Puerto 80 Appeals: Asks Court To Recognize That Trampling The First Amendment Is Substantial Harm

from the and-here-we-go dept

We had just noted that the government had replied to Puerto 80's motion in the Justice Department's attempt to forfeit the two Rojadirecta domains it had seized earlier this year. In it, we wondered if Puerto 80 was also going to be appealing the earlier ruling from the court refusing to return the domains, saying that Puerto 80 failed to show that a First Amendment violation represented "substantial hardship." It turns out that Puerto 80 is in fact appealing that ruling, as the filing embedded below shows.

To understand what's going on, you have to dig a little bit into the laws around seizure and forfeiture. While similar and related, they're two separate things. Seizure is the preliminary effort, in which the government, with some sort of (often rubberstamped) court approval, goes and takes something. There are specific rules around that, and while the laws are not perfectly clear, it does seem to suggest that the purpose of seizure in most cases is to hold evidence for a future trial, with the thinking being that leaving it in the hands of criminals could mean that the evidence might disappear. Forfeiture is a process that often follows seizure, in which the government makes its case that it should get to permanently keep some property. In many (but not all) cases, the government seizes first, and then forfeits later, in two separate processes.

In the Rojadirecta case, Puerto 80 initially challenged the seizure, including on First Amendment grounds, arguing that seizing such a domain without an adversarial hearing represented a classic case of prior restraint. In response, about a week later, the government then went forward with the separate process of filing to be able to keep those domains via the forfeiture process. So there were actually two parallel processes going on -- one about seizure and the other about forfeiture.

The specific filing against the seizure asked for the domains to be returned, which is allowed under seizure laws if the owner of the property can show "substantial hardship" from the government retaining the property. The judge ruled that a First Amendment violation did not count as a substantial hardship, and that it was the wrong time to raise the First Amendment anyway, suggesting it was better off being raised during the forfeiture fight that was about to start. What we've been writing about this week was the forfeiture fight, since the judge "closed" the seizure part with that previous ruling.

However, even as the forfeiture process is ongoing, Puerto 80 is now officially appealing the ruling on the seizure part of the case and arguing, compellingly, that the seizure itself was prior restraint and that a First Amendment violation is, without question, a "substantial hardship," contrary to the court's original claims. Not surprisingly, Puerto 80 relies on the Fort Wayne Books vs. Indiana case that is pretty damning to the government's rationale:
In Fort Wayne, state and local officials (respondents) filed a civil action pursuant to Indiana’s RICO laws, alleging that the defendant bookstores had engaged in a pattern of racketeering activity by repeatedly violating Indiana’s obscenity laws. 489 U.S. at 50-51. Prior to trial, respondents petitioned for, and the trial court granted, immediate seizure of the bookstores pursuant to a state law that permitted courts to issue seizure orders “upon a showing of probable cause to believe that a violation of [the State’s RICO law] involving the property in question has occurred.” Id. at 51. On appeal, the Supreme Court held that the pretrial seizure order was unconstitutional, stating that “mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation.” Id. at 66. As in Fort Wayne, the government here has seized an entire business and effectively suppressed all of the expressive content hosted on it, including political discussions, commentary, and criticism by the site’s users— without it being determined whether the seizure was “actually warranted” under the relevant statutes. Id. at 67.

The prior restraint on Puerto 80 users’ and readers’ First Amendment rights constitutes irreparable harm of the highest order. The Supreme Court has held that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Bery v. City of New York, 97 F.3d 689, 693 (2d Cir. 1996) (“Violations of First Amendment rights are commonly considered irreparable injuries for the purposes of a preliminary injunction.”). In CBS, Inc. v. Davis, the Supreme Court stayed the lower court injunction that prohibited CBS from broadcasting video footage documenting unsanitary practices in the meat industry, finding that such prior restraint caused “irreparable harm to the news media that is intolerable under the First Amendment.” 510 U.S. 1315, 1315-16, 1318 (1994) (emphasis added). The deprivation of Constitutional rights is, therefore, ipso facto irreparable injury and subject to expedited review.

In the instant case, the government effectively shut down an entire website, suppressing all of the speech hosted on it, based on an assertion that there was probable cause to believe that some of the material linked to by the website (though not found on the website itself) might be infringing. Puerto 80 was not provided any advance notice, nor was it provided the opportunity to contest the seizure before (or, for that matter, shortly after) the government shut down the site. Nor were the site’s users afforded any notice or opportunity to contest the seizure. That procedural failing itself indicates that the government’s action was an unlawful prior restraint. “[T]he lack of notice or opportunity to be heard normally renders a prior restraint invalid.” United States v. Quattrone, 402 F.3d 304, 312 (2d Cir. 2005) (citing Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175, 180 (1968)).
The filing at this point is mainly to convince the court to accept an "expedited appeals" process, rather than a full filing on the reasons why the seizure was prior restraint and why prior restraint is a substantial hardship, but it certainly presents the basics of the argument. What the case may come down to is a question of whether or not "irreparable injury" is the equivalent of "substantial hardship." Not surprisingly, I would argue that an irreparable injury that involves stomping on someone's First Amendment rights is a very substantial hardship. So far one judge has disagreed. We'll see what happens on appeal.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Anonymous Coward, Sep 1st, 2011 @ 10:09am

    They tap dance around the fact that the website is still up, still accessible, and so on, that their business is not "impaired", they are not suddenly starving or without a roof over their heads because the domain was seized. That is the nature of "substantial hardship". It isn't just because you don't like it.

    What would be really funny is if this backfires, and the other court decides to put the entire process on hold pending resolution, and this turns into a 5 - 8 year fight to the Supreme Court, effectively locking the domain up for however long it takes.

    Careful what you wish for Puerto 80, you might just get it.

     

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  2.  
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    Dark Helmet (profile), Sep 1st, 2011 @ 10:21am

    Re:

    "That is the nature of "substantial hardship". It isn't just because you don't like it."

    Just to clarify, Puerto80 is saying that a violation of the first amendment is ALWAYS substantial hardship. Are you saying you disagree w/that?

    Or are you saying that this isn't a 1st amendment violation?

    Because if it's the former....there's no hope for you. A violation of a civil right is ALWAYS substantial hardship. Always....

     

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  3.  
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    Anonymous Coward, Sep 1st, 2011 @ 10:30am

    Re: Re:

    Yup, I am disagreeing with it, because it goes against existing rulings, as well as common sense.

    First off, the first amendment issue is for a court to decide. Illegal speech is not protected by the first amendment, so turning off the domain may have few if any first amendment issues. Secondly, courts have ruled in the past that some protected speech may be affected when illegal speech is stopped, and that to a certain degree, this is acceptable.

    Seizing a domain used in a potentially illegal act is no more and no less valid than seizing a car or the contents of a warehouse. There is no judgement at that moment, only an accusation. Domains are not special property, they are no more and no less subject to seizure than anything else.

    Further, if we want to get even more into it, Puerto 80 doesn't have any American free speech rights, unless they first want to admit that they are subject to US law. They would have to show that their "free speech" was occurring in the US, which could potentially make everything on their site subject to US law. Wouldn't that be fancy?

    Why do you think that a Spanish website can be immune from prosecution in the US for any of it's piracy, but somehow able to benefit from US law in the matters of free speech? Either they are in or they are out. Which one is it?

     

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  4.  
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    Ben in TX (profile), Sep 1st, 2011 @ 10:40am

    Re: Re: Re:

    How have you determined that anything on the site was 'illegal speech?'

    It seems to me that this should be determined by the court, not just arbitrarily decided by the Justice Department? That's the definition of prior restraint!!! Taking someone's rights away without any due process to determined if said speech is truly illegal (which it probably is NOT).

    The simple fact that stifling speech is a 1st Amendment violation if there's no due process to determine if anything illegal was said. If you don't recognize this then you don't understand anything about the 1st.

     

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  5.  
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    Anonymous Coward, Sep 1st, 2011 @ 10:43am

    Re: Re: Re: Re:

    Crime is illegal!

     

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    Anonymous Coward, Sep 1st, 2011 @ 10:47am

    Re: Re: Re: Re:

    That is exactly the point. First Amendment issues are something for the courts to decide. However, that does not preclude seizure before trial, which is common in many sorts of cases.

    Your logic otherwise is circular. Due process doesn't mean that you can keep committing the alleged bad acts while the case wanders through the court system. Once an offence is noted, and legal action started, and the seizure occurs based on a good faith warrant, the rest is, as they say, for the courts to decide over time.

    Since the websites are still up and free speech is still occuring without the domain, it is very unlikely they can show "substantial harm", no matter how hard Mike tries to redefine it.

     

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    The eejit (profile), Sep 1st, 2011 @ 10:49am

    Re: Re: Re:

    In the same way that a US ISP is being sued for giving information to a Thai company for an alleged criminal offence.

     

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  8.  
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    Anonymous Coward, Sep 1st, 2011 @ 10:50am

    substantial hardship

    Here's the applicable section of the law regarding the substantial hardship reason to return seized property:

    (1) A claimant under subsection (a) is entitled to immediate release of seized property if—
    (A) the claimant has a possessory interest in the property;
    (B) the claimant has sufficient ties to the community to provide assurance that the property will be available at the time of the trial;
    (C) the continued possession by the Government pending the final disposition of forfeiture proceedings will cause substantial hardship to the claimant, such as preventing the functioning of a business, preventing an individual from working, or leaving an individual homeless;
    (D) the claimant’s likely hardship from the continued possession by the Government of the seized property outweighs the risk that the property will be destroyed, damaged, lost, concealed, or transferred if it is returned to the claimant during the pendency of the proceeding; and
    (E) none of the conditions set forth in paragraph (8) applies. [paragraph 8 has to do with the risk that criminal activity will continue if the seized property is returned]


    I think the only one being used to justify to continued seizure is (c). There's no concern that puerto80 is going to run off and hide the dns name. And the judge says that he can't use (e) because he hasn't ruled that what they've been doing is illegal yet. The fact that they've lost a third of their traffic because of their seizure seems to be a pretty good indication that the seizure has prevented the functioning of the business. The idea that the business is still mostly functioning doesn't seem compelling to me.

     

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  9.  
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    Anonymous Coward, Sep 1st, 2011 @ 10:52am

    Re: Re: Re: Re: Re:

    In the case sited in the article, the courts ruled that, yes, you can "keep committing the alleged bad acts" if seizing the property would be prior restraint on speech. Keep in mind, that the domain is used by US citizens who do have 1st amendment protection of there speech.

     

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  10.  
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    Dark Helmet (profile), Sep 1st, 2011 @ 10:52am

    Re: Re: Re:

    "First off, the first amendment issue is for a court to decide."

    Well, of course, but this IS a court action. What's your point?

    "Illegal speech is not protected by the first amendment, so turning off the domain may have few if any first amendment issues."

    Perhaps you can point me to US court cases supporting your claim, but there have been legal filings that make it clear that domain names ARE a form of protected speech. Take Beck v. Eiland-Hall, for instance (though it's a WIPO case), in which Eiland-Hall's domain name was deemed protected political speech. Why would this domain be any different? Keeping in mind, of course, that the domain itself is NOT infringing, but rather is alleged to be property used in the commission of criminal infringement.

    "Secondly, courts have ruled in the past that some protected speech may be affected when illegal speech is stopped, and that to a certain degree, this is acceptable."

    Fair, except that rulings in the past have also made it clear that a much higher bar is set on siezures that involve such protected speech, as has been written about here. It's fairly clear that there is room for argument as to whether or not this siezure met that higher bar.

    "Seizing a domain used in a potentially illegal act is no more and no less valid than seizing a car or the contents of a warehouse."

    I don't believe that's true when you recognize domain names as protected speech themselves. Again, perhaps I'm missing court cases disabusing the notion of domain names as protected speech, but the WIPO case cited above would conflict with your analogy.

    "Domains are not special property, they are no more and no less subject to seizure than anything else."

    EXCEPT in light of the 1st amendment, which is what this is all about.

    "Further, if we want to get even more into it, Puerto 80 doesn't have any American free speech rights, unless they first want to admit that they are subject to US law."

    That's just silly. If their speech is in the jurisdiction of the American Government, then their speech is subject to Civil Rights protection. It is commonly excepted that while citizens of a country, including America, have greater protections under the law than non-citizens, that isn't the case with Civil Rights. Civil Rights apply to all persons, citizens or not.

    See: "The question of to whom civil and political rights apply is a subject of controversy. In many countries, citizens have greater protections against infringement of rights than non-citizens; at the same time, civil and political rights are considered to be universal rights that apply to all persons."

    -- from http://en.wikipedia.org/wiki/Civil_and_political_rights

    "They would have to show that their "free speech" was occurring in the US, which could potentially make everything on their site subject to US law. Wouldn't that be fancy?"

    It did. The free speech was the domain name, registered in the United States. It's covered.

    "Why do you think that a Spanish website can be immune from prosecution in the US for any of it's piracy, but somehow able to benefit from US law in the matters of free speech? Either they are in or they are out. Which one is it?"

    Uh, sorry, but it isn't that simple. Parts of speech, protected or otherwise, are occuring in different jurisdictions here. The protected speech (my contention) of the domain name is occurring here in the States. It's protected.

     

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  11.  
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    Anonymous Coward, Sep 1st, 2011 @ 10:53am

    Exactly what rights does the US government have to censor foreign websites by seizing domain names with no due process? The beacon of democracy is no better than China in this regard.

     

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  12.  
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    Jay (profile), Sep 1st, 2011 @ 10:53am

    Re: Re: Re:

    "...because it goes against existing rulings, as well as common sense."

    So it goes against Fort Wayne Books v Indiana? Fascinating...

    " Secondly, courts have ruled in the past that some protected speech may be affected when illegal speech is stopped, and that to a certain degree, this is acceptable."



    "Why do you think that a Spanish website can be immune from prosecution in the US for any of it's piracy, but somehow able to benefit from US law in the matters of free speech? "
    Because a Spanish website should be able to express itself without the US government interfering. The government should not be able to take away *any* property before finding evidence of wrongdoing. The government has already admitted that this case is flimsy and not against Puerto 80, but what it's *users* put on the website. It has links to places that could be charged with direct download infringement.

    Further, our government has a very strong tendency to go after websites using "American consumers" as an excuse. Or have you not heard about the poker raids committed by small towns that add up to huge amounts of money for police officials?

     

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  13.  
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    Ninja (profile), Sep 1st, 2011 @ 10:54am

    Re: Re: Re:

    Illegal speech? Wtf? KKK is allowed to express themselves and have PayPal accounts to receive donations and you throw illegal speech in the discussion? Please, define illegal speech in terms of current law.

    Also, the domain is managed by the US and that's why it was seized for starters. While the site has all the linking to potentially infringing material it has plenty of legal uses and, the shock, it is legal in Spain and also in the US since it is LINKING to the said material.

    Suppose I post a link in my blog that points to child porn in an article titled asking for help on how to denounce it to the authorities. According to the US Govt I'm guilty of distributing CP. My example is extreme but it's exactly what is happening here. The solution would be to take the site hosting the CP down, not the blog that posted the link and, if doubt, investigate the blogger to confirm if he isn't the source of the material along with the link.

    Common sense is dangerous. My common sense might not be so common for you.

     

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  14.  
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    Anonymous Coward, Sep 1st, 2011 @ 10:55am

    Re: Re: Re:

    "Seizing a domain used in a potentially illegal act is no more and no less valid than seizing a car or the contents of a warehouse."

    While true, also irrelevant to the First Amendment argument. The supreme court seems to disagree with you: "... the Supreme Court held that the pretrial seizure order was unconstitutional, stating that "mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation.". Books are 'valid seizable' items too. In other words, just because it can be seized doesn't mean the government is allowed to seize them.

    "Puerto 80 doesn't have any American free speech rights, unless they first want to admit that they are subject to US law"

    BWAHAHAHA... so you believe rights and freedoms only extend to Americans and no one else? Thomas Jefferson seems to disagree: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed;"


    "Why do you think that a Spanish website can be immune from prosecution in the US for any of it's piracy, but somehow able to benefit from US law in the matters of free speech? Either they are in or they are out. Which one is it?"

    First there's no such crime as piracy, copyright infringement is what you mean. Second, they are not immune - there is nothing stopping an American from seeking restitution from a Spanish company except your apparent belief they can't. And before you try mention it, speech is an inalienable right, copyright is not an inalienable right - it's an artificial legal right created by government.

     

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  15.  
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    Squirrel Brains (profile), Sep 1st, 2011 @ 10:55am

    Re: Re: Re:

    The AC that continually advances this point also continually misses the point. The speech being blocked is not the allegedly infringing content. It is all the other content on the site that does not have anything to do with any infringement. One second of stopping that speech is irreparable harm (see case sited in the brief).

    If the US does not have jurisdiction of the Spanish site, then the US could not have seized the website in the first place.

     

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  16.  
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    Anonymous Coward, Sep 1st, 2011 @ 10:56am

    Re: Re: Re:

    Yup, I am disagreeing with it, because it goes against existing rulings, as well as common sense.

    I agree that the purported First Amendment rights of the site's users is not a "substantial hardship" as the statute defines it. But I don't think that's the end of the appeal. I think that Puerto 80 has a good argument that the fact that there is no mechanism for it to timely challenge the First Amendment violation is itself a violation of the First Amendment's procedural requirements.

    First off, the first amendment issue is for a court to decide. Illegal speech is not protected by the first amendment, so turning off the domain may have few if any first amendment issues. Secondly, courts have ruled in the past that some protected speech may be affected when illegal speech is stopped, and that to a certain degree, this is acceptable.

    Blocking the copyright infringing speech without an adversarial hearing upfront is not a problem. But, blocking protected speech (like in the forums) without an adversarial hearing (or the opportunity for a hearing shortly thereafter) is unconstitutional prior restraint. Yes, courts have said that "some protected speech may be affected when illegal speech is stopped," but that's when speech is blocked after an adversarial hearing, not before it.

    Seizing a domain used in a potentially illegal act is no more and no less valid than seizing a car or the contents of a warehouse. There is no judgement at that moment, only an accusation. Domains are not special property, they are no more and no less subject to seizure than anything else.

    Seizing a domain name is fundamentally different than seizing a car. Domain names point to websites and websites may contain public forums. Seizing a domain name has the potential to take protected speech offline without adequate process.

    Further, if we want to get even more into it, Puerto 80 doesn't have any American free speech rights, unless they first want to admit that they are subject to US law. They would have to show that their "free speech" was occurring in the US, which could potentially make everything on their site subject to US law. Wouldn't that be fancy?

    They are arguing that it's the First Amendment rights of their U.S.-based users that are being affected. Puerto 80 has not challenged the government's in rem jurisdiction over the domain names, so I don't get the rest of your point.

    Why do you think that a Spanish website can be immune from prosecution in the US for any of it's piracy, but somehow able to benefit from US law in the matters of free speech? Either they are in or they are out. Which one is it?

    I don't think that's an accurate way to frame it. The domain names are subject to U.S. law. No one is arguing otherwise.

     

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  17.  
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    Anonymous Coward, Sep 1st, 2011 @ 10:57am

    Judge seems to already have prejudices

    Here's the words of the judge:

    ". Puerto 80 alleges that, in seizing the domain names, the Government has suppressed the content in the “forums” on its websites, which may be accessed by clicking a link in the upper left of the home page. (Pl. Mem. 10.) The main purpose of the Rojadirecta websites, however, is to catalog links to the copyrighted athletic events — any argument to the contrary is clearly disingenuous. Although some discussion may take place in the forums, the fact that visitors must now go to other websites to partake in the same discussions is clearly not the kind of substantial hardship that Congress intended to ameliorate "

     

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  18.  
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    anonymous, Sep 1st, 2011 @ 10:59am

    Re: Re: Re:

    if Puerto 80 'doesn't have any American free speech rights', how come other parts of US law are being applied? surely they either have all rights or no rights under US law. if no rights apply, they shouldn't have been subject to ICE interference anyway.

     

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  19.  
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    Michael Whitetail, Sep 1st, 2011 @ 10:59am

    Re: Re: Re:

    I like how you tap dance around the fact that the DoJ flat out lied at all stages of this in claiming criminal copyright infringment for mearly linking to material hosted elsewhre.

    There is case law showing that mearly linking is not infringement at all, and even if it was infringement, it does not even come close to passing the test for criminal infringement.

    Also, I just love how you tap dance around the fact that this is not a US company, is not hosted or quartered in the US, and was found legal, twice, in its country of incorporation.

    Pot.kettle.black

     

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  20.  
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    Anonymous Coward, Sep 1st, 2011 @ 11:04am

    Re: Judge seems to already have prejudices

    Although some discussion may take place in the forums, the fact that visitors must now go to other websites to partake in the same discussions is clearly not the kind of substantial hardship that Congress intended to ameliorate

    I don't think that visitors do have 'other websites' to go to partake in the same discussions. If Techdirt were shut down, I really don't know what site I could go to converse with Mike Masnick, Dark Helmet, etc. I think there may be a freedom of assembly issue here as well as a freedom of speech.

     

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  21.  
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    Anonymous Coward, Sep 1st, 2011 @ 11:06am

    Re: substantial hardship

    The fact that they've lost a third of their traffic because of their seizure seems to be a pretty good indication that the seizure has prevented the functioning of the business. The idea that the business is still mostly functioning doesn't seem compelling to me.

    Agreed. I think they have a good argument on appeal that seizing the domain name obviously prevents the functioning of a business, notwithstanding the fact that they were able to relocate with a new domain name. Losing 1/3 of their traffic is hardly insignificant.

     

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    Hephaestus (profile), Sep 1st, 2011 @ 11:12am

    What everyone is missing ....

    If this goes down in flames on the ICE side. It basically destroys PROTECT IP before it is signed into law.

     

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  23.  
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    Anonymous Coward, Sep 1st, 2011 @ 11:16am

    Re: Re: Re: Re:

    You said: "DoJ flat out lied at all stages of this in claiming criminal copyright infringment for mearly linking to material hosted elsewhre"

    Me: Sorry, but they are not up for "merely linking". The site was created with the singular goal to be a resource for pirated material, plain and simple. It's the same reason that The Pirate Bay isn't operating in the US - because what they do would be actionable here.

    "merely linking" makes it sound like "oops, they had a link to a bad file". Reality is the site was one large collection of bad links, and they made their money only because they have those "links".

    Why do you think there are no sites like this operating in the US, anyway?

     

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  24.  
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    Anonymous Coward, Sep 1st, 2011 @ 11:18am

    Re: substantial hardship

    C doesn't work, because the site is up and running. They are not preventing from working, they are not made homeless.

    None of them seem very compelling towards stopping the seizure of the domain.

    BTW, what is a "dns name"?

     

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  25.  
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    PRMan, Sep 1st, 2011 @ 11:20am

    Re: Re: Re: Re: Re:

    Let me know when they come up with something criminal then... Everything so far has been civil...

     

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  26.  
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    Anonymous Coward, Sep 1st, 2011 @ 11:28am

    Re: Re: Re:

    Two points:

    If they are not subject to US law, then their website / domain are not subject either.

    Second, all it would take is to identify 1 single US citizen who communicates on their site to be able to assert a first amendment violation.

     

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  27.  
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    Anonymous Coward, Sep 1st, 2011 @ 11:30am

    Re: Re: Re: Re: Re:

    Read the fucking article:
    On appeal, the Supreme Court held that the pretrial seizure order was unconstitutional, stating that “mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation.”

    So in reality and according to the SCotUS even 'once an offence is noted' i.e. probable cause pretrial seizure can still be unconstitutional on first amendment grounds. I mean the quote literally addresses the exact situation you're trying to use as an example and says the precedent is against you so please, read the fucking article next time.

     

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  28.  
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    Anonymous Coward, Sep 1st, 2011 @ 11:40am

    Re: Re: Re: Re:

    You said: "First off, the first amendment issue is for a court to decide."

    Well, of course, but this IS a court action. What's your point?

    Me: My point only is that this is only a discussion of "substantial hardship", not a deep probing of the full first amendment issues. The full first amendment issues (regarding if free speech was somehow trampled, that the speech was legal or illegal, etc) are for the other branch of this case.

    Without showing some very substantial issue, they are unlikely to win this part of the deal.

    You said: " Parts of speech, protected or otherwise, are occuring in different jurisdictions here. The protected speech (my contention) of the domain name is occurring here in the States. It's protected"

    Me: The domain name in itself isn't free speech, at least not from what I can tell. It is only a locator, nothing more. A street name, example, is not in itself free speech. Changing the name of a street, example, is not a violation of free speech.

    Domain registry is "contract law" and not really free speech, so on that level, it won't work out.

     

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  29.  
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    Michael Whitetail, Sep 1st, 2011 @ 11:43am

    Re: Re: Re: Re: Re:

    Wow... You are really mis-informed and are being purposfully dense about this. Linking is no infringement in this country or in Spain. Even if it was it would be civil infringement and not criminal and therefore not subject to seizure or forfeiture.

    That they recieved ad revenue is beyound the point as they do not meet any of the other criteria for Criminal infringemnet.

    Since they were found, twice, to be legal in their country of operation, they cannot be willfully infringing on things that are not considered infringement in this country or in Spain.

    Your entire aurgument is invalid, and the fact that you parrot it over and over again after being shown by countless poeple who actually understand the law involved shows that you are nothing more than a troll


    trollface.png

     

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  30.  
    identicon
    Anonymous Coward, Sep 1st, 2011 @ 11:43am

    Re:

    You tap dance around the fact that it doesn't matter that they moved the website so it's still accessible through other channels:
    http://www.law.cornell.edu/supct/html/historics/USSC_CR_0425_0748_ZO.html

    SCotUS is clear, you can't shut down free speech just because that speech is still available through other venues.

     

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  31.  
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    Someantimalwareguy (profile), Sep 1st, 2011 @ 11:43am

    Re: Re: Re:

    ...First off, the first amendment issue is for a court to decide. Illegal speech is not protected by the first amendment,...
    Please explain to me where "illegal speech" has anything to do with this case? Last I checked, illegal speech was related to things such as bomb threats, "fighting" words, hate speech, etc.

    Are you saying that a post with a link to some site somewhere that provides infringing streams is somehow a bomb threat? Really? Or perhaps induces hate speech or threatening someone's life?

     

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  32.  
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    Ron Rezendes (profile), Sep 1st, 2011 @ 11:44am

    Holy dictatorship Batman!

    "...they are not suddenly starving or without a roof over their heads because the domain was seized."

    Even if I am starving and without a roof over my head, violating my First Amendment rights COULD NOT POSSIBLY qualify as a justified action per:

    The Supreme Court has held that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”

    Just because you suspect that I possibly violated the law, and you even have reasonable cause to bring forth legal action, until due process has taken place in a court of law, my rights are inalienable and your violation of my rights is beyond reprehensible.

     

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  33.  
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    Anonymous Coward, Sep 1st, 2011 @ 11:54am

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

    I read the article. It is a pleading, not a statement of fact. They are trying to suggest the law says this, but it is not obviously true. There is sufficient probably cause for (a) a warrant to be issued, and (b) for the case to move forward in the courts.

    You also have to deal with the issue that no information has been removed from circulation. Puerto 80 still operates their website, the material is still widely available, and no business has stopped.

    It would be different if servers has been seized, offices shut down, etc. But since that is not the case, the only thing the police seized would be the address plate from the front of the building with the books in it. It is a pretty big climb up the ladder to say that this is equal to seizing a book or film and keeping it from circulation.

     

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  34.  
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    Anonymous Coward, Sep 1st, 2011 @ 11:55am

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

    Michael, the question stands:

    Why are there no sites of this type in the US?

    Answer that, and you will have your own answers. Oh yeah, stick your graphics up your ass.

     

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  35.  
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    Anonymous Coward, Sep 1st, 2011 @ 12:00pm

    Re: Re: Re: Re: Re:

    Domain registry is "contract law" and not really free speech, so on that level, it won't work out.

    Domain names are proper nouns.

    Proper nouns are governed by speech law.

    Sane courts have bowed to the authority of elementary school teachers on this issue: There is a free speech interest in domain names.

     

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  36.  
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    Anonymous Coward, Sep 1st, 2011 @ 12:03pm

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

    ...no information has been removed from circulation.

    The domain name has been removed from circulation.

     

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  37.  
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    Anonymous Coward, Sep 1st, 2011 @ 12:11pm

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

    [citation needed]

     

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  38.  
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    Anonymous Coward, Sep 1st, 2011 @ 12:12pm

    Re: Re: substantial hardship

    Domain name, sorry.

    Hypothetically, If they have to lay off an individual due to the reduced traffic and revenue caused by the seizure, does that count as the continued possession by the government preventing someone from working?

     

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  39.  
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    Chronno S. Trigger (profile), Sep 1st, 2011 @ 12:14pm

    Re: Re: substantial hardship

    "BTW, what is a "dns name"?"

    It's a name that gets a response from the DNS server.

    C does work because it's exactly like saying McDonalds can't use their name any more. You go out for a burger and all you see is "Bob's burgers". You lose your name recognition and a substantial chunk of business.

    And before you ask, a DNS server is a domain naming service server.

     

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  40.  
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    Anonymous Coward, Sep 1st, 2011 @ 12:15pm

    Re: Re: Re: Re:

    Illegal speech is any speech not covered by the first amendment. As an example, obscene material while speech, is not considered "legal speech", and thus is not protected by the first amendment.

    There is no suggestion that someone providing infringing streams is issuing a bomb threat. In the same manner that a drunk driver isn't issuing a bomb threat either. They are different crimes. By your logic, a parking ticket would be some sort of bomb threat. It does not follow.

     

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  41.  
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    Anonymous Coward, Sep 1st, 2011 @ 12:16pm

    Re: Re: Re: Re:

    No, that would be a defense for the other part of the case. Here is are only looking at the "substantial hardship" of the seizure. Everything else is moot, because it is before another court.

     

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  42.  
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    Anonymous Coward, Sep 1st, 2011 @ 12:22pm

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

    [citation needed]


    Taubman, off the top of my head. Elsewhere in the comments, someone mentions Glick.

    We've been discussing this for months. Try to keep up.

     

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  43.  
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    Anonymous Coward, Sep 1st, 2011 @ 12:27pm

    Re: What everyone is missing ....

    God bless the Spanish for defending the US constitution from attacks by the US.

     

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  44.  
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    Jeffrey Nonken (profile), Sep 1st, 2011 @ 12:30pm

    Re: Re: Re:

    "First off, the first amendment issue is for a court to decide. Illegal speech is not protected by the first amendment, so turning off the domain may have few if any first amendment issues."

    Since the court has not yet determined that, suppressing Puerto 80's first amendment rights on the grounds of illegal speech is prior restraint. You're starting with an assumption of guilt. Next!

    "Seizing a domain used in a potentially illegal act is no more and no less valid than seizing a car or the contents of a warehouse. There is no judgement at that moment, only an accusation. Domains are not special property, they are no more and no less subject to seizure than anything else."

    As I understand it (IANAL) seizure of property prior to due process is intended for cases in which the prosecution believes that the the property constitutes evidence and that the accused may destroy or otherwise make unavailable the evidence before it can be used. So what you're saying is that if Puerto 80 is allowed to retain their domains, they could hide them or destroy them. And in fact that they're likely to do so. I'm still trying to figure out a) how they'd hide or destroy them and b) how they'd use them for their business after they've been hidden or destroyed. Moreover, you're suggesting that the actual domains may be evidence. Not the content of the web sites, but just the domains.

    "Further, if we want to get even more into it, Puerto 80 doesn't have any American free speech rights, unless they first want to admit that they are subject to US law. They would have to show that their "free speech" was occurring in the US, which could potentially make everything on their site subject to US law. Wouldn't that be fancy?"

    And yet the US has control over the domain system and is using that to prosecute Puerto 80. Isn't that fancy?

    "Why do you think that a Spanish website can be immune from prosecution in the US for any of it's piracy, but somehow able to benefit from US law in the matters of free speech? Either they are in or they are out. Which one is it?"

    It seems like they're making legal arguments in US court that the seizure of their domains is illegal in the US by US law. Which is exactly what they'd be doing if they were a US-based company, and they'd be doing it whether they were guilty or not.

    And if they are immune from prosecution, what right does the US have for seizing the domains in the first place? Seems like you're trying to say that it's OK for the US to seize property for alleged crimes outside its jurisdiction, but the defendant is not allowed to try to get its property back because it's outside the US's jurisdiction. Nice scam but not a very good simulation of logic.

     

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  45.  
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    The eejit (profile), Sep 1st, 2011 @ 12:34pm

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

    Because people are scared of the MAFIAA suing them into bankruptcy. Because people don't want the law to massively favour a small number of people. Because people no longer give a shit about American law being "exported" to other nations.

    Pick one, you asshat-wearing clownboat.

     

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  46.  
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    Jeffrey Nonken (profile), Sep 1st, 2011 @ 12:35pm

    Re: Re: What everyone is missing ....

    Hear hear! I think when this is over we should all send them thank-you cards. (Dead-tree cards by snailmail. I don't want to be accused of promoting spam or a DDOS attack. :)

     

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  47.  
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    Squirrel Brains (profile), Sep 1st, 2011 @ 12:37pm

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

    Lol... there are sites that do similar things in the US.

     

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  48.  
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    The eejit (profile), Sep 1st, 2011 @ 12:37pm

    Re: Re: What everyone is missing ....

    [Python]NO ONE EXPECTS THE SPANISH INQUISITION![/pYTHON]

     

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  49.  
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    Someantimalwareguy (profile), Sep 1st, 2011 @ 12:38pm

    Re: Re: Re: Re: Re:

    Actually, your analogy is way off base and a bit too general. try reading the following and then try a reply:

    http://legal-dictionary.thefreedictionary.com/Freedom+of+Speech

     

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  50.  
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    The Groove Tiger (profile), Sep 1st, 2011 @ 12:41pm

    Re:

    "Careful what you wish for Puerto 80, you might just get it."

    You mean they could get their domains back? Awesome!

     

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  51.  
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    Michael Whitetail, Sep 1st, 2011 @ 12:45pm

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

    Indeed there are. Any torrent search engine including Google is a prime example.

    As for the comment:

    "It's the same reason that The Pirate Bay isn't operating in the US - because what they do would be actionable here." this is incrediable bullshit!

    I work at an ISP, roadrunner to be specific, and we do not block any websites, least of all TPB. As we are partnered and run on Time Warner Cables backbone, we know that they do not block any websites either.

    There is no law, order, or precident in the US for blocking/filtering specific websites.

    troll trolling trolls doesnt even come close.

    EFG.jpg

     

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  52.  
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    Anonymous Coward, Sep 1st, 2011 @ 12:49pm

    Re: Re: Re: Re:

    No.

    Go read up on Arcara v Cloud Books.

     

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  53.  
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    The Groove Tiger (profile), Sep 1st, 2011 @ 12:50pm

    Re: Re: Re:

    "Seizing a domain used in a potentially illegal act is no more and no less valid than seizing a car or the contents of a warehouse."

    You mean, for example, if the warehouse were to contain a printing press? I can agree with that.

     

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  54.  
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    PaulT (profile), Sep 1st, 2011 @ 12:52pm

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

    Analogies are not one of his strong suits. But then, neither are facts.

     

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  55.  
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    Anonymous Coward, Sep 1st, 2011 @ 12:55pm

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

    No shit Sherlock, that's why Protect IP is going to be passed; because when a site is overseas, content owners have no remedy at the moment to protect the infringement of their IP.

    If the site was in the US, they'd simply be sued and shut down.

     

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  56.  
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    Anonymous Coward, Sep 1st, 2011 @ 12:56pm

    Re: Re: Re: Re: Re:

    Arcara justifies the ultimate forfeiture, but not the initial seizure. Arcara does some work for your side, but not all the work that needs to be done to make it constitutional. You can't distinguish Fort Wayne Books with Arcara.

     

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  57.  
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    Anonymous Coward, Sep 1st, 2011 @ 1:00pm

    Re: Re: Judge seems to already have prejudices

    You morons are outdoing yourselves with the stupidity here.

    Thank god the judge has finally brought an intelligent adult voice to the table to slap you losers back into reality.

     

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  58.  
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    Anonymous Coward, Sep 1st, 2011 @ 1:06pm

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

    And I couldn't care less about how Puerto 80 tries to drag Fort Wayne Books into this. They're wrong for trying to do it and the judge at some point is going to explain that to them.

    This is all just a dumb show for the tech and pirate lobbies to put on so they can use it in propaganda against legislation that hurts their pirate business.

    Snore.

     

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  59.  
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    Anonymous Coward, Sep 1st, 2011 @ 1:09pm

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

    Why doesn't Fort Wayne Books apply?

     

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  60.  
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    Anonymous Coward, Sep 1st, 2011 @ 1:13pm

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

    Because no servers were seized and Puerto 80 wasn't shut down.

    The only way Fort Wayne could maybe possibly have been considered would be if that had occurred.

     

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  61.  
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    taoareyou (profile), Sep 1st, 2011 @ 1:18pm

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

    If the government accuses your business of doing something illegal, should it have the right to direct all your business to their own location, where there is the appearance to those you do business with that you are a criminal? Should it also make it difficult for people who used to go to your business to now find it?

    All the while having no actual evidence of any crime (after all, if they really had evidence that a crime was being committed, they would have taken servers, etc)?

    This is nothing more than an attempt for the government to destroy a business it cannot prosecute for a crime, in the name of special interests.

     

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  62.  
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    Anonymous Coward, Sep 1st, 2011 @ 1:18pm

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

    I do keep up.

    You can read this if you want to keep up some more (and open your mind a bit further):

    http://www.copyhype.com/2011/01/domain-name-seizures-dont-violate-first-amendment/

    I don't full agree with them, but they do cite many good examples, more than what appears to be in this court brief.

     

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  63.  
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    Anonymous Coward, Sep 1st, 2011 @ 1:20pm

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

    They were shut down. After the seizure occurred, you could no longer access the website where free speech was occurring using rojadirecta.org or rojadirecta.com. If the website is analogous to a bookstore, then seizing a domain name is like chaining the bookstore's doors shut. If the government has probable cause that a bookstore is infringing in part, it can't just get a warrant, chain up the front door, and then walk away indefinitely. That would violate the First Amendment.

     

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  64.  
    identicon
    Anonymous Coward, Sep 1st, 2011 @ 1:25pm

    Re: Re: Re: Re:

    You said: ". so you believe rights and freedoms only extend to Americans and no one else? "

    Me: BWAHAHAHAHAHA no.

    Simply put, it is a question of jurisdiction. In claiming 1st amendment rights, they are ceding the jurisidictional issue. If they are not subject to US law for the rest of it, why should they be able to try to squirm away by using US law?

    It isn't a question of if the law only applies to Americans. The question is "does the court have jurisdiction?". In asking for relief under the 1st amendment, they are directly admitting that the US law applies here.

    You said: "irst there's no such crime as piracy, copyright infringement is what you mean. Second, they are not immune - there is nothing stopping an American from seeking restitution from a Spanish company except your apparent belief they can't."

    Me: Where did you get all that from? First off, piracy is the general term used to describe copyright infringement. Copyright infringement done for profit becomes a criminal act. It does not stop the companies from going after the infringer themselves in the civil part, but that right does not in any way diminish criminal liablity. Remember OJ.

    As for your "this right isn't like that right" argument, all I can say is that a civilized society is made up of laws. If you want anarchy, the US certainly isn't a place you want to be.

     

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  65.  
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    Anonymous Coward, Sep 1st, 2011 @ 1:26pm

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

    Michael, I didn't ask if you would BLOCK a site in the US, I asked you why none of the sites are hosting and operating openly in the US.

    It's a huge difference.

     

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  66.  
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    Anonymous Coward, Sep 1st, 2011 @ 1:30pm

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

    I am only answering your equally off base conclusion.

    Oh and Paul, if you aren't adding anything, please give it a rest. You are entitled to your opinion, please respect that I have the same rights, even if you don't agree with it. I find it incredibly disheartening that a site that is so much about the first amendment is filled with people who would rather shout me down than have a discussion.

     

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  67.  
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    Anonymous Coward, Sep 1st, 2011 @ 1:31pm

    Re: Judge seems to already have prejudices

    It is just unfortunate that nobody else in this discussion bothered to read what the judge had to say.

    I guess Mike didn't read it either.

     

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  68.  
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    Anonymous Coward, Sep 1st, 2011 @ 1:34pm

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

    No, they were not shut down. Their servers were still active, etc. They were accessible via another domain immediately afterward.

    This is obvious to anyone that isn't encumbered by the bias of the pirate lobby.

     

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  69.  
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    Anonymous Coward, Sep 1st, 2011 @ 1:34pm

    Re: Re:

    Schneider v State (1939) is probably a better citation for the proposition:

    [O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.


    (H/t EFF).

     

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  70.  
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    Anonymous Coward, Sep 1st, 2011 @ 1:35pm

    Re: Re: Re: substantial hardship

    Umm, Chronno, I have only set a few of those up in my day. I know how the intertube thing works. I was asking the anon, because I had never heard of a "dns name", and thought there might be something else involved.

     

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  71.  
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    Anonymous Coward, Sep 1st, 2011 @ 1:36pm

    Re: Re: Re:

    "appropriate places" is the most important part of that sentence.

     

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  72.  
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    Jay (profile), Sep 1st, 2011 @ 1:40pm

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

    Because Operation In Our Sites has been so effective at controlling IP rights online... /s

     

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  73.  
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    Anonymous Coward, Sep 1st, 2011 @ 1:40pm

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

    This site has nothing to do with protecting the First Amendment. That's a smokescreen. All the people here care about is being able to continue to rip off music and movies.

    That's it.

    And everybody knows it.

     

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  74.  
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    Anonymous Coward, Sep 1st, 2011 @ 1:50pm

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

    No, they were not shut down. Their servers were still active, etc. They were accessible via another domain immediately afterward. This is obvious to anyone that isn't encumbered by the bias of the pirate lobby.

    I don't think it's nearly that simple. It comes down to blocking access. When the government seized the domain names, they blocked access to the website. That triggers the First Amendment notwithstanding the fact that they were back up and running under different domain names shortly thereafter.

    I don't have a problem with these seizures. I think they're a good idea, and I strongly support the PROTECT IP Act. I simply think that the process that exists to challenge these seizures likely violates the First Amendment. Seize all the domain names you want. Just provide the opportunity for a hearing promptly thereafter.

     

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  75.  
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    PaulT (profile), Sep 1st, 2011 @ 1:52pm

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

    Oh, please. Your free speech is not being violated. You have every right to exercise your right to free speech. Just as I am free to exercise mine to criticise you when your rely on falsehood, faulty assumptions and misleading analogies.

    If you don't like being criticised for these tactics so often, I would suggest not using them, but freedom of speech does not mean freedom from criticism as so many people seem to think. Your rights are not being violated.

     

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  76.  
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    Anonymous Coward, Sep 1st, 2011 @ 1:55pm

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

    It would be akin to the police putting a curtain over 1 window of the book store, but leaving the door open and all the content intact. Access is not blocked, you can only not see what is behind the curtain.

    Puerto 80 websites are up, continue to be up, and their "free speech" (under whatever Spanish freedom laws they operate) is not blocked.

    Put another way, returning them the domain right now would not suddenly increase the amount of free speech going on. There is little reason to undo what has already happened.

    As for "prompt" hearings, I would say that this is at least as prompt if not faster than your typical copyright infringement case. The legal system's version of prompt doesn't match the online world. Too bad.

     

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  77.  
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    PaulT (profile), Sep 1st, 2011 @ 1:55pm

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

    "No, they were not shut down. Their servers were still active, etc. They were accessible via another domain immediately afterward."

    So, if I were to chain the front doors of the library shut because I didn't like what they had inside, their rights would not be violated because I didn't chain the back door?

    "This is obvious to anyone that isn't encumbered by the bias of the pirate lobby."

    ...and back to the idiocy. No wonder you people can't hold a decent conversation.

     

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  78.  
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    PaulT (profile), Sep 1st, 2011 @ 1:57pm

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

    "And everybody knows it."

    One day, we'll get people whose arguments don't depend on ad hominem attacks and lying about their opponents opinions. Then maybe the adults can talk again...

    Alas, we're stuck with these fools.

     

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  79.  
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    Anonymous Coward, Sep 1st, 2011 @ 1:57pm

    Re: Re: Re: Re:

    "appropriate places"


    Schneider concerned public sidewalks.

    In Reno v ACLU (1997), the court found that there is no basis to “qualify” free speech on the internet.

    [O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.


    A domain name server is an “appropriate place” to publish a domain name.

     

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  80.  
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    Dark Helmet (profile), Sep 1st, 2011 @ 2:10pm

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

    "It would be akin to the police putting a curtain over 1 window of the book store, but leaving the door open and all the content intact. Access is not blocked, you can only not see what is behind the curtain."

    Ugh, NO IT WOULDN'T! It would be like going to my local Giordano's Pizza and taking down their facade so that no one who hadn't been there before would know what the place was. Wanna bet whether or not there would be a lawsuit if the police did that because some of the patrons inside were discussing how to do something illegal while eating their pizza?

    Jesus, this whole thread is retarded....

     

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  81.  
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    Brendan (profile), Sep 1st, 2011 @ 2:21pm

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

    Why do you hate freedom?

    More importantly, what about the users who have not been able to find the information at its new address. Their speech and access to other speech has been restricted substantially.

    And let's address the catch22 here directly: either the seizure was effedtive in blocking several users from accessing the information that the Jdept wishes to surpress, thereby restricting speech and triggering first amendment issues; or, the seizure did not cause first amendment issues because everyone can still do everything they could do before, making the seizure pointless and should be reversed as a wasteful abuse of both the .com registrar system and Us court time.

    Youn can't take parts of both. Pick one.

     

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  82.  
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    Anonymous Coward, Sep 1st, 2011 @ 2:22pm

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

    As for "prompt" hearings...


    Freedman v Maryland (1965), while recognizing that “that motion pictures are not ‘necessarily subject to the precise rules governing any other particular method of expression’ ”, nevertheless struck down a censorship scheme where “no time limit [was] imposed”.
    Risk of delay is built into the Maryland procedure, as is borne out by experience; in the only reported case indicating the length of time required to complete an appeal, the initial judicial determination has taken four months, and final vindication of the film on appellate review six months.

    If “your typical copyright infringement case” takes longer than six months, then it's not prompt.

     

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  83.  
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    Anonymous Coward, Sep 1st, 2011 @ 2:43pm

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

    If the cops were to seize Giordano's phone number, do think that's a First Amendment or prior restraint issue?

    Of fucking course not.

    You were right about one thing tho, this thread is indeed retarded.

     

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  84.  
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    btrussell (profile), Sep 1st, 2011 @ 2:56pm

    Re: Re: Re: Re:

    "Moreover, you're suggesting that the actual domains may be evidence. Not the content of the web sites, but just the domains."

    And we all know how tricky it is to take a snapshot of a screen. Set-up tripod, insert film roll...

     

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  85.  
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    Karl (profile), Sep 1st, 2011 @ 3:07pm

    Re: Re: Re:

    First off, the first amendment issue is for a court to decide.

    And until a court decides otherwise, all speech is protected speech.

    Illegal speech is not protected by the first amendment, so turning off the domain may have few if any first amendment issues.

    If the domain only had unprotected speech on it, you might have a point. But it did not. The majority of the speech was protected, so by turning off the domain, you're blocking speech which is not even allegedly unlawful.

    Secondly, courts have ruled in the past that some protected speech may be affected when illegal speech is stopped, and that to a certain degree, this is acceptable.

    This is 100% wrong. No court has ever said this. They have said that if any law targets "illegal speech," it must be as narrowly tailored as possible to affect only the illegal speech. Otherwise, it is unconstitutional.

    Seizing a domain used in a potentially illegal act is no more and no less valid than seizing a car or the contents of a warehouse.

    There is a world of difference, as domain names are fundamentally used for protected speech, and cars or warehouses are not:
    The rooftops of our past have evolved into the internet domain names of our present. We find that the domain name is a type of public expression, no different in scope than a billboard or a pulpit [...]

    - Taubman v. Webfeats

    This means that the seizure of a domain name - like the seizure of a bookstore, and unlike the seizure of a car - automatically raises First Amendment concerns.

    Further, if we want to get even more into it, Puerto 80 doesn't have any American free speech rights, unless they first want to admit that they are subject to US law.

    That is why they are arguing on behalf of their U.S. users' First Amendment rights.

    Although, you bring up an interesting bit of hypocrisy on ICE's side. If the domain name is not subject to U.S. law, then ICE has no right to seize it in the first place. But if it is, then it should also be entitled to any defenses that can be raised under U.S. law - including First Amendment defenses.

    In fact, it's really ironic that ICE would be doing this - since U.S. Customs did similar seizures in the past, and immediately backed down when First Amendment issues were raised. Exactly as they should have, and exactly as they should now.

     

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  86.  
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    Anonymous Coward, Sep 1st, 2011 @ 3:20pm

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

    If the cops were to seize Giordano's phone number...


    Who the fuck is Giordano?

    Anyhow, as Harold Feld recently pointed out, “seizing” telephone service has been struck down:
    In Pike v. Southern Bell Tel. & Telegraph Co., 81 So.2d 254 (Ala. 1955), Mr. Connor, in his capacity as Commissioner of Public Safety for the City of Birmingham, ordered Southern Bell to remove the telephone of one Louis Pike, described by Mr. Connor as “a negro” of “questionable character” alleged by Mr. Connor to be a “well-known lottery operator in the city” and to be using his phone for unspecified “illegal purposes.” Reviewing cases from other jurisdictions (including People v. Brophy), the Alabama Supreme Court found that the right of every citizen to use a phone was guaranteed by federal law and could not be deprived without due process. As the Court observed:
    The present tendency and drift towards the Police State gives all free Americans pause.

     . .  .

    These depredations of a subscriber’s legal right to telephone service constitute a denial of due process guaranteed by the Constitution of 1901, art. 1, § 6. The gratuitous and arbitrary action of a police official is no justification for an abridgment of this right. To hold that the Telephone Company is justified in discontinuing service by “order” of a police official would require judicial recognition of a police power which does not exist. The bald assertion of an executive officer, be he the Attorney General of the United States or a constable of some remote beat, cannot be accepted as a substitute for proof in the judicial process. No presumption arises as to the sufficiency of evidence based on a law enforcement officer’s conclusions.

    (Part of blockquoted text omitted.)

    In the case of a prior restraint, the first, fourth and fifth amendments almost run into each other. It hardly matters whether an unconstitutional prior restraint is struck down as a denial of due processs, struck down as an unreasonable seizure—or struck down as an abridgment of freedom of speech or of the press.

     

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  87.  
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    Anonymous Coward, Sep 1st, 2011 @ 3:43pm

    Re: Re: Re: Re:

    Seizing a domain used in a potentially illegal act is no more and no less valid than seizing a car or the contents of a warehouse.

    ...The supreme court seems to disagree with you....



    “It is no answer to say that obscene books are contraband, and that consequently the standards governing searches and seizures of allegedly obscene books should not differ from those applied with respect to narcotics, gambling paraphernalia and other contraband. We rejected that proposition in Marcus.”

        —Quantity of Books v Kansas (1964)

     

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  88.  
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    Anonymous Coward, Sep 1st, 2011 @ 3:52pm

    Re: Re: Re:

    "Why do you think that a Spanish website can be immune from prosecution in the US for any of it's piracy, but somehow able to benefit from US law in the matters of free speech? Either they are in or they are out. Which one is it?"

    I dunno maybe the same reason Americans are not jailed and their assets seized in Spain because they broke Spanish law inside America and the courts where notified?

    Spain should just look at every American company that do business with them and start seizing all their assets in that country that would show how stupid that modus operandis is.

     

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  89.  
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    Anonymous Coward, Sep 1st, 2011 @ 3:53pm

    Re: Re: Re: Re: Re:

    How can you commit an illegal act when it was proved to be legal twice?

     

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  90.  
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    Anonymous Coward, Sep 1st, 2011 @ 5:43pm

    Re: Re: Re: Re:

    [A]ll it would take is to identify 1 single US citizen who communicates on their site to be able to assert a first amendment violation.


    Stanley v Georgia (1969) points outs that Americans have the right to obtain knowledge.

    “It is now well established that the Constitution protects the right to receive information and ideas. "This freedom [of speech and press] . . . necessarily protects the right to receive . . . ." Martin v. City of Struthers (1943); see Griswold v. Connecticut (1965); Lamont v. Postmaster General, (1965) (BRENNAN, J., concurring); cf. Pierce v. Society of Sisters (1925). This right to receive information and ideas, regardless of their social worth, see Winters v. New York (1948), is fundamental to our free society.”

    (Pin cites omitted.)

    “Fundamental to our free society.”

    Further, one of the cases cited for that proposition, Lamont v Postmaster General (1965), struck down a limitation on the right to receive information from foreign countries.

    The principle of Lamont has been held not to extend so far as to override “plenary congressional power” to exclude alien persons. But in Kleindienst v Mandel (1972), the government argued that technology could substitute for “sustained, face-to-face debate, discussion and questioning.”

    The Government also suggests that the First Amendment is inapplicable because appellees have free access to Mandel's ideas through his books and speeches, and because "technological developments," such as tapes or telephone hook-ups, readily supplant his physical presence.


    Kleindienst was a close-enough case to make it to the Supreme Court, and be decided there on a 6 to 3 vote.

    In the present circumstances, we have no more and no less than “technological developments” which give Americans opportunity to receive information and ideas from overseas.

     

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  91.  
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    btrussell (profile), Sep 1st, 2011 @ 6:19pm

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

    I thought it was just "rip" or "ripping?"

    Is it now called "rip off" CD? I'll have to update my programs, they still say "rip."

     

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  92.  
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    Anonymous Coward, Sep 1st, 2011 @ 6:43pm

    TITLE 17 > CHAPTER 10 > SUBCHAPTER D > § 1008

    § 1008. Prohibition on certain infringement actions

    No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

     

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  93.  
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    Anonymous Coward, Sep 1st, 2011 @ 8:01pm

    Re: TITLE 17 > CHAPTER 10 > SUBCHAPTER D > § 1008

    Can you explain how this applies here?

     

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  94.  
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    Anonymous Coward, Sep 1st, 2011 @ 8:25pm

    It would be akin to the police putting a curtain over 1 window of the book store, but leaving the door open and all the content intact. Access is not blocked, you can only not see what is behind the curtain.

    Access is blocked. If I type rojadirecta.com into my browser, I cannot access the site. The government is causing my access to be blocked right at this very moment.

    Puerto 80 websites are up, continue to be up, and their "free speech" (under whatever Spanish freedom laws they operate) is not blocked.

    They are up elsewhere. That does not negate the fact that the government is causing access to be blocked.

    Put another way, returning them the domain right now would not suddenly increase the amount of free speech going on. There is little reason to undo what has already happened.

    It's about more than just returning the domain names. It's about determining whether or not this violates the Constitution.

    As for "prompt" hearings, I would say that this is at least as prompt if not faster than your typical copyright infringement case. The legal system's version of prompt doesn't match the online world. Too bad.

    A copyright infringement case has adequate process. These seizures do not. In a copyright infringement case you don't seize the defendant's instrumentalities without given him a lot more process than we're seeing here.

     

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  95.  
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    Anonymous Coward, Sep 1st, 2011 @ 10:39pm

    Re: Re: Judge seems to already have prejudices

    There is nothing to read, the judge is incompetent to judge something that is done in another country where by the way their own justice system found it to be legal.

    There was no crime committed in US soil unless the US courts want to assert jurisdiction over Spain now.

     

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  96.  
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    Anonymous Coward, Sep 1st, 2011 @ 10:41pm

    Re: Re: substantial hardship

    Seize what, no crime was comited in US soil, their own justice system says it is ok, so now what a US court is asserting jurisdiction over Spain now?

     

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  97.  
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    Anonymous Coward, Sep 1st, 2011 @ 10:44pm

    We should all start streaming TV shows to one another directly LoL

     

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  98.  
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    Anonymous Coward, Sep 2nd, 2011 @ 7:16am

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

    Wrong, this:
    “mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation.”

    Is a direct quote from a SCotUS decision, not just a pleading. Probable cause isn't enough and the SCotUS has spelled that out for you in black and white.

    You have to deal with the issue that shutting down a venue for speech is not automatically exempt from First Amendment claims simply because the speech can continue in a different venue. This issue was brought up in a reply to your thread with several links to SCotUS cases that backed it up:
    http://www.law.cornell.edu/supct/html/historics/USSC_CR_0425_0748_ZO.html
    http://supreme.justi a.com/us/308/147/case.html
    http://laws.findlaw.com/us/521/844.html
    Furthermore it is factually incorrect that 'no business has stopped' because the site, at its new location, is down about 33% of its usual traffic.

    The seizure was of a domain name but the entire point of domain name seizing is to limit US originating traffic to the site. You cannot simultaneously claim that nothing really changed and that the seizure was necessary in the first place. If the seizure did nothing then there was no reason to do it. It's clear though that the effect was much greater than nothing.

     

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    Anonymous Coward, Sep 2nd, 2011 @ 7:23am

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

    It has not been proven legal in the US. Failed argument.

     

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  100.  
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    Anonymous Coward, Sep 2nd, 2011 @ 7:30am

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

    Paul, even the judge knows it. The judge stated that in the original judgement, that it would be out of line to suggest that the site existed for any other reason except piracy. Arguing that would be disingenuous, I think the word was.

    No ad hominem attacks, this is what a judge saw as plain as day, as something that cannot be argued against.

     

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    Anonymous Coward, Sep 2nd, 2011 @ 7:36am

    Re:

    Access is blocked. If I type rojadirecta.com into my browser, I cannot access the site. The government is causing my access to be blocked right at this very moment.

    Try:

    http://www.google.ca/search?aq=f&sourceid=chrome&ie=UTF-8&q=rojadirec t

    They are up elsewhere. That does not negate the fact that the government is causing access to be blocked.

    Actually, they are up where they always were. No servers were taken down, no equipment seized, no offices raided.

    It's about more than just returning the domain names. It's about determining whether or not this violates the Constitution.

    That is a matter for the courts. The only part of this right now (this legal argument) is if the seizure of the domain makes it up to "substantial hardship", which they are very unlikely to show. My two answers above are proof enough that there may be some inconvenience, but nothing that makes it up to the "substantial hardship" standard.

    A copyright infringement case has adequate process. These seizures do not. In a copyright infringement case you don't seize the defendant's instrumentalities without given him a lot more process than we're seeing here.

    A poor example. No "instruments" were seized here. No physical thing was taken.

    This case has plenty of due process. Besides this extra hearing, there have already been two other hearings on this case (one on the same subject as this, ruled against Rojo), and the start of the other case by the government. You may not like the speed that the justice system works, but it is incredibly satisfying to me to see the pirate supporters whining about the speed of the justice system. Perhaps you will better understand why civil action against pirates is such a painful process now.

     

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  102.  
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    PaulT (profile), Sep 2nd, 2011 @ 7:44am

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

    "No ad hominem attacks, this is what a judge saw as plain as day"

    Your ad hominem attack was against the users of this site:

    "All the people *here* care about" (emphasis mine)

    I somehow don't think that Techdirt were part of the judge's ruling, making this comment rather silly and missing the point. Another attempt to ignore what's actually being said and to try and divert it to your own preferred narrative. Par for the course, yet again.

     

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    Anonymous Coward, Sep 2nd, 2011 @ 7:56am

    A poor example. No "instruments" were seized here. No physical thing was taken.

    Huh? The government's theory is that the domain names facilitate crime. That's what instrumentality of crime means. Instruments don't have to be physical things. That's silly. "Any property" that facilitates crime may be seized forfeited. That's what the statute says.

    This case has plenty of due process. Besides this extra hearing, there have already been two other hearings on this case (one on the same subject as this, ruled against Rojo), and the start of the other case by the government. You may not like the speed that the justice system works, but it is incredibly satisfying to me to see the pirate supporters whining about the speed of the justice system. Perhaps you will better understand why civil action against pirates is such a painful process now.

    There hasn't been a hearing yet where the First Amendment was relevant because no such hearing is possible. I believe that in itself may violate the First Amendment. Presumably the "substantial hardship" exception exists because when a seizure interferes significantly with our lives or livelihoods, there must be process for us to challenge the seizure. If my fundamental right to life or livelihood gets process and consideration, so should my express First Amendment rights.

    A mechanism is already in place to challenge the seizures, the Section 983 petition that Puerto 80 brought. I don't think it's asking too much for the purported First Amendment violations to be considered in that proceeding. If there's already process in place for relief when the seizure affects lives and livelihoods, why not have similar (or the same) process available when it's someone's constitutional rights being violated?

     

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  104.  
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    Anonymous Coward, Sep 2nd, 2011 @ 8:51am

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

    Wrong, this:
    “mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation.”

    Is a direct quote from a SCotUS decision, not just a pleading. Probable cause isn't enough and the SCotUS has spelled that out for you in black and white.


    I think the obscenity cases like Fort Wayne Books can be distinguished. In an obscenity case, a subjective determination that something is obscene has to be made before the warehouse full of books may be seized. This means that an adversarial hearing is needed before the seizure can take place. You don't have that situation when it's copyright. Whether something is infringing can be determined without an adversarial hearing (in general this is true; of course there are exceptions). A warehouse full of bootleg recordings could be seized ex parte without an adversarial hearing upfront and without violating the First Amendment.

    But I think all of that misses the point. Even if the copyright-infringing speech can be seized ex parte, what about the presumptively protected speech in the forums? Pointing to that quote from Fort Wayne Books is misleading. The presumptively protected speech in that case couldn't be seized ex parte because a subjective determination had to be made first. That's not the situation here. The presumptively protected speech here is not only presumptively protected, it is protected in fact. No determination about its protected status need be made, whether subjective or objective. The government mush concede that the speech it is seizing on those forums is protected.

    I think the arguments that rely on the obscenity cases erroneously reach the conclusion that if there's no prior adversarial hearing then it's per se unconstitutional prior restraint. First of all, prior restraint is not per se unconstitutional. Even if seizing a domain name is prior restraint, that doesn't mean it's necessarily unconstitutional. I think it's possible to have a system, like perhaps the one envisaged in the PROTECT IP Act, where enough process renders the seizure constitutionally acceptable.

    Or perhaps not. Maybe given the nature of the beast, First Amendment Due Process requires a system of notice and hearing before the seizure takes place. It wouldn't necessarily have to be a full hearing on the merits, but it would include a meaningful opportunity to be heard before the deprivation. I think there is a good argument that First Amendment rights are sufficiently important that notice and a preseizure hearing are needed before the government can seize a domain name.

    I dunno. Whether the First Amendment requires more process before the seizure or after is a question certainly worthy of the Second Circuit's time. While the First Amendment issue may not squarely be related to the "substantial hardship" under Section 983, I'm sure there's some mechanism whereby they can consider the issue on the merits. I don't know exactly how that all works, but I suspect it's one of those things where if the Second Circuit wants to rule on the issue, they will.

     

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  105.  
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    Anonymous Coward, Sep 2nd, 2011 @ 9:25am

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

    ...prior restraint is not per se unconstitutional.


    The Pentagon Papers case: New York Times v United States (1971):

    PER CURIAM.

    We granted certiorari in these cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled "History of U.S. Decision-Making Process on Viet Nam Policy."

    "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan (1963); see also Near v. Minnesota (1931). The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." Organization for a Better Austin v. Keefe (1971). The District Court for the Southern District of New York in the New York Times case and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had not met that burden. We agree.

     . . . .


    “Heavy presumption against”   “Heavy burden of showing justification“

    No, it's not per se unconstitutional.

     

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  106.  
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    Anonymous Coward, Sep 2nd, 2011 @ 9:32am

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

    Right. It's presumed to be unconstitutional, but it's not unconstitutional per se.

     

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  107.  
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    Anonymous Coward, Sep 2nd, 2011 @ 9:59am

    Re:

    If I type rojadirecta.com into my browser, I cannot access the site.


    How to Edit Your Windows HOSTS File.

    DNS name resolution is ultimately controlled from the end-user client.

     

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  108.  
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    Anonymous Coward, Sep 2nd, 2011 @ 10:02am

    Re: Re:

    DNS name resolution is ultimately controlled from the end-user client.

    I don't see the relevance. Are you arguing that the government is not blocking access to the Rojadirecta website. That seems disingenuous. Of course they are. That's why they seized the domain names.

     

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  109.  
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    Anonymous Coward, Sep 2nd, 2011 @ 10:07am

    Re: Re: Re:

    Are you arguing that the government is not blocking access to the Rojadirecta website.


    No. The government is indeed inhibiting access for a majority of users right now.

    However, the government's action is unconstitutional. You have no duty to cooperate with the government's unconstitutional orders.

    Your internet is broken. Fix it.

     

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  110.  
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    Anonymous Coward, Sep 2nd, 2011 @ 12:11pm

    Re: Re: Re: Re:

    Your internet is broken. Fix it.

    I don't think the internet is broken. It's just more growing pains.

     

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  111.  
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    Anonymous Coward, Sep 3rd, 2011 @ 2:52am

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

    The site is ALSO not under US jurisdiction, so the case shouldn't have happened in the first place.

     

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  112.  
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    Anonymous Coward, Sep 3rd, 2011 @ 9:48am

    From the latest filing, the issue on appeal is framed as: "Does depriving Puerto 80 of its domain name, and thereby restricting access to all content contained on its website, without any judicial determination that such a seizure was consistent with the First Amendment, constitute an illegal prior restraint on speech?"

     

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  113.  
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    Karl (profile), Sep 4th, 2011 @ 12:14am

    Re: Re: Re: Re: Re:

    I don't think the internet is broken. It's just more growing pains.

    Just to point something out: the internet has been around since 1996 or thereabouts. That's roughly 15 years... which is longer than the total time VHS tapes were available to the public, and much longer than they were around when the Supreme Court decided the Sony case.

    Unless you think VHS tapes, circa 2002, were also suffering "growing pains," I don't really think you have a leg to stand on.

     

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  114.  
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    Anonymous Coward, Sep 4th, 2011 @ 7:34am

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

    Huh? What do VHS tapes have to do with the internet. Never mind....

    Here's something for your Sunday pleasure reading, Karl: http://www.scribd.com/doc/63825861/Rojadirecta-Reply-Memo-of-Law

     

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  115.  
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    Karl (profile), Sep 4th, 2011 @ 12:08pm

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

    Huh? What do VHS tapes have to do with the internet.

    That was only about the "growing pains" comment, nothing more. The internet is at least as mature and well-established as VHS tapes - and the businesses that used them. We're well past the "growing pains" stage by now.

    That's all.

    Thank you for the link. I'll read it right now.

     

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  116.  
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    Karl (profile), Sep 4th, 2011 @ 12:52pm

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

    I'll read it right now.

    Just finished. A good, short read.

    Most of it was stuff I already knew before. One thing I didn't consider, however, was the specifics of the jurisdictional issues.

    In order for ICE to have any jurisdiction whatsoever, the infringement must have occurred within the United States. They have utterly failed to show this, as laid out in Rojadirecta's reply.

    Simply put, even if someone in the U.S. viewed the streams, that is not enough to claim the infringement happened in the U.S. That is because the jurisdiction of the infringement is the jurisdiction where the infringing content is located. ICE has not alleged that any server streaming the infringing content was located within the U.S. Furthermore, even if ICE is correct in stating that Rojadirecta "facilitated" infringement, such facilitation would also have occurred outside the U.S.

    Overall, all the arguments seem pretty air-tight to me. Hopefully the judge will agree.

     

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  117.  
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    Anonymous Coward, Sep 5th, 2011 @ 11:03am

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

    Notice that they are now arguing the First Amendment issue in the forfeiture action. That's new. They didn't bring up the First Amendment in their motion to dismiss. So now they're arguing that on two fronts: the appeal to the Second Circuit of their 983(f) petition, and now the motion to dismiss the forfeiture. I'm still trying to understand how the First Amendment is exactly the issue on appeal. While Puerto 80 raised the issue, the judge didn't rule on it either way. I'm not sure how that's now the issue on appeal when it seems beside the point.

     

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    Karl (profile), Sep 5th, 2011 @ 3:39pm

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

    Notice that they are now arguing the First Amendment issue in the forfeiture action. That's new. They didn't bring up the First Amendment in their motion to dismiss. So now they're arguing that on two fronts: the appeal to the Second Circuit of their 983(f) petition, and now the motion to dismiss the forfeiture. I'm still trying to understand how the First Amendment is exactly the issue on appeal. While Puerto 80 raised the issue, the judge didn't rule on it either way. I'm not sure how that's now the issue on appeal when it seems beside the point.

    It is confusing, but here's how I understand it. There are, essentially, three parallel parts of the case being decided:

    1. An application to return the seized domain. This has to do with the ex parte seizure, not the government's forfeiture action. Puerto 80 raised First Amendment concerns here, but the judge claimed that First Amendment concerns were not appropriate to raise at this juncture, since First Amendment harms do not raise to the level of "substantial hardship" necessary to return the seized assets. This is what is on appeal, and if I have to predict, I think it will be partially overturned and remanded.

    2. The motion to dismiss the forfeiture, based on accusations that Rojadirecta itself is guilty of criminal copyright infringement. This is the prevailing theory that the Government worked under, both in attaining the seizure warrants and in all prior court filings. I don't know why Rojadirecta didn't bring up First Amendment concerns in this first memorandum, but I suspect that since the focus was on Rojadirecta itself, and not its users, they felt that First Amendment concerns wouldn't be appropriate (since the First Amendment does not protect foreign businesses). But that's just a guess.

    3. The motion to dismiss the forfeiture, based on accusations that Rojadirecta's users are guilty of criminal copyright infringement. This is the theory that the Government is now raising (contradicting what it said both in earlier filings, and in the seizure warrant itself, plus of course what ICE claimed publicly). Since the focus is on the users, including U.S. users, then those users' First Amendment concerns are once again valid, and this reply is now the appropriate place to raise them.

    One thing to consider is that the Government is now revealing that it does not intend to file any charges against Rojadirecta itself. If no charges are filed, the motion to dismiss based on those accusations might be considered moot by the judge. In essence, the Judge could say, "Well, you can raise First Amendment issues when you're defending yourself from charges, but since no charges are filed, you have nothing to defend against, and I won't even listen to you." If that's the only appropriate time to raise First Amendment concerns, then it could mean that First Amendment defenses could not be raised at all.

    Perhaps Rojadirecta's lawyers suspected that would happen, and that's why the chose to raise First Amendment concerns elsewhere? I dunno. All of this is just guesswork at this point.

     

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