Puerto 80 Explains How Rojadirecta Domain Seizures Violated The First Amendment

from the prior-restraint dept

The appeal of a district court's refusal to return the Rojadirecta domain names has moved forward. Our original post discussed a filing to ask the Second Circuit appeals court for an expedited hearing of the case, which the court has agreed to do. That means that this case should move relatively quickly. To kick that off, Puerto 80s opening brief in the appeal is below. It goes through, in great detail, how seizing a domain name without any notification, and then stalling any attempt to get it back, clearly qualifies as prior restraint. The full thing is worth reading, as it lays out the argument clearly and in great detail. But here's the summary of the argument:
The government seized and shut down two Internet domain names—the 21st century equivalent of printing presses. See Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997) (noting that through use of the Internet, “any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.”). Seizure of that sort is a prior restraint on speech. Prior restraints are “‘the most serious and least tolerable infringement’ on our freedoms of speech and press.” United States v. Quattrone, 402 F.3d 304, 309 (2d Cir. 2005) (quoting Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976) ). They can be justified only by scrupulous attention to procedure and an extraordinary showing on the merits. Neither is present here.

The government seized and shut down Puerto 80 and its users’ means of communication in an ex parte procedure with no notice to Puerto 80 and no adversary hearing of any kind. It held those domain names for more than six months before any court ever considered whether the seizure violated the First Amendment or caused Puerto 80 substantial hardship such that the domain names should be released pending a determination of the merits of the forfeiture case. To date, no court has reached the merits of the government’s case. When the district court did rule, it dismissed the First Amendment concerns in a paragraph, improperly placing the burden on Puerto 80 to show that it suffered substantial hardship from the government’s prior restraint. And the government did all this without ever having had to prove to any court that Puerto 80 (or anyone else) was guilty of copyright infringement. Indeed, to this day the government takes the position that it will never have to justify its seizure by showing that Puerto 80 violated any law. (MJN, Exhibit D at 1.)

The procedure used by the government flies in the face of First Amendment law. Decades of First Amendment jurisprudence establishes that the government is entitled to seize property used for speech only after notice to the property owner and an adversarial hearing that fully vets the merits of the government’s case and concludes that the defendant acted unlawfully. This seizure was conducted with no notice, no hearing of any kind, and was based only on the government’s assertion that it had probable cause to believe that criminal infringement occurred because some of the content linked to by Puerto 80 may be unauthorized. That procedural failure is itself enough to condemn the government’s action as an unlawful prior restraint. And it is compounded by the government’s substantive failure to show anything more than probable cause to believe that criminal copyright infringement had occurred. The First Amendment requires more than probable cause. It requires a final determination on the merits that Puerto 80’s use of the domain names was unlawful. For both reasons, the government’s prior restraint was unlawful and should be lifted.
From there, it goes into a much more detailed explanation of why the seizures represent a violation of the First Amendment. There were some questions as to whether or not this argument would get heard at all after the district court's original ruling, so it's good to see it come up here. Hopefully the court recognizes the seriousness of the issue. I'm guessing the Justice Department will try to sidestep the First Amendment issues by focusing on the question of "substantial hardship," but one hopes that the court can recognize the simple ridiculousness of the government being able to seize an entire domain with no notice, no adversarial hearing, no path to getting the site back and (most importantly) no proof or evidence that a crime was actually committed.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    out_of_the_blue, Sep 20th, 2011 @ 6:55am

    Yeah, but any yahoo can also make money off infringement.

    "any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.”

    This Rojadirecta seems fixated on those domain names rather than just moving on to another, say Puerto81. I wonder why. Even if their case was good -- and when reasonably grounded in /near/ infringement, I think it's well enough founded that a jury won't regard Rojadirecta favorably -- then it's still a waste of time. -- What's in a name? The links to infringing content would still be as sweet on another domain name.

     

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  2.  
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    Anonymous Coward, Sep 20th, 2011 @ 7:02am

    "To kick that off, Puerto 80s opening brief in the appeal is below. It goes through, in great detail, how seizing a domain name without any notification, and then stalling any attempt to get it back, clearly qualifies as prior restraint. The full thing is worth reading, as it lays out the argument clearly and in great detail."

    So would you say that they lay out the arguments "in great detail"? :)

    "There were some questions as to whether or not this argument would get heard at all after the district court's original ruling, so it's good to see it come up here."

    I'm still unclear how this is the issue on appeal. What's being appealed is the ruling on the 983(f) petition. Yes, Puerto 80 brought up the First Amendment in their petition, but Judge Crotty didn't really rule on it because it's irrelevant to the issue of "substantial hardship." Can someone explain how the issue on appeal is prior restraint and not substantial hardship? I just don't see it.

     

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  3.  
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    Anonymous Coward, Sep 20th, 2011 @ 7:09am

    Re: Yeah, but any yahoo can also make money off infringement.

    That's not how free speech works, the government cannot simply shut down speech just because it could continue somewhere else.

    No one really gives a shit how you regard Rojadirecta so please stop injecting your personal feelings in as if they are the de facto opinions of a hypothetical jury. It's crass, it's presumptive, it's transparent, and it's pathetic.

     

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  4.  
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    Josh in CharlotteNC (profile), Sep 20th, 2011 @ 7:19am

    Re: Yeah, but any yahoo can also make money off infringement.

    What's in a name?

    Brand. Image. Recognition. History.

    Let's put it in a way the IP lawyers can understand. The government has unilaterally seized a trademark. What if they decided to seize the name of Coca-cola and say the company could no longer use that?

    Should the government have that power?

    Brand is a powerful thing. Companies with good brands want to keep them in good standing in the minds of customers. Companies with tarnished brands want to get rid of them. If there's nothing in a name, why did Blackwater change it's name to Xe?

     

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  5.  
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    Peter, Sep 20th, 2011 @ 7:25am

    My first IP takedown

    Sorry off topic but I had to share. I have just got my first IP threat.

    My wife has a hobby making, among other things, baby's little booties which she sells locally.

    Yesterday I got a phone call from some irate woman who was complaining that we were stealing her design. Specifically she sells design patterns and was accusing us of using one of her design patterns for 'commercial purposes' and to cease immediatly or she would sue us.

    I pointed out two things.
    1. The volume of sales achieved would probably not pay for an initial appointment with a lawyer, let alone cover the cost of a lawsuit.
    2. If she did decide to sue us, we would produce photographs showing my wife as a little baby wearing identical booties made by her Grandmother, which would mean our design pre-dates her design by at least 40 years.

    We ended the conversation with her still proclaiming that because her design was 'published', she owns the 'IP rights'. She just could not get that someone may have come up with same design independantly, let alone 40 years ago.

    Ho Hum.

     

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  6.  
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    Anonymous Coward, Sep 20th, 2011 @ 7:29am

    Re: My first IP takedown

    The nimrod with whom you spoke on the phone is a natural product of today's society. It'll get worse before it gets better.

     

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  7.  
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    Anonymous Coward, Sep 20th, 2011 @ 7:33am

    Alas, all the government did was remove the name off the front of the printing press, and left the press intact. Rojo continues to publish their works, unimpeded.

    Quite simply, the printing press (server) wasn't seized, neither was the distribution method (network connection at their data center).

    Rojo's free speech was not significantly curtailed, any more than the police shutting down a public park for a day truly hurts those with a soap box and an attitude.

    Further, let's consider that Rojo attempts to stand on the head of a pin by saying their service is "legal in Spain". Now, since their .ES domain is still up and active, have they not continued to have free speech where they claim they are operating from?

    The more Rojo goes, the more they appear to be admitting that they are subject to US law, which would be a truly bad thing from them to prove.

     

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  8.  
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    Anonymous Coward, Sep 20th, 2011 @ 7:35am

    Janet Reno and the Obama Administration will be forever known as the killer of Internet business. I had Partners, Investors and wrote most of the code to implement a free video streaming site for users everywhere. It was all in place to implement as a new company with new jobs and an economic boost for the area where I am. As a result of the impending PROTECT IP act, 3 strikes, Illegal Seizures by our government of Web Sites and Domains plus the censorship that is happening worldwide even in free market nations, everything fell apart from fear. All the investors backed out and I don't blame them. I won't put my money into internet until we get rid of Obama and his socialist agenda. We also need to muzzle or eliminate (terminate) Janet Reno. This is one crazy freaky woman of whom I doubt she even has a brain of her own.
    This is an exact copy of an email I sent to Obama at the White House.

     

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  9.  
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    Anonymous Coward, Sep 20th, 2011 @ 7:38am

    Re:

    If your business plan was based on getting free content by abusing copyright (oh, sorry, letting your users abuse copyright for your profit) then you are a douche and deserve to lose out.

    Sorry.

    Oh, and Janet Reno is long gone.

     

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  10.  
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    Anonymous Coward, Sep 20th, 2011 @ 7:40am

    Re: Re:

    We planned on doing everything legally and you mama is the douche bag.

     

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  11.  
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    Anonymous Coward, Sep 20th, 2011 @ 7:42am

    Re: Re:

    Chump! it's a-holes with attitudes like yours that allow this crap to happen. Apathetic do nothing but complain and bitch and put people down for trying to do something and make an honest dollar.

     

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  12.  
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    Anonymous Coward, Sep 20th, 2011 @ 7:43am

    Re:

    "Alas, all the government did was remove the name off the front of the printing press, and left the press intact. Rojo continues to publish their works, unimpeded."

    Having to relocate to a new domain name and losing 1/3 of their traffic is hardly "unimpeded." Regardless, the seizure implicates the First Amendment.

    "Quite simply, the printing press (server) wasn't seized, neither was the distribution method (network connection at their data center)."

    Yet, a channel of communication was blocked, implicating the First Amendment.

    "Rojo's free speech was not significantly curtailed, any more than the police shutting down a public park for a day truly hurts those with a soap box and an attitude."

    But it was curtailed enough to implicate the First Amendment, so your point misses the mark.

    "Further, let's consider that Rojo attempts to stand on the head of a pin by saying their service is "legal in Spain". Now, since their .ES domain is still up and active, have they not continued to have free speech where they claim they are operating from?"

    Again, the fact that they were able to relocate doesn't mean that the First Amendment issue isn't in play.

    "The more Rojo goes, the more they appear to be admitting that they are subject to US law, which would be a truly bad thing from them to prove."

    Huh? The issue isn't whether there is in personam jurisdiction over Puerto 80, so your point makes no sense. The jurisdiction at issue is in rem over the domain names, and Puerto 80 isn't even challenging it.

    You just aren't saying anything that furthers the debate.

     

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  13.  
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    Jeremy7600 (profile), Sep 20th, 2011 @ 7:44am

    Re:

    Taking away the domain name is still prior restraint. When it was seized without warning, plenty of people, the webmasters included, didn't know what was goin on. Shutdown? Taken down? Closed? Moved? For that one day alone, that's like removing the road to the park, or the signs that point to the park all around the city. Its a substantial hardship if people can't find what they were looking for, that was there yesterday. Coming back up in a different location was neither wanted nor desired. It was imposed upon them with no warning and no proof, and still to this day the government has no law to bring them up on.

    What leg are you standing on?

     

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  14.  
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    Another AC, Sep 20th, 2011 @ 7:46am

    Re:

    So your argument is that it's OK since the government suppressed 'just a little' free speech? I feel so sorry for you, since you don't even understand the rights you are willing to give up so easily.

    "Further, let's consider that Rojo attempts to stand on the head of a pin by saying their service is "legal in Spain". Now, since their .ES domain is still up and active, have they not continued to have free speech where they claim they are operating from?"

    I don't think they're ever said they are not subject to U.S. Law. If they thought that, why would they bother fighting in a U.S. court? Nice straw-man though :)

     

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  15.  
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    Anonymous Coward, Sep 20th, 2011 @ 7:51am

    Re:

    If violation of Constitutional rights is not "substantial hardship", what is?

     

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  16.  
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    Another AC, Sep 20th, 2011 @ 7:52am

    Re: Re: Re:

    haha

    Are you complaining about the copyright troll trying to make the honest dollar form their content or the website trying to make the honest dollar providing access to content? I can't tell :)

     

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  17.  
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    Dark Helmet (profile), Sep 20th, 2011 @ 7:56am

    Re:

    "Alas, all the government did was remove the name off the front of the printing press, and left the press intact. Rojo continues to publish their works, unimpeded."

    Again, we cross into only semi-chartered waters in which I don't believe it has yet been established whether or not the domain name itself is protected speech. Unless you can show definitively that it is not, that is a serious issue....

     

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  18.  
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    Anonymous Coward, Sep 20th, 2011 @ 8:04am

    Re: Re:

    According to the statute, 18 USC 983(f)(1)(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."

    A First Amendment violation doesn't fit into any of those examples of "substantial hardship" listed in the statute. A "substantial hardship" means it affects people's lives and livelihoods. I disagree with Judge Crotty, and I think there is a substantial hardship here, but that hardship has to do with shutting down a business, not violating the First Amendment rights of some users of a website.

     

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  19.  
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    Anonymous Coward, Sep 20th, 2011 @ 8:19am

    Re: Yeah, but any yahoo can also make money off infringement.

    This Rojadirecta seems fixated on those domain names rather than just moving on to another, say Puerto81. I wonder why.


    Yeah, so what if the government trampled all over their rights - why on earth would anyone want to try to prevent it from happening again, or call the government to task for breaking the law? They should just move on so the government can do it again, right?

     

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  20.  
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    Jay (profile), Sep 20th, 2011 @ 8:25am

    Re: Re:

    You must hate youtube and youbu (chinese site) a lot... Uh oh, now china will be on the next useless 301 report!

     

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  21.  
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    Anonymous Coward, Sep 20th, 2011 @ 8:29am

    Re: Re: Yeah, but any yahoo can also make money off infringement.

    Right. This isn't really about the domain names anymore. Obviously, Puerto 80 (and their lawyers) turned this into a First Amendment issue.

    I agree with Puerto 80 that the First Amendment has been violated, but I get to that conclusion differently. I don't agree that a prior adversarial hearing is necessary, but I do think one must be offered promptly after the seizure--and that didn't happen here (nor was there any possible process to make that happen).

    There is no doubt that the government can seize and forfeit domain names. The issue is process. What process is needed so that the First Amendment isn't violated?

     

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  22.  
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    Howard the Duck, Sep 20th, 2011 @ 8:42am

    Re:

    More like the government removed the name from the front of the building the printing press was housed in. Do that to some restaurants in New York and see what happens.

     

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  23.  
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    Anonymous Coward, Sep 20th, 2011 @ 8:44am

    Re: My first IP takedown

    There is currently (unless something has changed) no copyright for fashion design.

     

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  24.  
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    Anonymous Coward, Sep 20th, 2011 @ 8:48am

    Re: Re: Re:

    Calm down, jackwagon. Your crappy little website wasn't going to change the country anyway. I'm glad Obama came to your site and shut you down.

     

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  25.  
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    Karl (profile), Sep 20th, 2011 @ 8:54am

    Re:

    Can someone explain how the issue on appeal is prior restraint and not substantial hardship?

    Part of the argument (and there's a lot more to it) is that the "substantial hardship" test is, itself, inappropriate in First Amendment cases.

    Which is a compelling argument, when you think about it for more than one second. For example: if you're part of a protest, and the government seized your protest sign, then it would not be a "substantial hardship" under the seizure statutes, but it would unquestionably be prior restraint.

    All of that is laid out in great depth in the brief, and I would suggest reading it in full.

     

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  26.  
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    Anonymous Coward, Sep 20th, 2011 @ 8:59am

    Re: Re:

    Rojo didn't have to relocate, the .es domain was already up and being used. Losing 1/3 of their traffic is just as likely as a result of people realizing that what they were doing is illegal, and that they should not use the site. (prove otherwise). Clearly, if they only lost 1/3 of their traffic, they didn't lose their free speech rights.

    No channel of communication was blocked. They still had their server and their internet connection. How they use it is up to them.

    "But it was curtailed enough to implicate the First Amendment, so your point misses the mark."

    Fail. This is a question of "substantial hardship" here, and your indication that 2/3 of their traffic still found them even after legal action suggests that any hardship is not substantial.

    "The issue isn't whether there is in personam jurisdiction over Puerto 80, so your point makes no sense. The jurisdiction at issue is in rem over the domain names, and Puerto 80 isn't even challenging it."

    In claiming that they have significant loss of access, and in claiming free speech rights in the US, what they are doing is indicating that they do in fact operate in the US. Answering this legal action in many ways is an admission that the US is part of their operations, and as such, could be construed to say that they are in fact subject to US laws. It is only my opinion, but it appears they have opened themselves up nicely!

     

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  27.  
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    Karl (profile), Sep 20th, 2011 @ 9:00am

    Re: Re:

    I don't think they're ever said they are not subject to U.S. Law.

    To be fair, they did question the jurisdiction issue plenty. Rather convincingly, in my opinion. For example, the government has not shown any evidence whatsoever that infringement (criminal or otherwise) happened inside the U.S.

    The fact that they already went through the court system in their home jurisdiction also points to their "willfulness," or lack thereof. Which, again, is a pretty compelling argument - it would be hard to think of a better defense than "the court itself said we were OK."

     

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  28.  
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    The Groove Tiger (profile), Sep 20th, 2011 @ 9:01am

    Re:

    "Alas, all the government did was remove the name off the front of the printing press, and left the press intact. Rojo continues to publish their works, unimpeded."

    Wrong. Since the people reading what comes out of a printing press don't care about a little plaque with the press' "name" on it, it's a very, very poor analogy.

    This is more like taking away the HEADING LETTERS of the publication, basically stealing the type that is used to print say heading (they can always use another name for their pamphlets! Unimpeded!).

    Or like arresting the delivery boy that offers said pamphlets on the streets for everyone to read (after all, they can always hire a different person and send him to somewhere else where people won't read it! Unimpeded!)

    Or taking 3/4ths of the paper that they use to print it. (after all, SOME people will still be able to get the publication! Unimpeded!)

     

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  29.  
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    Jim, Sep 20th, 2011 @ 9:02am

    Re:

    I also didn't realize ".com" meant "United States only" so thanks for educating me on that.

     

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  30.  
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    Anonymous Coward, Sep 20th, 2011 @ 9:02am

    Re: Re:

    Prior restraint is already pretty much a losing battle here, as is "substantial hardship". Their servers are up, they are still connected to the internet, and they are still being visited by large numbers of people.

    "Its a substantial hardship if people can't find what they were looking for, that was there yesterday"

    Sorry, but in legal terms, that isn't "substantial hardship". That is reserved only for people who would be out of business, and unable to support their family or would face other substantial hardships. An end users inability to reach a site full of illegal sports feeds is not a hardship for anyone, just a whine from someone who had their binky taken away.

    I am standing on the legal leg, what misunderstanding are you working from?

     

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  31.  
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    Anonymous Coward, Sep 20th, 2011 @ 9:05am

    Re: Re:

    DH, I would say that nobody has tried it specifically with domain names, but I have not seen a single case involving phone numbers, example, where the seizing or shutting down of a phone line went that direction.

    At this point, they are still arguing the substantial hardship issue, which they are pretty much doomed to fail. Further, the more they drag this on, the more they show that they operate without the domain name, so it is less and less relevant as time goes on.

     

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  32.  
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    Anonymous Coward, Sep 20th, 2011 @ 9:13am

    Re: Re:

    "Part of the argument (and there's a lot more to it) is that the "substantial hardship" test is, itself, inappropriate in First Amendment cases. Which is a compelling argument, when you think about it for more than one second. For example: if you're part of a protest, and the government seized your protest sign, then it would not be a "substantial hardship" under the seizure statutes, but it would unquestionably be prior restraint. All of that is laid out in great depth in the brief, and I would suggest reading it in full."

    I have read it. Twice.

    But this isn't a First Amendment case. Puerto 80 brought the 983(f) petition arguing that there is a substantial hardship. The judge ruled that there is no substantial hardship. The judge did not reach the First Amendment arguments since the First Amendment is irrelevant to the substantial hardship issue under 983(f).

    If the judge didn't rule on it, and it's irrelevant to the issue, then how is the issue on appeal?

    Puerto 80's opening brief glosses over this on page 21: "The district court drew that standard from Section 983(f). But something can be an unlawful prior restraint without imposing the “hardship” of the kind Section 983(f) describes. In other words, whether the prior restraint was a “substantial hardship” to Puerto 80 is legally irrelevant to whether it violates the United States Constitution. The question is whether the government has overcome the heavy presumption that its prior restraint on speech is impermissible. It has not."

    Yes, the district court drew that standard from 983(f) because 983(f) was the issue before the court (it was a 983(f) petition, after all). Puerto 80 even admits that "whether the prior restraint was a “substantial hardship” to Puerto 80 is legally irrelevant to whether it violates the United States Constitution."

    So Puerto 80 is admitting that the First Amendment issue is irrelevant to the issue that is actually before the court, which is whether there is a substantial hardship. And if it's irrelevant, it's irrelevant.

    It'd be like if Puerto 80 was arguing that some parking ticket they got was unjustified in their 983(f) petition. The parking ticket is completely irrelevant to whether there is a substantial hardship.

    Moreover, if the issue is irrelevant to the underlying petition, then how is it possibility relevant to the appeal of that petition.

    Don't get me wrong, I think there may have been a constitutionally impermissible prior restraint here, but I just don't see how that is relevant to this petition and appeal.

     

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  33.  
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    Mike Masnick (profile), Sep 20th, 2011 @ 9:21am

    Re: Re: Re:

    Prior restraint is already pretty much a losing battle here, as is "substantial hardship". Their servers are up, they are still connected to the internet, and they are still being visited by large numbers of people.

    Can you explain, then, why merely taxing ink for some newspapers was seen as prior restraint by the courts? Obviously, in that situation, their printing press was still available and they could still print. But the courts found it to be prior restraint.

    It would seem that the law is different than you believe it to be.

     

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  34.  
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    Anonymous Coward, Sep 20th, 2011 @ 9:40am

    Re: Re: Re:

    "Rojo didn't have to relocate, the .es domain was already up and being used. Losing 1/3 of their traffic is just as likely as a result of people realizing that what they were doing is illegal, and that they should not use the site. (prove otherwise). Clearly, if they only lost 1/3 of their traffic, they didn't lose their free speech rights."

    Huh? Having a channel of communication blocked, even if that channel can be reestablished elsewhere, implicates the First Amendment. It's silly to argue otherwise.

    "No channel of communication was blocked. They still had their server and their internet connection. How they use it is up to them."

    Huh? rojadirecta.org and rojadirecta.com were, and are still being, blocked. To not admit this seems silly.

    "Fail. This is a question of "substantial hardship" here, and your indication that 2/3 of their traffic still found them even after legal action suggests that any hardship is not substantial."

    Are people still saying "fail"?

    "In claiming that they have significant loss of access, and in claiming free speech rights in the US, what they are doing is indicating that they do in fact operate in the US. Answering this legal action in many ways is an admission that the US is part of their operations, and as such, could be construed to say that they are in fact subject to US laws. It is only my opinion, but it appears they have opened themselves up nicely!"

    I see your point as to possibly opening themselves up for in personam jurisdiction down the road, but I think strategically, they had to admit to having U.S.-based users in order to argue the First Amendment issue.

     

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  35.  
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    MrWilson, Sep 20th, 2011 @ 9:49am

    Re: Re: Re: Yeah, but any yahoo can also make money off infringement.

    "This isn't really about the domain names anymore. Obviously, Puerto 80 (and their lawyers) turned this into a First Amendment issue."

    The seizure of the domain is a first amendment issue. Puerto 80 didn't have to turn it into one.

     

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  36.  
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    MrWilson, Sep 20th, 2011 @ 9:50am

    Re: Re: Re:

    Puerto 80's business is in the exercise of free speech.

     

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  37.  
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    Anonymous Coward, Sep 20th, 2011 @ 9:56am

    Re: Re: Re: Re:

    Can you explain, then, why merely taxing ink for some newspapers was seen as prior restraint by the courts? Obviously, in that situation, their printing press was still available and they could still print. But the courts found it to be prior restraint.

    It would seem that the law is different than you believe it to be.


    I can explain that: it wasn't seen as a prior restraint by the courts. The tax was unconstitutional as a disproportionate burden on those engaged in expression, not as a prior restraint.

     

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  38.  
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    Anonymous Coward, Sep 20th, 2011 @ 10:01am

    Re: Re: Re: Re: Yeah, but any yahoo can also make money off infringement.

    "The seizure of the domain is a first amendment issue. Puerto 80 didn't have to turn it into one."

    The seizure of the domain name implicates the First Amendment. I'm not denying that. But what does that have to do with whether the seizure is a "substantial hardship" under 983(f)? Remember, Puerto 80 brought a petition under 983(f). Bringing up the First Amendment in the 983(f) petition is like bringing up a parking ticket. How is it relevant? I'm not saying that this isn't prior restraint, I'm merely asking what prior restraint has to do with a 983(f) petition. Puerto 80 is trying to make this 983(f) petition about the First Amendment, but I think they're doing so in the wrong way. I think this will backfire. Not to worry though... I suspect they'll get another bite on the First Amendment apple.

     

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  39.  
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    Any Mouse (profile), Sep 20th, 2011 @ 10:09am

    Re: Yeah, but any yahoo can also make money off infringement.

    What's in a name?

    You tell me, Patty_Cake. You can't use out_of_the_blue, anymore, because we said so. You're now Patty_Cake.

     

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  40.  
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    Anonymous Coward, Sep 20th, 2011 @ 10:14am

    Re: Re: Yeah, but any yahoo can also make money off infringement.

    yes, but the government can tell you to move from the sidewalk to a designated location. isn't forcing them to get another url the same thing?

    let's say this guy has been exercising his free speech in the park for months. everybody knows he is there and a crowd starts to gather around every day. the park service decides that this is a problem and forces him to move somewhere else. is this prior restraint? is there a first amendment issue here? probably not. this type of thing happens regularly in cities around the country.

    i'm not trolling here. so my question is why are these two situations different?

     

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  41.  
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    Anonymous Coward, Sep 20th, 2011 @ 10:29am

    Re: Re: Re: Yeah, but any yahoo can also make money off infringement.

    "yes, but the government can tell you to move from the sidewalk to a designated location. isn't forcing them to get another url the same thing?"

    The government cannot tell you to move from the sidewalk to a designated location without a reason though. The difference her is that no legal reasoning has yet been identified for why the government should be allowed to shut down the URL that was being used.

     

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  42.  
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    Dave, Sep 20th, 2011 @ 10:33am

    Re: Re: Re: Re: Re:

    burden on those engaged in expression

    And how is that not prior restraint? And why would that not apply to domain name seizure? You seem to be saying prior restraint with different words.

     

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  43.  
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    TheStupidOne, Sep 20th, 2011 @ 10:35am

    Re: Re: Re: Yeah, but any yahoo can also make money off infringement.

    Well in your situation the speech at the location is causing a problem, drawing crowds and interfering with a government agency. While I think that they shouldn't be able to force him to move, it is fairly reasonable so long as they make a effort to ensure his crowds are able to follow him (maybe post a sign saying where he is now or have an employee telling people where he is)

    So the criteria by which I judge the situation: first the location is actually causing a problem; second the government makes a reasonable effort to ensure he can continue.

    With the government seizing a website, the location isn't causing a problem and the government is clearly attempting to prevent people from finding them. Thus I see a pretty clear difference

     

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  44.  
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    Anonymous Coward, Sep 20th, 2011 @ 10:44am

    Re: Re: Re: Re:

    Mike, we aren't taxing ink here, are we? The argument might hold water (but apparently didn't) if all domains had been seized, but they have not been. Taxation is something that is applied across a broad base of users, where as a seizure of this nature is narrowly focused on one single domain name.

    So your parallel isn't very, well, parallel.

    Now, had they taxed internet connections or taxed ones and zeros, you might have a discussion. But since this isn't a tax issue, and since prior restraint wasn't really the judgement, I think we can say you missed on that one.

     

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  45.  
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    Anonymous Coward, Sep 20th, 2011 @ 10:45am

    Re: Re:

    Jim, .com doesn't mean "US only", but it is a registry in the US, operating under US laws, in the same manner that the .CN registry operates as per Chinese law.

     

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  46.  
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    MrWilson, Sep 20th, 2011 @ 10:51am

    Re: Re: Re: Re: Re: Yeah, but any yahoo can also make money off infringement.

    I said this elsewhere, but Puerto 80's business is in the exercise of free speech. To take their domain is a substantial hardship to free speech and thus their business.

     

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  47.  
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    Jay (profile), Sep 20th, 2011 @ 10:54am

    Re: Re: Re:

    "Rojo didn't have to relocate, the .es domain was already up and being used. Losing 1/3 of their traffic is just as likely as a result of people realizing that what they were doing is illegal, and that they should not use the site. (prove otherwise). Clearly, if they only lost 1/3 of their traffic, they didn't lose their free speech rights."

    Wait... Do you even know where Rojadirecta was targeted? IE, not even the US? And that's because watching a stream of a futbol game is illegal in their country, when the courts have twice vetted RD?

    "No channel of communication was blocked."

    People keep saying that when their forums were taken down with the domain name... I wonder why the misleading argument?

    "This is a question of "substantial hardship" here, and your indication that 2/3 of their traffic still found them even after legal action suggests that any hardship is not substantial."

    Because they are a larger corporation with the resources to have backup servers while the government bullies them... Gotcha.

     

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  48.  
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    Chosen Reject (profile), Sep 20th, 2011 @ 10:55am

    Re: Re: Re: Re: Yeah, but any yahoo can also make money off infringement.

    In addition to those differences, in the Rojadirecta case, the government took private property. In the park case, they simply tell the guy not to come back. Granted, that's public property and I don't think they should be able to do that. However, not allowing someone to come back on public property is still clearly different than taking their private property regardless of whether they should be able to do the former.

     

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  49.  
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    Anonymous Coward, Sep 20th, 2011 @ 10:55am

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

    They require two different analyses. These aren't my distinctions, they're the ones developed by the Supreme Court.

     

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  50.  
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    Jay (profile), Sep 20th, 2011 @ 10:57am

    Re: Re: Re: Re: Re:

    So the courts ruled against prior restraint on ink and you're not going to answer the argument presented because we're not talking about taxation?

    Interesting...

     

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  51.  
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    Chosen Reject (profile), Sep 20th, 2011 @ 11:03am

    Re: Re: Re:

    Are you really so stupid that you can't tell the difference between losing a third of your traffic because no one wants your service anymore compared to losing a third of your traffic because the government stole your domain name? Is that honestly the best argument you can come up with? Are your masters not paying you enough? Are they too cheap or just too stupid to find a right proper shill?

     

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  52.  
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    Richard (profile), Sep 20th, 2011 @ 11:08am

    Re: Re: Re: Yeah, but any yahoo can also make money off infringement.

    but the government can tell you to move from the sidewalk to a designated location. isn't forcing them to get another url the same thing?

    They can't do that because of something you said - only because of a physical problem with the location - and of course the government isn't providing a designated URL for puerto80 to use.

     

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  53.  
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    Chosen Reject (profile), Sep 20th, 2011 @ 11:09am

    Re: Re: Re:

    It's true, and I can't wait till Libya stops their petty little squabbles and gets their collective act together enough to go after the owners of bit.ly personally. There are all sorts of bit.ly links that violate their Islamic laws.

     

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  54.  
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    Anonymous Coward, Sep 20th, 2011 @ 11:47am

    Re:

    Wrong analogy, what the government did was to force Rojadireta to change address is like forcing a bookstore to change its address without seizing any books.

    It is like saying this we exclude you from this zone and you need to find another place.

    That is hardship.

    More I want to know why if it is illegal ICE didn't seize Baidu.com yet? has the size of a company anything to do with this? does it means the government only seize anything from people they think won't fight back?

    Why should Rojadireta have to have problems with domains names that the US government promised it wouldn't mess around with those back in 2000 after countries called for the creation of an international body outside the control of the US?

     

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  55.  
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    Anonymous Coward, Sep 20th, 2011 @ 11:47am

    Re:

    Can someone explain how the issue on appeal is prior restraint and not substantial hardship? I just don't see it.

    You can't see it, because it's not there. this is all an exercise in wishful thinking.

     

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  56.  
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    Anonymous Coward, Sep 20th, 2011 @ 11:56am

    Re: Re:

    http://www.law.cornell.edu/uscode/17/usc_sec_17_00000111----000-.html
    "(3) the secondary transmission is made by any carrier who has no direct or indirect control over the content or selection of the primary transmission or over the particular recipients of the secondary transmission, and whose activities with respect to the secondary transmission consist solely of providing wires, cables, or other communications channels for the use of others: Provided, That the provisions of this clause extend only to the activities of said carrier with respect to secondary transmissions and do not exempt from liability the activities of others with respect to their own primary or secondary transmissions; "

     

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  57.  
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    Anonymous Coward, Sep 20th, 2011 @ 11:58am

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

    No, I believe that is your view of what the supreme court says and probably is wrong.

     

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  58.  
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    Anonymous Coward, Sep 20th, 2011 @ 11:59am

    Re: Re: Re:

    If the government forced you to change address would you not find that hardship?

     

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  59.  
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    Anonymous Coward, Sep 20th, 2011 @ 12:01pm

    Re: Re: Re:

    I know there most be some case where some party sought it was ok to seize telephone numbers from someone somewhere because of what they were saying and it won't look pretty.

     

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  60.  
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    Anonymous Coward, Sep 20th, 2011 @ 12:06pm

    Re: Re: Re:

    Jim, I will BS you by saying that it "doesn't mean US only" but that is exactly what it means since it is under US jurisdiction and I believe we should do whatever we want because we can, despite other countries already had voiced serious concerns about the matter and started root servers all over to try and hassles control from ICANN, which now can happen since nobody wants to see the US government in charge of that.

     

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  61.  
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    Anonymous Coward, Sep 20th, 2011 @ 12:09pm

    Re: Re:

    "You can't see it, because it's not there. this is all an exercise in wishful thinking."

    It certainly feels that way. I think there is a First Amendment issue that needs addressing (and perhaps correcting), but that has nothing to do with whether this is a "substantial hardship" under 983(f).

    Puerto 80 admits that whether it's a "substantial hardship" is irrelevant to whether the First Amendment has been violated. Unfortunately for them, the converse is also true: whether the First Amendment has been violated is irrelevant to whether it's a "substantial hardship."

    The issue on appeal, which they conveniently ignore, is whether this is a "substantial hardship." And the First Amendment has nothing to do with that determination. They're just shooting their wad a little early, I think.

     

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  62.  
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    Vincent Clement (profile), Sep 20th, 2011 @ 12:13pm

    And some people say "if you don't break the law, you having to worry about". Yes, because the government would never ever go against it's own citizens, right?

     

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  63.  
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    Anonymous Coward, Sep 20th, 2011 @ 12:43pm

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

    Jay, what is there to say? Taxation applies across a wide swath of legal activities. Seizing the domain of a company engaged in a (to be determined by the courts) illegal activity isn't quite the same.

    It's like going to a dog show, and talking all day about horse shit. Who cares, it isn't relevant. It is at best a diversion from the reality of the situation (which appears to be the content of almost every rojo filing).

     

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  64.  
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    Anonymous Coward, Sep 20th, 2011 @ 12:45pm

    Re: Re: Re:

    You said: "it would be hard to think of a better defense than "the court itself said we were OK."

    Me: You screw up the quote. It's "A Spanish court itself said what we did was legal in Spain". It doesn't apply to other countries.

    Otherwise, it would be legal to sell pornography in Muslim countries via the internet, because the servers don't happen to be in those countries. See where that goes?

     

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  65.  
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    Anonymous Coward, Sep 20th, 2011 @ 12:45pm

    Re: Re: Re:

    You said: "it would be hard to think of a better defense than "the court itself said we were OK."

    Me: You screw up the quote. It's "A Spanish court itself said what we did was legal in Spain". It doesn't apply to other countries.

    Otherwise, it would be legal to sell pornography in Muslim countries via the internet, because the servers don't happen to be in those countries. See where that goes?

     

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  66.  
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    Anonymous Coward, Sep 20th, 2011 @ 1:00pm

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

    If you can point out where in the ink tax case the court calls it a prior restraint, I'm all ears.

    "In sum, we think that fidelity to our cases requires us to analyze the forfeiture here not as a prior restraint, but under normal First Amendment standards...

    In Arcara, we held that criminal and civil sanctions having some incidental effect on First Amendment activities are subject to First Amendment scrutiny 'only where it was conduct with a significant expressive element that drew the legal remedy in the first place, as in O'Brien, or where a statute based on a nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity, as in [the ink tax case].'"

    Alexander v. US

     

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  67.  
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    Anonymous Coward, Sep 20th, 2011 @ 1:05pm

    Re: Re: Re: Re:

    me too

    i am glad Obama personally went to his site and gave it laser-guided ebola. I will jerk my wiener tonight to the thought of the american government personally crushing small upstarts because I am a sensible American and not a jackwagon commy.

     

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  68.  
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    Jay (profile), Sep 20th, 2011 @ 1:07pm

    Re: Re: Re:

    What's the petition for prior restraint?

     

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  69.  
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    Edward Teach, Sep 20th, 2011 @ 1:17pm

    Re: Re: Re:

    We ask for truth and reason, and you give us technicalities, "legal reasoning", and argument by redefinition of common terms. You've been to law school, haven't you, and past that, worked as a lawyer, haven't you?

    The Law should serve society, instead of society serving the Lawyer. Ambrose Bierce was right. “LAWYER, n. One skilled in circumvention of the law.”

     

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  70.  
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    DOlz (profile), Sep 20th, 2011 @ 2:04pm

    Re: Yeah, but any yahoo can also make money off infringement.

    And when the government seizes Puerto81? Oh, I know they go to Puerto82!

    How long do you think this would go on before their audience got tired of looking for them? Or how about the expense and trouble of consistently changing domain names. It is possible to shut someone down by harassment and the only way to stop it is to fight back.

     

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  71.  
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    Anonymous Coward, Sep 20th, 2011 @ 2:20pm

    Re: Re: Re:

    You are right it didn't affect my pirating a bit since I just ripped 10 DVD's today :)

     

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  72.  
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    Anonymous Coward, Sep 20th, 2011 @ 2:30pm

    Re: Re: Re: Re:

    You just keep BS'ing everyone and see if anyone cares.

    http://dot-bit.org/Main_Page

     

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  73.  
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    Anonymous Coward, Sep 20th, 2011 @ 2:32pm

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

     

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  74.  
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    Anonymous Coward, Sep 20th, 2011 @ 2:37pm

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

    The funny part, real pirates don't care.

    I just ripped some 10 DVD's just now, woohoo!

    Can you stop people from building their own recording devices?
    Nope.

    Can you stop manufacturers from selling recording devices?
    Nope.

    Can you outlaw every recording device ever conceived?
    Nope.

    you people are SOL and will keep pushing for laws that burden normal people but don't affect pirates, one has to wonder when it is going to blow up in your faces.

    Keep up the good job, annoy the people and let the pirates go free LoL

     

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  75.  
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    S, Sep 20th, 2011 @ 3:03pm

    Re: Re: Re: Re: Yeah, but any yahoo can also make money off infringement.

    If they did that would be most egregious case of the Streisand Effect to date.

     

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  76.  
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    S, Sep 20th, 2011 @ 3:08pm

    Re:

    AC, I'll take your argument even further:

    Clearly the First Amendment wasn't even necessary because everyone can just communicate word-of-mouth! Who needs newspapers?

    Now can you see how full of shit you are?

     

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  77.  
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    Anonymous Coward, Sep 20th, 2011 @ 4:02pm

    The best part of all this is that it doesn't affect piracy at all.

    Those people think that if they can close one path to piracy at a time they will be able to close them all.

    I'm just waiting to see them try to legislate the need to watch people inside their homes, that will be fun to watch.

     

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  78.  
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    Anonymous Coward, Sep 20th, 2011 @ 5:17pm

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

    crickets...

     

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  79.  
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    Jay (profile), Sep 20th, 2011 @ 9:19pm

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

    "Taxation applies across a wide swath of legal activities. Seizing the domain of a company engaged in a (to be determined by the courts) illegal activity isn't quite the same."

    And yet again we get to the part that you elude in order to commit to your view. Why were they given no chance to answer that summons to deem their domain illegal? Why were they, Rojadirecta, given no chance to meet a challenge on their domain? Why could ICE go beyond them, to ICANN, and seize their property for no alleged crime?

    Before you answer that last question, bear in mind that the Feds have already committed to saying that Puerto 80 has committed no crime. Yet through the voodoo of stretched law, they're finding their domain committed a crime. The crime is criminal copyright infringement. It's like the website is a hammer but no one's holding it at the time it was used for the nail.

    ". Who cares, it isn't relevant. It is at best a diversion from the reality of the situation (which appears to be the content of almost every rojo filing)."

    Yes, the reality that the government is using the law in a tortured manner to go after sites with no procedure. If they had one, it would not have taken up to a year for some sites to redress the government. The Feds could have had them answer the charges presented and given people a way to get their sites back if need be.

    And finally, the Feds would not be doing this as the private enforcement group of Hollywood, the UFC, the NFL or any other company simply because they can't adapt to digital technology.

     

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  80.  
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    Karl (profile), Sep 20th, 2011 @ 10:48pm

    Re: Re: Re: Re: Re:

    I can explain that: it wasn't seen as a prior restraint by the courts. The tax was unconstitutional as a disproportionate burden on those engaged in expression, not as a prior restraint.

    Nice try, but you're wrong.
    By imposing the tax as a condition of engaging in protected activity, the defendants in those cases imposed a form of prior restraint on speech, rendering the tax highly susceptible to constitutional challenge.

    - Minneapolis Star and Tribune Company v. Minnesota Commissioner of Revenue

     

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  81.  
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    Karl (profile), Sep 20th, 2011 @ 10:57pm

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

    If you can point out where in the ink tax case the court calls it a prior restraint, I'm all ears.

    Well, I just did. In case you miss it: "By imposing the tax as a condition of engaging in protected activity, the defendants in those cases imposed a form of prior restraint on speech." (From Minneapolis Star and Tribune Company v. Minnesota Commissioner of Revenue.)

    Also, Alexander v. U.S. involved a full trial prior to forfeiture. That is not even close to what is happening here.

     

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  82.  
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    Anonymous Coward, Sep 20th, 2011 @ 11:02pm

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

    "those cases" != this case.

    Re-read the footnote again, the court is talking about something different from a sales tax on ink.

     

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  83.  
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    Karl (profile), Sep 20th, 2011 @ 11:10pm

    Re: Re: Re: Re:

    You screw up the quote. It's "A Spanish court itself said what we did was legal in Spain". It doesn't apply to other countries.

    It applies to whether the site owners willfully violated copyright laws in countries where they didn't even know what those laws were.

    Otherwise, it would be legal to sell pornography in Muslim countries via the internet

    If you're an American business who doesn't cater to Muslims, and selling pornography in those Muslim countries was only unlawful if you knowingly and deliberately broke that country's pornography laws... then yes, I'd say it would be legal, even under those countries' laws, and it absolutely should be.

    Then again, I'm a single guy in his 40's with a year's supply of Kleenex, so of course I'd say that.

     

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  84.  
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    Any Mouse (profile), Sep 21st, 2011 @ 11:49am

    Re: Re: Re: Re:

    If someone in a Muslim country purchases porn from a site based in the US, how has the US company broke the law? Certainly the person in the Muslim country may (or may not!) have broken the law, but that has no bearing on the US company whose business is entirely legal where they are.

     

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  85.  
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    Any Mouse (profile), Sep 21st, 2011 @ 11:57am

    Re: Re: Re: Re:

    Copyright trolls don't make honest dollars.

     

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  86.  
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    ClarkeyBalboa (profile), Sep 21st, 2011 @ 2:17pm

    Re: Re: Re: Re:

    To add to this, losing 1/3rd of your traffic is huge. If you run your own business, and you suddenly lost 1/3rd of your gross sales, would your business still be profitable? Doubtful.

     

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  87.  
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    Anonymous Coward, Sep 24th, 2011 @ 8:56pm

    If the seizure was not a substantial hardship...

    ... then why did the government bother seizing in the first place? Obviously, the government was attempting to shut down the website to the largest degree they were capable of. They were tring to bring the greatest hardship they could to the website.

    As for the argument of "this hearing is for substantial hardship, why are they bringing up First Amendment prior restraint issues?" You have a point. This stuff should have been brought up in the hearing prior to the domain being seized. Oh wait... there wasn't one.

     

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  88.  
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    Anonymous Coward, Sep 25th, 2011 @ 3:04am

    Re: If the seizure was not a substantial hardship...

    Consider that they failed in shutting down that website, not only that they didn't use the other option which is blocking that website in the US because it would look really, really bad, now what makes you think something legal in other country makes it illegal in the US when the other party don't even operate in US soil, the US just legitimated every action others will take against American business abroad on any grounds.

    Unless this is some sort of payback to countries that have censored American business, for which Spain never blocked an American company that I know off, but Pakistan, China, Brazil, and others had.

    Why is the US seizing something from innocent people?

     

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  89.  
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    Anonymous Coward, Sep 25th, 2011 @ 3:05am

    Re: Re: Re: Re: Re:

    Roja also could looking at how to bring this to the WTO, since this could be seen as a anti-competitive move.

     

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  90.  
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    Ben, Sep 25th, 2011 @ 9:51am

    Re: Yeah, but any yahoo can also make money off infringement.

    To Out_of_the_blue: your right! Next we will seize microsoft, google, sun micro, cisco, arin, and why not the mpaa and the us government home pages for good measure. They can always use a different name right?

    The new names can be m1crosoft, g00gle, sun1, cesco, ariin (a main dns server for all of north america), oh yeah and don't forget mp88 and the newly renamed ua government. No one will mind, it wont pose any problems to anyone... except windows won't update, java wont either, networking will be interupted, who even knows how badly the dns structure will be damaged, noone will be able to find google, im sure the mp88 will love you for that and some deep woods redneck from texas will shoot you for daring to rename his country. So yeah, its not such an easy fix. I know your a troll but I just wysh trolls had some sort of intellect sometimes.

     

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

  91.  
    identicon
    Anonymous Coward, Sep 26th, 2011 @ 11:13am

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

    You got this completely wrong Karl. The Court isn't talking about the ink tax case in your quote. Fail.

     

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

  92.  
    identicon
    jesus, Sep 27th, 2011 @ 1:37pm

    It would be interesting to know if there is any legal base in the fact that a government can censure international domain gtlds like .com or .org

     

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


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