RIAA Not Happy With Rep. Lofgren Calling Out ICE For Web Censorship

from the and-the-pressure-is-on... dept

We've covered how Rep. Zoe Lofgren is one of the only Representatives in Congress (along with Senator Wyden on the other side of the Capitol building), who appears to actually be concerned that Homeland Security's Immigration and Customs Enforcement (ICE) group is seizing web domains on questionable authority, without due process, and likely in violation of basic First Amendment rights against prior restraint. Of course, even with just one Congressional Rep. speaking out about this, apparently the RIAA wishes to stomp out any dissent. Yesterday, they sent Rep. Lofgren an unsolicited letter in response to her comments. You can see the full letter embedded below, but let's go through a few of the "highlights."
Online theft, particularly through websites dedicated to infringing our rights, is a terribly important issue for those who invest in the artists and music that entertains the world. Online theft has cost our industry, the broader entertainment community, and our economy billions of dollars and thousands of jobs.
Note the claim about the lost jobs and losses to the economy. These are the same claims that have been repeatedly debunked in the last few months. There are no direct losses from infringement. There is only the industry's failure to adapt with new business models for a changing market. Of course, even if we're feeling generous, and grant the RIAA's premise that there have been billions in losses here, is that really an excuse for ignoring due process and the First Amendment? Seems like an odd argument.
I would like to take this opportunity to respond to the reference in your comments at the hearing to a New York Times article regarding a site implicated in the U.S. Immigration and Customs Enforcement’s (ICE) domain name seizures that claimed it received some music directly from a record label. The implication of the article was that any action against this or similar sites would be inappropriate given its distribution of some potentially authorized content.
Actually, this paragraph is quite misleading on a variety of points. First of all, no one has implied that "any action" against these sites would be "inappropriate" just because they published some authorized content. If it's true that they were distributing unauthorized content in violation of the law, then action could very well be appropriate. What we're questioning is the type of action. That is, no actual lawsuit has been filed on the sites named in that NY Times article. Instead, the sites were simply seized with no due process, and in violation of the higher standard for the seizure of content found in Fort Wayne Books v. Indiana.

Secondly, I've seen the evidence. The same evidence the NY Times saw. It wasn't just that there was "some" authorized content, but that every single song that ICE used to claim probable cause of criminal infringement was authorized.

Furthermore, according to the affidavit for seizure, it appears that ICE relied solely on a false claim from the RIAA's own Carlos Linares that the four songs in question were, in fact, unauthorized. It's rather odd that the RIAA's letter makes no mention of this. It also fails to mention that one of the songs named was not by an artist signed to an RIAA label -- and yet Linares allegedly still had no qualms about claiming it was infringing, despite no right to speak for that artist. Seems like a pretty big oversight for the RIAA to skip that point.
The First Amendment serves as a safeguard for free expression but not as a shield for illegal behavior. If, as the U.S. Supreme Court has stated, "neither the press nor booksellers may claim special protection from governmental regulations of general applicability simply by virtue of their First Amendment protected activities," then neither should sites dedicated to theft just because they also host online conversation. The fact is that these sites are welcome to limit their offerings to only authorized material (including any music provided by a rights holder) and to public discourse. But no one should be allowed to continue to engage in illegal activity while hiding behind a facade of legitimacy
Once again, the letter presents a gross misrepresentation of what actually is going on. No one -- no one -- is claiming that these sites get any "special protection" because they "also host online conversation." We're saying they get the same First Amendment protections anyone else gets -- which means that if you believe they infringe, you sue them. You don't just have the government seize their property. On top of that, you especially don't have the government seize their property based on four songs that were actually authorized.

Also, it's rather amusing that the RIAA's letter "quotes" the Supreme Court but is quite careful not to either name the case it's quoting, or to put the quote into context. That's because it knows doing either of those things would undermine its argument here entirely. First, the quote itself comes from Arcara v. Cloud, the one case that supporters of this kind of censorship keep hanging their hats on. Of course, Arcara doesn't apply here, as we've discussed repeatedly. The ruling in Arcara is explicit: it only applies to crimes that "manifest absolutely no element of protected expression." But speech on websites is protected expression.

Makes you wonder why the RIAA would leave out the fact that the very case they're quoting explicitly says it does not apply to the situation we're discussing. Funny, huh?

As for the claim that sites shouldn't be allowed to "engage in illegal activity while hiding behind a facade of legitimacy" -- we agree. But, no one is claiming that here, other than the RIAA. The problem is that no one has shown that illegal activity occurred. Instead, all they showed was that the RIAA appears to have said the songs were infringing, when they were all sent by representatives of the copyright holder.

It all sort of makes you wonder if the RIAA's response here is even more about covering its own hide from the fact that it may have made false representations to federal officials in a criminal investigation.
As notable First Amendment scholar, Floyd Abrams, stated last month in a letter to the Senate Judiciary Committee with reference to such seizures, "Copyright violations are not protected by the First Amendment. Entities 'dedicated to infringing activities' are not engaging in speech that any civilized, let alone freedom-oriented, nation protects. That these infringing activities occur on the Internet makes them not less, but more harmful."
I am not familiar with the specifics of Abrams' claims, but I will argue that he is being misleading here as well (or the RIAA is being misleading in how it is quoting him). Oddly, we also just had to debunk Abrams' false claims about Wikileaks, in which he incorrectly claimed that Wikileaks had done things it had not. It appears that, once again, Abrams has been speaking without full knowledge of what's going on. First of all, no one is claiming that copyright violations are protected by the First Amendment. We're claiming that the the non-infringing speech is protected by the First Amendment. Furthermore, Mr. Abrams' claim that such sites are somehow not engaging in speech, suggests a near complete level of ignorance of how some of these sites functioned -- and the FACT that the labels themselves relied on these sites as part of their promotional strategies. If it were actually true that this was some sort of horrible, dangerous site that no civilized nation would protect... why were the labels using them to promote works?

Either way, the larger point is that Abrams and the RIAA appear to be playing a cheap game of misdirection here by focusing only on the claims of infringement and by ignoring the massive amounts of non-infringing speech. And, in the specific case of Dajaz1, the government has failed to prove any infringement. So, can the RIAA and Abrams explain how it is acceptable for the RIAA to falsely claim infringement, have a site shut down... and then pretend the site was dedicated to infringement?
Assuming the site referenced in the New York Times article you cited actually received some authorized copies of legitimate material doesn't excuse the criminal activity of making available thousands and thousands of copies of unauthorized material. In the physical world, if the government seizes a shipment of thousands of boxes of illegal goods, and the distributor of the illegal goods tries to cover itself by including a small portion of lawful goods on top, the seizure would not be improper.
This is partially true, but mostly misleading. The big problem, of course, is that the government failed to show any criminal activity on the part of Dajaz1. So, it's hard to see how they can claim seizing is okay. Separately, once again, when a seizure involves speech -- even speech that is unprotected, such as obscenity -- the law is quite clear (though the RIAA ignores this) in a whole bunch of cases, that a higher standard must be met to avoid prior restraint. No such bar was met.
Some have opposed recent seizures based on the claim that "they are ineffective anyway because the sites just pop right back up." Follow-up to the seizures that have occurred thus far indicate the opposite -- recidivism is low.
First of all, I haven't actually seen this claim made anywhere seriously, so I'm not even sure why the RIAA is bringing it up. But, more importantly, the claim that recidivism is low also appears to be (yet again!) misleading in the extreme. It may be true that there has been a low level of recidivism in the domains seized for trademark infringement/counterfeiting (still the majority of seizures). On that front, I haven't been following things as closely. However for the domains seized around copyright claims, a large majority of them came back online quite quickly, with most of the rest showing up soon after.
Finally, claims regarding a lack of due process under U.S. statutory procedure remain unfounded. The sites targeted by the government are reviewed by investigators, U.S. Attorneys, and judges. There is a thorough analysis and prosecutorial discretion is exercised by several parties. There has been no rush to judgment.
This one makes me laugh because the RIAA completely ignores the very case that Lofgren so importantly highlighted: the mistaken and illegal seizure of 84,000 innocent sites. They all went through that same "review." And it didn't work. That's because it's not an actual review and it's not actual due process. Having only one side (the government) "review" (really: rubber stamp) things is not due process. Due process means that the accused should be allowed a chance to respond before any protected speech is blocked. That's fundamental to US Constitutional law, and it's troubling that the RIAA would ignore that.
And, as you noted at the hearing, an aggrieved party can always challenge a wrongful seizure under due process provisions set in statute – although it is noteworthy that so far none of the hundred sites seized for conducting illegal activity has chosen to do that.
Due process does not mean the government seizes and then if you don't like it you get to protest later. As for the claim that none of the sites have yet chosen to take legal action, that's again incredibly misleading. First of all, the government did not even provide most of the sites with the necessary information until months later, and then many have spent the last few weeks scrambling to find lawyers willing to take on the US government on a pro bono basis (because, despite claims to the contrary by the RIAA, these sites are not huge moneymakers). That's not easy. However, I am aware of a few sites who have secured representation and are currently "discussing" these issues with the government. I'm sure the RIAA is aware of this as well, so it's misguided to pretend that they've all just gone away silently.

It's noteworthy, too, that the letter is signed by Mitch Glazier for the RIAA. Glazier, of course, is infamous for his supposed role in sneaking a clause into an unrelated bill -- literally in the middle of the night -- while he was a Congressional staffer, which would have removed an important right of artists to reclaim their copyrights from record labels. Months later, he was hired by the RIAA for a salary around $500k per year -- a job which he retains today. For Mitch Glazier, of all people, to write a letter to a Congressional Representative, pretending to represent the best interests of artists, is pretty laughable.

Either way, almost nothing in the letter is accurate or honest, and none of it answers the key questions being raised by Rep. Lofgren. It most certainly does not explain why ICE is involved in what should be a civil matter. It does not explain why there is no adversarial hearing, despite it being entirely appropriate (as the mistaken seizures have shown). It does not explain why the RIAA stated that these files were infringing when the evidence shows that they were not (and with at least one file, the RIAA had absolutely no right to speak for it).

All in all, the entire letter seeks to avoid the important issues and focus on claims that haven't actually been made. I fully expect Rep. Lofgren will give it all of the attention that such a letter deserves.


Reader Comments (rss)

(Flattened / Threaded)

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    Marcus Carab (profile), Mar 10th, 2011 @ 9:27am

    Their choice of the word "recidivism" is particularly pernicious. That term is almost exclusively used to refer to convicted criminals who re-offend (and indeed the dictionary definition explicitly says 'convicted criminal')

    The operators of these websites have not been convicted and in most cases have not even been charged with a crime. It's impossible for them to re-offend - there is no proof they offended in the first place. It's quite the psychological game RIAA is playing by labeling them convicted criminals, with a word usually reserved for drug addicts, robbers and sex offenders.

     

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      The eejit (profile), Mar 10th, 2011 @ 9:43am

      Re:

      What a bunch of recidivists, they are.

       

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      Anonymous, Mar 10th, 2011 @ 4:00pm

      Re:

      Why does Mike Masnick continually and willfully misrepresent the Arcara case? Yet another lawyer has corrected him near the bottom of these comments.

      Why is he such a coward that he can't come out and admit that he will do anything, including repeatedly lying, to support piracy?

       

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        Karl (profile), Mar 10th, 2011 @ 11:35pm

        Re: Re:

        Why does Mike Masnick continually and willfully misrepresent the Arcara case?

        Why do you? Arcara itself says specifically that it doesn't apply to speech activities (protected or not). Yet you continuously bring it up, as though it does, even though it's been proven - both by laymen and lawyers - that you're wrong.

        The answer, I'm guessing, is because it's the only court ruling that could possibly excuse prior restraint (even though it actually doesn't), and you desperately need to excuse prior restraint. Just a guess.

         

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          Anonymous Coward, Mar 11th, 2011 @ 4:30am

          Re: Re: Re:

          Arcara itself says specifically that it doesn't apply to speech activities

          Hmm, you must be very confused. Nowhere in the Arcara ruling does it "specifically" say it "doesn't apply to speech activities".

          And considering Arcara was a First Amendment decision, your statement seems even more bizarre.

          Would you care to elaborate?

           

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            Modplan (profile), Mar 12th, 2011 @ 3:29am

            Re: Re: Re: Re:

            Second, the closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited -- indeed, the imposition of the closure order has nothing to do with any expressive conduct at all.

            [...]

            The closure statute is directed at unlawful conduct having nothing to do with books or other expressive activity.

            http://supreme.justia.com/us/478/697/

            I think it's you who needs to elaborate on such claims.

             

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              Anonymous Coward, Mar 14th, 2011 @ 2:53am

              Re: Re: Re: Re: Re:

              Like I said, still no example of where it specifically says anything of the sort.

              The domain seizures also weren't made on the basis of an advance determination that the distribution of particular materials is prohibited.

              And it has been pointed out numerous times here that prostitution is no more or less expressive activity than the act of copyright infringement.

               

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      Karl (profile), Mar 10th, 2011 @ 11:30pm

      Re:

      Their choice of the word "recidivism" is particularly pernicious.

      It's even more onerous when you consider what it actually means.

      What they're saying is that once they seized domain names ex parte, the sites just gave up without a fight. Whether they were guilty or not. They're celebrating the fact that they had a chilling effect on entities that primarily practice protected speech.

      Furthermore, they're being misleading. They count sites that shut down voluntarily on U.S. domains, but then set up exactly the same site on domains that can not be seized by the U.S. government.

      In other words, the sites set up shop outside of their jurisdiction. It means zero reduction of "infringement," and huge amounts of losses to the U.S. technology industries. A lose-lose scenario. And they're counting this as a victory.

      It is 100% bullshit.

       

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        Anonymous Coward, Mar 11th, 2011 @ 4:45am

        Re: Re:

        They count sites that shut down voluntarily on U.S. domains, but then set up exactly the same site on domains that can not be seized by the U.S. government.

        It never ceases to amaze me how people can't figure out why this was ICE's intention all along.

        It means zero reduction of infringement

        once again, whoosh! Right over their head.

        Oh well, karma's a bitch.

        huge amounts of losses to the U.S. technology industries

        who... have... been... getting... fat... on ... free... content... from...

        Guess Who!!!

        Once again, karma's a bitch.

         

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    Anonymous Coward, Mar 10th, 2011 @ 9:42am

    Note the claim about the lost jobs and losses to the economy. These are the same claims that have been repeatedly debunked in the last few months

    *sigh*. Can you explain that to all the people who worked in record stores, or in video stores, and are now unemployed because widespread piracy decimated the music industry's retail trade?

    Oh wait, you don't want to talk about the whole music industry, just the pieces you want to point at. Nice.

     

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      Anonymous Coward, Mar 10th, 2011 @ 9:49am

      Re:

      its called innovation. what about the telegraph workers and companies back when the telephone was released? you know what? they moved to become telephone workers.

      you can't just assume or believe its your right to maintain a dying business model. WAKE THE FUCK UP!

       

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        Anonymous Coward, Mar 10th, 2011 @ 10:12am

        Re: Re:

        The business model is fine. And it's going to continue. You pirates had a nice nice long free lunch, but it's pretty obvious that the government is very serious about cracking down on your lawbreaking. Whining about that just makes you sound like a greedy leech.

         

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          Anonymous Coward, Mar 10th, 2011 @ 10:16am

          Re: Re: Re:

          The government crackdowns and pressure have had absolutely zero effect on piracy. Hell, after HADOPI (the most extreme of the anti-piracy legislation in the world) was passed piracy still increased in France. The Pirate Bay still exists as do numerous clones.

          Relying on the government to protect the industry just doesn't work.

           

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          Eric the Red, Mar 10th, 2011 @ 10:50am

          Re: Re: Re:

          I would agree that their business model isn't in as bad of shape as Mike presents. But that's the whole point, they still make record profits year after year DESPITE piracy. They are complaining about something that has little effect on their profits. A pirated piece of media doesn't automatically equal a lost sale. I can guarantee they could easily make more money by spending less fighting all this stuff.

           

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          Anonymous Coward, Mar 10th, 2011 @ 11:14am

          Re: Re: Re:

          You pirates had a nice nice long free lunch, but it's pretty obvious that the government is very serious about cracking down on your lawbreaking.

          Lol. By breaking the law? Awesome government you have!

           

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          Anonymous Coward, Mar 10th, 2011 @ 11:21am

          Re: Re: Re:

          Look, if "stars" weren't paid 20$M a movie, and producers, and companies, and record labels... if they all agreed that they're greedy as hell and they make about 100 000 000% more profit than they could and still make a living, then maybe, just maybe, us "thieves" would stop downloading their overpriced product for free. It's simple math.



          I still buy CDs when the music is good, but I listen to mostly imported music, at 50$/CD for 5-8 songs. Do you expect me to pay that much, most of which will go to labels? Hell no. Instead I'll pay an overpriced concert ticket that will mostly all go to the artist's pocket, and will have a great time there.



          As long as they sell me 50$ CDs and 40$ DVDs, I'll keep downloading. Simple as that.

           

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          RadialSkid (profile), Mar 10th, 2011 @ 12:03pm

          Re: Re: Re:

          You're in denial, AC.

           

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          Ron Rezendes (profile), Mar 10th, 2011 @ 12:11pm

          Re: Re: Re:

          When the music industry falsely accuses people of committing a crime without any proof, or evidence to the contrary, and that they should be stopped at all costs, including throwing out the US Constitution, then it is indeed the industry at fault.

          Embrace the reality, quit with the FUD, and take a good hard objective look at your indefensible position. It is lamentable that you can't understand that "due process" is an explicitly mandated feature of our justice system. The governments actions violate this right at every turn and it is only occurring at the request of the industry itself on obviously baseless and outright false accusations.

          We should be holding a perjury trial since the signed (rubber stamped) paperwork indicates the signer(s) believe the document to be truthful under penalty of perjury.


          "*sigh*. Can you explain that to all the people who worked in record stores, or in video stores, and are now unemployed because widespread piracy decimated the music industry's retail trade?"

          Sure! Music is sold mostly in digital format these days and the shiny silver disks, cassettes, and vinyl records are a significantly lower percentage of music formats being consumed. We no longer require a cashier and three guys in the back room to man a store that requires so much overhead and expense. Unfortunately it has been proven that piracy did not cost you your job, it's just that you're in an industry that is 15 years behind the times. Our sincerest apologies that the executives in this industry have not figured it out yet.

           

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          Anonymous Coward, Mar 10th, 2011 @ 2:39pm

          Re: Re: Re:

          ROFL :)

          Sure pal, I have just one question, what is that, that you are taking because I want some of that.

           

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          Chosen Reject (profile), Mar 10th, 2011 @ 2:39pm

          Re: Re: Re:

          Wait I want to try this out too.

          The music industry is fine. And it's going to continue. You copyrightists had a nice nice long free lunch, but it's pretty obvious that the people are very serious about cracking down on your monopolies and lobbying and abuse. Whining about that just makes you sound like a greedy leech.

           

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      Joe Publius, Mar 10th, 2011 @ 9:49am

      Re:

      *sigh*. Can you explain that to all the people who worked in record stores, or in video stores, and are now unemployed because widespread piracy decimated the music industry's retail trade?

      *sigh*. Can you explain that to all the people who worked in record stores, or in video stores, and are now unemployed because of the development of new digital formats, that made the retail of physical media less important to a whole generation of consumers?

      Oh, wait you don't want to talk about technological progression and how that affects markets, just the pieces you want to point at. Nice.

       

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      Bradley, Mar 10th, 2011 @ 9:51am

      "Online theft has cost our industry, the broader entertainment community, and our economy billions of dollars and thousands of jobs."

      Yeah, and obviously those dollars and jobs didn't go anywhere else. I mean, no new business models have appeared - Pandora, Spotify, and thousands of other new businesses don't offer any jobs.

      I might believe it if he were to say "the direct business of selling music" was effected. But the broader entertainment industry is doing fine, thankyouverymuch. I'm fairly certain the economy (outside of some lobbyists pocket fund) isn't affected by the RIAA earning less money.

      "Can you explain that to all the people who worked in record stores, or in video stores, and are now unemployed because widespread piracy decimated the music industry's retail trade?"

      This carries the assumption that those people are still unemployed. That they didn't get jobs elsewhere. That they didn't shift to the new direction of the music and/or entertainment industry.

      If the RIAA doesn't want to adapt, they can form their own church and do what the Amish do - pretend the future doesn't bring change and ignore the rest of the world as much as they can. If not, they need to adjust to reality and move on with it, already.

       

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        Ron, Mar 10th, 2011 @ 10:32am

        Re:

        Amish, that is freakin awesome. Its EXACTLY what they are.

        How are we going to incorporate that into their names? Lets have some examples people!!??

         

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          ChurchHatesTucker (profile), Mar 10th, 2011 @ 10:42am

          Re: Re:

          RIAAmish?

          But that's really unfair to the Amish. They're not really luddites, they're more like an extreme example of the people that don't own a TV, or turn off their cell phones during dinner. They acknowledge technology, but carefully consider whether it is, by their standards, worth it. Sometimes in surprising ways.

           

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            G Thompson (profile), Mar 10th, 2011 @ 7:24pm

            Re: Re: Re:

            Exactly it is very unfair to the Amish since the Amish are very much a society bound by morals, ethical behaviour and their faith, and they always obey to the best of their ability the law of the land.

            the RIAA on the other hand...

             

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      Marcus Carab (profile), Mar 10th, 2011 @ 9:52am

      Re:

      Do you understand what the "economy" is?

      A bunch of people can lose specific jobs while the economy grows. In fact, economic booms are often driven by disruption in an industry that causes lots of people to leave one kind of job in favour of another.

      Less record stores != weaker economy. Less record stores != weaker music industry. Less record stores only equals one thing, and that's less record stores.

       

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        Anonymous Coward, Mar 10th, 2011 @ 10:09am

        Re: Re:

        Mike Masnick is compiling all his lies and FUD into one neat bit of propaganda.

        Piracy has caused job losses throughout the music industry. The ripples have been felt in every single sector: stores, labels, studios, tour assistance, everywhere.

        When investment goes in and isn't returned, it is impossible to not be felt. Maybe Mike Masnick believes music is better when the people that help musicmakers stop doing that and have to get other jobs, but the people that actually make music know that isn't the case.

        Mike Masnick's business model is based on support of piracy; it's difficult to think of a bigger enemy to musicians than him.

         

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          Anonymous Coward, Mar 10th, 2011 @ 10:13am

          Re: Re: Re:

          Piracy is only an enemy when you treat it like one.

           

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          Seriously?, Mar 10th, 2011 @ 10:18am

          Re: Re: Re:

          Clearly you are illiterate. Your reply is basically to ignore what everyone is saying and say the same thing over and over.

          Good luck with that, troll.

           

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          Joe Publius, Mar 10th, 2011 @ 10:19am

          Nice leap there AC, and bonus points for the first use of "FUD" for the day!

          As someone who's read this blog alot has noticed only the following important points when Mike talks about business models.

          - Create a devoted fanbase through interaction. (CwF)
          - Offer products and incentives that will appeal to that fanbase. (RtB)

          That doesn't support piracy at all. As a matter of fact, if someone finds their own way to express those two points well, you have a model that is pirate resistant.

           

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            Anonymous Coward, Mar 10th, 2011 @ 10:26am

            Re:

            You mean RtT+CbF (Reason to Take, Copied by Fans)? It's a wonderful catch term Mike came up with, but sadly, once everyone has a few crappy t-shirts, the reason to buy is gone, replaced with only a reason to take. It is much more a shell game system of finding the one sucker to pay for everyone else's enjoyment.

            That supports piracy most completely.

             

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              Ron, Mar 10th, 2011 @ 10:46am

              Re: Re:

              When are you guys going to understand that simple fact that nobody gives a shit about the recording industry anymore? Everyone is moving on, including all the people that got layed off. The only ones still crying about it, is the already rich scumbags that stuck it to us for 50 or so years. Its over, move on and stop posting your stupid rants here. NOBODY CARES ABOUT YOU!!!!!

               

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              Berenerd (profile), Mar 10th, 2011 @ 11:32am

              Re: Re:

              So once everyone has a TV there is no reason to buy a new TV?

              Honestly I get new shirts every year. I still try and buy T-Shirts for the Screaming Trees" when ever I see one because, I like the Screaming Trees. I get new underware and a new set of sheets every year to keep things fresh and happening. it must be because I support business models that don't work, right?

               

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            ChurchHatesTucker (profile), Mar 10th, 2011 @ 11:16am

            Re:

            Nice leap there AC, and bonus points for the first use of "FUD" for the day!

            Clearly he isn't aware that the word for today is "Astroturf."

             

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          Marcus Carab (profile), Mar 10th, 2011 @ 10:49am

          Re: Re: Re:

          If the "people that help musicmakers" are ACTUALLY helping them, then there will still be plenty of demand for their services, and they will do just fine. If they aren't helping them, and are instead controlling them and hindering their creativity and taking most of their money, then yeah, they need to go find other jobs (possibly as lawyers)

           

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          Anonymous Coward, Mar 10th, 2011 @ 2:38pm

          Re: Re: Re:

          Damn pirates, they didn't do a good job they should pirate more, because how this creature still can afford a PC to keep writing nonsense is a mystery to me.

           

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        Anonymous Coward, Mar 10th, 2011 @ 10:30am

        Re: Re:

        Gee, Marcus. Why not include the universe in your calculations? You are doing what Mike is pretty famous for, either focusing on a single blade of grass or going for the 30,000 foot view, with nothing in the middle.

        The recorded music industry has been decimated by piracy, plain and simple. Sales are more than 60% off of peak. Did that money do "elsewhere"? Probably. But it didn't go into the music industry.

        Less record stores != weaker economy. Less record stores != weaker music industry. Less record stores only equals one thing, and that's less record stores.


        No, think of record stores are the canary in the coal mine. People still consume music like crazy, they still listen to it, they still want it. They stopped paying for it. Record stores are the clearest sign that piracy has overwhelmed and killed much of the recorded music world.

        Denying the obvious isn't helping your case.

         

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          Modplan (profile), Mar 10th, 2011 @ 10:48am

          Re: Re: Re:

          What is it with your analogy obsession? Are you only able to make arguments by completely changing the context and relying on skipping various details?

           

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          The eejit (profile), Mar 10th, 2011 @ 10:52am

          Re: Re: Re:

          But the recording industry isn't the music industry. Until you get this nothing you say will be relevant.

           

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            Anonymous Coward, Mar 10th, 2011 @ 3:11pm

            Re: Re: Re: Re:

            The recording industry comprises the vast amount of the music industry in terms of jobs and participants. Always has, always will.

             

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          Marcus Carab (profile), Mar 10th, 2011 @ 10:52am

          Re: Re: Re:

          Funny, because I find new music every day and lots of it is awesome. Some of it is completely independent, some of it is backed my major labels, and some of it is doing something experimental somewhere in between. And I see more and more new music every single year.

          If this is your definition of a dying industry then, fine, the industry is dying I guess... now if you'll excuse me I have some awesome new music I want to listen to, and some concert listings to check out.

           

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          Anonymous Coward, Mar 10th, 2011 @ 11:28am

          Re: Re: Re:

          No, think of record stores are the canary in the coal mine.
          I think the popularity of Napster when it was a P2P service was the "canary in the coal mine". I forward thinking record exec could have ridden that popularity into the new millennium, but they (recorded music industry) chose to pay the lawyers instead. The DECADE that has passed since P2P Napster was shut down has been plenty of time for RIAA members to adapt and capitalize on digital music distribution.

           

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            btr1701 (profile), Mar 10th, 2011 @ 12:03pm

            Re: Re: Re: Re:

            > A forward thinking record exec could have ridden
            > that popularity into the new millennium

            Hell, even Apple with its DRM and proprietary format managed to make a decent go of taking the Napster idea and monetizing it.

             

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              ltlw0lf (profile), Mar 10th, 2011 @ 4:12pm

              Re: Re: Re: Re: Re:

              Hell, even Apple with its DRM and proprietary format managed to make a decent go of taking the Napster idea and monetizing it.

              Partly, of course, because Apple didn't have a horse in the race to begin with...so to say, and could make a collection available the consumer wanted, regardless of the label (though I'm not discounting the incredible work they did convincing the labels to go along with the deal...for that, I am truly in awe of, as they did nothing less than herding cats in order to make that happen.) They offered what the customer wanted, and were rewarded for that. Of course, that is what Apple does...and they are rewarded for that (full-disclosure: I am writing this comment on an Apple.)

              The labels didn't want to sell their competition's music along with their own, and thus every system they tried to put in place failed miserably. The customer didn't mind the DRM, at first, and wanted the music they wanted to listen to regardless to who the label was, and they wanted an easy place to find the music they wanted. Apple iTunes provided all that. However, had one of the label's systems worked, I think they would have rolled over on Apple and killed iTunes in a heartbeat...and for that, I am thankful they all failed.

              The customer loves iTunes, and there is no way the industry will ever compete with iTunes without adapting to do what is in the customer's best interest...not their own.

               

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          identicon
          It would appear..., Mar 10th, 2011 @ 11:33am

          Re: Re: Re:

          ... that you understand that recording isn't a money-making industry anymore. The only difference seems to be you don't like it so you want to find someone to blame (piracy, government, those darn kids, any will do) whereas everyone has moved on.

          You'll move on too one day, for the same reasons telephone operators and others did when technology made their jobs unnecessary.

          P.S. Your over-use of 'Plain and Simple' signifies you know it's anything but, because is shows your inability to argue your point. If you say the same things over and over, maybe they'll come true! But I wouldn't bet on it...

           

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            Anonymous Coward, Mar 10th, 2011 @ 3:19pm

            Re: Re: Re: Re:

            Of course recorded music is a money making industry; people like you are addicted to it. And you're addicted to the music that is for sale, not the stuff you could get on Jamendo. It's just that you rip it off instead of paying for it.

            There are lots of bands that give away their music, usually because no one is paying any attention to them. And that's fine, good luck to them.

            But do you really think popular acts are just going to throw up their hands and say, "well, let's just give everything away and sell t shirts."

            If you do, you're a pretty funny guy.

             

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              Any Mouse (profile), Mar 10th, 2011 @ 5:47pm

              Re: Re: Re: Re: Re:

              I'm addicted to using my telephone, too, but I'm not paying some jackass to sit in front of a peg board and move wires around when a computer bank and relays will do it faster, cheaper, and more accurately.

              'And you're addicted to the music that is for sale, not the stuff you could get on Jamendo.'

              Baseless supposition, facts not in evidence. I haven't purchased from an RIAA label in 20 years, and don't even listen to the 'pop' stations on the radio. I do, however, download a lot of indie music. Stuff with some actual soul to it as opposed to the corporate-sanitized trash you're pushing.

               

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          btr1701 (profile), Mar 10th, 2011 @ 12:01pm

          Re: Re: Re: Decimate

          > The recorded music industry has been decimated
          > by piracy, plain and simple. Sales are more
          > than 60% off of peak.

          You apparently don't know what the word "decimate" means. It doesn't mean "to wipe out". It means to reduce by one-tenth.

          Decimation was a form of military discipline used by officers in the Roman army to punish mutinous or cowardly soldiers.

          A unit selected for punishment by decimation was divided into groups of ten; each group drew lots, and the soldier on whom the lot fell was executed by his nine comrades, often by stoning or clubbing. The remaining soldiers were given rations of barley instead of wheat and forced to sleep outside the Roman encampment.

          Because the punishment fell by lot, all soldiers in the group were eligible for execution, regardless of the individual degree of fault, or rank and distinction.

          The leadership was usually executed independently of the 1 in 10 deaths of the rank and file.

           

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            hobo, Mar 10th, 2011 @ 12:46pm

            Re: Re: Re: Re: Decimate

            I do not support the shills but come on. If you know enough to know the origins of the word, "decimate," then surely you know that common modern usage is something along the lines of, "to destroy a large part of..."

            I know you must know this because you aren't speaking in Old English, or Latin. It is a novel attack, I guess to pick on the use of one word, call the use of that word incorrect, and base that criticism on the arcane definition of the word.

            If I didn't know better, I'd say this was a troll attack by someone at the OED, except they'd know how the word has evolved.

            Regards.

             

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              btr1701 (profile), Mar 10th, 2011 @ 1:27pm

              Re: Re: Re: Re: Re: Decimate

              > common modern usage is something along the
              > lines of, "to destroy a large part of..."

              More like common modern mis-usage. In any event, the shill claimed that sales were down by 60% and said that was a decimation of the industry, which was incorrect. A decimation would have been capped at a 10% loss of sales.

               

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                hobo, Mar 10th, 2011 @ 1:45pm

                Re: Re: Re: Re: Re: Re: Decimate

                If he or she were the first person to use the word in this way, perhaps it would be correct to then claim "misuse," but if dictionaries have included it in their list of definitions, perhaps it is time to simmer down on the strict original definition. You're starting to sound a little like groups behind the shills, "..we must have it the way we think it should be!"

                Now, you might argue that just because misuse becomes widespread, or just because a publisher of a dictionary decides to print something that doesn't make it correct. Fair enough. People constantly misuse the phrase, "I could care less," when what they mean is the previously used and logical phrase, "I couldn't care less." The former makes no sense.

                However, the OED itself states that when using the word, "decimate," as a verb, it has been used rhetorically or loosely to mean, "to destroy or remove a large proportion of," since at least 1663, with various citations throughout the 1800s. Perhaps it's time to loosen the old grammar sphincter.

                The point is that language, like music (the driving issue behind this article) or anything else, evolves.

                 

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          RadialSkid (profile), Mar 10th, 2011 @ 12:22pm

          Re: Re: Re:

          Anonymous Coward: "Mike Masnick is full of FUD! The recorded music industry has been decimated by piracy!"

          TechDirt Users: "Industries come and go, chief."

          AC: "But the recorded music industry has been decimated by piracy, plain and simple! Look at the record stores..."

          TDU: "Could that be because nobody listens to records anymore? Or cassettes? Or CDs?"

          AC: "You're all full of FUD! The recorded music industry has been decimated..."

          TDU: "You do know 'decimated' means to reduce by one tenth, right?"

          AC: "But...FUD...and...and...freetards..."

          TDU: "Go ahead, you know you want to say it..."

          AC: "...BUT COPYRIGHT INFRINGEMENT!!!"

          TDU: "And there's our laugh for the day..."

           

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      identicon
      Tom, Mar 10th, 2011 @ 10:34am

      Re:

      sigh*. Can you explain that to all the people who worked in record stores, or in video stores, and are now unemployed because widespread piracy decimated the music industry's retail trade?


      One effect, multiple causes. The industry's reliance on monopolistic practices (perpetrated by an oligopoly, to be more precise, not a monopoly) of forced bundling and artificially high prices propped up the industry.

      Yes, the introduction of piracy years ago challenged the artificially restricted supply (and manufactured demand through bundling) and caused a change in how consumers viewed the industry. But so did the emergence of online retailing, and the Internet in general, both of which have legitimately challenged the business models of traditional middle-men.

      For many reasons (including, piracy), more songs came to be sold individually, rather than by the album. This shift from album sales to song sales is the primary cause of lost revenues for the music industry. Yes, the change may have been triggered by piracy (or it might simply have been the shift to digital availability or a multitudinous host of other factors), but it does not perpetuate the losses you describe. (Which can also be partially attributed to the growth of online retailing, a la Amazon.com.) For such a claim to be true, you must also mean that if piracy were to somehow magically disappear overnight that those industries would return.

      Trying to pin a complex phenomenon on a single cause is silly, and implying the changes would revert in the absence of piracy is even sillier.

       

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      identicon
      Anonymous Coward, Mar 10th, 2011 @ 10:45am

      Re:

      Can you explain that to all the people who worked in record stores, or in video stores, and are now unemployed because widespread piracy decimated the music industry's retail trade?


      I would be happy to, if they existed. The simple fact is that there is absolutely no proof at all that anyone anywhere has lost their job to "piracy".

      There are lots of people in record and video stores that are unemployed because of competition from Amazon, Zip, Netflix, iTunes, Walmart and Target - and lots more who have lost their job because of the global recession. But there aren't any that lost their jobs because of "piracy". Not a single one.

      Prove otherwise, then we'll talk.

       

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      Kevin (profile), Mar 10th, 2011 @ 10:52am

      Re:

      The retail music trade was killed by iTunes and Amazon. Why should I have to drive to a store that might have that new CD and pay 18.99 for it when I can sit at my computer and download just the tracks I want for a buck each? How much sense does that make?

      Should I still carry a 15lb Case logic case of CDs that I have to change every time I want to listen to something different? Or spend needless hours ripping all of my CDs to a digital form in order to burn mix CDs and have to pay a retarded piracy tax on every blank disk I buy?

      For those that will go there... Or spend all that time ripping music to a digital form so I may load it on my iPod/MP3 player.

       

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      Steve, Mar 10th, 2011 @ 11:01am

      Re:

      Piracy didn't decimate the music industry's retail trade. Online retail is still retail. Brick and mortar stores like Virgin Records closed because iTunes, Amazon and their competitors made purchasing music online easier and cheaper. Sales through iTunes and Amazon count as retail sales. That's why they're considered online retailers.

      You can't say all birds were decimated because we killed off the Do Do.

       

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      Cowardly Anon, Mar 10th, 2011 @ 11:16am

      Re:

      *sigh*

      Widespread piracy did not decimate the music and video industry's retail trade. The fact that technology has changed and we now prefer to consume our music and movies through electronic format did that.

      Why would I need to go to a record store to get an MP3?

      If the recording industry had of realized this change in technology they could have provided the resources to give people what they wanted and even drive what they needed. But they chose not to do that.

      Blaming piracy is the scapegoat response. Even if everyone was paying for the media, that wouldn't mean that the people in the retail stores would still be employed.

      Also, if this shift removed some jobs in retail stores, but created more jobs elsewhere in the industry, why is this a bad thing?

      For people who work in a music store b/c it is their passion, they will get another job in the business. For the people who were there for a paycheck, McDonald's is always hiring.

       

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      Mike Masnick (profile), Mar 10th, 2011 @ 11:32am

      Re:

      *sigh*. Can you explain that to all the people who worked in record stores, or in video stores, and are now unemployed because widespread piracy decimated the music industry's retail trade?

      Sure thing. Once you explain that to all the phone operators who connected calls and are now unemployed because automatic switch decimated their jobs.

       

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      btr1701 (profile), Mar 10th, 2011 @ 11:56am

      Re: Business Failure

      > Can you explain that to all the people who
      > worked in record stores, or in video stores,
      > and are now unemployed because widespread piracy

      Those stores are going out of business because of the internet in general (and legitimate services like iTunes and Netflix), not piracy.

      Yes, the internet is killing those businesses. No, it's neither immoral nor is it a crime, any more than Henry Ford committed a crime by mass producing automobiles and "decimating" the horseshoe/blacksmith industry.

       

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      Jack, Mar 10th, 2011 @ 12:19pm

      Re:

      Record stores and video stores are not being put out of business by piracy. The idea that they are is simple lunacy. Stores these businesses dying on the vine because advances in tech made them completely and totally irrelevant. From a perspective of economics why in the world would any corporation pay rent on a store fronts as well as employees to stand around and check movies out or sell movies or music when they can pay a single small group of programmers and engineers to develop a service like red-box or iTunes and then mass produce the red-box equipment or offer the iTunes store for free then charge almost nothing (a dollar a day for movies or $0.99 per song) with essentially no real overhead. Those businesses died a natural death. Saying that piracy caused it is simple stupidity and failure to look at the truth.

       

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      Ben (profile), Mar 10th, 2011 @ 12:43pm

      Re:

      Oh wait, you don't want to talk about the whole music industry, just the pieces you want to point at. Nice.

      I think you'll find Mike does the exact opposite actually. In every report about music (or movie) piracy affecting the big labels Mike ALWAYS points out that the publishing arms of these industries only represents a portion of a much larger, growing, industry.

       

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      Richard (profile), Mar 10th, 2011 @ 1:32pm

      Re:

      sigh*. Can you explain that to all the people who worked in record stores, or in video stores, and are now unemployed because widespread piracy decimated the music industry's retail trade?
      The retail trade is no longer necessary because music can be downloaded directly (whether legally or illegally is irrelevant here - legal downloads would have trashed the physical retail trade even if there were zero piracy.)

       

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      Anonymous Coward, Mar 10th, 2011 @ 2:35pm

      Re:

      *Sigh* Want to talk unemployment how about talk how labels and studios are outsourcing their work force to Canada, Singapore, Taiwan and Australia because they pay less, of interest is FX Effects being outsourced to Asia because they can do the same work with the same quality for a fraction of the price.

      That is real loss of jobs in America.
      Piracy may or may not have caused those losses, and you will have a hard time trying to prove that they happened at all, but outsourcing comes credit on the end of each and every movie, stamped on the back of every CD LoL

       

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      identicon
      Uh, Mar 10th, 2011 @ 2:52pm

      Re:

      You can't be serious. Piracy has not effected video and record store employees, innovation and technology did that. So we should stop all technology so a few people can keep their jobs while undermining the creation of tens of thousands other jobs in other sectors?

       

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      identicon
      Anonymous Coward, Mar 10th, 2011 @ 3:26pm

      Re:

      Would YOU care to explain to the guys that pressed vinyl records and made 8 tracks where their jobs went? Oh, wait. It's called "innovation" and "reinvention of format."

      And while you're at it, why not sob for the carriage makers and buggy whip makers and wheelwrights and farriers and the guys who pushed a cart down the street and swept up the horse shit?

      Or maybe you need that job, since you're shoveling a lot of shit here and now.

      As things change, jobs and manufacturing evolve. Do you weep for the jobs lost in factories because of modernization and mechanization? Do you want to explain to all those women who sewed by hand why they were replaced by machines?

      No? But..us pirates took their jobs!

      Ohhh, right. INNOVATION took their jobs. Not us pirates. Silly me. :)

       

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      Karl (profile), Mar 10th, 2011 @ 11:36pm

      Re:

      Can you explain that to all the people who worked in record stores, or in video stores, and are now unemployed because widespread piracy decimated the music industry's retail trade?

      All two of them.

      The rest are unemployed because their bosses fucked up. Same as the rest of us.

      I used to work in a record store, too. They're not closing because of piracy, I can tell you that much.

       

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    identicon
    Anonymous Coward, Mar 10th, 2011 @ 10:11am

    Consumers may be spending less money on records, but that doesn't mean they're spending less money overall. If I don't spend $12 on a record, I still have the $12 to do something else with the money.

    This is also why most specific industry "job loss" figures are junk. They only account for one industry, when usually there is an offsetting gain somewhere else. The only ones that matter are the global job loss/gain numbers (national for all job sectors).

     

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    Torinir (profile), Mar 10th, 2011 @ 10:18am

    RIAA is the last group that has the privilege to complain about piracy and to advocate censorship in the fight against it. Unless, that is, they want to reap what they sow and be censored themselves.

    CRIA, RIAA's Canadian arm, recently settled a huge class action suit for... wait for it... copyright infringement. Talk about the pot calling the kettle black.

    http://www.thestar.com/business/article/735096--geist-record-industry-faces-liability-over -infringement

    http://www.zeropaid.com/news/92034/canadian-record-labels-pay-45-million-to-settle- piracy-claims/

     

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    identicon
    Anonymous Coward, Mar 10th, 2011 @ 10:22am

    Can you explain that to all the people who worked in record stores, or in video stores, and are now unemployed because widespread piracy decimated the music industry's retail trade?
    -----------
    That's easily explained. Of course a troll doesn't want to hear that as it's a talking point.

    What happened was chain stores, like Walmart and Target to name a couple.

    Walmart wanted to use music as a loss leader to get you in the store. So they sold music cheaper than mom and pop stores could. Price is always an important driver in sales. Due to their volumes of sale they were able to obtain volume discounts that regular stores could not.

    The chain stores did to music stores what they did to other local stores and caused the local stores to close the doors because they could not compete on price.

    Only chain stores didn't offer the floor space nor selection of mom and pop stores. You can not offer less product and expect to sell more to the public, especially with music where tastes are often individual and specific to the buyer in what they seek. Nor can you price that same product a 1/3 more and expect the public to storm the doors to buy what is more expensive.

    Walmart was the leading chain store selling music nation wide in 2006. It did so by selling cheaper and then demanding lower purchase prices at the threat of removing all music from their stores. Face it, less money coming in from less volume means there isn't enough money to go around with the majors taking the lions share of slice of pie.

    Lastly there is the fact that now, majors are doing to cds what was done to all the previous formats and eliminating them. The digital sales are single song driven. Again, less volume does not support more people on less money.

    The majors have themselves to blame for bad business decisions...no one else.

     

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      identicon
      Anonymous Coward, Mar 10th, 2011 @ 10:49am

      Re:

      So the price went down, and they sold 60% less product. Got it.

      So you are saying that piracy did nothing?

       

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        Kevin (profile), Mar 10th, 2011 @ 11:19am

        Re: Re:

        Less plastic disks does not equate to more piracy. Thank you for trying. Please drive through.

         

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        JMT, Mar 10th, 2011 @ 12:13pm

        Re: Re:

        "So you are saying that piracy did nothing?"

        So are you saying chain stores did nothing?
        So are you saying online retailing did nothing?
        So are you saying the advancement of technology did nothing?
        So are you saying a shift to non-physical media did nothing?
        So are you saying the global recession did nothing?

        Lot's of proven reasons, but you obsess over the one that can't be proven.

         

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          Cowardly Anon, Mar 10th, 2011 @ 12:39pm

          Re: Re: Re:

          Just like there is a magic idea that will save the recording industry, there must be one damning thing that destroyed it.

          The big labels and the sheep that follow them seem to only think in absolute black and white type logic.

           

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      Karl (profile), Mar 10th, 2011 @ 11:49pm

      Re:

      What happened was chain stores, like Walmart and Target to name a couple.

      Not even the chain stores, but the fact that the major labels dropped music stores in order to sell to those chain stores.

      There are plenty of other reasons, of course. The economy is an obvious one. Also the competition from DVD's or video games. The fact that the labels didn't embrace digital music, so now 20% of "their" profit is going to Apple. (If you include downloadable media, sales were the highest in history in 2009.) The fact that they haven't come out with a new format in 20 years (CD's are almost as old as VHS tapes - know anyone who buys VHS tapes anymore?). The fact that they depend for their profits on media that must be physically manufactured, packaged, and shipped, when the rest of the world has gone digital. The fact that because recording costs are down and distribution costs are virtually non-existent, musicians simply don't need their services like they once did. The fact that consumers unilaterally hate them for filesharing lawsuits.

      Yeah, it's all due to piracy. Right.

       

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    identicon
    Anonymous Coward, Mar 10th, 2011 @ 10:23am

    Masnick gets bitch slapped!

    Hahahahahahaha, Masnick gets owned by the RIAA!!!!

    All of Masnick's FUD is so totally destroyed in that letter.

    Excellent job RIAA. Cheers

     

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      Wiggs (profile), Mar 10th, 2011 @ 10:33am

      Re: Masnick gets bitch slapped!

      Congrats, you've invoked Poe's Law! I really have no idea whether you're being serious or sarcastic.

       

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      Chris Rhodes (profile), Mar 10th, 2011 @ 10:33am

      Re: Masnick gets bitch slapped!

      D-

      Not a believable impression of a TD troll. Next time, try making insinuations about what Mike really believes (make sure to use his statements out of context and stretch the meaning of any individual word way past its maximum limit), and add in some leading questions that can't be answered without confirming wrongdoing ("When are you going to stop supporting piracy?). Alse, I believe the accepted resident troll opening is "LOL!", not "Hahahaha", so you're close, but no cigar there.

      You did use the word FUD, though, so you get a D- instead of an F.

       

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    identicon
    TDR, Mar 10th, 2011 @ 10:28am

    "It all sort of makes you wonder if the RIAA's response here is even more about covering its own hide from the fact that it may have made false representations to federal officials in a criminal investigation.."

    Hmm... lying to federal officials... I wonder if there are criminal charges that the RIAA can be slapped with for that. What I'd really like to see is for the RIAA and the major labels to be shut down and forced to pay back everyone they sued the exact amount they were originally sued for, plus be forced to have all their profits distributed amongst the artists they've been screwing for years. And also be forced to publicly admit that everything they have ever said has been a lie.

     

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      Josh in CharlotteNC (profile), Mar 10th, 2011 @ 10:51am

      Re:

      I wonder if there are criminal charges that the RIAA can be slapped with for that.

      Who are going to file the charges? The same federal agencies that are bought off and would have to admit they took bad info? Department of Justice... run by former RIAA goons?

      In a system this corrupt, who is left to hold the corruptors responsible?

       

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    identicon
    Anonymous Coward, Mar 10th, 2011 @ 10:29am

    Don't assume anyone knows...

    I sincerely hope that you sent this analysis of that letter to not only Rep. Lofgren but all the other Representatives and Senators.

     

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    Joe Publius, Mar 10th, 2011 @ 10:33am

    Ugh, there's the "F" word again

    You know what real FUD is?

    Writing a whole letter stating that if we give regard to protections for the freedom of expression, a whole industry may be destroyed.

     

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      identicon
      Anonymous Coward, Mar 10th, 2011 @ 10:50am

      Re: Ugh, there's the "F" word again

      Writing a whole letter stating that if we give regard to protections for the freedom of expression, a whole industry may be destroyed

      So you think there is some right to piracy, that it is a freedom of expression issue?

       

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        The eejit (profile), Mar 10th, 2011 @ 10:54am

        Re: Re: Ugh, there's the "F" word again

        No, there's a right to point out the flaws ina business model, and go somewhere else if they don't learn. free-market principle in action. Only, people are tryingt o protect their failing business model.

         

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        Josh in CharlotteNC (profile), Mar 10th, 2011 @ 10:57am

        Re: Re: Ugh, there's the "F" word again

        So you think there is some right to piracy, that it is a freedom of expression issue?

        If you consider piracy the unrestricted copying of ideas, information, expressions, thoughts, and content... in a single word: culture.

        I do.

        Culture cannot be owned. Culture is shared amongst everyone in a society.

        I choose freedom and change over restriction and stagnation.

         

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        Marcus Carab (profile), Mar 10th, 2011 @ 10:59am

        Re: Re: Ugh, there's the "F" word again

        Ugh. Piracy is not protected expression, but it is expression - and thus, until it is proven to be infringing and thus unprotected, it has a presumption of protection. Censoring it before clearly demonstrating that it is unprotected, and before even giving an opportunity to raise first amendment defenses, is very much a freedom of expression issue. Censoring it alongside tonnes of content that isn't even potentially infringing is even more of a freedom of expression issue.

         

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          identicon
          Anonymous Coward, Mar 10th, 2011 @ 3:26pm

          Re: Re: Re: Ugh, there's the "F" word again

          As pointed out in the letter, there is no First Amendment protection for copyright infringement.

           

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            Any Mouse (profile), Mar 10th, 2011 @ 5:56pm

            Re: Re: Re: Re: Ugh, there's the "F" word again

            A point Marcus did not argue. Why do you keep repeating that instead of staying on point with the conversation?

             

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            Daph, Mar 10th, 2011 @ 9:50pm

            Re: Re: Re: Re: Ugh, there's the "F" word again

            You wouldn't know if it's infringement until a court says so anyway.

            None of these people are guilty of infringement until it's determined by a court. Until then, you can't strip them of their amendment rights.

             

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          Hephaestus (profile), Mar 11th, 2011 @ 6:42am

          Re: Re: Re: Ugh, there's the "F" word again

          When I read that I thought this is as obfuscated and confusing as reading Thomas Aquinas' proof for the existance of god ...

           

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        Joe Publius, Mar 10th, 2011 @ 11:06am

        Re: Re: Ugh, there's the "F" word again

        As a natural right, you bet!

        All these laws have corrupted the natural sharing, trading, remixing, and progression of ideas and expression that happened well before anyone thought that they could own anything spawned from their mind.

        As I law, I observe it, but have lost respect for it. It has become twisted into some economic right that is then used to bully anyone who does something that otherwise would be completely natural.

         

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          keiichi969 (profile), Mar 10th, 2011 @ 1:19pm

          Re: Re: Re: Ugh, there's the "F" word again


          All these laws have corrupted the natural sharing, trading, remixing, and progression of ideas and expression that happened well before anyone thought that they could own anything spawned from their mind.



          Oh could you imagine how bad the world would be if we had this form of copyright abuse before we invented/discovered, say... fire?

           

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        xs (profile), Mar 10th, 2011 @ 11:07am

        Re: Re: Ugh, there's the "F" word again

        If fighting piracy requires us to disregard freedom of expression, then it's not worth fighting for.

        If fighting piracy can only be done with someones freedom of expression violated as collateral damage, then it's not worth fighting for.

        If those parties that are interested in fighting piracy keep disregarding the violation of freedom of expression during their fight and spouting garbage trying to white wash it, then it's actually these parties that we have to fight.

         

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    identicon
    Anonymous Coward, Mar 10th, 2011 @ 10:46am

    These are the same claims that have been repeatedly debunked in the last few months.

    Here's hoping for a reply from Lofgren quoting half a dozen of those debunkings, especially the GAO's.

     

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    Jesse (profile), Mar 10th, 2011 @ 11:06am

    SLAM! BAM! POW! RIGHT IN THE KISSER!

    Is it weird that I get an adrenaline rush watching you take these guys down piece by piece?

     

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    Gwiz (profile), Mar 10th, 2011 @ 11:30am

    Are they reading TechDirt comments?

    Some have opposed recent seizures based on the claim that "they are ineffective anyway because the sites just pop right back up." Follow-up to the seizures that have occurred thus far indicate the opposite -- recidivism is low.

    First of all, I haven't actually seen this claim made anywhere seriously, so I'm not even sure why the RIAA is bringing it up.


    Heh. I said something to that effect the other day.

    But hey, since I really don't take myself all that serious, I guess no one else should.

     

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    Anonymous Coward, Mar 10th, 2011 @ 12:13pm

    Just an observation because a point keeps being made here that is quite misleading.

    The refrain is "reps of the companies sent the stuff to the sites", so they are authorized".

    Not necessarily true. Just because a person in a company sends something out does not automatically equate with it being "authorized" without first asking an important questions. "Did the person have the authority to send it out in the first place? If not, then the transmittal was unauthorized. If the person who sent it out did have authority to do so, did the transmittal include qualifications of what could be done with it by the recipient?"

    I could posit more questions, the answers to which could draw a line of demarcation between authorized and unauthorized.

    In any organization only a very few have the authority to play around with corporate assets and release them outside the corporation. Many of the comments here do not appear to understand this important limitation.

     

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      Gwiz (profile), Mar 10th, 2011 @ 12:25pm

      Re:

      "Did the person have the authority to send it out in the first place? If not, then the transmittal was unauthorized.

      Hmmm...would that then mean the employee who sent it effectively committed copyright infringement against their employer?

       

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      Ben (profile), Mar 10th, 2011 @ 2:17pm

      Re:

      So the blog owners should ask for authorisation? This can be faked. But then where do you draw the line? When I buy something from iTunes do I need to double check authorisation or do I assume that an apparently legit site is legit? If someone from @EMI.com or whoever emails me something then I of course would assume it's legit. I wouldn't check every damn thing coming in, just as youtube and google can't (well, at least not feasibly or economically).

       

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      Karl (profile), Mar 10th, 2011 @ 11:56pm

      Re:

      Just because a person in a company sends something out does not automatically equate with it being "authorized" without first asking an important questions.

      I hope you're not serious, because this is the way it has been working for about a century.

      Can you imagine what would happen if a representative from a label sent a promo to a radio station, and the station was then sued for infringement? It would be horrendous. No radio station would risk playing a promo ever again.

      That's exactly the situation with dajaz1.

       

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        Anonymous Coward, Mar 11th, 2011 @ 7:08am

        Re: Re:

        Perhaps you overlooked the import of the word "automatically", as well as the examples of questions that followed the portion you quoted.

        The comment is an accurate statement of the general legal rule.

         

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    Anonymous Coward, Mar 10th, 2011 @ 12:21pm

    The ruling in Arcara is explicit: it only applies to crimes that "manifest absolutely no element of protected expression." But speech on websites is protected expression. *** [N]o one is claiming that copyright violations are protected by the First Amendment.

    You don't seem to understand the Arcara argument. Just as prostitution, which is not protected expression, could not invoke First Amendment protection because it took place in a bookstore, piracy, which also is not protected expression, cannot invoke First Amendment protection because it happens on a blog.

     

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      hobo, Mar 10th, 2011 @ 1:01pm

      Re:

      If the blogs are in fact guilty of piracy, sure, they are not protected and there are various remedies available depending on what infringement or crimes have been committed. Without due process, however, it is not clear that any infringement/crime has been committed.

      So even if the RIAA/ICE is correct that it was piracy/infringement/murder/whatever, you have to go through the proper channels (i.e. due process) first.

       

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      Anonymous Coward, Mar 10th, 2011 @ 1:02pm

      Re:

      Of course, Arcara doesn't apply here, as we've discussed repeatedly. The ruling in Arcara is explicit: it only applies to crimes that "manifest absolutely no element of protected expression."

      Mike--

      You really don't get the argument, do you?

      The crime in Arcara was prostitution. The argument was that shutting down the bookstore where the prostitution took place was an impermissible burden on free speech. The Court disagreed, pointing out that nothing was stopping the bookstore from opening up somewhere else.

      The crime here is piracy. Your argument is that shutting down the blog where the piracy took place is an impermissible burden on free speech. Just like the bookstore in Arcara, the blog can open up in another location and it's not an impermissible burden.

      But speech on websites is protected expression.

      True, but irrelevant. You seemed to miss the whole point of Arcara. The books in Arcara were also protected expression, but the bookstore was shut down anyway. Why? Because the effect on protected expression was only incidental. The activity that drew the remedy in the first place, prostitution, was not protected expression.

      It's the same thing here. The activity that's drawing the remedy, piracy, is not protected expression. The fact that the remedy has an incidental effect on protected expression is irrelevant.

      Your purported debunking of the Arcara argument would carry more gravitas if you appeared to actually understand what the argument is.

       

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        The eejit (profile), Mar 10th, 2011 @ 1:24pm

        Re: Re:

        Then maybe the goddamned government should be shot for treasonous actions against the Constitution in recent months.

         

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        \r (profile), Mar 10th, 2011 @ 2:14pm

        Re: Re:

        : Enter the 21st Century

        A book is a copy.
        A blog is a living book of sorts that writes itself.

        The book can be acquired elsewhere, picked up and relocated, the title does not change nor any reference to its existence used in acquiring it.

        A blog, website, discussion board etc. is a single, live original text.

        If you block access to the book you'll, likely, be able to go somewhere else and acquire the exact same text.

        If you block the blog it's done, gone. Good luck and speak freely today, for tomorrow, who knows what tomorrow will bring or what tomorrow will take.

        \r

         

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          identicon
          Anonymous Coward, Mar 10th, 2011 @ 2:57pm

          Re: Re: Re:

          If you block access to the book you'll, likely, be able to go somewhere else and acquire the exact same text.

          You're missing the point. Just like the bookstore in Arcara could relocate, so too can the blog. The Court wasn't saying that the shutdown was OK because different copies of those books could be acquired elsewhere. The Court was saying that those very copies that particular bookstore was selling could be sold elsewhere.

          If you block the blog it's done, gone.

          Not true at all. They can just reopen under a different domain name.

           

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            Modplan (profile), Mar 10th, 2011 @ 7:18pm

            Re: Re: Re: Re:

            Which completely undermines ICE's reasoning to seize the domains, based exactly on the idea that doing so would block access to the sites. With no reasonable argument that ICE seized the domains for stopping evidence from being destroyed, the sensible conclusion to me is ICE relying on ignorance or trying to create a loop hole that will allow them to seize domains with as little checks and balances as possible, perfectly demonstrated by the defamation of 84,000 sites as being child pornography.

             

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            \r (profile), Mar 11th, 2011 @ 8:12am

            Re: Re: Re: Re:

            Hm.. by that logic you're implying that one can have their free speech so long as you can traverse the impediments - the costs imposed as a result of accusation. Might as well burn a witch.

            A bit like that old school snake game that.

            >Not true at all. They can just reopen under a different domain name.

            Just reopen? That strikes me as a tad simplistic don't you think? What is the burden on you if you're forced to change your email address, without having the original to link the two?

            I believe though that the "point" is that tax dollars are being used to support (supposed) copyright infractions because the copyright holders haven't quite figured out how to do it themselves. That seems like a different kind of theft to me. It's "points" like this that are honed spear tips pointed at the throat of the rule of law and once those tips number in the many then the rule of law will face the challenge of the nature of things.\r

             

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        Karl (profile), Mar 11th, 2011 @ 12:04am

        Re: Re:

        The Court disagreed, pointing out that nothing was stopping the bookstore from opening up somewhere else.

        This is not at all why the court disagreed.

        As they made explicit, they disagreed because a successful defense against the prostitution charge would not result in the prostitution actually being protected speech. A successful defense against infringement means that the material is protected speech, so it fails this test.

        Furthermore, they also made it clear that such rules could absolutely not single out categories of entities whose primary purpose was protected speech (e.g. the tax on ink). Websites are entities whose primary purpose is protected speech, so it fails on this test as well.

        They did point out that the bookstore was free to open up at a new location, and publish exactly the same content without fear of being prosecuted. That's not the case with these seizures.

        I understand why you want to eliminate prior restraint in ex parte seizures. But it's not happening because of this case. The case itself makes this clear.

         

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          identicon
          Anonymous Coward, Mar 11th, 2011 @ 5:58am

          Re: Re: Re:

          This is not at all why the court disagreed.

          You appear to have a reading comprehension problem. I did not say they disagreed BECAUSE the bookstore could relocate. I said they disagreed and they noted that the bookstore could relocate.

          As they made explicit, they disagreed because a successful defense against the prostitution charge would not result in the prostitution actually being protected speech. A successful defense against infringement means that the material is protected speech, so it fails this test.

          They disagreed because the generally applicable statute at issue that shut down the bookstore was not impermissible because of the First Amendment. You do not understand how to read case law.

          Furthermore, they also made it clear that such rules could absolutely not single out categories of entities whose primary purpose was protected speech (e.g. the tax on ink). Websites are entities whose primary purpose is protected speech, so it fails on this test as well.

          Nope. The generally applicable statute at issue in these seizures, 18 U.S.C. 2323, does not single out entities whose primary purpose is protected expression.

          They did point out that the bookstore was free to open up at a new location, and publish exactly the same content without fear of being prosecuted. That's not the case with these seizures.

          Right, but they can't continue the same criminal activity that drew the remedy in the first place. Your point makes no sense.

          I understand why you want to eliminate prior restraint in ex parte seizures. But it's not happening because of this case. The case itself makes this clear.

          I'm just trying to explain the law. You are someone who desperately needs to have the law explained, so you should listen up and stop pretending to be a lawyer. Over 90% of your purported legal analysis is wrong, wrong, wrong. Please stop.

           

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            Mike Masnick (profile), Mar 11th, 2011 @ 6:45am

            Re: Re: Re: Re:

            They disagreed because the generally applicable statute at issue that shut down the bookstore was not impermissible because of the First Amendment. You do not understand how to read case law.

            Why do you always insult Karl for not being a lawyer? Many lawyers who have specialized in this field are saying the EXACT same thing as Karl is saying. I've talked about this with Eric Goldman who agrees. I've talked about it with EFF lawyers who agree. I've talked about it with lawyers at CDT (who were instrumental in the Pappert case) and they agree.

            So, can the "you're not a lawyer so you don't get it" speech. Lawyers who are well known experts on this subject agree with Karl's analysis.

            If you disagree, then explain why, in a way that goes beyond "you're not a lawyer." Because, frankly, if I'm debating between an anonymous know-it-all on a blog or lawyers who have been instrumental in winning some of these very cases... guess who I'm going to trust?

            Yup.

            I'm just trying to explain the law. You are someone who desperately needs to have the law explained, so you should listen up and stop pretending to be a lawyer. Over 90% of your purported legal analysis is wrong, wrong, wrong. Please stop.

            It's pretty clear from your tone that you're AJ. Which means you're not a lawyer either. And, again, many lawyers agree with Karl, and they're experts in this field.

            You're not. So stop pretending you are.

             

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              identicon
              Anonymous Coward, Mar 11th, 2011 @ 6:54am

              Re: Re: Re: Re: Re:

              So you are not able to actually address the merits of my post. Got it.

              If lawyers agree with Karl, let's hear it from them. Your hearsay testimony is pointless and implausible.

               

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              Karl (profile), Mar 11th, 2011 @ 7:49am

              Re: Re: Re: Re: Re:

              Thanks for the compliments, Mike.

              I'm not surprised that the lawyers agree with me about Arcara. I mean, how could they not? It's explicitly laid out right in the case itself.

              It is not necessary that actual infringement be protected expression, only that accused infringement "manifests an element" of protected expression. Clearly it does.

              It only applies when the law does not primarily effect entities who engage in speech activities. Anyone who is even capable of copyright infringement is engaged in speech activities, pretty much by definition.

              Even if it were not clear, it's obvious because of its total absence in copyright case law. No plaintiff or judge has ever cited it in any infringement case I've run across. That should be a clue right there. They haven't brought it up because even the plaintiffs know it doesn't apply.

              I certainly am unclear about certain aspects of the law, but this is a total no-brainer. Bringing up Arcara is a total fail. They should know it by now.

              What is it with these guys? Are they just trying to make their side look like idiots, or something?

               

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                Anonymous Coward, Mar 11th, 2011 @ 8:06am

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

                LOL! You just don't get it. The reason Arcara applies is because it stands for the proposition that a content-neutral statute like 18 U.S.C. 2323 is constitutional as applied to the domain name seizures even though First Amendment protected expression is incidentally affected.

                It is not necessary that actual infringement be protected expression, only that accused infringement "manifests an element" of protected expression. Clearly it does.

                You keep saying this, yet I've not seen your source of authority on this point. Please cite your source.

                 

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                  The eejit (profile), Mar 11th, 2011 @ 8:55am

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

                  Cite yours then. You keep saying Arcara is irrelevant in this case, but haven't given us a case the overrules Arcara in this particular example.

                  Or in other words, PROOF OR GTFO.

                   

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                    Anonymous Coward, Mar 11th, 2011 @ 9:13am

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

                    Huh? I'm the one explaining the relevance and applicability of Arcara. I think you're confused.

                     

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                  Karl (profile), Mar 11th, 2011 @ 9:54am

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

                  The reason Arcara applies is because it stands for the proposition that a content-neutral statute like 18 U.S.C. 2323 is constitutional as applied to the domain name seizures even though First Amendment protected expression is incidentally affected.

                  That is not at all what Arcara says. It says that it only applies to "nonexpressive activity."

                  And the attempt to completely block access to an entire site is hardly an "incidental" effect on expression.

                  You keep saying this, yet I've not seen your source of authority on this point. Please cite your source.

                  Ha ha, what? My source is Arcara itself:
                  United States v. O'Brien, supra, has no relevance to a statute directed at imposing sanctions on nonexpressive activity, and the sexual activities carried on in this case manifest absolutely no element of protected expression. The closure statute is directed at unlawful conduct having nothing to do with books or other expressive activity.

                  Arcara does not apply in a case imposing sanctions against any kind of expressive activity.

                  Furthermore:
                  we have subjected such restrictions to ["least restrictive means"] scrutiny [...] where a statute based on a nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity, as in Minneapolis Star.

                  The seizures singled out "those engaged in expressive activity." So it doesn't pass this test, either.

                   

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                    Anonymous Coward, Mar 11th, 2011 @ 10:22am

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

                    That is not at all what Arcara says. It says that it only applies to "nonexpressive activity."

                    Copyright infringement is not expressive activity.

                    And the attempt to completely block access to an entire site is hardly an "incidental" effect on expression.

                    It is precisely an incidental effect on expression, just like shutting down the bookstore in Arcara was.

                    Ha ha, what? My source is Arcara itself:

                    United States v. O'Brien, supra, has no relevance to a statute directed at imposing sanctions on nonexpressive activity, and the sexual activities carried on in this case manifest absolutely no element of protected expression. The closure statute is directed at unlawful conduct having nothing to do with books or other expressive activity.

                    Arcara does not apply in a case imposing sanctions against any kind of expressive activity.


                    No sanctions are imposed against expressive activity because infringement is not expressive. The seizure/forfeiture statute, just like the closure statute in Arcara, "is directed at unlawful conduct having nothing to do with . . . other expressive activity."

                    Furthermore: we have subjected such restrictions to ["least restrictive means"] scrutiny [...] where a statute based on a nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity, as in Minneapolis Star.

                    The seizures singled out "those engaged in expressive activity." So it doesn't pass this test, either.


                    You simply don't get it. The seizure/forfeiture statute, 18 U.S.C. 2323, does not single out expressive activity. It's a generally applicable, content-neutral statute.

                    Is there any case law that you can't misinterpret?

                     

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                      Jose_X, Mar 11th, 2011 @ 10:55am

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

                      >> Copyright infringement is not expressive activity

                      Where was copyright infringement proved?

                      The bookstore in the Arcara case was not seized and locked up while the proprietor was in bed sleeping.

                      It might make sense to seize a domain name (depending on context) after the illegal acts were proven. At least I think that was the context of the Arcara case.

                       

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                        Jose_X, Mar 11th, 2011 @ 11:09am

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

                        Am I correct to say that a point being argued is about whether or not seizure can occur merely on suspicion of copyright infringement without any sort of hearing (due process) on the grounds that copyright infringement is easy to define so the judge can rule on this without defendant's pov?

                         

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                          Jose_X, Mar 11th, 2011 @ 11:21am

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

                          These bits should be useful to those trying to keep up with the discussion:

                          From 17 U.S.C. § 506 - Criminal offenses
                          >> (a) Criminal Infringement.—
                          (1) In general.—
                          Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed

                          From 18 U.S.C. § 2323 - Forfeiture, destruction, and restitution
                          >> (b) Criminal Forfeiture.—
                          (1) Property subject to forfeiture.—
                          The court, in imposing sentence on a person convicted of an offense under section 506 of title 17, ...
                          >> The forfeiture of property under paragraph (1), including any seizure and disposition of the property and any related judicial or administrative proceeding, shall be governed by the procedures set forth in section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853), other than subsection (d) of that section.

                          from 21 U.S.C. § 853 - Criminal forfeitures
                          >> (f) Warrant of seizure
                          The Government may request the issuance of a warrant authorizing the seizure of property subject to forfeiture under this section in the same manner as provided for a search warrant. If the court determines that there is probable cause to believe that the property to be seized would, in the event of conviction, be subject to forfeiture and that an order under subsection (e) of this section may not be sufficient to assure the availability of the property for forfeiture, the court shall issue a warrant authorizing the seizure of such property.

                          Of course, none of this answers the question of whether these laws as effected to seize domain names with a warrant obey due process (eg, in light of someone following the DMCA take-down notices, and in consideration that copyright infringement is not at all obvious or has been proven).

                           

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                            Anonymous Coward, Mar 11th, 2011 @ 11:38am

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                            You want to look at 17 U.S.C. 506(b), which states:
                            (b) Forfeiture, destruction, and restitution.--Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323 of title 18, to the extent provided in that section, in addition to any other similar remedies provided by law.
                            You're quoting 18 U.S.C. 2323(b) which applies to criminal forfeitures. These forfeitures are being done pursuant to 2323(a) which applies to civil forfeitures:
                            (a) Civil forfeiture.--
                            (1) Property subject to forfeiture.--The following property is subject to forfeiture to the United States Government:
                            (A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title.
                            (B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A).
                            (C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A).
                            (2) Procedures.--The provisions of chapter 46 relating to civil forfeitures shall extend to any seizure or civil forfeiture under this section. For seizures made under this section, the court shall enter an appropriate protective order with respect to discovery and use of any records or information that has been seized. The protective order shall provide for appropriate procedures to ensure that confidential, private, proprietary, or privileged information contained in such records is not improperly disclosed or used. At the conclusion of the forfeiture proceedings, unless otherwise requested by an agency of the United States, the court shall order that any property forfeited under paragraph (1) be destroyed, or otherwise disposed of according to law.
                            Section 853 that you quoted doesn't apply since these are civil forfeitures.

                             

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                            Jose_X, Mar 11th, 2011 @ 11:39am

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

                            Oops, the first part above was not useful. Instead:

                            From 17 U.S.C. § 506 - Criminal offenses
                            >> (b) Forfeiture, Destruction, and Restitution.—
                            Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323 of title 18, to the extent provided in that section, in addition to any other similar remedies provided by law.

                             

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                          Anonymous Coward, Mar 11th, 2011 @ 11:46am

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

                          Am I correct to say that a point being argued is about whether or not seizure can occur merely on suspicion of copyright infringement without any sort of hearing (due process) on the grounds that copyright infringement is easy to define so the judge can rule on this without defendant's pov?

                          That sums it up. The issue is whether or not the seizure can occur before the person having their property seized has a say in the matter. The fact is, the Copyright Act and the Lanham Act (trademark) both provide for ex parte seizures in criminal infringement cases and no prior adversary hearing is necessitated because of First Amendment concerns.

                          Case law does say that in obscenity cases a prior adversary hearing is necessary before such seizures can occur, and Mike and Karl are trying to apply that case law to these seizures even though that application is not warranted.

                          What's amazing is how their analysis is devoid of case law dealing with copyrights, trademarks, and forfeitures--the very subjects of these seizures. They're ignoring the very laws that are at issue here.

                           

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                            Jose_X, Mar 11th, 2011 @ 6:27pm

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

                            >> The fact is, the Copyright Act and the Lanham Act (trademark) both provide for ex parte seizures in criminal infringement cases and no prior adversary hearing is necessitated because of First Amendment concerns.

                            In one of the other comments, you clarified that we were looking at 2323 a (civil) and not b (criminal).

                            Is there a conflict with that statement and the statement here above?

                             

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                              Anonymous Coward, Mar 12th, 2011 @ 4:50am

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

                              In one of the other comments, you clarified that we were looking at 2323 a (civil) and not b (criminal).

                              Is there a conflict with that statement and the statement here above?


                              The copyright infringement is criminal, but the forfeiture that goes with it in these cases is civil. It's a bit confusing.

                               

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                            Jose_X, Mar 11th, 2011 @ 6:41pm

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

                            >> What's amazing is how their analysis is devoid of case law dealing with copyrights, trademarks, and forfeitures--the very subjects of these seizures. They're ignoring the very laws that are at issue here.

                            I am interested in your sophisticated knowledge and opinion, but I agree with Mike as far as what is reasonable. I think copyright law goes too far with what is acceptable for society (opinion), especially when applied to the Internet. Much case law is yet to be made, so I don't feel compelled to be restrained by it too much if I were having to defend myself.

                            I believe punishment should fit the crime and pointing information out or clicking a button (in general, wrt potentially copyrighted material) should not be criminal. Infringement is not theft (never mind the fair use issues). And as the evidence comes in that each alleged dollar lost is not at all an accurate depiction of piracy, this law will effectively be unconstitutional in front of a reasonable SCOTUS. You can't put a price on infringement that has no bearing to market realities and have this be a law most people would consider reasonable. Add in that piracy can often help the owner/artist (never mind fair use), and you really have a problem.

                            I believe copyright law is not justified if the progress is not promoted, and that bar, for Internet piracy (and many other cases), has certainly not been proven and evidence suggests the truth is rather the opposite.

                            So I definitely value Mike's information, even if he, as anyone else, will be off in points here and there. [And I value your insight and comments as well, as you complement Mike's experience rather well .. at least with this story.]

                             

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                          Anonymous Coward, Mar 11th, 2011 @ 12:01pm

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

                          Am I correct to say that a point being argued is about whether or not seizure can occur merely on suspicion of copyright infringement without any sort of hearing (due process) on the grounds that copyright infringement is easy to define so the judge can rule on this without defendant's pov?

                          One small point: It's not merely on suspicion of infringement. It's on probable cause of infringement as sworn to a judge who agrees and signs off on it. This judicial process is where due process is preserved.

                          Don't believe all the hooting and hollering from people like Mike. The last thing Mike is telling his readers is the informed truth of the matter. You have to keep in mind that Mike is a manipulator--take everything he says with many grains of salt. His interest is solely to further his agenda, even if it's at the expense of being honest and truthful. He's demonstrated this over and over again.

                           

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                            Jose_X, Mar 11th, 2011 @ 6:53pm

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

                            >> One small point: It's not merely on suspicion of infringement. It's on probable cause of infringement as sworn to a judge who agrees and signs off on it. This judicial process is where due process is preserved.

                            The 18 2323 b (via referenced 21 853, quoted above) specifies "probable cause". You said 2323 a applied, however, but in any case I was not using technical terms, and though I have seen a list of levels of burden of proof with descriptions of each, I couldn't really say what these would entail.

                            >> You have to keep in mind that Mike is a manipulator--take everything he says with many grains of salt. His interest is solely to further his agenda, even if it's at the expense of being honest and truthful.

                            No, come here and make your point and let that stand, but there is still plenty of room here for disagreement on many points (and for mistakes). And he has stated he is not calculating alone but that legal professionals agree with at least some of how he understands this.

                            Much case law remains to be made. For example, how many times has the SCOTUS ruled on just these issues at play? I have only seen reference to Arcara as pertains to certain points debated, and that was not a copyright suit. Do you know of any lawyer who thinks this could be an open and shut case if ICE isn't hiding an ace card?

                             

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                        Anonymous Coward, Mar 11th, 2011 @ 11:29am

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

                        All you need is probable cause.

                         

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                      Karl (profile), Mar 11th, 2011 @ 11:58am

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                      Copyright infringement is not expressive activity.

                      Yes it is. It may not be protected expression, but it is expression.

                      Arcara does not apply even in cases of unprotected expression.

                      Read the quote again. Do you honestly believe copyright has "nothing to do with books?"

                      The seizure/forfeiture statute, 18 U.S.C. 2323, does not single out expressive activity.

                      All statutes having to do with copyright law single out entities engaged in expressive activity. They're certainly constitutional, but Arcara applies to none of them.

                      Look at all of the rights granted to authors in copyright law. Every single one of them is a form of expression. These are precisely the things that copyright holders are allowed to take away from others. Copyright is, by definition, a restriction on expression, thus ineligible for Arcara exemptions.

                      If you argue otherwise, you're arguing that the authors themselves are not engaging in expressive activity. That's ludicrous.

                       

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                        Anonymous Coward, Mar 11th, 2011 @ 2:17pm

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                        Infringement doesn't have an element of expression that calls for heightened First Amendment considerations. Everything's expression on some level. Who a prostitute chooses to sleep with, what works a pirate chooses to infringe, etc. That doesn't mean that any statute regulating such activities requires heightened First Amendment analysis. Nor does it mean that the First Amendment requires a prior adversary hearing before a seizure can take place. The seizures are not targeting those engaged in First Amendment protected activities. The expressive element of infringement is not significant enough to warrant heightened protection.

                        Looking back, I realize I've been thinking one thing and saying another, and for that I apologize. I mistakenly said that 18 U.S.C. 2323 is a content-neutral regulation. It is not. What I meant to say is that it is a regulation of general applicability, just like the closure statute in Arcara. What First Amendment considerations such a regulation must be given is discussed in Eldred.

                        As the Court explains:
                        Petitioners separately argue that the CTEA is a content-neutral regulation of speech that fails heightened judicial review under the First Amendment.23 We reject petitioners' *219 plea for imposition of uncommonly strict scrutiny on a copyright scheme that incorporates its own speech-protective purposes and safeguards. The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers' view, copyright's limited monopolies are compatible with free speech principles. Indeed, copyright's purpose is to promote the creation and publication of free expression. As Harper & Row observed: “[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas.” 471 U.S., at 558, 105 S.Ct. 2218.

                        In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. See id., at 560, 105 S.Ct. 2218. First, it distinguishes between ideas and expression and makes only the latter **789 eligible for copyright protection. Specifically, 17 U.S.C. § 102(b) provides: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” As we said in Harper & Row, this “idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression.” 471 U.S., at 556, 105 S.Ct. 2218 (internal quotation marks omitted). Due to this distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication. See Feist, 499 U.S., at 349-350, 111 S.Ct. 1282.

                        Second, the “fair use” defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances. Codified at 17 U.S.C. § 107, the defense provides: “[T]he fair use of a *220 copyrighted work, including such use by reproduction in copies ..., for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” The fair use defense affords considerable “latitude for scholarship and comment,” Harper & Row, 471 U.S., at 560, 105 S.Ct. 2218, and even for parody, see Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (rap group's musical parody of Roy Orbison's “Oh, Pretty Woman” may be fair use).
                        Eldred v. Ashcroft, 537 U.S. 186, 218-20 (2003).

                        The Court goes on to explain that in general those built-in safeguards are enough. The ONLY time First Amendment consideration is needed for a copyright regulation is when that regulation alters "the traditional contours of copyright protection."

                        A regulation allowing for the seizure and forfeiture of any property used to commit or facilitate criminal copyright infringement does not alter the traditional contours of copyright protection. Therefore, the regulation need only pass the rational basis test to be constitutional. 18 U.S.C. 2323 is constitutional because it has a rational basis.

                        The fact is ex parte seizures are allowed in copyright and trademark law, and you're barking up the wrong tree here, IMO. I think the better arguments against these seizures deal with the due process issues, not the First Amendment issues, but that's another topic for another day.

                         

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                          Jose_X, Mar 11th, 2011 @ 7:12pm

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

                          Two issues.

                          The first is that you keep saying "copyright infringement" (as if it were proven). Whether that is technically how it is called at this point in practice or not, it seems to me this totally ignores fair use. Maybe that is how we treat affirmative defenses (I don't know), but in any case, it is not a clear cut case of infringement by any means... and this is if there were distribution or some other rights violation going on which is not the case here (linking is not distribution or anything like it and that is why we have aiding and abetting charge).

                          So I don't think you have made your case with what I have seen quoted that due process was achieved. Due process is a Constitutional issue in any case, and few case rulings have been quoted (or maybe I have skipped it).

                          The other point is with regards to the Eldred quote.

                          The Court clearly assumed that the framers believe copyright is how you can create more free speech, and that in fact that view reflects reality. This assumption has not been proven, and I don't believe holds true (at least wrt to Internet/piracy in general).

                          Further, I think there is a reasonable chance Eldred will be undone in the future assuming copyright law stays mostly how it is. A safe "contour", whatever that means, if we are to abide by the Constitutional requirement of promoting the progress (engine driving speech model), can't ignore something as drastic as a several fold increase in monopoly duration, especially in a world where opportunity costs to these monopolies for society have gone up so much (a) because so many people could otherwise access these works and can do so much more with them today, (b) because a return on almost any investment tends to happen so much quicker today, and (c) because the investment needed today is not anywhere near as large as it was in the past if you have a competitive business model. Techdirt has and continues to provide much evidence to these last points and is one reason why I think Eldred will not last.

                           

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                          Karl (profile), Mar 11th, 2011 @ 9:08pm

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

                          We were specifically discussing Arcara's relevance. We are not debating copyright's constitutionality.

                          According to the Arcara ruling itself, it is not applicable to any regulation dealing with any form of "expression." It does not matter whether "it is a regulation of general applicability." Arcara's application is far more limited in scope. If can only apply if the statute being considered is completely content-neutral.

                          If the regulation is content-based at any level, Arcara does not apply. You yourself admitted (correctly) that copyright is not content-neutral. Arcara does not apply.

                          The people here who are arguing for Arcara's applicability, started doing so specifically so they can get around the "least restrictive means" requirement from U.S. v. O'Brien. They cannot.

                          What First Amendment considerations such a regulation must be given is discussed in Eldred.

                          Read your Eldred quote again: "copyright law contains built-in First Amendment accommodations." "[The] idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act[.]" "Second, the 'fair use' defense allows [...] expression itself in certain circumstances."

                          First, the fact that such "accomodations" are even necessary makes Arcara inapplicable. Second, Eldred makes it clear that it is only because of these accomodations that copyright is immune from stricter scrutiny. If these accomodations are not even considered, copyright immediately loses that immunity.

                          The fact is ex parte seizures are allowed in copyright and trademark law

                          These seizures go well beyond the seizures normally (but sparingly) allowed in copyright and trademark law. They are allowing seizures that attempt to entirely block access to non-infringing speech. That is unheard of.

                          In cases of copyright infringment, potential First Amendment defenses must be considered prior to an ex parte seizure order. Just as they are in all preliminary injunctions in copyright cases. It is part of the requirment that the plaintiff show "a substantial likelihood of success on the merits."

                          If that does not happen, it is prior restraint:
                          We reject the district court's conclusion that Suntrust has established its likelihood of success on the merits. To the contrary, based upon our analysis of the fair use factors we find, at this juncture, TWDG is entitled to a fair-use defense. [...]

                          Thus, the issuance of the injunction was at odds with the shared principles of the First Amendment and the copyright law, acting as a prior restraint on speech.

                          Suntrust v. Houghton Mifflin.

                           

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                            Anonymous Coward, Mar 12th, 2011 @ 5:15am

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                            According to the Arcara ruling itself, it is not applicable to any regulation dealing with any form of "expression." It does not matter whether "it is a regulation of general applicability." Arcara's application is far more limited in scope. If can only apply if the statute being considered is completely content-neutral.

                            Nope. The ENTIRE POINT of Arcara was that the closure statute was NOT content-neutral. Hence the First Amendment considerations were not heightened.

                            If the regulation is content-based at any level, Arcara does not apply. You yourself admitted (correctly) that copyright is not content-neutral. Arcara does not apply. The people here who are arguing for Arcara's applicability, started doing so specifically so they can get around the "least restrictive means" requirement from U.S. v. O'Brien. They cannot.

                            Copyright laws are generally applicable, and Arcara does apply. They aren't content-based, and they aren't content-neutral. That was THE WHOLE POINT in Eldred. There is no least restricted means requirement and there is no heightened First Amendment requirements. 18 U.S.C. 2323 is a generally applicable regulation, just like the closure statute in Arcara.

                            Read your Eldred quote again: "copyright law contains built-in First Amendment accommodations." "[The] idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act[.]" "Second, the 'fair use' defense allows [...] expression itself in certain circumstances." First, the fact that such "accomodations" are even necessary makes Arcara inapplicable. Second, Eldred makes it clear that it is only because of these accomodations that copyright is immune from stricter scrutiny. If these accomodations are not even considered, copyright immediately loses that immunity.

                            You made that last sentence (your conclusion) up. Citation needed.

                            These seizures go well beyond the seizures normally (but sparingly) allowed in copyright and trademark law. They are allowing seizures that attempt to entirely block access to non-infringing speech. That is unheard of.

                            Nonsense. These are seizures of the instrumentalities of criminal infringement. Such seizures will almost always affect noninfringing expression. Arcara tells us that doesn't matter.

                            In cases of copyright infringment, potential First Amendment defenses must be considered prior to an ex parte seizure order.

                            CITATION NEEDED. You pulled that out of your ass.

                            Just as they are in all preliminary injunctions in copyright cases. It is part of the requirment that the plaintiff show "a substantial likelihood of success on the merits." . . . .

                            You're trying to apply the rules of preliminary injunctions to seizures done pursuant to Section 506(b). Square peg, round hole. You can't just pick and choose rules like that. You have to use the rules that actually apply.

                             

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                              Modplan (profile), Mar 12th, 2011 @ 6:29am

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                              You made that last sentence (your conclusion) up. Citation needed.

                              I like how you're able to ignore plain language English. You know what Karl said is true, and even I corrected you on this previously.

                              Eldred v Ashcroft argued that copyright law was constitutional because of first amendment accommodations, and that the particular changes being made did not change the "traditional contours" of copyright, though this will be made clear why your assertion that these seizures do not alter "traditional contours" later...
                              221*221 The CTEA, in contrast, does not oblige anyone to reproduce another's speech against the carrier's will. Instead, it protects authors' original expression from unrestricted exploitation. Protection of that order does not raise the free speech concerns present when the government compels or burdens the communication of particular facts or ideas. The First Amendment securely protects the freedom to make— or decline to make—one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them. We recognize that the D. C. Circuit spoke too broadly when it declared copyrights "categorically immune from challenges under the First Amendment." 239 F. 3d, at 375. But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary. See Harper & Row, 471 U. S., at 560; cf. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522 (1987).[24]

                              This statement of yours is absolutely ridiculous:
                              Nonsense. These are seizures of the instrumentalities of criminal infringement. Such seizures will almost always affect noninfringing expression. Arcara tells us that doesn't matter.

                              From Arcara itself:
                              United States v. O'Brien, supra, has no relevance to a statute directed at imposing sanctions on nonexpressive activity, and the sexual activities carried on in this case manifest absolutely no element of protected expression. The closure statute is directed at unlawful conduct having nothing to do with books or other expressive activity.

                              [...]

                              Yet we have not traditionally subjected every criminal and civil sanction imposed through legal process to "least restrictive means" scrutiny simply because each particular remedy will have some effect on the First Amendment activities of those subject to sanction. Rather, we have subjected such restrictions to scrutiny only where it was conduct with a significant expressive element that drew the legal remedy in the first place, as in O'Brien, 3 or where a statute based on a [478 U.S. 697, 707] nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity, as in Minneapolis Star. This case involves neither situation, and we conclude the First Amendment is not implicated by the enforcement of a public health regulation of general application against the physical premises in which respondents happen to sell books.

                              http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=478&i nvol=697

                              Not only did Arcara specifically state that prostitution was not expressive activity in any way, it specifically acknowledges instances of prior restraint when activity that is not in itself expressive falls heavily on expressive activity.

                              You keep being corrected on this. By now you're pointlessly going round in circles, relying on "You're not a lawyer!" and selective quotation to make your points. Not to mention your attempt at being anonymous solely so you can avoid being caught out on such pointless trolling and recycling of arguments already proven to be false. It is clear that:

                              1) Arcara specifically states the statute was not aimed at even expressive activity generally.

                              2)Arcara specifically acknowledges instances of prior restraint even when non-expressive activity is being affected if it falls heavily on expressive activity.

                              3) It's already known that infringement can be/is expressive activity

                              4) We already know the seizures have affected blogs whose primary purpose was protected, expressive activity on the basis of flimsy evidence - evidence that turned out to be authorised, not infringing, uses of songs as promotional material by labels.

                              P.S. Where's your argument that copyright limits speech now?

                               

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                                Anonymous Coward, Mar 12th, 2011 @ 6:44am

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                                And yet ex parte seizures have been happening in copyright cases for over a century. Why do you suppose that's true?

                                 

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                                  Modplan (profile), Mar 12th, 2011 @ 7:26am

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

                                  And? Who said ex parte seizures under copyright law cannot happen at all? Maybe Karl himself can clarify further, but this quote from Karl you yourself quoted:
                                  These seizures go well beyond the seizures normally (but sparingly) allowed in copyright and trademark law.

                                  Once again, you rely on pretending someone has said something they haven't and ignoring important details and context. In response to being corrected on your factually incorrect claims that Arcara said first amendment issues did not have to be considered at all, you change topic. In response to factually incorrect claims that these seizures fall heavily on non-expressive activity being corrected including the very evidence justifying these seizures being shaky at best, you change topic.

                                  P.S. Didn't seizures such as the specific ones Lofgren specifically referenced sound like prior restraint to you, assuming you are Average_Joe?

                                   

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                                  Karl (profile), Mar 12th, 2011 @ 7:28am

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

                                  And yet ex parte seizures have been happening in copyright cases for over a century. Why do you suppose that's true?

                                  Because those seizures had to follow the O'Brien standard.

                                   

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                              Karl (profile), Mar 12th, 2011 @ 7:25am

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                              Seriously, I can't believe you're being so dense about this.

                              The ENTIRE POINT of Arcara was that the closure statute was NOT content-neutral.

                              The ENTIRE POINT of Arcara was that the closure statute WAS content-neutral. Whether any content was lawful or unlawful was totally irrelevant to the statute.

                              Copyright laws are generally applicable, and Arcara does apply. They aren't content-based, and they aren't content-neutral.

                              It only matters if copyright covers materials that are "expressive" in nature, which they most certainly do. And copyright laws most assuredly ARE content-based: material is lawful, or not, depending upon whether the content of that material is infringing. That's the definition of "content-based." (You may be confusing it with "viewpoint-based," but they're not the same thing at all.)

                              Another quote from Arcara (cited by Marcus) makes this perfectly clear:
                              First, the order would impose no restraint at all on the dissemination of particular materials[...] Second, the closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited

                              That is precisely what the seizures did, and what copyright law does in general. Arcara does not apply. The judges could not have been more clear on this point if they tried.

                              In addition, you're completely ignoring the second requirement of Arcara applicability: that the statutes in question cannot "single out bookstores or others engaged in First Amendment protected activities for the imposition of its burden." The example cited was the tax on ink.

                              Running a website is certainly a protected First Amendment activity. The fact that these seizures "single out" website owners "for the imposition of its burden" is the primary reason people like me and Mike are upset. Arcara does not apply by this standard, either.

                              Sorry, old chum. No matter how you slice it, you're wrong.

                              Furthermore:
                              If, however, a city were to use a nuisance statute as a pretext for closing down a bookstore because it sold indecent books or because of the perceived secondary effects of having a purveyor of such books in the neighborhood, the case would clearly implicate First Amendment concerns and require analysis under the appropriate First Amendment standard of review.

                              I suspect that's what ICE is doing, but of course I can't know for sure. I'm almost positive that's what you're doing, however.

                              You made that last sentence (your conclusion) up. Citation needed.

                              It seems to me to be exactly what Eldred is saying: copyright law is only consistent with the First Amendment because those accomodations exist. This is hardly a novel idea, either. If there is a situation where those accomodations do not exist, such as an ex parte seizure or preliminary injunction, then in that specific situation, First Amendment analysis is necessary. That's what the Suntrust case said, and that ruling is entirely consistent with other cases dealing with content-based restrictions on speech (such as obscenity, trade secrets, libel, or publicity rights).

                               

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                                Anonymous Coward, Mar 12th, 2011 @ 7:44am

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                                Jesus, Karl, you can't be reasoned with. If a statute is content-neutral, then it receives heightened First Amendment scrutiny. The Court in Arcara said the closure statute was generally applicable, so it didn't need heightened scrutiny.

                                The Court in Eldred said the same thing of the CTEA. They refused to classify the CTEA as content-neutral, and thus they said the CTEA did not require heightened scrutiny.

                                And you simply don't understand the "singling out" argument. The seizure statute is general. The statute doesn't single out websites.

                                Your inability to understand things is really fascinating.

                                Explain to me this, Karl. How is it that ex parte seizures pursuant to criminal copyright infringement have been happening for over 100 years? Don't brush it off and say they're rare. That's irrelevant. And don't point me to injunctions issued in civil cases. That's not the issue.

                                 

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                                  Modplan (profile), Mar 12th, 2011 @ 7:57am

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                                  It would help if you actually defined what you meant by content neutral or not, and what relevance that has. If you actually mean whether it was related to restricting the distribution of expression like books, websites or blogs, then no, Arcara specifically states the statute was not aimed at that in any way, and there was no evidence presented that this was a cover for the government to stop the distribution of such materials. This plainly differs in a situation involving copyright, that is inherently about limiting the distribution of expressive materials, including sites whose primary purpose was protected expression.

                                  It'd be nice if you could specifically quote where Arcara says it was an action against expressive activity, and where it says there are no cases where even actions against non-expressive activity can be deemed prior restraint.

                                  And please point out where anyone said seizures cannot happen at all in copyright cases.

                                   

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                                  Karl (profile), Mar 12th, 2011 @ 8:29am

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                                  If a statute is content-neutral, then it receives heightened First Amendment scrutiny.

                                  That word doesn't mean what you think it means. An example of a content-neutral statute is a health code. Others include a prohibition on camping in restricted areas of a state park, the destruction of a draft card, or a prohibition on having signs in your yard. They may implicate First Amendment scrutiny, or they may not, under the O'Brien standard.

                                  All content-based statutes implicate First Amendment scrutiny at one point or another. Eldred was an example of such scrutiny.

                                  Arcara, on the other hand, is even more limited in scope. Not only must the applicable statutes be content-neutral, they can't deal with content on any level whatsoever.

                                  That is why Eldred is totally and completely irrelevant when discussing Arcara: it doesn't matter whether a limitation on expression is constitutional or not, because Arcara explicitly removes itself from any consideration about any expression whatsoever.

                                  And you simply don't understand the "singling out" argument. The seizure statute is general. The statute doesn't single out websites.

                                  The ICE seizures did, though. And in a way that would be totally unacceptable for a brick-and-mortar location.

                                  And, yes, those seizure laws single out entities engaging in expressive activities - websites, publishers, bookstores, etc. That means Arcara does not apply to any of them. (I am not saying the seizure rules, in general, are unconstitutional, just that Arcara doesn't cover them.)

                                  How is it that ex parte seizures pursuant to criminal copyright infringement have been happening for over 100 years?

                                  They've all satisfied the O'Brien standard, or a rough equivalent. These do not. These are unprecedented, and I have zero doubt that a judge will eventually find them improper.

                                   

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                                    Anonymous Coward, Mar 12th, 2011 @ 8:51am

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                                    In Eldred, the Court pointed out that copyright laws are not subject to scrutiny like a content-neutral or a content-based law would be. That was the point. The reason is because copyright laws promote free expression rather than impinge on it.

                                    You still don't understand the singling out argument.

                                    And you still didn't explain how it is that ex parte seizures in criminal copyright cases has been going on since 1909, since well before O'Brien. Nor have you provided any evidence that such seizures since O'Brien must follow the O'Brien standard. Nor can you, since O'Brien applies to content-neutral regulations, and as Eldred points out, copyright regulations are not content-neutral.

                                     

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                                      Modplan (profile), Mar 12th, 2011 @ 9:10am

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                                      The reason is because copyright laws promote free expression rather than impinge on it.


                                      ...So long as it also contains "built-in safeguards" like fair use for when copyright does bear heavily on speech.

                                      Your narrow focus on the whole content-neutral argument is incredibly limited and completely misses why copyright can in any way be compatible with free speech. Fair use and idea/expression dichotomies as limitations on copyright contribute greatly to it not being unconstitutional, as Eldred clearly points out at great length. Eldred did not argue that fundamentally all copyright laws are content-neutral nor that they are immune from first amendment challenges, precisely what you're arguing here.

                                      This has absolutely no relevance to seizures that deliberately ignore such considerations on the basis of shaky "he says she says" evidence.

                                      And you still didn't explain how it is that ex parte seizures in criminal copyright cases has been going on since 1909, since well before O'Brien.


                                      Who said they weren't? Why do you keep making crap up about what people said?

                                       

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                                        Anonymous Coward, Mar 12th, 2011 @ 9:44am

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                                        Eldred did not argue that fundamentally all copyright laws are content-neutral nor that they are immune from first amendment challenges, precisely what you're arguing here.

                                        Nope. In fact, I pointed out the language in Eldred that stated they are only subject to First Amendment scrutiny when they alter the traditional contours of copyright protection. Section 506(b) does not alter this contour, as I stated above.

                                        Who said they weren't? Why do you keep making crap up about what people said?

                                        Karl said the seizures had to conform to O'Brien. He gave no basis for this statement, nor did he explain how seizures that occurred before O'Brien was handed down had to conform to a standard that didn't exist yet. Nor does he explain why a statute that isn't content-neutral has to adhere to a standard that only applies to content-neutral statutes. Nor can he.

                                         

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                                          Modplan (profile), Mar 12th, 2011 @ 10:21am

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                                          Nope. In fact, I pointed out the language in Eldred that stated they are only subject to First Amendment scrutiny when they alter the traditional contours of copyright protection. Section 506(b) does not alter this contour, as I stated above.


                                          Who said it did? What has been argued is that these particular seizures by ICE undermine due process, particularly because the evidence they've used to justify said seizures cannot be reasonably concluded as a basis for probable cause when they are evidently wrong, not to mention the problem in using a rights holders testimony in general where it's clear even rights holders themselves have been unable to reliably identify infringing material.
                                          Karl said the seizures had to conform to O'Brien. He gave no basis for this statement,

                                          AFAIK, he has done so multiple times, you merely choose to ignore it every time.
                                          nor did he explain how seizures that occurred before O'Brien was handed down had to conform to a standard that didn't exist yet.

                                          Are you serious? You do realise that legal standards do not go back to infinite, that at some point courts have to create new standards for a variety of reasons - changes in law, points brought up that weren't considered or were initially ignored, new situations that hadn't been encountered and so on.

                                          A standard relating to an activity being created at X point does not mean that activity didn't occur before such a standard was created, only that the court changed its opinion or had to create a new standard relating to new and changed circumstances. It's meaningless to say "But seizures occurred before O'Brien" on its own as if that proves anything. This argument is based purely on trying to inject an uncertainty that you can stretch as being a non-credibility into the argument.

                                          Maybe if you showed criminal copyright cases where the O'Brien standard didn't apply that would prove your point, but I doubt you'll do that. You've deliberately chosen a very high standard - that all cases must conform to O'Brien - to delay or to deter research by others, as you can then keep insinuating there must be some that don't. Actually cite one yourself, then maybe the discussion can move forward.
                                          Nor does he explain why a statute that isn't content-neutral has to adhere to a standard that only applies to content-neutral statutes. Nor can he.
                                          Because this has no relevance, it's a complete red herring. Eldred was about reviewing an extension of an existing law and involved what standard that this extension should be reviewed under, which because of safeguards like fair use and idea/expression dichotomies they argued it did not require further scrutiny after it seemed they found the limited times argument unconvincing (at least in the majority).

                                          It never argues that all actions undertaken under copyright law are not beholden to such standards like prior restraint, which would clearly mean copyright could ignore the first amendment. Eldred seems clear that if CTEA had removed or disregarded first amendment protections, then it would have come under such scrutiny, and it is clear ICE has done so in these cases, from the non-evidence of songs sent as promotional material to defamation of 84,000 sites as child pornography.

                                           

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                                            Anonymous Coward, Mar 12th, 2011 @ 10:39am

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                                            You seem to be missing the bigger picture that seizures of materials and tools of criminal copyright infringers have been seized ex parte since 1909. These seizures are nothing new, and the First Amendment doesn't prevent them from happening. Let's just leave it at that.

                                             

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                                              Jose_X, Mar 12th, 2011 @ 3:35pm

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                                              A quick note.

                                              Acceptance of a seizure under an old context doesn't preclude a new need for scrutiny when the context (radically) changes.

                                               

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                                      Karl (profile), Mar 12th, 2011 @ 9:58am

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                                      A follow-up on my previous post. Part of the reason I was confused is that the legal determination between "content-neutral" and "completely content irrelevant" is razor-thin.

                                      Take zoning laws. A zoning law that says "no heavy machinery within 500 feet of a school" would not be content-neutral. However, a zoning law that said "no ammonia-based diazo machines within 500 feet of a school" would be a content-neutral restriction on speech, because diazo machines are used to print blueprints.

                                       

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                                      Karl (profile), Mar 12th, 2011 @ 10:26am

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

                                      In Eldred, the Court pointed out that copyright laws are not subject to scrutiny like a content-neutral or a content-based law would be.

                                      No, it pointed out that copyright laws had already been subject to strict scrutiny, and found constitutional. They weren't subject to additional scrutiny.

                                      You still don't understand the singling out argument.

                                      I'm pretty sure I do, at least as it was stated in Arcara. Any law that singles out a category of entities that engage in speech activities is not covered. Arcara says this explicitly.

                                      And you still didn't explain how it is that ex parte seizures in criminal copyright cases has been going on since 1909, since well before O'Brien.

                                      There's a reason I said "or a rough equivalent." In general, the restrictions on ex parte seizures and injunctions are almost identical to the requirements for content-neutral speech enumerated in O'Brien.

                                      To get an ex parte seizure, the plaintiff needs to show that "less restrictive means" would be insufficient.

                                      Furthermore, ex parte seizures must be limited only to the infringing content, items used only to produce the infringing content, and sales records relating only to the infringing items. Seizures could not have the effect of shutting down the alleged infringer altogether, or of taking anything out of circulation other than the infringing works. Generally this satisfies the O'Brien test of "prohibiting no more speech than is essential."

                                      The "substantial governmental interest" test is a given in criminal cases, but in civil cases (which almost all are), the equivalent is a showing that the damage caused to the plaintiff outweighs any potential damage to the defendant. To hedge against this, a bond must be posted by the plaintiff, covering the value of whatever is seized.

                                      And, specifically to prevent prior restraint, the plaintiffs must show that they are likely to win on the merits. If they fail to show this, the seizure is likely to be prior restraint - as the Suntrust case made clear.

                                      This is how it usually works. It is not how it worked with the ICE seizures. The ICE seizures were far more broad than any previous seizures for copyright infringement. That is why I am convinced they will be ruled improper.

                                      Trademark seizures are different, incidentally, and usually don't involve First Amendment concerns, because a product (like a handbag) is not speech. That's why copyright and trademark should never be lumped together.

                                       

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                                        Anonymous Coward, Mar 12th, 2011 @ 10:51am

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                                        No, it pointed out that copyright laws had already been subject to strict scrutiny, and found constitutional. They weren't subject to additional scrutiny.

                                        LOL! Please point me to the language from Eldred that you think states this.

                                        I'm pretty sure I do, at least as it was stated in Arcara. Any law that singles out a category of entities that engage in speech activities is not covered. Arcara says this explicitly.

                                        And the seizure statute applies to infringing materials or tools, neither of which is protected speech.

                                        There's a reason I said "or a rough equivalent." In general, the restrictions on ex parte seizures and injunctions are almost identical to the requirements for content-neutral speech enumerated in O'Brien. To get an ex parte seizure, the plaintiff needs to show that "less restrictive means" would be insufficient. . . .

                                        You're looking at seizures pursuant to civil cases, not seizures pursuant to criminal cases where the government is the plaintiff. The rules you're stating don't apply here. When you start looking at the right area of the law, you'll realize that probable cause is sufficient for an ex parte seizure.

                                         

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                                          Jose_X, Mar 12th, 2011 @ 3:52pm

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                                          You mentioned in an earlier comment to me that we were dealing with 2323a not b. Are we talking about criminal or civil?

                                          BTW, I think the argument you are making -- and not to take away from the other side (I am also getting confused over content-neutral/content-xxxx, is/isn't can/can't ...) -- is that the website owner can just reinstate the remainder of the website, sans the "infringing" content, under a new domain name (at obvious costs, but arguably justified by the Arcara example, if we assume Arcara applies).

                                           

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                                          Karl (profile), Mar 12th, 2011 @ 7:51pm

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

                                          LOL! Please point me to the language from Eldred that you think states this.

                                          "But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary." They were particularly concerned that a successful First Amendment challenge to this case would invalidate existing statutes: "The 1976 Act’s time extensions, which set the pattern that the CTEA followed, would be vulnerable as well."

                                          If what you're arguing is true, then it wouldn't matter one iota whether Congress altered the "traditional countours" of copyright protection, because copyright laws could not, even in theory, violate the First Amendment. Eldred explicitly said this wasn't the case: "We recognize that the D. C. Circuit spoke too broadly when it declared copyrights 'categorically immune from challenges under the First Amendment.'"

                                          Furthermore, they did not even consider whether copyright is "content-neutral" or not. They totally ignored that classification, and focused solely on whether the copyright extension, and the extension alone, required additional First Amendment scrutiny.

                                          And after all that, Eldred is still irrelevant to these seizures. Even if copyright iteself was "categorically immune" from First Amendment challenges (it's not), that doesn't mean the seizure statutes are themselves immune. Especially when those statutes do not allow the "accomodations" necessary for copyright to be consistent with the First Amendment.

                                          Eldred is even more irrelevant to Arcara. Arcara explicitly places any prohibition on any form of content outside its scope. Whether that prohibition passes First Amendment scrutiny is completely irrelevant.

                                          And the seizure statute applies to infringing materials or tools, neither of which is protected speech.

                                          It matters not one whit whether the "materials or tools" are protected speech. For the purposes of Arcara, it only matters whether the law "would impose no restraint at all on the dissemination of particular materials," and whether seizures or injunctions "would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited."

                                          It is totally obvious that copyright law in general, and ex parte seizures or injunctions in particular, fail on both counts. Arcara could not have been more clear on the matter: copyright law is completely outside its scope.

                                          I also noticed that your answer totally ignored the original point, which is that copyright law singles out parties that engage in speech. Copyright infringement charges can only be brought against publishers, labels, distributors, etc; all of which have the primary purpose of engaging in speech. This is the other reason copyright is totally outside the scope of Arcara, as Arcara itself makes very, very clear.

                                          The "materials or tools" they use are only relevant, insofar as a statute regulating even those requires some level of First Amendment scrutiny. As it did in the Minneapolis Star case, the "tax on ink" case that was referenced by Arcara itself as a law that was outside its scope - and in this case, unconstitutional.

                                          Irrelevant. That wasn't wholesale copying.

                                          Even "wholesale copying" is lawful sometimes. Regardless, it was copyright infringement, subject to exactly the same laws and legal remedies. You should know this, as you're the one arguing irrelevant legal details.

                                          You're looking at seizures pursuant to civil cases, not seizures pursuant to criminal cases where the government is the plaintiff. The rules you're stating don't apply here.

                                          Criminal seizure statutes have similar language. Point me to what you think the right statute is concerning ex parte seizures, and I'll point out exactly where it says ex parte seizures by the government must follow the same standard.

                                          If you can't, then point me to even one copyright infringement case where the government seized items ex parte, that had the effect of silencing a defendant entirely, preventing them from publishing even non-infringing content. Aside from the ICE seizures, of course. Furthermore, find a case like this where the defendant's First Amendment concerns were not even addressed. You won't be able to, because seizures like this have never been allowed, and probably not even attempted.

                                           

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                                            Anonymous Coward, Mar 12th, 2011 @ 10:05pm

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

                                            >> If you can't, then point me to even one copyright infringement case where the government seized items ex parte, that had the effect of silencing a defendant entirely, preventing them from publishing even non-infringing content. Aside from the ICE seizures, of course.

                                            I'm assuming the website owners can still publish elsewhere (even if these ICE events would be a first), so I would also consider a modification of this question in some way to consider the destruction of all the speech and the community and conversations that might have in practice been severely hampered.

                                            You are potentially restricting speech and other business significantly even if you allow the principle actor (principal) to go elsewhere. Such a seizure should not be done lightly.

                                            A related techdirt article mentioned a little earlier by modplan had a comment about how difficult it is (for authorities) to go after those releasing the digital content because of the techniques they use to create indirection and take advantage of other people's vulnerable computers, but this speaks to the potential inappropriateness of what (and how) the law is attempting to do (keep digital information under strict control in a "free", modern, and imperfect society) much more than providing some justification of why we would allegedly need to lock down society and allow for much larger degrees of collateral damage.

                                            Weakening even further ["further" means beyond an already existing amount] the case of those wanting aggressive enforcement is that piracy actually helps sell products many times (it's a very inexpensive form of publicity to sell scarce items) and certainly doesn't create nearly the damaged claimed by major supporters of strong copyright.

                                             

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                                            Anonymous Coward, Mar 13th, 2011 @ 11:01am

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

                                            Point me to what you think the right statute is concerning ex parte seizures, and I'll point out exactly where it says ex parte seizures by the government must follow the same standard.

                                            The statutes, as has been mentioned over and over and over again, are 17 U.S.C. 506(b) and 18 U.S.C. 2323.

                                            I'm not going to address the rest of your post because we're just going in circles, and frankly, I'm tired of explaining to you how wrong you are. You just keep on saying more and more wrong things. Suffice it to say you are very, very confused. Your treatment of law is as bad as your treatment of music--it's cacophonous noise.

                                             

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                                              Karl (profile), Mar 13th, 2011 @ 4:20pm

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

                                              I'm replying to all your posts in one go.

                                              "Locating Copyright Within the First Amendment Skein" by Neil W. Netanel

                                              Interesting. Here's a quote from that article:
                                              As copyright law has metamorphisized over recent decades, copyright owner prerogatives have become increasingly bloated, raising serious questions about their need and fit for copyright's incentive-for-original-expression rationale and imposing an increasingly onerous burden on speech. And in parallel, even if free speech law might have presented little ground for subjecting copyright to First Amendment scrutiny in the past, the evolving precepts and analytic framework of First Amendment doctrine now fully support, if not demand, such scrutiny.


                                              Here's some for you:

                                              Freedom Of Speech And Injunctions In Intellectual Property Cases (Mark A. Lemley and Eugene Volokh)
                                              It might conceivably be desirable to permit a narrow exception to the general ban on TROs if giving notice would pose unusual dangers--for instance if it would create a risk that an infringer would escape and take the infringing goods with him to be distributed elsewhere. Nonetheless, even if such an exception were to be recognized, it could only be applied in extreme cases. It can't be enough to show that a speaker will, before the injunction is entered, continue engaging in his allegedly harmful speech: this argument could be made for most attempts to enjoin supposedly unprotected speech, and would justify ex parte orders delaying the publication of supposedly libelous books or newspaper articles, ex parte prohibitions of news coverage that supposedly interferes with a fair trial, and so on.


                                              Prior restraint (IT Law Wiki)
                                              Copyright law authorizes, but does not compel, a preliminary injunction in copyright infringement cases. Because of First Amendment concerns, it is critical that a court requested to preliminarily enjoin free speech require more than a mere showing that the copyright owner is likely to succeed on the merits of the copyright infringement claim.


                                              I'm sure I could dig up more, but you get the idea.

                                              Incidentally, these articles deal with prior restraint of the allegedly infringing material itself (and even here, there are potential free speech issues). Nobody believes copyright law excuses prior restraint of materials that are not even allegedly infringing. Not even as "collateral damage."

                                              We're talking about the instrumentalities of crimes. We're talking about taking those tools away so the bad guys can't use them anymore. Probable cause is all it takes. Just because it's copyright doesn't mean the bad guys get special First Amendment treatment.

                                              When the "instrumentalities of crimes" are instrumentalities of protected speech, the "bad guys" always get special First Amendment treatment.

                                              With any law that directly impacts speech, the O'Brien standard applies. The ICE seizures fail that standard (and many others).

                                              You're the one asking for the law to excuse prior restraint "just because it's copyright."

                                              The statutes, as has been mentioned over and over and over again, are 17 U.S.C. 506(b) and 18 U.S.C. 2323.

                                              All 506(b) does is refer to 18 USC 2323. 18 USC 2323 describes what can be seized, but not at what stage (ex parte, preliminary, after a final determination) they are allowed. It does not contain the procedures for, and limitations on, ex parte seizures. According to the statute itself, those are in 18 USC 46.

                                              18 USC 46 describes several different categories of seizures, only a couple of which could even possibly be relevant. All of them contain language like what I described.

                                              You're also completely ignoring 17 USC 512(j)(3) - which was written specifically to address online infringement, and completely prohibits ex parte seizures altogether.

                                              There's no possible way that these seizures will stand. So, the question is whether a) the statutes themselves are unconstitutional, or b) the government did not properly follow the statutes. I'm guessing b).

                                              I'm not going to address the rest of your post because we're just going in circles, and frankly, I'm tired of explaining to you how wrong you are.

                                              You're right, we are going in circles, but it's not because I'm wrong. You're lying about what Eldred says, in order to describe a law prohibiting content as having nothing to do with laws prohibiting content. You're lying about what Arcara says, so that you can use it to apply to statutes that Arcara itself explicitly says are outside its scope. And you're doing this whole legal roundabout specifically to excuse the government blocking free speech.

                                              You told me above that "I can't be reasoned with." I can be reasoned with just fine. You're just not making an argument that is reasonable. You're not even making one that is plausible.

                                              Look, you don't believe me, fine. Go ask a lawyer or law professor. I don't know what yours will say, but the ones I've talked to agree with me.

                                               

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                                                Anonymous Coward, Mar 13th, 2011 @ 4:37pm

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

                                                LMFAO, Karl! Have a good one. :)

                                                 

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                                            Anonymous Coward, Mar 13th, 2011 @ 12:13pm

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

                                            Karl--

                                            Here's an article you should read:

                                            "Locating Copyright Within the First Amendment Skein" by Neil W. Netanel

                                            http://papers.ssrn.com/sol3/papers.cfm?abstract_id=267848

                                            In it, he notes that "courts almost universally hold that copyright law gives rise to no First Amendment scrutiny." That's a point I've been trying to make to you (a point solidly reinforced in Eldred, although you don't seem to get it).

                                            He argues that courts have been getting it wrong. You'll like it. :)

                                             

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                                    Karl (profile), Mar 12th, 2011 @ 9:46am

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

                                    That word doesn't mean what you think it means.

                                    Egg on my face. I believed "content-neutral" simply meant "not content-based or viewpoint-based." It looks like I was wrong.

                                    Even if a law is content-neutral, it is still a restriction on speech. So, something like a health code violation would not be "content-neutral," since it doesn't regulate content at all. (I don't know if there's even a legal term for this.)

                                    On the other hand, a law against putting signs on your lawn, would be content-neutral, since a sign is a form of expression. It would therefore have to pass intermediate scrutiny under O'Brien.

                                    A content-based restriction is a restriction on speech, that depends on the content of the speech itself. Libel, obscenity, trade secrets, and state secrets laws are all examples. All content-based restrictions on speech must pass strict First Amendment scrutiny.

                                    Copyright law is a content-based restriction on speech, obviously. Whether a book is infringing or not depends on the content of the book (and not, say, if you hit someone over the head with it).

                                    Arcara, then, only applies to laws that are neither content-based nor content-neutral. It does not deal with any law about any form of content whatsoever. Arcara would apply to the health code example I made. It would not apply to copyright.

                                     

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                                      Anonymous Coward, Mar 12th, 2011 @ 9:59am

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

                                      Egg on my face. I believed "content-neutral" simply meant "not content-based or viewpoint-based." It looks like I was wrong.

                                      I made the same mistake above. No worries.

                                      Even if a law is content-neutral, it is still a restriction on speech. So, something like a health code violation would not be "content-neutral," since it doesn't regulate content at all. (I don't know if there's even a legal term for this.)

                                      The Court in Arcara called it "governmental regulations of general applicability."

                                      On the other hand, a law against putting signs on your lawn, would be content-neutral, since a sign is a form of expression. It would therefore have to pass intermediate scrutiny under O'Brien.

                                      Maybe... Let's leave it at that.

                                      A content-based restriction is a restriction on speech, that depends on the content of the speech itself. Libel, obscenity, trade secrets, and state secrets laws are all examples. All content-based restrictions on speech must pass strict First Amendment scrutiny.

                                      Yes!

                                      Copyright law is a content-based restriction on speech, obviously. Whether a book is infringing or not depends on the content of the book (and not, say, if you hit someone over the head with it).

                                      No! And you were doing so well. If that were true, then copyright laws would have to pass strict scrutiny. Recall that the Court wouldn't even apply intermediate scrutiny to the CTEA. If they wouldn't even apply intermediate scrutiny, they sure as heck weren't applying strict scrutiny, which is even stricter.

                                      Copyright laws, in general, are neither content-based nor content-neutral. Just like the closure statute in Arcara.

                                      Arcara, then, only applies to laws that are neither content-based nor content-neutral. It does not deal with any law about any form of content whatsoever. Arcara would apply to the health code example I made. It would not apply to copyright.

                                      Arcara applies precisely because copyright laws are neither content-based nor content-neutral.

                                       

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                                        Modplan (profile), Mar 12th, 2011 @ 10:35am

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

                                        No! And you were doing so well. If that were true, then copyright laws would have to pass strict scrutiny.

                                        [...]

                                        Copyright laws, in general, are neither content-based nor content-neutral. Just like the closure statute in Arcara.


                                        Eldred never argued this. It is clear your basis for this argument would suggest copyright law is immune from First Amendment issues. Not only does Eldred directly contradict this, the basis from which they conclude this is precisely because of (but not limited to) already existing protections like fair use and idea/expression dichotomies. Prior restraint is precisely a standard based on protecting First Amendment concerns where seizures fall heavily on or are aimed at expressive content, PRECISELY THE KIND THAT ARCARA SPECIFICALLY REFERENCES IT DOES NOT APPLY TO as cited above multiple times and cited hundreds of times in the past.

                                        A review of a law extension where Congress argues there isn't a First Amendment issue because of already existing protections is completely different from a seizure that outright ignores such existing protections like prior restraint. Congress clearly did not argue that copyright was categorically immune from such scrutiny.

                                         

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                                        Karl (profile), Mar 12th, 2011 @ 10:39am

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

                                        Recall that the Court wouldn't even apply intermediate scrutiny to the CTEA.

                                        I said this above, but it's worth repeating: they wouldn't apply additional scrutiny. Copyright law had already passed strict scrutiny - and been found constitutional. That was their whole argument, in fact.

                                        Copyright laws absolutely are content-based. That they are constitutional, and survived First Amendment scrutiny, does not change that fact. Arcara does not apply to them.

                                         

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                                          Anonymous Coward, Mar 12th, 2011 @ 11:00am

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

                                          I said this above, but it's worth repeating: they wouldn't apply additional scrutiny. Copyright law had already passed strict scrutiny - and been found constitutional. That was their whole argument, in fact.

                                          Please, please, please show me the Court's language that you think makes this point. It amazes me that you think the Court simultaneously refused to apply intermediate scrutiny to the CTEA while maintaining that copyright laws are subject to strict scrutiny.

                                          Copyright laws absolutely are content-based. That they are constitutional, and survived First Amendment scrutiny, does not change that fact. Arcara does not apply to them.

                                          Then it should be quite simple to find one court who has stated that copyright laws are content-based. Show me one.

                                          The problem with this, as I stated above, is that then all copyright laws would be subject to strict scrutiny. They are not. Nor are they subject to even intermediate scrutiny. The fact is, copyright laws are subject to the lowest level of scrutiny, which is the rational basis test. That's one of the main points from Eldred.

                                          No offense, Karl, but you are very, very confused about pretty much all of this. The fundamentals seem to escape you time and again.

                                           

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                                      Anonymous Coward, Mar 12th, 2011 @ 10:29am

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

                                      One more thing to keep in mind about O'Brien... The Court in Arcara said that the O'Brien test only applies "where it was conduct with a significant expressive element that drew the legal remedy in the first place." The conduct that drew the remedy here in the first place, infringement, does not have a significant expressive element. So O'Brien doesn't apply.

                                       

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                                        Modplan (profile), Mar 12th, 2011 @ 10:40am

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

                                        Are you a goldfish?

                                         

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                                        Karl (profile), Mar 12th, 2011 @ 10:40am

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

                                        The conduct that drew the remedy here in the first place, infringement, does not have a significant expressive element.

                                        So, "The Wind Done Gone" does not have a significant expressive element? News to me.

                                         

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                                          Anonymous Coward, Mar 12th, 2011 @ 11:05am

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

                                          So, "The Wind Done Gone" does not have a significant expressive element? News to me.

                                          Irrelevant. That wasn't wholesale copying.

                                           

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                                            Jose_X, Mar 12th, 2011 @ 4:33pm

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

                                            But you are aware that writing information (onto a webserver and handed out to those browsing) on where a particular stream of digital information titled xyz can be found if you go look over there and that site hands it to you... is not infringing, right?

                                             

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                                            Jose_X, Mar 12th, 2011 @ 7:09pm

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

                                            >> Irrelevant. That wasn't wholesale copying.

                                            Does this mean you will use "wholesale copying" rather than "copyright infringement" when justifying ICE's use of 2323?

                                            I agree we need to look at the details.. and that includes fair use (even for "wholesale copying") as well as the interests and rights of many other people not infringing who are potentially affected negatively from a domain name seizure.

                                             

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                                              Anonymous Coward, Mar 13th, 2011 @ 12:55pm

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

                                              We're talking about the instrumentalities of crimes. We're talking about taking those tools away so the bad guys can't use them anymore. Probable cause is all it takes. Just because it's copyright doesn't mean the bad guys get special First Amendment treatment. They don't. It's all really simple. Mike, Karl, and techdirt are trying to make it difficult, and they're FUDing it all out. The bad guys' tools get taken away when you show probable cause of criminal copyright infringement to a judge. It's really that simple.

                                              The Wind Done Gone (Suntrust) case isn't wholesale copying. It's a retelling of Gone With the Wind, but from the viewpoint of a slave. That's a whole different can of worms than running a website that provides the latest infringing works. The ruling in that case is also the exception and not the rule, but that's a different matter.

                                               

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                                                Jose_X, Mar 14th, 2011 @ 3:57pm

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

                                                >> We're talking about the instrumentalities of crimes. We're talking about taking those tools away so the bad guys can't use them anymore.

                                                Not looking at speech specifically, there have to be limits on what sort of disruption and harm to third parties can be created by seizing something.

                                                [As someone mentioned in a related article, are we going to seize the roads because someone leveraged them to commit some sort of crime?]

                                                 

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                          Karl (profile), Mar 11th, 2011 @ 9:51pm

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

                          Infringement doesn't have an element of expression that calls for heightened First Amendment considerations.

                          In case my last post was tl;dr:

                          It doesn't matter if it has an element of expression that calls for heightened First Amendment considerations.

                          It only matters that it has an element of expression at all.

                          Once it does, Arcara in inapplicable, and you have to use the O'Brien standards.

                           

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                            Anonymous Coward, Mar 12th, 2011 @ 5:20am

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

                            In case my last post was tl;dr: It doesn't matter if it has an element of expression that calls for heightened First Amendment considerations. It only matters that it has an element of expression at all. Once it does, Arcara in inapplicable, and you have to use the O'Brien standards.

                            Copyright infringement is not expressive, not any more than prostitution. Sorry, but that's the point of Eldred. Copyright laws do not affect expression in a significant way.

                             

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                              Modplan (profile), Mar 12th, 2011 @ 5:51am

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

                              CITATION PLEASE NAO!!1111111

                               

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                              Mike Masnick (profile), Mar 12th, 2011 @ 7:41am

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

                              Copyright laws do not affect expression in a significant way

                              You didn't mean to type that did you?

                               

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                                Anonymous Coward, Mar 12th, 2011 @ 8:05am

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

                                You didn't mean to type that did you?

                                The Supreme Court in Eldred refused to classify the CTEA as content-neutral, thus requiring heightened scrutiny. Why? Because in their opinion, copyright laws PROMOTE free expression. I know you disagree, but that opinion is the law of the land. And it's also the reason that copyright laws are treated differently. Not to mention the fact that copyright laws are provided for in the Constitution itself.

                                With that in mind, I'll restate my post that you're quoting: Copyright laws do not NEGATIVELY affect expression in a significant way.

                                 

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                                  Jose_X, Mar 12th, 2011 @ 5:01pm

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

                                  CTEA is not the full copyright (act) law, right?

                                  In other words, a bill that adjusts copyright law in a way that is supposed to be slight and Constitutional, where we implicitly accept the potential Constitutionality of every portion of the remainder of the law when applied in any context, says nothing about the free speech issues of the remainder of the law as applied in some particular case or other.

                                  In the current context, we have a seizure of a domain name. On the surface, it appears this can have very serious consequences for free speech. I don't see how you can argue that is not the case generally, so doesn't this mean that ex parte should not be allowed? This is a question of ex parte.

                                  A second question is whether Arcara supports a view that we can in fact take away a center (the domain name.. not the actual speech contents) where legal speech is created and distributed once the alleged crime has been proven. [I don't think Arcara covered the ex parte issue.]

                                  [IANAL, so feel free to try and correct any misuse, analysis, etc, of legal content.]

                                   

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                              Karl (profile), Mar 12th, 2011 @ 7:46am

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

                              Copyright infringement is not expressive, not any more than prostitution. Sorry, but that's the point of Eldred.

                              That's not at all the point of Eldred, and you know it. Nowhere in Eldred was it claimed that infringement cannot be expression.

                               

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                            Anonymous Coward, Mar 14th, 2011 @ 2:57am

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

                            It only matters that it has an element of expression at all.


                            This is completely incorrect.

                             

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                              Anonymous Coward, Mar 14th, 2011 @ 5:07am

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

                              This is completely incorrect.

                              Most of what Karl posts about copyright law is completely incorrect. That doesn't stop him from insisting that he's right.

                              Take Eldred for example. He doesn't at all understand that the Court almost always holds copyright laws to the rational basis test as they did in that case. The Court goes on at length explaining all the rational bases for the CTEA. It's HILARIOUS that he misconstrues one word, "further," and then insists that all copyright laws are in fact held to the strict scrutiny standard. LMFAO!

                              Whatever is common knowledge to those "in the know" is apparently completely alien to Karl. He HAS NO FREAKING IDEA WHAT HE'S TALKING ABOUT. But that doesn't stop him from pretending otherwise. It's both fascinating and scary to watch.

                              Karl, please, stop being such a know-it-all and take some time to actually learn and understand the subject of which you speak. The fact that you just insist you're right even after you're shown to wrong over and over makes you look like a fool and an idiot.

                               

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      trilobug, Mar 10th, 2011 @ 1:04pm

      Re:

      If you film it it is protected expression, in the form of pornographic art.

      If I'm filming Backdoor-Bookworms 9 at a Barnes and Noble and am punished by authorities believing that I'm engaging in prostitution because they don't notice the camera - like they didn't notice the music on the websites that was used for probable cause were authorized dongs (

       

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      Mike Masnick (profile), Mar 10th, 2011 @ 2:49pm

      Re:

      You don't seem to understand the Arcara argument. Just as prostitution, which is not protected expression, could not invoke First Amendment protection because it took place in a bookstore, piracy, which also is not protected expression, cannot invoke First Amendment protection because it happens on a blog

      Can you clarify something for me. According to cases like Fort Wayne, Heller and others, obscenity is also not "protected" expression, but it is granted such basic First Amendment concerns.

      Are you suggesting that obscenity, child porn and the like should get greater speech rights than a link to a possibly infringing file?

      Just trying to understand your reasoning.

       

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        Anonymous Coward, Mar 10th, 2011 @ 3:15pm

        Re: Re:

        The difference is that whether something is obscene or not requires subjective analysis. The reason a prior adversary hearing is necessary in the case of obscenity is because the threat of prior restraint is too high.

        Child porn is different that regular obscenity because its determination is objective, and I don't believe the same prior adversary hearing is necessary. I quoted a case a while back that made this point: U.S. v. Kimbrough, 69 F.3d 723 (5th Cir. 1995).

        Piracy via wholesale copying is also easily objectively determined. If a website is offering the latest Harry Potter movie for download, all the agent investigating has to do is ask the rights holder if they authorized this particular distribution or not.

        In the end, whether or not a prior adversary hearing is necessary turns on whether the activity's legality requires subjective or objective analysis. Copyright and trademark infringement claims simply do not require the same First Amendment protections that obscenity claims require.

         

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          The eejit (profile), Mar 10th, 2011 @ 3:26pm

          Re: Re: Re:

          People lie. Corporations are people. Corporations lie. Your argument is now valid.

           

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            Anonymous Coward, Mar 10th, 2011 @ 3:31pm

            Re: Re: Re: Re:

            Nope, just a calm, reasoned explanation of why Arcara is the pirate killer.

            Kudos to the AC

             

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              Anonymous Coward, Mar 10th, 2011 @ 4:21pm

              Re: Re: Re: Re: Re:

              Well, thank that then. Piracy is finally over. It was tough but we did it, we beat the pirates. Close one.

               

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                HothMonster, Mar 11th, 2011 @ 9:20am

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

                WTF, hes right.

                I just tried to download the new Uwe boll movie and my browser said:

                Error 6.21.4.
                Piracy has ended, get a job you freetard

                 

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              The eejit (profile), Mar 11th, 2011 @ 6:05am

              Re: Re: Re: Re: Re:

              My god, I never thought sarcasm translated well over the internet, but...wow.

               

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          Chris Rhodes (profile), Mar 10th, 2011 @ 4:02pm

          Re: Re: Re:

          +1 Insightful for you, sir, for a reasonable answer to a reasonable question.

           

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          Modplan (profile), Mar 10th, 2011 @ 6:55pm

          Re: Re: Re:

          And yet, Viacom were unable to determine what clips were infringing and what weren't in their case against Youtube/Google.

          Not to mention the very seizures included songs that were indeed authorised, despite the agent asking what evidently appeared to be the perfect people to ask were also wrong in providing such an easy, clear cut objective analysis.

          Quite simply, you're incorrect.

           

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          Anonymous Coward, Mar 10th, 2011 @ 11:55pm

          Re: Re: Re:

          all the agent investigating has to do is ask the rights holder if they authorized this particular distribution or not.

          Which the agent "investigating" this case failed to do, since from what I heard all the examples he used for one of the blogs were authorized! If the blog was such an infringement den, it should be easy to find other examples in the same blog which were not authorized.

           

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            Anonymous Coward, Mar 11th, 2011 @ 5:11am

            Re: Re: Re: Re:

            Which the agent "investigating" this case failed to do, since from what I heard all the examples he used for one of the blogs were authorized!

            You might be able to find an example of where an investigation made an error, but that doesn't change the fact that in general it's fairly easy to determine whether wholesale-copied works are infringing or not.

            If the blog was such an infringement den, it should be easy to find other examples in the same blog which were not authorized.

            Indeed. Perhaps the investigators have such information.

             

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              Mike Masnick (profile), Mar 11th, 2011 @ 6:15am

              Re: Re: Re: Re: Re:

              You might be able to find an example of where an investigation made an error, but that doesn't change the fact that in general it's fairly easy to determine whether wholesale-copied works are infringing or not.


              Wow. "An" example? The investigator provided 4 examples. ALL FOUR were errors.

              Do you not get that it's NOT a straightforward thing? Hence First Amendment protections and prior restraint.

              Indeed. Perhaps the investigators have such information.


              Then they would have put it in the affidavit. As it stands they presented four pieces of info in the affidavit. All were in error. Seems like your "it's easy!" claim is a load of crap.

               

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                Anonymous Coward, Mar 11th, 2011 @ 6:44am

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

                Wow. "An" example? The investigator provided 4 examples. ALL FOUR were errors. Do you not get that it's NOT a straightforward thing? Hence First Amendment protections and prior restraint.

                I get that perhaps a mistake was made. I'm not sure how you think that mistake changes copyright or trademark law.

                One thing you've never done, Mike, is find one case that says in a copyright infringement or trademark infringement case, a prior adversary hearing is necessary. Why do you think you can't find such a case? You keep pointing to obscenity cases, but obscenity is treated differently. I explained why.

                Then they would have put it in the affidavit. As it stands they presented four pieces of info in the affidavit. All were in error. Seems like your "it's easy!" claim is a load of crap.

                False assumption. They very well could have other evidence that they did not include in the affidavit. Nowhere does it say that an affidavit has to contain all the relevant information in the investigation. You're just making stuff up.

                 

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                Jose_X, Mar 11th, 2011 @ 9:20am

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

                but there's more.

                This is a case about linking right? Linking, a form of and part of larger speech, is providing information. It is not an offer to commit copyright infringement.

                What about fair use and any other potential affirmative defense (as Rep Lofgren mentioned)? How can the government know there is copyright infringement without at least a query of the primary subjects? How can it be easy to know if an alleged download was not to enable "purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research?" How can you know that? Is there a rule that the only source of those material for those purposes has to be the copyright holder?

                And what about abiding by DMCA take-down notices?

                [I heard the video again and noticed that Espinel took the opportunity to tell the world that the US should be a leader in copyright enforcement because of our due process, etc.]

                 

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          Karl (profile), Mar 11th, 2011 @ 12:56am

          Re: Re: Re:

          The difference is that whether something is obscene or not requires subjective analysis.

          There is no "bright-line rule" in copyright infringement. Even wholesale copying is not "easily objectively determined" - as both the dajaz1 case, and the Google v. Viacom case, make abundantly clear.

          In the end, whether or not a prior adversary hearing is necessary turns on whether the activity's legality requires subjective or objective analysis.

          Not true. In the end, whether or not a prior adversary hearing is necessary turns on whether there is even the possibility of suppressing protected speech.

          As for child pornography, you might want to read Reno v. ACLU:

          Although the Government has an interest in protecting children from potentially harmful materials, [...] the CDA pursues that interest by suppressing a large amount of speech that adults have a constitutional right to send and receive[...] Its breadth is wholly unprecedented.

          Or take CDT v. Pappert (PDF):
          Pennsylvania's Internet Child Pornography Act, 18 Pa. Stat. Ann. § 7621-7630 and the Informal Notice process used by defendant to implement the Act are declared unconstitutional.

          This, even though a determination child pornography does not require a subjective analysis - unlike copyright infringement.

          As an interesting factoid, compare and contrast both Reno's and Pappert's similarity to 17 USC 512's "notice-and-takedown" provisions.

          Speaking of 17 USC 512, pay close attention to 512(j)(3):
          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.

           

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            Anonymous Coward, Mar 11th, 2011 @ 5:33am

            Re: Re: Re: Re:

            There is no "bright-line rule" in copyright infringement.

            I never said there was a "bright-line rule."

            Even wholesale copying is not "easily objectively determined" - as both the dajaz1 case, and the Google v. Viacom case, make abundantly clear.

            Finding an exception does not change the rule.

            Not true. In the end, whether or not a prior adversary hearing is necessary turns on whether there is even the possibility of suppressing protected speech.

            Citation needed.

            As for child pornography, you might want to read Reno v. ACLU: Although the Government has an interest in protecting children from potentially harmful materials, [...] the CDA pursues that interest by suppressing a large amount of speech that adults have a constitutional right to send and receive[...] Its breadth is wholly unprecedented.

            That case was an overbreadth challenge to certain provisions of the CDA that created content-based restrictions. That case is inapposite to the point I was making. It dealt with sending porn to children, not child porn itself. You do not understand how to read case law.

            Or take CDT v. Pappert (PDF): Pennsylvania's Internet Child Pornography Act, 18 Pa. Stat. Ann. § 7621-7630 and the Informal Notice process used by defendant to implement the Act are declared unconstitutional.

            The problem in that case was that the court did not make a determination that something was child porn or not based on probable cause. That case does not stand for the proposition that such a determination cannot be made ex parte. You do not understand how to read case law.

            This, even though a determination child pornography does not require a subjective analysis - unlike copyright infringement.

            The statute was unconstitutional. That does not mean that child pornography cannot be determined objectively.

            As an interesting factoid, compare and contrast both Reno's and Pappert's similarity to 17 USC 512's "notice-and-takedown" provisions.

            Why don't you spell out for me the connection you think is there? I'm sure it doesn't mean whatever you think it means.

            Speaking of 17 USC 512, pay close attention to 512(j)(3): 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.

            So what? These seizures are done pursuant to forfeitures, not injunctions. You have no idea what you're talking about. Please stop pretending to be a lawyer.

             

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            •  
              icon
              Modplan (profile), Mar 12th, 2011 @ 1:27am

              Re: Re: Re: Re: Re:

              I never said there was a "bright-line rule."

              You explicitly stated:
              Piracy via wholesale copying is also easily objectively determined. If a website is offering the latest Harry Potter movie for download, all the agent investigating has to do is ask the rights holder if they authorized this particular distribution or not.

              Not only is that clearly a bright line rule you just discussed and asserted as something very easily applied and determined (the very definition of a bright line rule), it is as a matter of fact wrong.

              Not only has Viacom itself mistakenly identified clips that it had uploaded to Youtube as being infringing, so too in this very case has it been found that files used to prove probable cause of infringement are not actually infringing at all, with authority not even belonging to the claimed rights holders.

              So not only did you assert a bright line rule to decide if a work is infringing, you asserted a bright line rule that in practice already does not work.

               

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        •  
          icon
          Mike Masnick (profile), Mar 11th, 2011 @ 2:22am

          Re: Re: Re:

          The difference is that whether something is obscene or not requires subjective analysis

          So does whether or not something is infringing.

          The reason a prior adversary hearing is necessary in the case of obscenity is because the threat of prior restraint is too high.

          Um. Ditto for music blogs, genius.

          Piracy via wholesale copying is also easily objectively determined

          If that were true, they wouldn't have taken down sites based on authorized files.

          I believe you are incorrect here. While not US law, the Australian court's ruling in the iiNet case (the district court one) goes into detail as to how copyright requires a substantial legal analysis to determine infringement.

          In the end, whether or not a prior adversary hearing is necessary turns on whether the activity's legality requires subjective or objective analysis. Copyright and trademark infringement claims simply do not require the same First Amendment protections that obscenity claims require

          I find that difficult to believe, and even more difficult that anyone really believes that.

           

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          •  
            identicon
            Anonymous Coward, Mar 11th, 2011 @ 5:40am

            Re: Re: Re: Re:

            So does whether or not something is infringing.

            You missed the point. I'm talking about an initial determination, not a final determination by the court. It's quite simple to determine if there's probable cause that something is infringing.

            Um. Ditto for music blogs, genius.

            No need to be a dickhead. Just because you can find an example of a mistake being made does not change the point I'm making. Nor does it change what the law actually is.

            If that were true, they wouldn't have taken down sites based on authorized files.

            Mistakes are made. That does not change the point I'm making... or the law.

            I believe you are incorrect here. While not US law, the Australian court's ruling in the iiNet case (the district court one) goes into detail as to how copyright requires a substantial legal analysis to determine infringement.

            Sure, for a final determination. But we're talking about an initial determination of probable cause.

            I find that difficult to believe, and even more difficult that anyone really believes that.

            I'm trying to explain the law to you. We all know you just see what you want to see, despite reality.

            Care to try again, genius?

             

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              Mike Masnick (profile), Mar 11th, 2011 @ 6:35am

              Re: Re: Re: Re: Re:

              You missed the point. I'm talking about an initial determination, not a final determination by the court. It's quite simple to determine if there's probable cause that something is infringing.

              This is not true. You keep saying it's true, and you're wrong. As I showed you and as Karl showed you, it's very, very difficult. In fact, that was the exact POINT of the iiNet decision that I pointed you to, which you ignored. They pointed out that it was impossible for iiNet to make an initial determination, because copyright is more complex than that.

              I'll quote the case:


              Regardless of the actual quality of the evidence gathering of DtecNet, copyright infringement is not a straight 'yes' or 'no' question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether iiNet users, and how often iiNet users, infringe copyright by use of the BitTorrent system....



              One need only consider the lengthy, complex and necessary deliberations of the Court upon the question of primary infringement to appreciate that the nature of copyright infringements within the BitTorrent system, and the concept of 'repeat infringer', are not self-evident. It is highly problematic to conclude that such issues ought to be decided by a party, such as the respondent, rather than a court. Copyright infringement is not a simple issue.


              Just because you can find an example of a mistake being made does not change the point I'm making. Nor does it change what the law actually is.

              You keep missing the point by a wide margin. We didn't find AN EXAMPLE. We found that EVERY piece of evidence submitted by ICE was in error in this case. Sure, you can make errors, but when your hit rate is 100%, I think you're asking for a massive suspension of disbelief to then claim that it's an easy question to determine infringement.

              Sure, for a final determination. But we're talking about an initial determination of probable cause.

              Nope. The point of the iiNet case was whether or not it was reasonable for an ISP to make a determination of infringement after the rightsholder complained. And the court explained no. So, no, your claim here is incorrect.

              I'm trying to explain the law to you. We all know you just see what you want to see, despite reality.

              Ha! Buddy, I back up my statements with actual evidence. You do not. So far, Karl and I have both debunked every point you've made in this thread with actual cites. And your response is to mock the non-lawyers (without admitting that you're not a lawyer either, are you?).

              Care to try again, genius?


              Why not? When reality is on my side, it's easy.

               

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              •  
                identicon
                Anonymous Coward, Mar 11th, 2011 @ 6:51am

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

                Karl couldn't debunk his way out of a paper bag, and the fact that you think his legal analysis is good speaks volumes of your incompetence.

                Are you really quoting a case from Australia? LOL! You didn't provide a link, so I didn't read it.

                Show me ONE UNITED STATES CASE that says in a copyright or trademark infringement scenario, the First Amendment demands a prior adversary hearing.

                You have not ever shown this.

                 

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                  The eejit (profile), Mar 11th, 2011 @ 9:02am

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

                  Have you ever considered that that might be because no-one has ever bothered to challenge that particular nugget of law? I hope that someone challenges this, so we can settle the question once and for all. So the closest we have are rulings like Arcara.

                  And the iiNet case is relevant because it's dealing with exactly the same issues pre-seizure as dajaz1. Yes, it may not have jurisprudence, but it's still a case from a WIPO-treaty nation. Something the USTR like to browbeat others with.

                   

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              •  
                identicon
                Anonymous Coward, Mar 11th, 2011 @ 7:23am

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

                Can you show where in the iiNet case it states that a determination of probable cause that something is infringing CANNOT be made ex parte? I doubt it.

                Not that it would matter though, since that's foreign case law. But still, I don't think that case says that, so it's not helping your argument.

                 

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            •  
              identicon
              Hans, Mar 12th, 2011 @ 5:29pm

              Re: Re: Re: Re: Re:

              "You missed the point. I'm talking about an initial determination, not a final determination by the court."

              He missed it because you didn't make it. I would suggest that you take responsibility for your omission instead of blaming Mike for "missing" it, but that's likely pointless since your AC status suggests you don't care about responsibility or integrity.

              "It's quite simple to determine if there's probable cause that something is infringing."

              A clearly fallacious assertion, based simply on the preponderance of evidence to the contrary. Maybe you "know it if you see it", or perhaps you're right based on current law. Regardless, to normal, reasonable people it's not at all simple, based simply on the level of error.

              "No need to be a dickhead. Just because you can find an example of a mistake being made does not change the point I'm making."

              Heh, that's rich. Your attitude and condescending tone to those that challenge your claims and your persistent smearing attacks of Mike's motives is a very good reason to serve it right back to you. Your hypocrisy is impressive. And don't forget, you didn't make that point, you clarified your point and blamed Mike for missing it. If you are in fact a lawyer, it's no wonder the legal profession has a bad reputation. Dickhead, indeed.

               

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      •  
        identicon
        Anonymous, Mar 10th, 2011 @ 4:09pm

        Re: Re:

        Just trying to understand your reasoning

        You understand his reasoning perfectly, and you know it. He just explained it to you in simple and correct legal terms.

        You really think you're fooling anyone?

        Where's those ICE appeals, Masnick? MusiCares is waiting for your check.

         

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        •  
          identicon
          TDR, Mar 10th, 2011 @ 7:22pm

          Re: Re: Re:

          DISCLAIMER
          Anonymous: "I am a lying industry shill with no sense of morality or even the pretext of a point. I fear change like nothing else and cannot comprehend living without extorting as much as I can from my clients and blaming the 'losses' on a nonexistent problem. I do not know how to address an argument or even present one. I just flame because I know I'm wrong and unable to prove a single thing I've said, and I'm terrified to admit it."

           

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        •  
          icon
          Mike Masnick (profile), Mar 11th, 2011 @ 2:25am

          Re: Re: Re:

          Where's those ICE appeals, Masnick?

          They're coming. As you know, these things take time.

           

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    •  
      icon
      Kevin (profile), Mar 10th, 2011 @ 4:33pm

      Re:

      Apparently you do not live in Nevada, otherwise you would know that in several counties prostitution IS protected expression, as it is completely legal. Therefore you analogy fails on every level as it is not true in ALL cases.

       

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      •  
        identicon
        Anonymous Coward, Mar 10th, 2011 @ 5:09pm

        Re: Re:

        The prostitution in the Arcara case was illegal and not protected expression. That's according to the Supreme Court. Whether prostitution is legal elsewhere is irrelevant to the point I was making.

         

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  •  
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    Hephaestus (profile), Mar 10th, 2011 @ 12:22pm

    Does anyone have a full list of the 84,000 sites taken down by ICE?

     

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  •  
    identicon
    Anonymous Coward, Mar 10th, 2011 @ 1:00pm

    T.I.L. seizure notices are "educational"

    "In addition, there is an educational value in leading many of the people who visit or revisit the seized sites to one of the many legitimate sites that populate the safe and lawful online marketplace." - Mitch Glazier

    Nice admission that you enjoy the trampling over due process. Try telling those 84,000 subdomain owners that the seizure notices put on their sites by ICE had an "educational value". Douche.

    The seizure notices are an epic failure. I'd reckon that most people going to the CP seized sites wouldn't go there again, but if you call a website a piracy haven you're only promoting them when they come back on another domain, regardless if they're innocent or guilty. If one of the sites accused of piracy are found to be innocent, those owners should take Lofgren's advice and sue the agency for defamation too.

     

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    •  
      identicon
      Anonymous Coward, Mar 10th, 2011 @ 1:16pm

      Re: T.I.L. seizure notices are "educational"

      I'd reckon that most people going to the CP seized sites wouldn't go there again

      Those visitors might even bring out their pitchforks, tar and feathers, nooses, brass knuckles, handguns, etc. Lest we forget that people only accused of child pornography are often at risk of being beat up or lynched. It's as if pissing all over the 5th amendment is Homeland Security's master plan for gaining more power without having to show they've convicted anyone.

       

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      •  
        icon
        The eejit (profile), Mar 10th, 2011 @ 3:28pm

        Re: Re: T.I.L. seizure notices are "educational"

        what, let other people do the criminal acts via false accusations? So we can get them on aiding and abetting charges, as well as defamation, and incitement. I like this plan.

         

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  •  
    identicon
    TimmyJ, Mar 10th, 2011 @ 3:15pm

    Mormons should be extra afraid of this development

    Joseph Smith, founder of the Church of Jesus Christ of Latter-Day Saints, was killed by a mob in response to his ordering the destruction of a printing press in 1844.

     

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  •  
    identicon
    Anonymous Coward, Mar 11th, 2011 @ 11:25am

    Mike--

    Here's a case for you that explains ex parte seizures and forfeitures in criminal copyright cases. Notice that the case states that merely showing probable cause of willful infringement is sufficient. There is no First Amendment bar as you have been suggesting:
    Title 17 U.S.C. § 506(a) prohibits the willful infringement of a copyright if done for purposes of commercial advantage or private financial gain. See 17 U.S.C. § 506(a). Title 17 U.S.C. § 509(a) authorizes the forfeiture of all the mechanisms by which such violations are accomplished:

    All copies . . . manufactured, reproduced, distributed, sold or otherwise used, intended for use, or possessed with intent to use in violation of [17 U.S.C.] section 506(a), and all . . . electronic, mechanical, or other devices for manufacturing, reproducing, or assembling such copies or phonorecords may be seized and forfeited to the United States.

    17 U.S.C. § 509(a). Under 19 U.S.C. § 1615, made applicable by 17 U.S.C. § 509(b), the government must initially show probable cause for the institution of forfeiture proceedings. See United States v. Premises Known as 3639 2nd St. N.E., Minneapolis, Minnesota, 869 F.2d 1093, 1095 (8th Cir. 1989). In this context, probable cause is defined as "a reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion." Id. (quoting United States v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir. 1980)). The government may show probable cause on the basis of whatever evidence traditionally establishes probable cause, including hearsay. See United States v. Parcel of Real Property Known as 6109 Grubb Road, 886 F.2d 618, 621 (3d Cir.), reh'g denied, 890 F.2d 659 (3d Cir. 1989); United States v. One 56-Foot Motor Yacht Named Tahuna, 702 F.2d 1276, 1283 (9th Cir. 1983). Although a criminal conviction would generally suffice to demonstrate probable cause, see United States v. All Right, Title & Interest in Real Property & Building Known as 303 West 116th Street, New York, New York, 901 F.2d 288, 292 (2d Cir. 1990), such a conviction is not a prerequisite to a civil forfeiture proceeding. Id.; see United States v. Dunn, 802 F.2d 646, 647 (2d Cir. 1986), cert. denied, 480 U.S. 931, 94 L. Ed. 2d 760, 107 S. Ct. 1568 (1987); United States v. $ 152,160.00 United States Currency, 680 F. Supp. 354, 356 (D.Colo. 1988).

    Once the government establishes probable cause, the burden in forfeiture proceedings shifts to the claimant. See 19 U.S.C. § 1615; Premises Known as 3639 2nd St. N.E., Minneapolis, Minnesota, 869 F.2d at 1095. The claimant then must demonstrate by a preponderance of the evidence that the defendant property was not involved in illegal activity. See 19 U.S.C. § 1615; Premises Known as 3639 2nd St. N.E., Minneapolis, Minnesota, 869 F.2d at 1095; One Blue 1977 AMC Jeep CJ-5 v. United States, 783 F.2d 759, 761 (8th Cir. 1986). If the claimant fails to meet this burden, the government's showing of probable cause alone will support summary judgment of forfeiture. See Premises Known as 3639 2nd St. N.E., Minneapolis, Minnesota, 869 F.2d at 1095.
    United States v. One Sharp Photocopier, 771 F.Supp. 980 (D. Minn. 1991).

    That case references Section 509 of the Copyright Act which provided for seizures and forfeitures in criminal copyright cases. That section was repealed in 2008: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_public_laws&docid=f:publ403.1 10.pdf

    At the same time though, Congress altered Section 506(b) of the Copyright Act to state:
    (b) Forfeiture, Destruction, and Restitution.— Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323 of title 18, to the extent provided in that section, in addition to any other similar remedies provided by law.
    So seizures and forfeitures in criminal copyright cases is still allowed in the Code, but the authority for such seizures is now 17 U.S.C. 506 and 18 U.S.C. 2323.

     

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    •  
      icon
      The eejit (profile), Mar 11th, 2011 @ 12:19pm

      Re:

      Thank you for that. That clarifies things somewhat. I still have concerns with ICE and their affidavits, but that's a whole other kettle of fish.

      Still, it seems a bit odd that the US Government is basically using the same principle in its laws as channelsurfing.net used and was charged for.

       

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    •  
      icon
      Mike Masnick (profile), Mar 11th, 2011 @ 10:34pm

      Re:

      Here's a case for you that explains ex parte seizures and forfeitures in criminal copyright cases. Notice that the case states that merely showing probable cause of willful infringement is sufficient. There is no First Amendment bar as you have been suggesting

      That applies to the seizure *OF INFRINGING MATERIAL*. But that's not what happened here. They shut down blogs, which is prior restraint.

      I don't know why this needs to be repeated.

       

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      •  
        identicon
        Anonymous Coward, Mar 12th, 2011 @ 4:47am

        Re: Re:

        That applies to the seizure *OF INFRINGING MATERIAL*. But that's not what happened here. They shut down blogs, which is prior restraint.

        I don't know why this needs to be repeated.


        You, as usual, missed the entire point. The point is that the infringing material itself, OR PROPERTY USED TO COMMIT OR FACILITATE THAT INFRINGEMENT, can be seized ex parte--and there is no First Amendment bar.

        What was seized was the domain name, which is property that was used to facilitate the infringement. The fact that a blog also happened at that website doesn't matter, just like it didn't matter that books were sold where the prostitution occurred in Arcara.

        Why is this so hard for you to understand? Do you really think they can seize all the infringing copies ex parte, but as soon as they want to seize the instruments of that infringement, then they need a prior adversary hearing? LOL! That makes no sense.

        You're being willfully blind about the whole thing. Look up case law that's applied the old Section 509, or alternatively, the old Supreme Court Copyright Rules. Ex parte seizures in copyright cases have been happening for A LONG TIME. A LONG TIME.

        Not to mention similar seizures in trademark cases. But that's a subject apparently you don't care about. You've declared all the seizures to be unconstitutional without even really acknowledging that the analysis is different depending on whether the underlying claim is copyright or trademark.

        But hey, I know you're not here to get it right. You just want to spread your agenda. You decided these seizures were illegal the instant you first heard of them--without any legal analysis. And then you tried to work backwards, putting Karl out there as your legal point-man. LOL! That still cracks me up.

         

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      •  
        identicon
        Anonymous Coward, Mar 12th, 2011 @ 7:18am

        Re: Re:

        That applies to the seizure *OF INFRINGING MATERIAL*.

        One more thing. Apparently you didn't understand that case. It wasn't the infringing material that was seized. It was the tools used to infringe. That's why I selected that case. The fact that the seized tools had noninfringing uses is irrelevant.

         

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        •  
          identicon
          Jose_X, Mar 12th, 2011 @ 6:16pm

          Re: Re: Re:

          That case was in 1991 and was not a SCOTUS case. I don't think that included the context of domain names.

          Now, I don't know what the law allows or not, but would you then say that this ruling supports having a building seized ex parte if someone somewhere inside was making illegal copies of CDs?

          The building facilitated the illegal action.

          Actually a domain name is like an address. You are seizing the ability of people to contact that location and do much business with that location and engage in ongoing protected speech. Costs involved don't just affect that primary business but many others. Some items are not easily replaceable if at all.

          In particular, you make it very difficult to replace those conversations. If a copymachine is seized, we can get it back rather easily, but a blog has a community and access disrupted very significantly.

          So the point is not if the library/building/website could be shut down eventually (let's say Arcara applies), but if something like a domain name could be seized ex parte despite the potentially high costs to many third parties relying on that to conducting legal business, partake in a community, and practice legal speech that might be very difficult to replace.

          You are not just seizing to end the ability to infringe but are potentially disrupting lots of interests of many innocent third parties.

          Notice that the Representative questioned why ICE was not applying its action in other ways that were potentially less disruptive to innocent citizens, even if potentially some of its domain name seizures might be legal.

           

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  •  
    icon
    hmm (profile), Mar 12th, 2011 @ 9:49pm

    do you ever think that...

    perhaps the seizure of mooo.com wasn't anything at all to do with copyright and this is just a cover.
    Perhaps one or two of the sites had some info the government REALLY doesn't want anyone getting their hands on? Possibly even something the site creator may not have realized the value of........

    They seize a vast number of sites, KNOWING there will be fallout, but knowing whatever happens is far less than whatever the other site contained.
    I wonder if anyone has any backups of the sites that were taken down PRIOR to the takedown, to compare and see if the government has "amended" some of the content of these sites in the interim?

     

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  •  
    identicon
    Anonymous Coward, Mar 14th, 2011 @ 5:22am

    Mike--

    Over a century of ex parte seizures in criminal copyright cases, and yet you can't find one published case where a court says a prior adversary hearing is needed.

    Why do you think that is?

    That SHOULD tell you that it's because one is not needed.

    It's really that simple.

     

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    •  
      identicon
      HothMonster, Mar 14th, 2011 @ 2:54pm

      Re:

      Lol your still in here talking to yourself.

      "Over a century of ex parte seizures in criminal copyright cases, and yet you can't find one published case where a court says a prior adversary hearing is needed.

      Why do you think that is?"

      Your right, over the last century there have been literally millions of cases about criminal copyright infringement that involved the defendant linking to infringing content on a website. I mean really there are just libraries full of prior case law on this topic alone, like the Washington Library of Criminal Infringement Through Linking Protected Works. That ones my favorite, its in Ohio but its worth the drive.

      Oh what? The internet is only like 25 years old? So? I really don't see how all these cases I have in front of me about people making counterfeit versions real tangible goods and selling them in the real world doesn't really apply to this. Here what about this: a guy was selling counterfeit Prada purses out of his garage and they seized the garage without a prior adversary hearing? No? Why not? Clearly a guy linking to content hosted on another site and owned by a 3rd party whose identity we are unsure of is the same as a criminal cartel making makeshift Tylenol. What, really its not? Wait I still don't understand.

      Why can't a government police force "gather" evidence by having it handed to them by legacy media, signing there name to it and having a judge rubber stamp it. That sounds reasonable to me. I know if my ex-girlfriend went to the police and told them I eat babies I would want a judge to stamp that seizure warrant as fast as possible. I mean god forbid they don't post a sign in front of my house the says BABY EATER LIVES HERE while they take all my stuff, forward my mail to their offices, and reply to everyone that I am a baby eater. I mean its for the children right.

       

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    •  
      identicon
      HothMonster, Mar 14th, 2011 @ 2:59pm

      Re:

      PS.

      I said talking to yourself because when i read quotes like this:

      "please, stop being such a know-it-all and take some time to actually learn and understand the subject of which you speak. The fact that you just insist you're right even after you're shown to wrong over and over makes you look like a fool and an idiot."

      I can only imagine you accidentally read your post and are replying as such.

       

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  •  
    identicon
    Anonymous Coward, Mar 14th, 2011 @ 8:19am

    Karl--

    If I prove to you that copyright laws are neither content-based nor content-neutral, and that the Court in Eldred refused to apply intermediate scrutiny because they weren't going to apply ANY heightened scrutiny to the CTEA (and not because they had already applied strict scrutiny as you erroneously are claiming) will you promise to stop playing internet copyright lawyer? Is that a deal?

     

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


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