

                          I thought your point was that there is a 60 day limit to give notice.

                          It wasn't precisely my point. The point was that seizures (even ex parte seizures) must accompany the prompt ability to contest the seizures, which was not granted to any of the sites in this case. "60 days" was the concrete length given, and it seems like the standard limit of what is considered "prompt" (since it is the one explicitly mentioned in seizure laws). My actual point was that six months is not "prompt" by any standard.

                          If there is criminal infringement, it is necessarily true that the safe harbors have been lost.

                          Again, you're putting the apple before the horse. In order to be criminal infringement, it must first be proven that the sites lost safe harbor provisions.

                          Otherwise, a site could be completely innocent of civil infringement, but guilty of criminal infringement. Have you ever heard of a case where that is true?

                          The agent had no duty to rebut this potential defense.

                          Of course he did. If he didn't, he had no legal justification to claim that a crime occured at all.

                          The statute requires no further justification, nor does it require that the seizure be for the purpose of preserving evidence.

                          The Heller case certainly does require that (for starters). If it doesn't pass that test, it's prior restraint, and unconstitutional.

                          I think it's anything but "clear."

                          Read the case again. Heller was only constitutional because they only seized copies of the unprotected speech, for evidence in a trial; and because that seizure did not result in the "suppression of the materials themselves."

                          The judge's words couldn't have been clearer. It does not apply to these seizures.

                          I think, but don't really know for sure, that since this is a judicial seizure, we're on the judge's time schedule.

                          Oh, goody. You "laugh out loud" at my ignorance at the law, say I'm "butchering" it, but when it comes right down to it, you don't know the answers more than I do.

                          ...Well, whatever.

                          "We're on the judge's timetable" does not seem like a satisfactory answer. If the judge decided to keep the seizures under seal for six years, would that be legal?

                          Incidentally, for trademark claims (which cover most counterfeiting operations), Federal Rules of Civil Procedure Rule 65 applies. That order explicitly states that:
                          Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk's office and entered in the record. The order expires at the time after entry — not to exceed 14 days — that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension.

                          But as I mentioned, that applies to trademark (counterfeit goods), not copyright. Again, I bring it up only to show what is considered "prompt" in most seizure laws.

                          I can not find any rule that states six months is acceptable.

                          You know, the owners of the domain names can file to have them returned

                          So long as they're notified of the seizures, or offered an opportunity to contest them. They weren't:
                          On Thursday, the 25th of November 2010, the Torrent Finder domain ( www.torrent-finder.com ), registered with Godaddy, was seized by the U.S. Immigration and Customs Enforcement (ICE) without any prior takedown notice or specific allegations of infringing activity. The Domain IP was suddenly changed without the registrar's knowledge and the system displayed a "Pending Registry Action" message on the domain's status. No contact was given until Wednesday, the 1st of December, when Godaddy replied to my inquiries, giving a contact for an ICE agent.

                          On Thursday, the 2nd of December, David Snead who is representing Torrent Finder contacted the ICE agent in charge who told him that "the orders are under seal, but that the seal will be lifted today or tomorrow". However, we have not heard from them until writing this post.

                          - from torrent-finder's site.

                          The question just doesn't make sense. If the site is criminal, it necessarily doesn't have safe harbor. Safe harbor is a defense to be raised by a defendant later.

                          You're saying that the entirity of Section 512 is only an affirmative defense (like fair use). But that's never actually been decided - even for civil infringement cases.

                          Even if that's true, case law has determined that even affirmative First Amendment defenses must be addressed before any forfeiture can occur, or else it's prior restraint. But forgive me, it's late, I'll have to dig up links to case law later.

                           

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                            average_joe (profile), Jan 24th, 2011 @ 9:53pm

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

                            I'm not going to bother cutting and pasting at this point, so I'll address your points in order...

                            You say 60 days is not prompt by any standard. That's your opinion, and it's not based on legal standard that I can tell. If "prompt" is the requirement, you'd have to look up the caselaw that's controlling on the court that's being "prompt" to see what that actually means.

                            Nothing gets proven in an affidavit. Regardless, find me one place where it says the agent has to demonstrate that the defendant doesn't have safe harbor under 512. I think you just made that up.

                            Heller does not say "unless it's seized for evidence purposes, it's prior restraint." If that was the case, wouldn't agents just tell the judge "it's for evidence"?

                            That's right, I don't know what the time frame is for giving notice. That's a minor procedural point, and if I wanted to know, I'd look it up.

                            Torrent-finder will get their day in court, I have no concern that it will be otherwise.

                             

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              Anonymous Coward, Jan 24th, 2011 @ 8:58am

              Re: Re: Re: Re: Re:

              The property being seized is a domain name.

              "Wholly neutral futilities . . . come under the protection of free speech as fully as do Keats' poems or Donne's sermons." ——United States v Stevens (2010) (quoting Cohen v California (1971), in turn quoting Winters v New York (1948))

               

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                average_joe (profile), Jan 24th, 2011 @ 10:06am

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

                "Wholly neutral futilities . . . come under the protection of free speech as fully as do Keats' poems or Donne's sermons." ——United States v Stevens (2010) (quoting Cohen v California (1971), in turn quoting Winters v New York (1948))

                You're not a lawyer for the EFF by any chance, are you?

                 

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                  Anonymous Coward, Jan 24th, 2011 @ 10:17am

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

                  You're not a lawyer for the EFF by any chance, are you?

                  No.

                  Generally I agree with those guys, but —on occasion— I have had some memorable arguments with the EFF'ers.

                   

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                    average_joe (profile), Jan 24th, 2011 @ 10:22am

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

                    No.

                    Generally I agree with those guys, but —on occasion— I have had some memorable arguments with the EFF'ers.


                    Sounds like fun to me. :)

                     

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        Anonymous Coward, Jan 22nd, 2011 @ 2:26pm

        Re: Re:

        You are assuming that the 5 are innocent.

        Yes, they do enjoy a presumption of innocence under law; however, the seizures were not actions against them personally, but against "instruments" allegedly being used for the perpetration of criminal acts.

         

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          Marcus Carab (profile), Jan 23rd, 2011 @ 9:43am

          Re: Re: Re:

          They enjoy more than just a presumption of innocence - they enjoy a presumption of broad protections under the first amendment. Since these domains were seized without informing them or giving them any opportunity to stage a defence, their first amendment rights were flagrantly violated.

           

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            Anonymous Coward, Jan 23rd, 2011 @ 10:06am

            Re: Re: Re: Re:

            You might want to make it clear in your responses that it is as to the 5 sites that hosted copyrighted material upon which you base your First Amendment argument.

            As for the argument itself, the First Amendment is built in to the fair use provisions of the Copyright Act. Thus, the question devolves to whether or not the fair use defense applies. If it does, then the individuals associated with the sites will be vindicated. If not, then they have a problem.

             

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              Marcus Carab (profile), Jan 23rd, 2011 @ 10:24am

              Re: Re: Re: Re: Re:

              Yes, but this is the thing: the domains were seized before they had a chance to make their first amendment defence. And that is a BIG problem. It is a flagrant violation of the first amendment. It is prior restraint. It is not acceptable.

               

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                Anonymous, Jan 25th, 2011 @ 3:08am

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

                Marcus, stop repeating Masnick's lies.

                It's not a 1st Amendment violation and there is no prior restraint.

                Several people well versed in the law have already pointed that out here.

                When you guys have to lie to defend those that rip off artists, that makes you twice the slimeball you were before.

                 

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                  Mike Masnick (profile), Jan 25th, 2011 @ 3:20am

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

                  It's not a 1st Amendment violation and there is no prior restraint.

                  We shall see, won't we?

                  Several people well versed in the law have already pointed that out here.

                  I have yet to see that. I've seen morally bankrupt people like AJ claim otherwise, but the lawyers I know all are eagerly putting together the actual cases to show how things like COICA are clear prior restraint. And these are lawyers who know what they're talking about.

                  When you guys have to lie to defend those that rip off artists, that makes you twice the slimeball you were before.

                  How hard is it to get through your head that we're not in favor of ripping artists off? If that were the case, why would we help more artists make more money while you admit that the bands you work with, who listen to you are losing money?

                   

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                    average_joe (profile), Jan 25th, 2011 @ 9:11am

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

                    I have yet to see that. I've seen morally bankrupt people like AJ claim otherwise, but the lawyers I know all are eagerly putting together the actual cases to show how things like COICA are clear prior restraint. And these are lawyers who know what they're talking about.

                    So now you're just going to call me names and try to discredit me? Wouldn't it be more productive to address any one of the points I've made in this thread on the merits? Several points were addressed directly to you to which you have not replied. Are you not up to debating me? And please, spare us the hearsay about all the lawyers you know who agree with you. Let them come on here and speak for themselves.

                     

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          Anonymous Coward, Jan 23rd, 2011 @ 10:11am

          Re: Re: Re:

          "You are assuming that the 5 are innocent. "

          People are innocent until proven guilty (by a court of law), not the other way around.

           

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            Anonymous Coward, Jan 23rd, 2011 @ 10:20am

            Re: Re: Re: Re:

            (what you are asking is that innocence be proven. The law doesn't require that the innocent prove their innocence, the law requires that the prosecutor prove guilt).

             

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          Anonymous Coward, Jan 23rd, 2011 @ 10:23am

          Re: Re: Re:

          "the seizures were not actions against them personally"

          That's like saying taking money from them is not an action against them personally. Or denying them access to the house that they are renting is not an action against them personally. Of course it is. These are actions against them personally, just like taking money from them via making the bank hand it over.

           

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            Anonymous Coward, Jan 23rd, 2011 @ 10:25am

            Re: Re: Re: Re:

            (ie: by making the bank hand over what's in their savings account).

            These are actions taken against them. The government needs the consent of a court before they can do this. The govt illegally took actions against them without the approval of a court.

             

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          Hephaestus (profile), Jan 23rd, 2011 @ 2:00pm

          Re: Re: Re:

          " allegedly being used for the perpetration of criminal acts."

          Civil not criminal actually.

           

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            Anonymous Coward, Jan 23rd, 2011 @ 2:32pm

            Re: Re: Re: Re:

            The underlying acts that gave rise to the seizures were deemed acts under the criminal provisions of the Copyright Act and/or the Lanham Act (for trademarks), and not acts under their civil provisions.

             

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              Hephaestus (profile), Jan 23rd, 2011 @ 3:26pm

              Re: Re: Re: Re: Re:

              Therein lies the problem. The 5 sites did not host any infringing material. Making one person responsible for the actions of another is what china does to censor its extension of the internet.

              Jusy like saying "this is your child, he stole a truck full of candy bars, you are also going to jail" doesn't work. Neither does this. People are responsible for their own actions not the actions of other. This "n" level liability turns everyone into agents of the police and is the start of a police state.

               

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                average_joe (profile), Jan 23rd, 2011 @ 4:18pm

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

                People are responsible for their own actions not the actions of other. This "n" level liability turns everyone into agents of the police and is the start of a police state.

                Under 18 U.S.C. 2, a person who "aids, abets, counsels, commands, induces or procures" another person to commit a crime is just as guilty as if they had committed the crime themselves.

                 

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                  Anonymous Coward, Jan 23rd, 2011 @ 7:48pm

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

                  So the mailman is just as guilty as the person who put explosives in the package.

                  The law makes a distinction, just like it makes a distinction between service providers who don't break the law and users who do.

                   

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                    average_joe (profile), Jan 23rd, 2011 @ 8:57pm

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

                    So the mailman is just as guilty as the person who put explosives in the package.

                    The law makes a distinction, just like it makes a distinction between service providers who don't break the law and users who do.


                    Did the mailman aid, abet, counsel, command, induce or procure the person who put the explosives in the package? If not, then they are not just as guilty as the person who did.

                     

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                      Rose M. Welch (profile), Jan 24th, 2011 @ 5:30am

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

                      Delivering the package is aid.

                       

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                        Anonymous, Jan 24th, 2011 @ 5:18pm

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

                        Only if the mailman knew what was inside.

                        oh wait, you were being willfully ignorant...

                         

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                          Rose M. Welch (profile), Jan 24th, 2011 @ 6:55pm

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

                          Average Joe didn't use the word 'knowingly'. By his logic, the mailman did aid the bomber, and that someone can be liable for something that they didn't do is the entire point of this sub-thread.

                          To recap, Hephaestus said: "This "n" level liability turns everyone into agents of the police and is the start of a police state."

                          average_joe replied: "...a person who "aids, abets, counsels, commands, induces or procures" another person to commit a crime is just as guilty as if they had committed the crime themselves."

                          After which I pointed out that Hephaestus is right, and his argument makes the innocent mailman just as guilty as the guy who planted a bomb in a box and mailed it.


                          Oh, wait, you were just being an asshole.

                           

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                            average_joe (profile), Jan 24th, 2011 @ 7:37pm

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

                            Average Joe didn't use the word 'knowingly'. By his logic, the mailman did aid the bomber, and that someone can be liable for something that they didn't do is the entire point of this sub-thread.

                            Good point, Rose. Of course the accomplice has to be aware that he is being an accomplice. That's the mens rea part of it--the "criminal mind." I don't know if it's specifically "knowingly," as that's a term of art, but it's something along those lines.

                             

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                              Rose M. Welch (profile), Jan 25th, 2011 @ 6:31am

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

                              Yes and no. It's true that you used to have to have intent to break the law before you could be prosecuted, but we've largely dumped that. If you show up at the airport with no ID, share a few files, tape record a police officer in Illinois, and so on, you can be arrested and prosecuted, even without any intent to break the law.

                              Anyway, back on topic, if I'm writing about piracy on my blog, and I link to a pirate site, I should not be considered an accomplice. I believe that's too far from the intent of the law - which was to prosecute actual accomplices working in concert with a criminal.

                               

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                  Karl (profile), Jan 23rd, 2011 @ 8:39pm

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

                  Under 18 U.S.C. 2, a person who "aids, abets, counsels, commands, induces or procures" another person to commit a crime is just as guilty as if they had committed the crime themselves.

                  I've said this before, but "aiding and abetting" is a lot harder to prove than contributory or vicarious infringement. From the Criminal Resource Manual, 2478:
                  More than mere presence at the scene is required. [...] More is needed than simply knowledge that the crime was to be committed. [...] Mere participation is not enough proof that a defendant intentionally assisted in the ventures illegal purpose. [...] The key elements are the defendant's association with the venture, participating in it as in something he wished to bring about, and seeking to make it succeed. "Association" within the meaning of aiding and abetting means the defendant shared in the criminal intent of the principal. "Participation" means the defendant engaged in some affirmative conduct designed to aid the venture.

                  Absolutely zero of that could be applied to music blogs, forums, or search engines.

                   

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                    average_joe (profile), Jan 23rd, 2011 @ 9:02pm

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

                    I've said this before, but "aiding and abetting" is a lot harder to prove than contributory or vicarious infringement. From the Criminal Resource Manual, 2478:

                    More than mere presence at the scene is required. [...] More is needed than simply knowledge that the crime was to be committed. [...] Mere participation is not enough proof that a defendant intentionally assisted in the ventures illegal purpose. [...] The key elements are the defendant's association with the venture, participating in it as in something he wished to bring about, and seeking to make it succeed. "Association" within the meaning of aiding and abetting means the defendant shared in the criminal intent of the principal. "Participation" means the defendant engaged in some affirmative conduct designed to aid the venture.

                    Absolutely zero of that could be applied to music blogs, forums, or search engines.


                    Who cares if aiding and abetting is more difficult to prove than contributory or vicarious infringement? It's irrelevant to the legality of the seizures. Regardless, the agent in his affidavit is only alleging direct infringement and conspiracy to infringe. He did not bring up accomplice liability.

                     

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                      Karl (profile), Jan 24th, 2011 @ 7:34am

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

                      Who cares if aiding and abetting is more difficult to prove than contributory or vicarious infringement? It's irrelevant to the legality of the seizures.

                      If the agents can't show that the act is even criminal, then I'd say it's hardly irrelevant.

                      I may not be a big-shot legal student like yourself, but I'd say that if a cop arrested someone for "conspiracy to commit emotional distress," that would be a problem.

                       

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                        average_joe (profile), Jan 24th, 2011 @ 7:54am

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

                        If the agents can't show that the act is even criminal, then I'd say it's hardly irrelevant.

                        I may not be a big-shot legal student like yourself, but I'd say that if a cop arrested someone for "conspiracy to commit emotional distress," that would be a problem.


                        Who says they can't show an underlying criminal act? The implication for each and every domain name that was seized is that the feds have evidence of a criminal act.

                         

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                          Karl (profile), Jan 24th, 2011 @ 8:27am

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

                          The implication for each and every domain name that was seized is that the feds have evidence of a criminal act.

                          When you're alleging acts that have never been considered criminal before, and ignoring a whole section of law that states they might be innocent of any wrongdoing whatsoever, it seems to me that more than an "implication" is necessary.

                           

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                            average_joe (profile), Jan 24th, 2011 @ 8:48am

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

                            When you're alleging acts that have never been considered criminal before, and ignoring a whole section of law that states they might be innocent of any wrongdoing whatsoever, it seems to me that more than an "implication" is necessary.

                            Criminal infringement has been on the books for a long, long time. They are not ignoring any section of law that says they might be innocent--if you're committing criminal infringement, you necessarily have lost any safe harbor under section 512. The reason I used "implication" is because no criminal charges have been filed that I know of. The seizures necessarily imply that there is an underlying crime alleged. If anyone challenges these seizures, the government will have to prove the underlying crime by a preponderance of the evidence, I believe.

                             

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                              Rose M. Welch (profile), Jan 25th, 2011 @ 6:35am

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

                              The seizures necessarily imply that there is an underlying crime alleged.

                              Regardless of what they allege, I do not believe that this seizure should have occurred until after a trial, or at least until actual charges have been brought.

                              In addition, I don't believe that copyright infringement should carry a criminal charge.

                               

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        Anonymous Coward, Jan 22nd, 2011 @ 2:56pm

        Re: Re:

        I looked at what was cached for some of those domains (including 1 that Mike Masnick used as his "innocent" example) and what I found were blog posts pointing to copyright violating material on other servers, such as mash ups and pre-releases of songs.

        The five domains in question do not appear to be all that innocent. They seem more to have been playing loose and fast with that old "it isn't hosted with us, so it's legal for us" trick that doesn't hold much water.

         

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          Rose M. Welch (profile), Jan 23rd, 2011 @ 5:18am

          Re: Re: Re:

          I found were blog posts pointing to copyright violating material on other servers...

          By your logic, news sites were guilty of copyright infringement every time they talked about Napster or The Pirate Bay.

          ...such as mash ups...

          Who says that mashups are illegal? As derivative works, they're still stuck in a grey area.

          The five domains in question do not appear to be all that innocent.

          All that innocent? That's like a woman who's 'a little bit pregnant'. In other words, it's a concept that doesn't exist in reality. These people are either guilty or not guilty. There are no shades of grey here.

          They seem more to have been playing loose and fast with that old "it isn't hosted with us, so it's legal for us" trick that doesn't hold much water.

          Umm... You're ignoring the fact that if it isn't hosted with them, it is legal. That's not a trick, any more than it's a trick to drive the speed limit to avoid getting a ticket.

           

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            Karl (profile), Jan 23rd, 2011 @ 1:02pm

            Re: Re: Re: Re:

            Who says that mashups are illegal? As derivative works, they're still stuck in a grey area.

            Actually, that's not true. The rights to derivative works are explicitly held by the original copyright holder.

            What is a grey area is whether these could be considered fair use. But mashups or DJ sets are probably not fair use. A defense could be raised, but it would likely fail. (I don't think it should, but I'm not a Congressman or a judge.)

            ...Of course, those mashups were not posted by the sites themselves, but by users of the site, and the materials were also hosted offsite. So, the forum sites are explicitly protected by DMCA safe harbors. Assuming they complied with the "notice-and-takedown" system - and RapGodfathers, at least, claimed that it did - they should not be held liable at any level.

            That's part of what's so scary about these seizures. They effectively do away with safe harbors altogether. Congress wrote that section of Title 17 for a reason, and ICE is just ignoring it.

            These people are either guilty or not guilty. There are no shades of grey here.

            Unfortunately, that's also not true. There are a whole host of ways people can be liable for infringement: direct infringement, vicarious infringement, or contributory infringement. There is both a civil (tort) and criminal infringement. In the case of criminal infringement, there is "accomplice" liability (which is different than either contributory or vicarious infringement, as is much harder to prove).

            It is very much a grey area. And that is why we have juries. It is why a warrant is not enough for temporary seizures or preliminary injunctions, and why a trial is required for permanent seizures or injunctions.

            You're ignoring the fact that if it isn't hosted with them, it is legal.

            Again, not precisely true. They could still be guilty of contributory or vicarious infringement. Of course, neither type is criminal - they would have to be found liable after a civil trial.

            And as I said, if they complied with the notice-and-takedown system, they're guilty of nothing.

             

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          Marcus Carab (profile), Jan 23rd, 2011 @ 9:48am

          Re: Re: Re:

          Two responses to this:

          One is that, when I made my comment about 5 being innocent, I was just demonstrating the ridiculousness of the argument that this is okay because the "majority" of sites were about counterfeiting. I know the 5 may not be innocent, but they very well may be too, and that has to be proven in a court of law - saying "oh but most of them were fine" is an almost totalitarian argument.

          Secondly, yes it appears that some of these sites link to infringing material - I used to be quite sure that at least some could be found guilty of copyright infringement, but it was actually ICE themselves who made me doubt that! When they listed their five example songs and all of them turned out to be legal promotional pieces sent by the record labels or artists themselves, things got thrown into question. It just goes to show: the appearance of copyright infringement is not necessarily copyright infringement.

           

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            Anonymous Coward, Jan 23rd, 2011 @ 10:00am

            Re: Re: Re: Re:

            I made no argument that things were OK because most sites were devoted to fake goods. I merely pointed out that most sites dealt with fakes, and five dealt with copyrighted matter.

            It has not been established that "all" of the copyrighted matter was legit, nor has it been established that the copyrighted matter that may have been legit was fair game for unrestricted distribution.

             

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              Anonymous Coward, Jan 23rd, 2011 @ 10:15am

              Re: Re: Re: Re: Re:

              "It has not been established that "all" of the copyrighted matter was legit"

              Again, you're looking at it backwards. People are innocent until proven guilty, not guilty until proven innocent. It must first be established, by a court of law, that infringement occurred before further action can be taken. Instead, action was illegally taken before such was established.

               

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              Marcus Carab (profile), Jan 23rd, 2011 @ 10:26am

              Re: Re: Re: Re: Re:

              When you're dealing with the first amendment, establishing those things is very important and must be done before any sort of censorship action takes place. That's kind of the whole point of freedom of speech.

               

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        Anonymous Coward, Jan 22nd, 2011 @ 11:01pm

        Re: Re:

        God! I hope all you fucking freetards go to jail!

         

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    Marcus Carab (profile), Jan 22nd, 2011 @ 2:09pm

    thanks for the nod Karl :)

     

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    Anonymous Coward, Jan 22nd, 2011 @ 3:11pm

    Re: Re: Re:

    You really look foolish when you continue to be willfully blind to the facts.

    How ironic. I suppose next you'll be lecturing us about making logical, well-reasoned arguments instead of merely spewing emotionally-charged rhetoric?

     

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    Bas Grasmayer (profile), Jan 22nd, 2011 @ 3:23pm

    Thx for the addition about deadmau5. Interesting. A blatant rip-off is something else than fan art... even though the guy in question didn't realize he was ripping him off.

    But good point nonetheless.

     

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      Marcus Carab (profile), Jan 23rd, 2011 @ 9:52am

      Re:

      I don't believe it was a blatant ripoff. Sounds more like it was a new song built using some Deadmau5 samples packaged with fruity loops. What I don't understand is why Fruity Loops would ship with uncleared samples... if I bought music production software that came with a loop library, I would certainly assume my software license included a license to use the included loops. In most cases (as in with Logic and Reason) I am fairly certain it does.

      Logic is logical, Reason is reasonable - Fruity Loops seems a little fruity and loopy...

       

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        Karl (profile), Jan 23rd, 2011 @ 11:09am

        Re: Re:

        Sounds more like it was a new song built using some Deadmau5 samples packaged with fruity loops. What I don't understand is why Fruity Loops would ship with uncleared samples...

        Yep, that's exactly what happened. Fruity shipped with "demo songs," which are explicitly not royalty-free. Unfortunately, the loops themselves were put in with all of the samples that were royalty-free.

        And yeah, I have no idea why they would include non-royalty-free samples with the software. (Most others, like Garage Band or Ableton Live, only ship with royalty-free samples.)

        In any case, they stopped doing that.

         

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    Rose M. Welch (profile), Jan 22nd, 2011 @ 3:57pm

    Very funny.

    Great Saturday post, Karl.

     

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    Karl (profile), Jan 22nd, 2011 @ 5:09pm

    Thanks

    Thanks for the compliments, all.

    I'll reply to some of the comments in a bit more depth, but not right now. I've got a concert to attend.

     

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    cc (profile), Jan 23rd, 2011 @ 12:33am

    Re: Alibaba.com

    Despite the name, this is a legit business. It's mainly owned by Yahoo, and it sells all sorts of very useful things, including materials like paints, plastics, metals, and heavy machinery. All Chinese exports, of course.

    I guess some listings may be counterfeits (I haven't seen any guitar strings or any shoes), but you can't blame the site for having some bad listings any more than you can blame Amazon!

    So, D'Addario was possibly picking a random Chinese site name that sounded "piratey", hoping nobody would notice he pulled it out of his ass.

     

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    Lawrence D'Oliveiro, Jan 23rd, 2011 @ 2:17am

    Opposite Of “Tard”

    If you want to counter those who like to label people as “tards” of some description (“freetard” in particular gets bandied about a lot here), let me suggest that, since “advance” is the opposite of “retard”, that we use the suffix “vance” for this purpose.

    Thus, to those who like to chant “freetard”, reply that you are really a “freevance”, it is they who are the “limitard”.

     

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      Freevance, Jan 23rd, 2011 @ 3:03am

      Re: Opposite Of “Tard”

      I agree!

      Now go make me a sandwich. Right now. Free of charge. Bring it to me and be quick about it.

       

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        Modplan (profile), Jan 23rd, 2011 @ 3:56am

        Re: Re: Opposite Of “Tard”

        Pay me £10 by next Thursday to fund buying the bread, knife, butter on my Kickstarter page I'll be happy to do it. I'll even give you some stickers and a t-shirt for supporting sandwich makers everywhere, feel free to choose the filling (if you pay over £15 only).

         

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        Richard (profile), Jan 23rd, 2011 @ 6:01am

        Re: Re: Opposite Of “Tard”

        Now go make me a sandwich.

        You forgot the magic word

         

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      Karl (profile), Jan 23rd, 2011 @ 11:11am

      Re: Opposite Of “Tard”

      Thus, to those who like to chant “freetard”, reply that you are really a “freevance”, it is they who are the “limitard”.

      Another poster suggested "IPtard." I happen to like it, but Mike doesn't want us to stoop to their level.

       

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    mike allen (profile), Jan 23rd, 2011 @ 2:58am

    I notice all these RIAA trols hide behind A.C. are they scared to give us a profile. Or perhaps they have been brainwashed so uch they forgot their own name.

     

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      Marcus Carab (profile), Jan 23rd, 2011 @ 9:56am

      Re:

      By only arguing from under the AC flag, they don't need to worry about contradicting themselves. There's no need to make the effort to build a consistent bank of statements and opinions, or to evolve their argument over time. Never do they have to defend something they said before when new evidence comes out to contradict it.

      This way they can just spew whatever comes to mind, throw in a few insults, and head off to the next thread.

       

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    Shon Gale (profile), Jan 23rd, 2011 @ 6:50am

    Come on Karl! Give the Jono dude a little break here. His comment about reinventing sounded like a broad statement to me . Kinda like we are part of. Of course as a journalist you had to use your line ('is a steaming pile of hyperbole') and be offensive. I guess that's earning your cash. It reminds of the Beatles being more popular than Jesus statement. The press was all over it simply to create a fuss and sell papers.

     

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      coldbrew, Jan 23rd, 2011 @ 8:10am

      Re: integrity and credibility

      I think he made that statement for integrity, and to retain credibility among people that know there is nothing revolutionary about the idea. Bode doesn't care about how many hits this page gets as he's not getting paid either way.

       

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      Karl (profile), Jan 23rd, 2011 @ 11:33am

      Re:

      Come on Karl! Give the Jono dude a little break here.

      I used that phrase mostly because I thought it was funny. On the other hand, I did put him in the "artists that are doing things right" category, and called what he was doing "awesome." So I think it works out OK.

      I'm especially interested in his decision to release the music without any commercial restrictions. I release some of my noise under a CC license myself, but with an -NC restriction, and I'm always wondering whether that's the right choice.

      Let's take the worst-case scenario, the one that people fear when they choose an -NC license. Let's say that some big label likes their music, and releases it themselves for profit, without compensating the artists or even asking for permission.

      Now, a lot of artists would get pissed off about this. But is it really so bad? Here is an entity with a lot of money that is making your work widely available. In order to sell the album, they're going to have to put a ton of money into promoting and marketing your art - none of which you have to pay for. And the label doesn't have the right to prevent others, including the artists, from capitalizing on their work in return.

      If those musicians would have signed to that same label, there is practically zero chance that they would have made any royalties anyway. But they would be locked into a contract, and the music would be explicitly "owned" by the label. If a label does release their music without permission, all that happens is that the artists get all of the benefits from being on that label, with none of the downsides.

      So this is actually a win-win scenario. I'm still not entirely convinced that -NC is a bad idea (for other things like synch rights), but I'm getting there.

       

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        Hephaestus (profile), Jan 23rd, 2011 @ 2:59pm

        Re: Re:

        "Let's take the worst-case scenario, the one that people fear when they choose an -NC license. Let's say that some big label likes their music, and releases it themselves for profit, without compensating the artists or even asking for permission."

        How is that different than the way things are now?

        The final three labels sign artists to contracts that give the artist a minimal ROI (Return On Investment). Most artists never recoup. This is part of the labels maintaining their monopoly. The rational is, if it is not going to make us money, make sure no one else does. You being an artist should know this.

        The ROI the artists get from the labels in your scenario under the -NC lisc is a fan base. That is where the money is now that the monopoly is breaking down.

        The words "feel free to distribute my stuff at no charge" should become part of ever recording artists thought process. After all over 95 percent of label artists never recoup.

         

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          Karl (profile), Jan 24th, 2011 @ 8:43am

          Re: Re: Re:

          How is that different than the way things are now?

          Usually, the artist has the right to grant permission and bargain for compensation.

          Of course, under the old system, artists had to beg, borrow, steal, sell their mothers, and offer up their firstborns just to have the "privilege" of granting permission to the labels. And the "bargain" was the labels saying "our way or the highway."

          So, it's kind of like getting a blow job from a two dollar whore: roughly the same, but with a lot less dignity.

           

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    Anonymous Coward, Jan 23rd, 2011 @ 10:36am

    I find it interesting how IP maximists used to argue that the legal errors made by Homeland security aren't material enough to worry about, but when it was pointed out that this negates their argument that (IP) law should be followed as a matter or principle, because it's important to follow laws, they stopped making that argument and now their only argument is that Homeland security did nothing illegal. These people are hypocrites, they don't have any principles beyond making money and not doing any work to earn it.

     

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    average_joe (profile), Jan 23rd, 2011 @ 7:44pm

    Here's a little caselaw for you, Karl. Plaintiffs raised a First Amendment challenge to the seizure of their servers with a warrant that was issued without an adversarial pretrial hearing. The materials in this case were presumptively protected by the First Amendment, by the way. This case supports the argument that not only is the seizure of domain names permissible, the servers themselves can even be seized without violating the First Amendment. I included in brackets the footnotes where the court dismisses arguments from the Fort Wayne Books line of cases and the Pappert case (arguments that you and Mike have been making). Enjoy!

    [T]he plaintiffs' only remaining claim under the First Amendment is that the defendants violated their First Amendment rights by failing to hold a prior adversary hearing to determine whether the materials seized were constitutionally-protected speech. In support of this argument, the plaintiffs cite a line of Supreme Court precedent that requires a magistrate to hold a hearing to determine whether magazines, books or films are obscene and should be removed from circulation before the magistrate issues a warrant allowing for the seizure of such materials. [See, e.g., Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S.Ct. 916, 103 L.Ed.2d 34 (1989); A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Marcus v. Search Warrants of Property, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961).] The plaintiffs argue that such a hearing was required before the magistrate issued the warrant in this case.

    The defendants, however, point to another line of precedent, beginning with Heller v. New York, 413 U.S. 483 (1973), to support the proposition that the seizure of obscene material for evidentiary purposes only requires a valid search warrant, issued by a neutral magistrate after a finding of probable cause. Heller involved the question of whether a judicial officer could issue a valid warrant authorizing the seizure of an obscene film as evidence in a prosecution against the exhibitor without first conducting an adversary hearing on the issue of obscenity.

    ***

    Distinguishing the case from the line of cases cited by the plaintiffs, the Supreme Court stated in Heller that it “has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized.” Heller, 413 U.S. at 488. The Supreme Court further distinguished Heller by explaining that the cases requiring a hearing all involved the seizure of large quantities of materials, such as books, for the sole purpose of their destruction or the absolute suppression of the materials themselves. In Heller, only a single copy of the film was seized for the purpose of preserving it as evidence in a criminal proceeding. The Supreme Court held that “[i]f such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible.” Id. at 492.

    The standard articulated by the Supreme Court in Heller applies to the defendants' actions in this case. The purpose of the seizure was not the destruction or suppression of the Quikvue materials themselves. Instead, the materials were seized for the purpose of preserving evidence of child pornography for a possible criminal proceeding.

    ***

    The affidavit of probable cause provided detailed descriptions of the child pornography found under Agent Deery's searches. The plaintiffs do not contest that such images of child pornography are not constitutionally protected material or that the probable cause affidavit established a fair probability that such images could be found on their servers. Nor do the defendants dispute that constitutionally protected materials also existed on the plaintiffs' servers at the time of the seizure. No further determination by the magistrate was necessary in this case, and the plaintiffs have been unable to articulate what further purpose would have been served by any such determination. [The plaintiffs argue that an opinion from a District Court the Eastern District of Pennsylvania urges a different result. See Ctr. for Democracy & Technology v. Pappert, 337 F.Supp.2d 606 (E.D.Pa.2004) ( “CDT” ). CDT, however, dealt with a Pennsylvania statute that required Internet Service Providers to block access to images of child pornography. It did not address the issue of a search and seizure of evidence of child pornography and is inapplicable here.]

    The seizure in this case was constitutionally permissible under the Heller standard. As already established, the warrant was issued after a determination of probable cause by a neutral magistrate. No further determination or procedure was required.
    Voicenet Communications, Inc. v. Corbett, CIV.A. 04-1318, 2010 WL 3657840 (E.D. Pa. Sept. 13, 2010).

     

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    •  
      identicon
      Anonymous Coward, Jan 23rd, 2011 @ 8:04pm

      Re:

      "In Heller, only a single copy of the film was seized for the purpose of preserving it as evidence in a criminal proceeding. The Supreme Court held that “[i]f such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible.” Id. at 492.
      ...Instead, the materials were seized for the purpose of preserving evidence of child pornography for a possible criminal proceeding."

      The purpose of allowing these seizures was so that the evidence can be used in court. There are many conditions that the above seizure had to meet to be legal, many of which aren't met by the actions of the department of homeland security. For example, the department of homeland security intended to stop the material from being distributed not to facilitate its presentation in court, but only for the sake of preventing others from seeing it.

       

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        average_joe (profile), Jan 23rd, 2011 @ 9:12pm

        Re: Re:

        The purpose of allowing these seizures was so that the evidence can be used in court. There are many conditions that the above seizure had to meet to be legal, many of which aren't met by the actions of the department of homeland security. For example, the department of homeland security intended to stop the material from being distributed not to facilitate its presentation in court, but only for the sake of preventing others from seeing it.

        That does not negate the fact that there was probable cause that the domain name was property used to commit or facilitate criminal infringement. It is subject to forfeiture and seizure on that fact alone. The effect on the underlying site, and the agent's statement about this effect, are irrelevant.

         

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          identicon
          Anonymous Coward, Jan 23rd, 2011 @ 9:19pm

          Re: Re: Re:

          "That does not negate the fact that there was probable cause that the domain name was property used to commit or facilitate criminal infringement."

          Probable cause is to justify further inspection into the matter, not to justify taking action against the party involved. The findings of that further inspection can then be presented to the court so that the judge can determine if action needs to be taken. Probable cause itself doesn't warrant action against someone (ie: taking their car just for the sake of taking it), it just warrants further inspection into the issue.

          For example, probable cause can justify wire taping someones phone. Saying that there is probable cause to justify wiretapping someone's phone is different from saying that taking their phone, or taking action against them, is acceptable. Only if evidence from the phone taps justify action against the person under surveillance can further action be taken.

           

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            identicon
            Anonymous Coward, Jan 23rd, 2011 @ 9:22pm

            Re: Re: Re: Re:

            Also, of course, probable cause itself is determined by a judge (and not the department of homeland security).

             

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              average_joe (profile), Jan 23rd, 2011 @ 9:42pm

              Re: Re: Re: Re: Re:

              Also, of course, probable cause itself is determined by a judge (and not the department of homeland security).

              A judge did determine that there was sufficient probable cause in these seizures, not DHS.

               

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            average_joe (profile), Jan 23rd, 2011 @ 9:41pm

            Re: Re: Re: Re:

            Probable cause is to justify further inspection into the matter, not to justify taking action against the party involved. The findings of that further inspection can then be presented to the court so that the judge can determine if action needs to be taken. Probable cause itself doesn't warrant action against someone (ie: taking their car just for the sake of taking it), it just warrants further inspection into the issue.

            For example, probable cause can justify wire taping someones phone. Saying that there is probable cause to justify wiretapping someone's phone is different from saying that taking their phone, or taking action against them, is acceptable. Only if evidence from the phone taps justify action against the person under surveillance can further action be taken.


            That's just not true. Probable cause can and is the basis for seizing suspected instrumentalities of crime. A car or a phone (or a person for that matter) can be seized by a warrant supported by probable cause.

             

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          identicon
          Anonymous Coward, Jan 23rd, 2011 @ 9:24pm

          Re: Re: Re:

          "It is subject to forfeiture and seizure on that fact alone."

          As your very post noted (and quoted), there were conditions that must be meet for this to be the case. Many of these conditions weren't met.

           

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      Karl (profile), Jan 24th, 2011 @ 8:09am

      Re: Voicenet

      Hey again, Joe.

      I'm pretty sure I read that case before - I think I was debating Terry Hart at the time.

      Anyway, the text of the case itself shows how it is not applicable:
      The Supreme Court further distinguished Heller by explaining that the cases requiring a hearing all involved the seizure of large quantities of materials, such as books, for the sole purpose of their destruction or the absolute suppression of the materials themselves. In Heller, only a single copy of the film was seized for the purpose of preserving it as evidence in a criminal proceeding. [...]

      The purpose of the seizure was not the destruction or suppression of the Quikvue materials themselves. Instead, the materials were seized for the purpose of preserving evidence of child pornography for a possible criminal proceeding.

      (Interesting choice of emphasis, by the way.)

      ICE did not seize "a single copy" of any infringing material. The seizures were not of any infringing material whatsoever, and did not enable ICE to do so. (Indeed, they did this before they even wrote the seizure affidavit.) In the Quikvue case, the computers were seized to determine ownership of the images - to link the images with a specific defendant's computer. ICE's seizures preserved no such link, and in fact destroyed it.

      As is clear to apparently everyone but yourself, the primary purpose of the domain seizures was the "absolute suppression of the materials themselves." It's there in the affidavit, and it's clear from Morton's speech.

       

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        average_joe (profile), Jan 24th, 2011 @ 8:44am

        Re: Re: Voicenet

        ICE did not seize "a single copy" of any infringing material. The seizures were not of any infringing material whatsoever, and did not enable ICE to do so. (Indeed, they did this before they even wrote the seizure affidavit.) In the Quikvue case, the computers were seized to determine ownership of the images - to link the images with a specific defendant's computer. ICE's seizures preserved no such link, and in fact destroyed it.

        The case says that under Heller, a server suspected of being used for crime can be seized without an adversary hearing on whether any of the presumptively protected speech on the server is obscene, and even if there is also other protected speech on that server that is not obscene. Seems very applicable to me.

        As is clear to apparently everyone but yourself, the primary purpose of the domain seizures was the "absolute suppression of the materials themselves." It's there in the affidavit, and it's clear from Morton's speech.

        Nope. The domain name is being temporarily seized subject to a hearing on the merits. It is not being destroyed.

         

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        •  
          identicon
          Anonymous Coward, Jan 24th, 2011 @ 8:51am

          Re: Re: Re: Voicenet

          The domain name is being temporarily seized subject to a hearing on the merits. It is not being destroyed.

          “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” ——Elrod v Burns (1976)

           

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            icon
            average_joe (profile), Jan 24th, 2011 @ 9:44am

            Re: Re: Re: Re: Voicenet

            “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” ——Elrod v Burns (1976)

            As “irreparable injury is suffered where monetary damages are difficult to ascertain or are inadequate,” Hohe, 868 F.2d at 73, preliminary equitable relief is unnecessary. Moreover, Voicenet/OTI do not show a chill on free expression caused by “direct penalization, as opposed to incidental inhibition, of First Amendment rights....” Id. at 72-73. The officials' refusal to return the arrays does not render Quikvue inoperative; that deprivation may be remedied with money damages. As such, Voicenet/OTI's First Amendment rights may be incidentally inhibited, but they are not at risk of irreparable injury.
            Voicenet Communications, Inc. v. Pappert, 126 F. App'x. 55, 58 (3d Cir. 2005)

             

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            •  
              identicon
              Anonymous Coward, Jan 24th, 2011 @ 10:14am

              Re: Re: Re: Re: Re: Voicenet

              ...render... inoperative....

              The domain name has been rendered inoperative.

              In United States v Stevens (2010), the court declined to add a new category of speech unprotected by the First Amendment, rejecting the government's proposed ad hoc balancing. I cannot see adding domain names as a category of speech invisible to the Constitution.

               

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        •  
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          Karl (profile), Jan 24th, 2011 @ 9:31am

          Re: Re: Re: Voicenet

          The case says that under Heller, a server suspected of being used for crime can be seized without an adversary hearing

          ...but only for the purposes of evidence gathering, and only if the seizure does not result in the "suppression of the materials themselves."

          It is not a blanket approval of seizing computers under every circumstance. It is very limited in scope. The ICE seizures lie outside that scope.

          The domain name is being temporarily seized subject to a hearing on the merits. It is not being destroyed.

          I didn't say "destroyed." I said "suppressed." So did the court. Removing access to speech is the definition of "suppressing" it.

          What was destroyed was any value as evidence linking the domain names to the allegedly infringing sites. The domain names do not themselves have to be destroyed.

           

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  •  
    identicon
    MD2000, Jan 24th, 2011 @ 7:26am

    Ali Baba

    Taking the train in from Hong Kong airport to downtown recently (Oct 2010), almost every ad on the train was for AliBaba.com; their stuff is pure schlock, and they were advertising it as incredible low prices for lots of 1000 or more... Yet wandering the markets of Hong Kong, I did not find (like Beijing) open sales of copyright software. I assume the powers in Hong Kong are being sufficiently respectful of IP that they drive such traffic well underground. So, AliBaba may sell crap, but it does not seem to be copyright crap.

    Who has a copyright on owl-shaped salt and pepper shakers anyway? heir web site seems to show what they are - an aggregator and shipper for all the little Asian manufacturers (copany size, not personal stature) looking to ship to the dollar-stores on North America.

     

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    icon
    average_joe (profile), Jan 25th, 2011 @ 12:50pm

    Hey Karl,

    I found some info for you about the notice issue that you're interested in. From forfeiture.gov:

    On December 1, 2006, Rule G of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, part of the Federal Rules of Civil Procedure, became effective. This rule governs procedures for civil asset forfeiture actions in the federal courts. Subsection (4)(a) of Rule G prescribes the notice procedures applicable to civil judicial forfeiture actions, and specifically authorizes posting notice on an official internet government forfeiture site.

    On December 1, 2009, Rule 32.2(b)(6) of the Federal Rules of Criminal Procedure went into effect. This rule incorporates for criminal judicial forfeitures, the notice procedures, including internet publication, that apply to civil judicial forfeitures found in Supplemental Rule G.

    Notice of judicial forfeiture actions has traditionally been published in newspapers. As publication of both civil and criminal judicial forfeiture notices is now permitted on a government internet site, this site incorporates the forfeiture notices that have previously been published only in newspapers.

    This website contains a comprehensive list of pending notices of civil and criminal forfeiture actions in United States District Courts around the country.

    The Department of Justice contemplates that notices of administrative forfeiture actions processed by Department of Justice agencies and component agencies will eventually be published exclusively on this website in addition to the judicial forfeiture notices. While the administrative forfeiture notices will continue to be published in newspapers for the foreseeable future, the internet publication of administrative forfeiture notices will be phased in to overlap with newspaper publication until newspaper publication of those notices is discontinued.

    Please note that Title 18, United States Code, Section 983(h)(1), permits a court to impose a civil fine on anyone asserting an interest in property which the court determines was frivolous.

    So you want to look at Rule 32.2(b)(6): http://www.law.cornell.edu/rules/frcrmp/Rule32_2.htm

    I hope that helps.

     

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      average_joe (profile), Jan 25th, 2011 @ 6:38pm

      Re:

      Oops. I meant to link you to Rule G: http://www.law.cornell.edu/rules/frcp/RuleG.htm

       

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    •  
      icon
      average_joe (profile), Jan 26th, 2011 @ 8:36am

      Re:

      Looking at Rule G, it says: "When Publication Is Required. A judgment of forfeiture may be entered only if the government has published notice of the action within a reasonable time after filing the complaint or at a time the court orders." In other words, we're on the judge's timetable, exactly as I indicated above. Since the notice only has to be posted for short while, whether on the internet or in a newspaper, it's very likely that you will miss the notice unless you vigilantly look out for it.

       

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      icon
      Karl (profile), Jan 26th, 2011 @ 6:36pm

      Re:

      Hey, Joe.

      One last round, then I have to quit. I'm in college full-time now, and don't have the time.

      You say 60 days is not prompt by any standard.

      Not 60 days. SIX MONTHS. That's how long it took for ICE to begin the forfeiture process against the first round of seized domains. As far as I know, the seizure orders were under seal until then. And as far as I know, not a single owner of the seized websites was ever contacted by ICE in any way.

      Regardless, find me one place where it says the agent has to demonstrate that the defendant doesn't have safe harbor under 512.

      Nobody with a potential safe harbors defense has ever had their domains seized ex parte. However, 512 says explicitly they're exempt from "all liability," so it makes sense for the government to have to demonstrate any liability, as part of its requirement to demonstrate that any crime has occurred at all.

      And I will not have a chance to dig up the cases that say agents have to overcome affirmative First Amendment defenses before seizure, sorry. (Keep in mind, though, that most First Amendment defenses are affirmative defenses, for example in libel or obscenity.)

      Heller does not say "unless it's seized for evidence purposes, it's prior restraint." If that was the case, wouldn't agents just tell the judge "it's for evidence"?

      That is exactly what happened. Of course, that's not the only thing Heller says: it also says that the seizures must not have the effect of removing the allegedly infringing materials from circulation.

      Torrent-finder will get their day in court, I have no concern that it will be otherwise.

      They've been chomping at the bit to be able to contest the seizure orders. It's been, what, two months, and they haven't been allowed to do so. I don't share your lack of concern.

      I found some info for you about the notice issue that you're interested in.

      Thanks. I had seen that, as I went to forfeiture.gov to search for the seizure notices for those sites (I did not find them). I had assumed the rules only changed the means of publication from "newspapers" to "websites." I guess not. I still don't know if that's the correct rule to cite regarding seizures, since it's not mentioned in Title 17 (or the sections that Title 17 links to).

      But if it is, pay attention to Rule G(4)(b)(i):
      Direct Notice Required. The government must send notice of the action and a copy of the complaint to any person who reasonably appears to be a potential claimant on the facts known to the government before the end of the time for filing a claim under Rule G(5)(a)(ii)(B).

      They have not done this for any of the seized domains.

      By the way - though I would never call you "depraved," I too share Mike's concern about your attitude. We've been arguing about the letter of the law, and not about whether it is just.

      Frankly, some of these sites were intentionally used by the copyright holders themselves. They were growing musical culture, and fostering communities. They honored DMCA takedown notices, and believed they were following the law (and were possibly right). They do not deserve to be treated the same as organized criminals and entities that fund terrorists.

      These seizures damage society far more than infringement ever could. Even if the sites are 100% guilty, the seizures are worse than the criminal activity itself. If the letter of the law allows this, then we need to change the law.

      ...Anyway, have a nice winter.

       

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        average_joe (profile), Jan 26th, 2011 @ 8:12pm

        Re: Re:

        One last round, then I have to quit. I'm in college full-time now, and don't have the time.

        Very cool. I understand the being busy part. I have kids myself. During the day I watch my 2 year old and my 2 month old while my wife's at work. She comes home, I hand off the kids, and then I'm off to school for the evening. I'm taking 6 classes this semester. Finding quiet time to study is the hardest part for me. I'll be studying tonight until 2 or 3 AM probably. The middle of the night is the only time I get to really focus.

        Do you mind me asking what you're studying?

        Not 60 days. SIX MONTHS. That's how long it took for ICE to begin the forfeiture process against the first round of seized domains. As far as I know, the seizure orders were under seal until then. And as far as I know, not a single owner of the seized websites was ever contacted by ICE in any way.

        That does seem like a long time, I agree. We really don't know why things were under seal for so long. My experience is that things just take time to work their way through court, and it's not because anyone is slacking and not doing their job. Quite the opposite. The courts and prosecutors are simply swamped.

        Nobody with a potential safe harbors defense has ever had their domains seized ex parte. However, 512 says explicitly they're exempt from "all liability," so it makes sense for the government to have to demonstrate any liability, as part of its requirement to demonstrate that any crime has occurred at all.

        They're exempt from all liability unless they've lost their safe harbor. If a site operator is liable for criminal infringement, that site operator has necessarily lost its safe harbor. The government did demonstrate criminal liability in the affidavit.

        And I will not have a chance to dig up the cases that say agents have to overcome affirmative First Amendment defenses before seizure, sorry. (Keep in mind, though, that most First Amendment defenses are affirmative defenses, for example in libel or obscenity.)

        It makes no sense that the agent would have to preemptively explain away possible defenses in the affidavit, especially a defense like safe harbor. As I've said, if the site operator is liable for criminal infringement, that operator necessarily has no safe harbor. Keep in mind too that copyright is treated differently than other First Amendment issues.

        That is exactly what happened. Of course, that's not the only thing Heller says: it also says that the seizures must not have the effect of removing the allegedly infringing materials from circulation.

        That may be so, but copyright is treated differently than obscenity and the material can be removed from circulation. From the caselaw I've read, not only could the domain name be seized, the servers themselves could be seized, and all without a prior adversary hearing.

        They've been chomping at the bit to be able to contest the seizure orders. It's been, what, two months, and they haven't been allowed to do so. I don't share your lack of concern.

        I know they will get their day in court. I know that for a fact, that's why I'm not concerned about it. I very much look forward to seeing how their case plays out. I very much look forward to the day I'm licensed to practice law so I can help people like them who are in a situation like this. Don't take my lack of concern about whether or not they get their day in court with a lack of concern about their plight. I think challenging these seizures is very important for all of us.

        Thanks. I had seen that, as I went to forfeiture.gov to search for the seizure notices for those sites (I did not find them). I had assumed the rules only changed the means of publication from "newspapers" to "websites." I guess not. I still don't know if that's the correct rule to cite regarding seizures, since it's not mentioned in Title 17 (or the sections that Title 17 links to).

        I'm not a procedural expert by any means, but I'm pretty sure that's the right place to look since that section address judicial in rem forfeitures, which is exactly what is happening here.

        But if it is, pay attention to Rule G(4)(b)(i):

        Direct Notice Required. The government must send notice of the action and a copy of the complaint to any person who reasonably appears to be a potential claimant on the facts known to the government before the end of the time for filing a claim under Rule G(5)(a)(ii)(B).

        They have not done this for any of the seized domains.


        I know that notice of the seizure was posted on forfeiture.gov for the tvshack.net et al. forfeitures from this past summer. Was not notice sent directly to the site operators as well? Once the complaint was filed in the court, the court would send notice to the defendants as a matter of standard operating procedure.

        By the way - though I would never call you "depraved," I too share Mike's concern about your attitude. We've been arguing about the letter of the law, and not about whether it is just.

        I appreciate that. Mike's right in that I am very interested in the arguments, doctrine, and analysis. But that's not all I'm interested in. I'm interested in justice for everyone: the rights holders, the government, the defendants, everyone. Mike only cares about one side of things, and that's fine, but that's not what I care about. To say I'm "morally bankrupt" is silly, and honestly, I think Mike just didn't want to debate me on the merits so he called me a name and ran off like a little child. Whatever. That's par for the course for Mike.

        Frankly, some of these sites were intentionally used by the copyright holders themselves. They were growing musical culture, and fostering communities. They honored DMCA takedown notices, and believed they were following the law (and were possibly right). They do not deserve to be treated the same as organized criminals and entities that fund terrorists.

        That's one side of the story. I'd like to see the actual evidence that was gathered in the investigation. I'd like to see both sides of this before I pick sides.

        These seizures damage society far more than infringement ever could. Even if the sites are 100% guilty, the seizures are worse than the criminal activity itself. If the letter of the law allows this, then we need to change the law.

        I don't know if the seizures are worse. I see these seizures as the government finally doing something to live up to its promise that it was going to fight piracy. I'm 100% with you on changing the laws if doing so would be better. I strongly believe in that in general.

        ...Anyway, have a nice winter.

        And the same to you. Good luck in school.

         

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          Mike Masnick (profile), Jan 27th, 2011 @ 12:29am

          Re: Re: Re:

          I appreciate that. Mike's right in that I am very interested in the arguments, doctrine, and analysis. But that's not all I'm interested in. I'm interested in justice for everyone: the rights holders, the government, the defendants, everyone. Mike only cares about one side of things, and that's fine, but that's not what I care about. To say I'm "morally bankrupt" is silly, and honestly, I think Mike just didn't want to debate me on the merits so he called me a name and ran off like a little child. Whatever. That's par for the course for Mike.

          I guess it's only fair that I give you a more complete explanation, since you seem to have taken my serious concern over your moral depravity to be a mere insult, rather than an honest assertion (and hope that you might reconsider such a position).

          Put simply, I believe strongly that what's right is more important than what's in the law. And I will stand up for that. I have no problem with someone arguing that a different position is right. But that's not what you said.

          That you seem to think what's right is a minor matter, so long as the law is followed is moral depravity. It suggests that you are not someone who will stand up for what's right in the face of injustice. You claim otherwise in the statement above, but your words are in conflict.

          If you believe that someone's fundamental rights are being stomped on, and you say "but it's ok, because the law says it's okay," that's morally bankrupt.

          It means that you are not actually making a moral judgment at all, but inserting the law in place of your morals. It is the very definition of moral bankruptcy. That's not an insult, it's based on your very statements, claiming that morals are less important than the law.

          That position really does make me physically ill and uncomfortable talking to someone like you. I've talked, at great length, about where moral discussion do and don't fit into conversations on business models and such, but to suggest that morals are subservient to the law is a recipe for pure evil. It's the justification for all sorts of awful things. If you look around the world, at terrible things that are done by governments worldwide, so much of it is based on the theory that morality is subservient to the law. It's morally bankrupt.

          Finally, you say I "only care about one thing," implying that I do not care about "rights holders." Please don't lie. While you sit in law school, I'm out here HELPING ARTISTS. I care about them a ton, which is why I HELP THEM better understand how to build fanbases and make more money.

          I don't appreciate you lying about my position.

           

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            average_joe (profile), Jan 27th, 2011 @ 7:41am

            Re: Re: Re: Re:

            Thanks for the explanation, Mike. I do care about more than just the letter of the law. Perhaps that doesn't come through in the my posts, and perhaps it should. As a law student, I'm struggling to learn what the law actually is so I can then later use this knowledge to help people. If I believed someone's fundamental rights were being stomped on, I would be outraged. With these seizures, however, I don't see it that way. You do, and that's fine, but just because I don't agree with that doesn't mean there's something wrong with me. When I said you care about one thing, I meant you only seem to care about one side of the issue. I have never seen you have any sympathy or understanding for the other side. I know you're helping artists, and I respect you for that, but your focus is just narrower than mine.

             

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        •  
          icon
          Karl (profile), Jan 27th, 2011 @ 7:43pm

          Re: Re: Re:

          It was a snow day today, so I have a few minutes... but I really have to stop myself from getting sucked into these conversations.

          Do you mind me asking what you're studying?

          Computer science, since the tech industry is the only one that will be around in ten years. Not law, don't worry.

          That does seem like a long time, I agree. We really don't know why things were under seal for so long.

          I can guess: ICE is hoping these guys would be scared into silence, and go away without a fight. For the first eight, it worked.

          If a site operator is liable for criminal infringement, that site operator has necessarily lost its safe harbor.

          You keep saying criminal infringement overrules safe harbors, but nowhere in Title 17 (or anywhere else) does it say that.

          The only way a site can lose its safe harbor protections is if that site did not follow the rules outlined in 512. Even if you somehow meet the criteria for "criminal infringement" under 506; if you follow these rules in 512, you still have safe harbor protections, and the only legal remedies are outlined in 512(j). Nothing in 506 overrules 512.

          I know that notice of the seizure was posted on forfeiture.gov for the tvshack.net et al. forfeitures from this past summer. Was not notice sent directly to the site operators as well?

          Not as far as I can tell.

          I don't know if the seizures are worse. I see these seizures as the government finally doing something to live up to its promise that it was going to fight piracy.

          Uh, "finally?" It's been siding with rights holders (and rights holders only) since well before the internet came about. Not a single copyright law protecting public use has been passed since the Sony ruling.

          Giving government the power to seize protected speech ex parte - for any reason whatsoever - is one of the worst things a society can let happen. We would be better off without movies or music than we would be without free speech.

          ...Anyway, that really should be it. I can't keep putting off my calculus homework...

           

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


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