Holder In The Hot Seat, Still Can't Explain Why DOJ Censored Hip Hop Blog

from the answers-were-not-satisfactory dept

Back in December, right after it came out that the Justice Department had seized and censored a hip hop blog for over a year and then gave it back, effectively admitting that there was no legal basis for the censorship, Rep. Zoe Lofgren asked Attorney General Eric Holder about what happened in the case. After making a joke that his daughters might know more about it than he did, he promised to get back to Lofgren with a more complete answer once he was more familiar with the situation.

Turns out he never responded to her questions.

Of course, since then the secret proceedings in the case (which Dajaz1 was not even allowed to know about, or even have their lawyer speak to the judge) have been unsealed. Those revealed that the ICE Agent in charge of the case, Andrew Reynolds, had basically sat around doing nothing for over a year, waiting for the RIAA to finally provide the evidence that Dajaz1 had broken the law. That evidence was obviously never produced, which is why Dajaz1 eventually got its domain back.

There was another oversight hearing yesterday, and Zoe Lofgren quizzed Holder again, noting that not only did he not respond to her questions, but also highlighting the unsealed documents, which show that the original affidavit was misleading.

Holder first responds that he "believes" the seizures were legal, because the court signed off on them. Lofgren immediately challenges that, noting the incorrect or misleading information in the affidavit, and asking if he believes it's okay to censor a site for over a year and not allow the site to even be heard by the court in all that time. At that point, he at least admits that if the affidavit was "misleading" that "that would not be an appropriate basis for action on behalf of the government." He also notes that seizure is a powerful tool that needs to be used "judiciously." And then notes that if what Lofgren descrbied was accurate "that would be of great concern."

Of course, none of that comments on what actually happened here -- and it's not like this is the first time he's heard of this. Remember, he was directly asked about it last year, and had promised to look into the details. Furthermore, after the hearing, Lofgren put out a statement saying that not only did she not hear back from him after her questions last year, but "prior to this hearing my staff told his staff to tell him the question I was going to be asking so he could be prepared to answer." Clearly, he was not prepared to answer.

As Lofgren notes, "I didn't think it was a very impressive answer, and to suppress free speech for a year with secret proceedings and no probable cause is a problem. It's not the way America is supposed to be."


Reader Comments (rss)

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  1.  
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    Anonymous Coward, Jun 8th, 2012 @ 6:58pm

    Thank you Rep. Zoe Lofgren for representing the American public.

     

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    vegetaman (profile), Jun 8th, 2012 @ 7:01pm

    Speaking of infringement...

    Just a quick mental exercise, for fun...

    So, if $1.5 million is the acceptable penalty (as per the current system) for infringing copyright of 24 songs... Then what if 1% of the US Population were do this, and have to pay the penalty?

    1,500,000
    * 3,000,000
    ==============
    4,500,000,000,000

    So, if 100 million people were caught infringing music copyright, that would total 4.5 trillion dollars.

    Then throw movie infringement into the mix. Pretty soon, there will be more infringement going on than there is money in the world!

    Damn pirates, can't you see you are destroying the world economy!? The top 1% of music infringers are costing us nearly 5 trillion dollars a year! WON'T SOMEONE PLEASE THINK OF THE CHILDREN!?

    //did I hit all the points?
    //major sarc

     

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  3.  
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    vegetaman (profile), Jun 8th, 2012 @ 7:02pm

    Re: Speaking of infringement...

    Derp. So if *3 MILLION* people were caught infringing music copyright... Man, I wish we had an edit button here... So close.

     

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  4.  
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    AC Cobra, Jun 8th, 2012 @ 7:06pm

    We need more politicos like these

    I nominate Wyden/Lofgren for the presidential ticket.

     

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  5.  
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    Jay (profile), Jun 8th, 2012 @ 7:13pm

    Re: We need more politicos like these

    But then who would represent us in congress?

     

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  6.  
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    Karl (profile), Jun 8th, 2012 @ 7:36pm

    Shut it down

    This might be a good time to post this:

    I have started a petition at whitehouse.gov to shut down Operation In Our Sites:
    http://wh.gov/uZ8

    Even if it doesn't result in any action, at least the government will know we're watching them.

     

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  7.  
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    Anonymous Coward, Jun 8th, 2012 @ 7:45pm

    On the hot seat, he admits that he is current with every case and every situation and every legal angle and challenge going on.

    You draw the conclusion... but it's not right.

     

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  8.  
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    Wally (profile), Jun 8th, 2012 @ 8:46pm

    Psychology

    Other games, I'd say meh...but most social psychologists agree that certain people who have certain onset psychological conditions....should not play ANY MMORPG. This is especially true of you have trouble determining video game reality vs reality. As a gamer and a psychologist, I have seen this once or twice and usually, it involves a person with borderline personality disorder (look it up). The problem is that the user subconsciously believes that no actual human being with feelings or sensitivities are playing against them. This type of psyche is dangerous because they then learn to establish fantasy with reality. In gaming, that's only about 10% of us. Mix that with a borderline personality disorder and being a sociopath....it's a very reactive mix. It's not the game's fault, but it's not entirely the person's fault...though most cases like this, the patient is quite well aware of his actions...he just doesn't care.

     

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  9.  
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    Anonymous Coward, Jun 8th, 2012 @ 8:50pm

    Re: Psychology

    I think you posted in the wrong thread.

     

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  10.  
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    Anonymous Coward, Jun 8th, 2012 @ 9:08pm

    The hot seat isn't hot enough

    There's no penalties, no fines, no firings, no jail time for anyone here. Holder got a finger wagged at him, but that's it. He'll happily ignore her info request for another 6 months, knowing that congress rarely does anything but say 'shame, shame' every once in a while.
    In the meantime, Lofgren's enemies (hopefully without the help of the DoJ) will be stepping up efforts to hunt for dirt to use against her in her next re-election campaign.

     

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  11. This comment has been flagged by the community. Click here to show it
     
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    Anonymous Coward, Jun 8th, 2012 @ 10:00pm

    TD, sites citing TD, and Lofgren do not "censorship" make, no matter how may times that word finds its way into articles here.

    While I may have missed one or more, I have been unable to find any law blog that has referred to Dajaz1's seizure as comprising "censorship".

     

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    Ophelia Millais (profile), Jun 8th, 2012 @ 10:31pm

    Re: The hot seat isn't hot enough

    Exactly. Cheers to Rep. Lofgren for pursuing the issue, but she really just lobbed him a soft pitch. Her long-winded backstory and rambling questions didn't put him on the hot seat at all. All she said to him was that she hoped that in the future there would be more respect for bloggers' 1st and 5th Amendment rights.

    Hindsight is 50-50, but she should've recapped more tersely, with something like this, so she would've had more time to grill him: On the basis of the RIAA's mere accusation of infringement, ICE and the DOJ seized the dajaz1.com blog's domain and held it for over a year, repeatedly convincing the court to stonewall and keep everything under seal, then returned the domain without explanation. Unsealed court records reveal there was never anything more than the accusation of infringement and an unfulfilled promise by the RIAA to bring evidence of that infringement.

    And then she should've called it what it was: Abuse of seizure and forfeiture power. Abuse of the legal system, using delay tactics and keeping everything under seal, in order to hide the fact that the prosecution had no evidence all along. Abuse of the legal system in order to bully an innocent blogger. And in the end, not even the slightest mea culpa and admission of error, nor any promise that it won't happen again.

    This should've been followed up by very pointed questions. When Holder tried to say they were just complying with court orders, the response needed to be "but these were orders your department repeatedly insisted the court should issue, because you alleged they were crucial to the case! How dare you pretend otherwise! Who do you think you're fooling? It's right here in the court records, your department and ICE was lying, the RIAA was lying, you manipulated the court, and the end result was a denial of this blogger's 1st Amendment rights. You must respect the law, and the Constitution; even if you find a court which is willing to overlook your lack of evidence, you must have standing; you can't just take the accuser at their word. Now what, Mr. Holder, are you going to do to ensure this never happens again?"

    *sigh* ... yes, things play out much differently in my mind.

     

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  13.  
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    Anonymous Coward, Jun 8th, 2012 @ 10:31pm

    Re: Re: Psychology

    "It's not the game's fault, but it's not entirely the person's fault...though most cases like this, the patient is quite well aware of his actions...he just doesn't care."

    And yet, this last line seems to describe Holder's response so well!

     

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  14.  
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    Anonymous Coward, Jun 8th, 2012 @ 10:43pm

    Of course it isn't censorship when the news media is owned by those with vested interests in not calling censorship what it really is.

    As usual history is repeating itself with Megaupload. The site is dead in the water with a multimillion dollar business dead with little chance it will ever see court. But tunnel vision only sees it one way.

    Now if we could just find the major labels and studios having the same thing happen to them. How long would it take for that same word to surface?

     

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  15.  
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    Anonymous Coward, Jun 8th, 2012 @ 10:49pm

    Re:

    Okay.

    It's still censorship, despite your ineffective argument to the contrary.

     

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  16.  
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    bgmcb (profile), Jun 8th, 2012 @ 10:49pm

    they did..

    "prior to this hearing my staff told his staff to tell him the question I was going to be asking so he could be prepared to answer."

    Holders staff ran the question up the chain of command. The RIAA just couldn't get back to him in time.

     

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  17.  
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    techflaws (profile), Jun 8th, 2012 @ 10:52pm

    Try harder

    So just because either you or those blogs are too blind (or stupid), it means it was no censorship? Look up the definition of censorship, then tell us what you think happened to dajaz for a year.

     

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  18.  
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    Androgynous Cowherd, Jun 8th, 2012 @ 10:54pm

    Generalized habeas corpus rights

    We need to generalize the concept of habeas corpus.

    I propose that any infringement by the state of fundamental individual rights -- freedom of movement, freedom of speech, and so forth -- trigger a right to petition the courts on the part of the person whose rights are infringed. In the case that the state has imprisoned the person's body, it reduces to familiar habeas corpus as a special case, but it is more general. In particular, if someone has a press seized they would develop the right to be heard by a court, to petition that court to release the seized press, and to know the reason for the seizure, analogous to how someone imprisoned already has the right to be heard, to a trial that could lead to an acquittal and their freedom, and to know the charges against them.

    This would, naturally, extend to any other fundamental rights as well, such as freedom of association and freedom of religion -- presumably anything in the Bill of Rights. One could not be barred from owning a gun without a chance to be heard by a court for example, from combining generalized habeas corpus with the Second Amendment. It could also likely be interpreted as creating a right of appeal to the courts for anyone put on the infamous "no-fly" list.

    Essentially, the state should not be able to impose on a targeted individual or group (as opposed to levying general taxes and passing general legislation affecting the populace indiscriminately rather than targeting a person or group) without judicial review.

     

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  19.  
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    Ophelia Millais (profile), Jun 8th, 2012 @ 10:57pm

    Re:

    I hadn't thought of it like that before. I mean, it walks like a duck, it quacks like a duck, and people who know a thing or two about ducks are calling it "duck". But you're right! People who know a thing or two about insects haven't used the word duck, so clearly, this "duck" is just some kind of squat, feathered, flat-billed, webbed-footed insect, which is nowhere near as interesting as duck. Thanks, pal!

     

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  20.  
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    harbingerofdoom (profile), Jun 8th, 2012 @ 11:15pm

    Re:

    perhaps looking up the definition of censorship may help you.

     

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  21.  
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    Mike Masnick (profile), Jun 8th, 2012 @ 11:17pm

    Re:

    TD, sites citing TD, and Lofgren do not "censorship" make, no matter how may times that word finds its way into articles here.

    You have to be kidding me. The US gov't, on trumped up pretenses, at the urging of a private organization *SHUT DOWN* a publication, deny them access to a court hearing and don't give them back the site until over a year later?

    In what universe is that NOT censorship?

    It's the very definition of gov't censorship.

     

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  22.  
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    The eejit (profile), Jun 9th, 2012 @ 1:10am

    Re: Re: We need more politicos like these

    Wyden and Lofgren! See, I've got a cloning machine based in the US, so they'd be "born" on US soil!

    See? IT'S ALL SO SIMPLE! LET'S PATENT IT!

    "A Method for clonging people within Congress so that they can do their jobs more efficiently."

     

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  23.  
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    Beech, Jun 9th, 2012 @ 1:15am

    "Clearly, he was not prepared to answer."

    Disagree. He gave the perfect "slimeball lawyer" answer. Didn't really talk at all about the case in hand, but mentioned that IF something similar had HYPOTHETICALLY happened then it MAY BE CONSIDERED slightly bad by SOME. Furthermore, he met with no negative repercussions for it. He exercised the perfect amount of blow-off-ness to avoid a real answer at the same time as avoiding consequences. Clearly he didn't NEED to answer any better, why should he?

    And props to Longfren for asking the hard questions, but in the end, is it just paying lip service? I mean, a bunch of encrypted non-account-bound passwords are leaked to the internet you have a bunch of congress critters running around yipping about how we need to "DoooOOOoooo something!!1!!" Website shut down for a year? Let's give the person with responsibility a year to prepare his non-answer. How about a law making that shit illegal? How about impeaching the prick? Imagine the shit storm if the feds took CNN off the air for a year jus' b'cause. I see no reason why ANY form of censorship should be treated differently than any other.

     

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  24.  
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    Beech, Jun 9th, 2012 @ 1:18am

    "While I may have missed one or more, I have been unable to find any law blog that has referred to Dajaz1's seizure as comprising "censorship"."

    Ha, so? I haven't found any law blogs referring to quantum mechanics as a thing, nor the color of the sky, does that mean that wave-particle duality is bunk and the sky is neon brown?

     

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  25.  
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    Anonymous Coward, Jun 9th, 2012 @ 1:19am

    what a shame she didn't ask him outright who he worked for and therefore who's orders he followed when carrying out the original seizure and shut down of, not only the Dajaz1 site, but other sites as well. it would show Senator Lofgren the power the entertainment industries have to get this sort of thing executed and also the lengths certain people will go to to cover the arses of the execs of those industries as well as their own. she may well think that what happened is 'not the way America is supposed to be' but, without using too much brain power she must surely be able to see that this is how America really is now! corrupt from the highest level down, run by greedy and extremely powerful people that are in control of greedy and extremely powerful corporations that will go to any lengths they deem necessary to achieve their aims, regardless of the consequences to others!

     

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  26.  
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    G Thompson (profile), Jun 9th, 2012 @ 1:22am

    Re:

    uhuh

    http://blogs.law.harvard.edu/infolaw/2012/01/18/censorship-on-the-march/

    oops... seems your wrong (oh and it was cross posted on Concurring opinions) oh and look they are both LAW blogs

    *shakes head in wonder at the magnitude of your fail*

     

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  27.  
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    Anonymous Coward, Jun 9th, 2012 @ 2:45am

    Re:

    Moron, the sky is hot pink!

     

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  28.  
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    Anonymous Coward, Jun 9th, 2012 @ 2:47am

    Re: Re:

    "In what universe is that NOT censorship?"

    The marvel universe.

     

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  29.  
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    art guerrilla (profile), Jun 9th, 2012 @ 3:49am

    Re: Psychology of politicians...

    other professions, i'd say meh...
    but most social psychologists agree that certain people who have certain onset psychological conditions should not hold ANY political office...
    this is especially true if you have trouble determining constitutionality vs non-constitutionality...
    as a non-gamer and a non-psychologist, i have seen this a million fucking times, and, usually, it involves a rich person with borderline personality disorder (look it up)...
    the problem is that the user subconsciously believes that no actual human beings with feelings or sensitivities are their constituents...
    this type of psyche is dangerous because they learn to conflate money with power... in reality, that's only about 1% of us...
    mix that with a borderline personality disorder and being a rich sociopath, its a reactive mix...
    its not the game's fault, but it is entirely the politician's fault, though most cases like this, the politician is quite well aware of his actions, he just doesn't care...
    ...THEY DON'T HAVE TO: as another poster has pointed out, there are NO CONSEQUENCES from being a lying, defrauding, anti-constitution, POS, psychopathic politician, NONE ! ! !
    art guerrill
    aka ann archy
    eof

     

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  30.  
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    Anonymous Coward, Jun 9th, 2012 @ 4:15am

    It seems that Holder has a lot of problems explaining most of the things he has done since taking office.

     

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  31.  
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    Anonymous Coward, Jun 9th, 2012 @ 4:44am

    Re: Shut it down

    Can you run me through how you determined the domain name seizures (which are seizures of property tainted by crime) are prior restraints? I don't think that's right.

     

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  32.  
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    Jay (profile), Jun 9th, 2012 @ 6:06am

    Re: Re: Shut it down

    ICE has no proof of actual infringement, opting for the info used by a trade industry to harry and harass people living their lives. It's the very definition of prior restraint by seizing property before an adversarial heating allows a defendant to be heard in court.

     

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  33.  
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    Joel Enbom (profile), Jun 9th, 2012 @ 6:08am

    Clearly the DoJ is staffed by borderline personalities, driven to overreaction by too many World of Warcraft all-nighters.

     

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  34.  
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    RD, Jun 9th, 2012 @ 6:29am

    Re:

    "TD, sites citing TD, and Lofgren do not "censorship" make, no matter how may times that word finds its way into articles here.

    While I may have missed one or more, I have been unable to find any law blog that has referred to Dajaz1's seizure as comprising "censorship"."

    And thats a "report" click for this nonsense. This isnt a well-formed opinion we just happen to disagree on, this is a flat-out falsehood and willful misrepresentation of the issue at hand.

     

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  35.  
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    Anonymous Coward, Jun 9th, 2012 @ 6:43am

    Re: Re:

    My comment addressed a specific situation, namely, the association of the seizure of Dajaz1, the subject of this article, with censorship. Even in the blog you cite the association relies upon a TD article.

     

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  36.  
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    Anonymous Coward, Jun 9th, 2012 @ 6:54am

    Re: Re: Shut it down

    ...prior restraints?


    The government seized the entire website prior to trial on the merits, and furthermore, without any adversary hearing.

    Alexander v United States (1993) contains a concise summary of the Supreme Court's recent thinking on the doctrine of prior restraints. That opinion cites both Marcus v Search Warrant (1961) and A Quantity of Books v Kansas (1964).

    In Marcus, Mr Justice Brennan observes, “The use by government of the power of search and seizure as an adjunct to a system for the suppression of objectionable publications is not new. Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power.” He goes on to sketch out a little bit of that history from the 16th century up through the American Revolution and the framing of the First and Fourth Amendments.

    Quantity of Books v Kansas, involved a search and seizure statute and implementing rule of court “ strikingly similar” to the statute and rule at issue in Marcus. In both cases:

    ". . . there is no doubt that an effective restraint— indeed the most effective restraint possible—was imposed prior to hearing on the circulation of the publications in this case, because all copies on which the [sheriff] could lay [his] hands were physically removed . . . from the premises of the wholesale distributor. An opportunity . . . to circulate the [books] . . . and then raise the claim of nonobscenity by way of defense to a prosecution for doing so was never afforded these appellants because the copies they possessed were taken away. Their ability to circulate their publications was left to the chance of securing other copies, themselves subject to mass seizure under other such warrants. The public's opportunity to obtain the publications was thus determined by the distributor's readiness and ability to outwit the police by obtaining and selling other copies before they in turn could be seized. In addition to its unseemliness, we do not believe that this kind of enforced competition affords a reasonable likelihood that nonobscene publications, entitled to constitutional protection, will reach the public. A distributor may have every reason to believe that a publication is constitutionally protected and will be so held after judicial hearing, but his belief is unavailing as against the contrary [ex parte] judgment [pursuant to which the sheriff] . . . seizes it from him."


    In Dajaz, the government seized the entire website. Held it for over a year. Without any adversary hearing.

    That's a prior restraint.

     

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  37.  
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    Anonymous Coward, Jun 9th, 2012 @ 7:05am

    Re: Re: Re:

    If I may elaborate a bit. The term "censorship" is regularly used here as a broad generalization reaching any and all conduct that can interfere with expression, and expresses the view that any such interference demeans the rights of free speech and free press recited in the First Amendment.

    However, rights secured by the First Amendment have never been deemed "absolute" and beyond governmental power to address, be they either by the states (via the First Amendment as incorporated by the 14th Amendment) and the federal government via the First Amendment directly.

    Hence, I simply suggest that the term is more properly used with respect to US law by reference to our First Amendment jurisprudence.

     

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  38.  
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    Anonymous Coward, Jun 9th, 2012 @ 7:25am

    I think the constitutional right to free speech was removed. I think he gets a pass because he has a (D) after his name. Those with (D) after their name can apparently do whatever the hell they want when it comes to the constitution because apparently neither they nor the folks who vote for them or report about them give a rats ass about that 'old document'.

     

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  39.  
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    Karl (profile), Jun 9th, 2012 @ 7:49am

    Re: Re: Shut it down

    Dammit, Techdirt ate my last comment, for some reason.

    Anyway. In addition to Green A.C.'s cases (Alexander, etc), you should also read Fort Wayne Books v. Indiana, which ruled that probable cause is insufficient to take any speech out of circulation. An even better explanation is found in CDT v. Pappert (PDF), which held that a scheme remarkably similar to Operation In Our Sites was unconstitutionally overbroad (and that one dealt with child pornography).

    Additionally, if seizures are done in advance of a final determination, there are strict limits on the process. It must be done to preserve evidence; it must preserve the status quo; and the final judicial determination must be as prompt as possible to minimize the impact of possibly erroneous administrative action. See Heller v. New York and U.S. v. Thirty-Seven Photographs.

    Even the IP maximalists' favorite court case, Arcara v. Cloud Books, states outright that additional scrutiny is required if there is "an advance determination that the distribution of particular materials is prohibited."

    There's also some evidence that rights holders, at least, chose its targets not for the infringing content, but for the viewpoint of the sites:
    "One of the reasons we targeted Ninja Video was because it had such a strong social element," says Kevin Suh, senior vice president of Internet content protection at the Motion Picture Association of America (MPAA). "We wanted to send waves through this community."
    - A Ninja In Our Sites

    Considering that ICE relied almost entirely on rights holders to target the sites, this amounts to selective enforcement, a classic example of a content-based speech restriction.

    Of course, the First Amendment claims are just the tip of the iceberg in the government's list of legal wrongs. ICE is making legal claims that no courts have ever found to be valid, and often have outright contradicted. It considers "linking sites" to be criminally infringing, despite multiple circuit court rulings which found that linking is not infringement at all. It claims that a site can be fully compliant with the DMCA, yet still be criminally infringing. It uses Grokster's civil "inducement" standard, which is not part of any criminal statute. (A bill before Congress - the Induce Act - would have made it so; and that bill was defeated.) It presents no evidence that the direct infringement was in any way criminal. It claims revenues from content-agnostic services can be directly attributable to infringing activity, despite multiple court rulings that found otherwise. It claims that foreign sites found completely legal under their own countries' courts of law, were nonetheless "willfully" infringing. And so on.

    I would have gone into more depth in the petition itself, but unfortunately they only allow 800 characters.

     

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  40.  
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    anon, Jun 9th, 2012 @ 7:56am

    Corruption

    So after all of this it has been proven that there was absolutely no reason to take the blog down, does this mean that the site can sue the doj for the year they were down, does this mean that ice will be stopped in it's tracks until proof is provided to a judge before any seizure is allowed.

    I do not think so but in all honesty we are on our own now , the courts are not interested in the constitution any more and just allow the government to do whatever they want with no repercussions , I honestly believe that no website should have any of there servers in America and no website should have a domain name that the American government has control over.

     

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  41.  
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    Karl (profile), Jun 9th, 2012 @ 7:57am

    Re: Re: Re:

    My comment addressed a specific situation, namely, the association of the seizure of Dajaz1, the subject of this article, with censorship.

    Um...
    https://www.eff.org/cases/matter-seizure-internet-domain-name-dajaz1com

     

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  42.  
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    Anonymous Coward With A Unique Writing Style, Jun 9th, 2012 @ 8:22am

    Re: Re:

    It's not censorship in said AC's universe/reality. Why? Because the blog was gone for a year and entirely unviewable. That makes it NOT censorship. However, had there been a "Click to view this site" button, well... then that is 100% censorship, of the kind openly used and advocated for on Techdirt. (See previous articles for his explanations on that.)

    I don't believe any of that, I'm just explaining how censorship works and what it actually is according to the AC. Per our previous discussions where I was unable to explain to him what censorship actually is and where he's stated what it is.

     

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  43.  
    identicon
    Anonymous Coward, Jun 9th, 2012 @ 8:26am

    Re: Re: Re: Shut it down

    The government seized the entire website prior to trial on the merits, and furthermore, without any adversary hearing.

    The government didn't seize and "entire website." The government seized a domain name because of its use in the past as an instrumentality of crime. The government proceeded in rem against the domain name itself, seizing it for forfeiture. Probable cause is sufficient to get a seizure warrant, which is what's happening here. You don't get an adversary hearing when it's an instrumentality of criminal copyright infringement.

    In Marcus, Mr Justice Brennan observes, “The use by government of the power of search and seizure as an adjunct to a system for the suppression of objectionable publications is not new. Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power.” He goes on to sketch out a little bit of that history from the 16th century up through the American Revolution and the framing of the First and Fourth Amendments.

    But the government isn't using these seizures to stop the publication of any expressive materials. The property is being forfeited as a remedial sanction for crimes that the property already facilitated in the past. This isn't some sort of censorship regime where ideas are being suppressed. None of that historical stuff you're pointing to is going on here. The government is seizing instruments of crime for forfeiture. Such government actions predate the First Amendment and the other stuff you're looking at that doesn't apply here.

    Quantity of Books v Kansas, involved a search and seizure statute and implementing rule of court “ strikingly similar” to the statute and rule at issue in Marcus. In both cases: ***

    Those cases are inapposite. The government hasn't seized any quantities of expressive materials. Furthermore, the logic applicable in those obscenity cases doesn't apply here. There are special procedural hurdles for potentially obscene materials because obscenity is difficult to determine. There is no case law anywhere that says when it's simple piracy, there has to be an adversary hearing first. The reason is because the determination is simple to make, completely unlike when it's obscenity. Two centuries of enforcement of copyright laws, and not one court has ever said there has to be an adversary hearing first. Instead, the Copyright Act itself provides for ex parte seizures and even injunctions to prevent future infringements. And those aren't prior restraints because copyright works differently than obscenity. You're looking at the wrong cases.

    In Dajaz, the government seized the entire website. Held it for over a year. Without any adversary hearing.

    That's a prior restraint.


    The government seized a domain name, not an "entire website." They were free to immediately start using a new domain name, just as Rojadirecta did. Prior restraints usually are either licensing schemes or injunctions. These seizures are neither. A piece of property tainted by past criminal copyright acts was seized for civil in rem forfeiture pursuant to a warrant that issued upon a showing of probable cause to a magistrate. This is a subsequent sanction for remedial purposes, not a prior restraint. You guys are just trying to constitutionalize the issue because you don't like what the government is doing.

     

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  44.  
    identicon
    Anonymous Coward, Jun 9th, 2012 @ 8:45am

    Re: Re: Re: Shut it down

    Dammit, Techdirt ate my last comment, for some reason.

    I hate that. Sorry.

    Anyway. In addition to Green A.C.'s cases (Alexander, etc), you should also read Fort Wayne Books v. Indiana, which ruled that probable cause is insufficient to take any speech out of circulation. An even better explanation is found in CDT v. Pappert (PDF), which held that a scheme remarkably similar to Operation In Our Sites was unconstitutionally overbroad (and that one dealt with child pornography).

    Additionally, if seizures are done in advance of a final determination, there are strict limits on the process. It must be done to preserve evidence; it must preserve the status quo; and the final judicial determination must be as prompt as possible to minimize the impact of possibly erroneous administrative action. See Heller v. New York and U.S. v. Thirty-Seven Photographs.


    Fort Wayne applied to seizures of allegedly obscene materials. That line of cases is inapplicable when it's copyright infringement. No court has ever applied the extra procedural requirements that are found in obscenity doctrine to copyright seizures--either of materials or instrumentalities. Absolutely none of those cases apply here because this isn't an obscenity case.

    Even the IP maximalists' favorite court case, Arcara v. Cloud Books, states outright that additional scrutiny is required if there is "an advance determination that the distribution of particular materials is prohibited."

    You misunderstand that footnote in Arcara. The Court is saying that the forfeiture in Arcara is not a prior restraint because it's not (1) a licensing scheme, or (2) an injunction. That line about "advance determination" comes right out of the case law dealing with licensing schemes as prior restraints. There are two quintessential prior restraints: licensing schemes and injunctions. That's what the Court is talking about in that footnote in Arcara. These seizures of tainted property (the domain names) are not licensing schemes. That footnote from Arcara only helps the argument that it's not a prior restraint.

    There's also some evidence that rights holders, at least, chose its targets not for the infringing content, but for the viewpoint of the sites:

    "One of the reasons we targeted Ninja Video was because it had such a strong social element," says Kevin Suh, senior vice president of Internet content protection at the Motion Picture Association of America (MPAA). "We wanted to send waves through this community."

    - A Ninja In Our Sites

    Considering that ICE relied almost entirely on rights holders to target the sites, this amounts to selective enforcement, a classic example of a content-based speech restriction.


    Nice try, but what viewpoint is being suppressed exactly? You haven't identified it. There is no content-based restriction. Give me a break. Tell me exactly what viewpoint or content is being suppressed. You can't. The quote you provided identifies no viewpoint or subject matter. Besides, the government is seizing the domains as a subsequent remedial sanction. What the MPAA says is irrelevant regardless. You're really stretching things beyond the breaking point to pretend the government is trying to dissuade any conduct other than infringement.

    I'm just not seeing any prior restraint. Civil in rem forfeitures are by definition subsequent sanctions, not prior restraints. And since you don't get the extraordinary procedural requirements when it's copyright, there's no argument there either. Oh well. Thanks for trying to explain it. You're making probably the best arguments there are for your side, but they're simply the wrong arguments. You're skimming over the details (like how obscenity doctrine doesn't apply to copyright) to arrive at what I can only assume was your initial conclusion.

     

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  45.  
    identicon
    RD, Jun 9th, 2012 @ 8:51am

    Re:

    "I think the constitutional right to free speech was removed. I think he gets a pass because he has a (D) after his name. Those with (D) after their name can apparently do whatever the hell they want when it comes to the constitution because apparently neither they nor the folks who vote for them or report about them give a rats ass about that 'old document'."

    Oh yeah, because this problem is a PARTISAN issue. Get your head out of your ass. BOTH parties are just as bad about all this stuff. Or, are you forgetting Bushie with his "the constitution is just a god damn piece of paper" and the ENTIRE Patriot Act and Homeland Security. Waterboarding? Guantanamo? Getting a clue yet?

     

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  46.  
    identicon
    Anonymous Coward, Jun 9th, 2012 @ 9:44am

    Re: Re: Re:

    I try so hard to come up with some convoluted logic to mock IP extremists as as a shill parody and I can't. Their position is so ridiculous it's hard for me to really come up with anything more ridiculous.

     

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  47.  
    identicon
    Adrian Lopez, Jun 9th, 2012 @ 10:34am

    Re: Re: Re: Re: Shut it down

    The government didn't seize and "entire website."

    Bullshit. They seized the domain name, which affects the entire website. For people who access the website by its domain name rather than its IP address, seizing the domain is effectively the same as shutting down the website.


    The government seized a domain name because of its use in the past as an instrumentality of crime.

    What crime? There was no infringement of any kind, or the government would never have returned the domain.


    You don't get an adversary hearing when it's an instrumentality of criminal copyright infringement.

    A seizure affecting legitimate content should require an adversarial hearing, and forfeiture of any kind should always require it.


    There is no case law anywhere that says when it's simple piracy, there has to be an adversary hearing first.

    This wasn't a case of "simple piracy", or indeed piracy of any kind.


    The government hasn't seized any quantities of expressive materials.

    The government also didn't seize any infringing materials. They seized a domain name, effectively shutting down a website that did in fact contain expressive materials.


    You guys are just trying to constitutionalize the issue because you don't like what the government is doing.

    Whereas you are just trying to "litigate" the issue on a public forum because you've already made up your mind that the websites shut down were indeed infringing. Too bad your legal arguments are propping up a false case against Dajazi.

     

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  48.  
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    Mel, Jun 9th, 2012 @ 10:35am

    Re: Re: Re: Re: Shut it down

    " A piece of property tainted by past criminal copyright acts "

    I'm sorry I'm just a bit confused on which court found Dajaz1 guilty of anything. Ever. Oh they didn't? So there is no proof or record anywhere that ANY criminal copyright infringement or acts EVER occurred on Dajaz1 and you're just making that up.

    Ever hear of slander? Liable? Defamation of character? Have your opinion... but watch your mouth with your blatant bullshitting.

    Mel

     

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  49.  
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    Mel, Jun 9th, 2012 @ 10:46am

    Re: Re: Re: Re: Re: Shut it down

    And just to clarify (because there are some people who are just not that bright in the world) that is not a threat of any kind. Just merely pointing out the ground you tread. It's one thing to have an opinion - it's quite another to make a statement of fact that someone has committed or has been involved in committing a crime.

     

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  50.  
    icon
    Jay (profile), Jun 9th, 2012 @ 10:49am

    Re: Re: Re: Re: Shut it down

    Absolutely none of those cases apply here because this isn't an obscenity case.

    Here's one key fact that you're ignoring. All of those cases were presented before any seizure of property was completed. Right now, there was a gross overstep on constitutional grounds in all domain seizures with all of the problems coalescing in the Dajaz1 seizure.

    Nice try, but what viewpoint is being suppressed exactly? You haven't identified it. There is no content-based restriction. Give me a break. Tell me exactly what viewpoint or content is being suppressed. You can't. The quote you provided identifies no viewpoint or subject matter. Besides, the government is seizing the domains as a subsequent remedial sanction. What the MPAA says is irrelevant regardless. You're really stretching things beyond the breaking point to pretend the government is trying to dissuade any conduct other than infringement.

    There were forums attached to the blog of Dajaz1 which was taken down. The links to other materials were effectively taken down. The music which is speech itself was taken down and no one was allowed to hear it. Take your pick on expressive speech affected by the digital takedown of a domain for nothing other than an accusation. Then repeat it 758 times with little to no evidence from those accusing others of infringement.

    I'm just not seeing any prior restraint.

    Try harder since that's exactly what these domain seizures are. They're a DMCA takedown on steroids and are based on erroneous warrants as well as misleading charges brought about by a company that has a history of lying to get what it wants.

    Civil in rem forfeitures are by definition subsequent sanctions, not prior restraints.

    Uhm... So the domain is guilty of infringement? Wow...

    You're making probably the best arguments there are for your side, but they're simply the wrong arguments

    You're not explaining anything for your argument, merely moving the goal posts to try to say that somehow Karl is wrong in his analysis. Man up and explain the "extraordinary procedural requirements" since even Holder did such a spectacular job in front of Zofgren.

    You're skimming over the details (like how obscenity doctrine doesn't apply to copyright) to arrive at what I can only assume was your initial conclusion.

    Wrong. Why not do everyone a favor and quit grandstanding on this issue and say something substantive. All you've tried to do for two paragraphs is say how Karl is wrong as if somehow you're an expert. Nice try though.

     

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  51.  
    icon
    G Thompson (profile), Jun 9th, 2012 @ 10:56am

    Re: Re: Re: Re:

    Well seeing as I am not American and do not have top abide by your Constitution (sort of like your own US Govt lately) censorship to myself is the denial or stopping by any means communication to any party in a public forum to enhance some authorities powers that is not in the reasonable interest of the public at large.

    Therefore the article I quoted above references Techdirt yes, but is also in the context of the legal article itself which is about censorship.

    Living myself in a country that has Freedom of Expression instead, I can state that looking from the outside in, most Commonwealth countries now have more freedom of speech (as you dub it) than it seems the average citizen does in the USA.

    The ability to even make something like what happened to Dajaz1's forfeiture and subsequent court cases a secret is and should be abhorent to anyone who understands the history of law, we are not talking about in camera situation here, we are talking about secrecy that removes the ability of a defendant to confront their accusers, fully allows a non authorised party to not just initiate CRIMINAL actions, but also do the investigation this is not unbiased or impartial whatsoever.

    If this is the state of the current US Criminal system, no wonder you have the most amount of prisoners per head per population than anywhere else in the world, it's biased absolutely towards the prosecution and the corrupt (maybe not monetary but ethically) process that enables corporate and political interests to control the keys.

     

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  52.  
    icon
    G Thompson (profile), Jun 9th, 2012 @ 10:58am

    Re: Re: Re:

    Further to my comment here

     

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  53.  
    icon
    G Thompson (profile), Jun 9th, 2012 @ 11:02am

    Re: Re: Re: Re:

    disregard the weird comment above.. Hit enter ;(

    TI thought I saw it the other week when reading one of the major IP law blogs on the planet.

    http://www.the1709blog.blogspot.co.uk/2012/05/neelie-says-acta-is-doomed.html

    with a much more recent update too
    http://the1709blog.blogspot.com.au/2012/05/more-on-dajaz1com-and-is-tppa-next-acta.html

    See. .. lots of law blogs of major repute are talking about dajaz1 and the censorship of it and the implide ability of corporations to control investigations for criminal cases...

    oh & though not a law blog CNET is pretty respected as a MSM source
    http://news.cnet.com/8301-1023_3-57428362-93/critics-say-feds-riaa-too-closely-linked-in-mus ic-site-seizure/

     

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  54.  
    icon
    cosmicrat (profile), Jun 9th, 2012 @ 11:57am

    Re: Shut it down

    Come on folks, sign the petition! This is important.

    http://wh.gov/uZ8

     

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  55.  
    identicon
    Anonymous Coward, Jun 9th, 2012 @ 12:56pm

    Re: Re: Re: Re: Re:

    Blogs from the UK now count as substantive articulations of US law? I think not.

     

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  56.  
    identicon
    Anonymous Coward, Jun 9th, 2012 @ 3:48pm

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

    Translation: I have no substantive argument.

     

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  57.  
    identicon
    Anonymous Coward, Jun 9th, 2012 @ 6:08pm

    Re: Re: Re: Re: Re: Shut it down

    Bullshit. They seized the domain name, which affects the entire website. For people who access the website by its domain name rather than its IP address, seizing the domain is effectively the same as shutting down the website.

    Of course the entire website is affected. So what? The website could be up and running on another domain name in a matter of hours. Rojadirecta is an example of that. All that was seized was a piece of tainted property. There's no doubt that domain names may be forfeited. And the special procedures used in obscenity cases just aren't applicable when it's copyright. You don't get a prior adversarial hearing when it's an instrumentality of criminal infringement being seized.

    What crime? There was no infringement of any kind, or the government would never have returned the domain.

    The magistrate found that the affidavit provided probable cause and issued a seizure warrant. That the government later decided to return the domain name doesn't negate the fact that there was probable cause to seize the domain name when it was seized. That's what happened in this particular case. My question about prior restraint was addressing the seizures generally. Either way, there is probable cause to seize the domain names.

    A seizure affecting legitimate content should require an adversarial hearing, and forfeiture of any kind should always require it.

    You might think it should, but that is not the law.

    This wasn't a case of "simple piracy", or indeed piracy of any kind.

    Again, I'm asking about prior restraint with the seizures generally, and you're talking about the dajaz1.com case specifically. Regardless, the seizure in the dajaz1.com case was not a prior restraint either. I understand that you believe that this case isn't simple piracy. I also understand that the government indicated that there were hundreds of illicit files linked to on the site. I don't know who's right, nor do I really care. It wasn't a prior restraint even if every single link and file on the dajaz1.com website turned out to be authorized (which I seriously doubt to be the case).

    The government also didn't seize any infringing materials. They seized a domain name, effectively shutting down a website that did in fact contain expressive materials.

    There was probable cause to seize the domain name as being tainted property. That the property was also used for legitimate purposes is completely irrelevant. It's seizable nonetheless. It would be ridiculous to let criminals immunize their tools the way you suggest they should be able to.

    Whereas you are just trying to "litigate" the issue on a public forum because you've already made up your mind that the websites shut down were indeed infringing. Too bad your legal arguments are propping up a false case against Dajazi.

    From the affidavits I've reviewed, it appears to me the government did in fact have probable cause to make the seizures. I'm not making a false case against dajaz1.com. I'm saying there was probable cause to make the seizure, and that the seizure wasn't a prior restraint.

     

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  58.  
    identicon
    TDR, Jun 9th, 2012 @ 6:12pm

    Re: We need more politicos like these

    I think a better option would be Ron & Ron. As in Ron Wyden and Ron Paul. Now that would be a duo worth voting for. They could even call themselves The Ronamic Duo. Or The Two Rons. They could even say they're Ronning For Office, and that their opponents are Ronning Scared.

     

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  59.  
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    Anonymous Coward, Jun 9th, 2012 @ 6:12pm

    Re: Re: Re: Re: Re: Shut it down

    Ever hear of slander? Liable? Defamation of character? Have your opinion... but watch your mouth with your blatant bullshitting.

    The affidavit presents probable cause that the domain name is tainted property that may be forfeited: http://msnbcmedia.msn.com/i/msnbc/sections/news/Torrent_Finder_Warrant.pdf It starts on PDF page 54. The magistrate judge agreed that there was probable cause and issued the seizure warrant. It's not bullshit to explain the truth.

     

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  60.  
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    Karl (profile), Jun 9th, 2012 @ 6:46pm

    Re: Re: Re: Re: Shut it down

    Fort Wayne applied to seizures of allegedly obscene materials. That line of cases is inapplicable when it's copyright infringement.

    This is a common refrain, except it's simply not true. Not all of the cases were obscenity cases, for one thing. For another, none of the rulings limited themselves to obscenity (or child pornography), but used the general term "speech."

    And it's also not true that it is "inapplicable" to copyright infringement. Plenty of copyright cases have denied preliminary injunctions because they conflicted with the First Amendment, or were overbroad (Suntrust v. Houghton Mifflin, OPG v. Diebold, New Era v. Henry Holt, Abend v. MCA, Silverstein v. Penguin Putnam, etc). Because of this, an injunction is a "harsh and drastic" discretionary remedy (Kass v. Arden-Mayfair, quoted in Universal v. Sony).

    And I dare you to find even one copyright case that held that blocking speech which was not even allegedly infringing was acceptable.

    The Court is saying that the forfeiture in Arcara is not a prior restraint because it's not (1) a licensing scheme, or (2) an injunction.

    Nowhere in Arcara was this even hinted at. That passage was explicitly talking about "the closure order," not licensing or injunctions.

    Civil in rem forfeitures are by definition subsequent sanctions, not prior restraints.

    We're talking about ex parte seizures, not forfeitures.

    A sanction can only be "subsequent" if it follows after an adversarial process. I'll let CDT v. Pappert explain it to you:
    The Act and Informal Notice process are not prior restraints in the traditional sense. They do not prevent speech from reaching the market place but remove material already available on the Internet from circulation. Alexander v. United States, 509 U.S. 544 (1993) ("The term 'prior restraint' describes orders forbidding certain communications that are issued before the communications occur.") However, they are administrative prior restraints as that term has been interpreted by the Supreme Court. According to the Court, "only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." Freedman v. Maryland, 380 U.S. 51, 58 (U.S. 1965). Thus, if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint.

    Hard to get much clearer than that.

    Nice try, but what viewpoint is being suppressed exactly? You haven't identified it.

    The website was singled out for "a strong social element." That social element is fully, 100% protected expression. It is selective enforcement penalizing protected speech. Whatever you want to call it, at the very least it raises significant First Amendment questions.

     

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  61.  
    identicon
    well johnny, Jun 9th, 2012 @ 6:57pm

    Re:

    thats more then likely becuase you never looked.

    oh wait i forgot you cant.

    trolls can spell in non caps.

     

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  62.  
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    Karl (profile), Jun 9th, 2012 @ 7:20pm

    Re: Re: Re: Re: Re: Shut it down

    Sorry, more evidence.

    As further evidence that the cases do not constitute "obscenity doctrine," consider that they are also applicable to hate speech (R. A. V. v. St. Paul, Corry v. Stanford, etc) or defamation (Near v. Minnesota, etc). Essentially, for these cases to not apply to copyright, you are arguing far more than that deal with obscenity. You are arguing that copyright is categorically immune from First Amendment scrutiny. This is something that the Supreme Court explicitly said is false (Eldred v. Ashcroft).

    One other thing. The "harmonization" of seizure laws took place in the PRO-IP Act of 2008. Nobody - not even PRO-IP's harshest critics - thought the new seizure laws could be used to sieze domain names or shut down websites. The general consensus was that the new seizure laws allowed seizing computers that were owned and operated by the primary infringers.

    Thanks to the Internet, we can now look at the entire Congressional record online. And it is clear that the consensus is correct:
    Sec. 202. Harmonization of Forfeiture Procedures for Intellectual Property Offenses. Section 202 harmonizes all forfeiture and restitution laws for intellectual property offenses by amending 18 U.S.C. Sec. 2318, 2319, 2319A, 2319B to bring these provisions substantially in line with 18 U.S.C. 2320, which was enacted into law last year. The new provisions contain additional safeguards, such as the requirement that property involved in the commission of an offense be owned or predominantly controlled by the violator, a co- conspirator, or an aider and abettor of the violation in order to be seized under the civil forfeiture provisions. The definition of aiding and abetting is taken from Central Bank of Denver, NA. v. First Interstate Bank of Denver, N.A. 29

    [Footnote] Furthermore, such property is not subject to seizure unless a substantial connection between the property and the offense is proven. Use by a violator (or co-conspirator or aider or abetter) of commercially valuable digital communications or e-commerce services for, e.g., electronic mail or data storage, absent extraordinary circumstances, would not constitute predominant control of the servers and similar facilities used to provide the services. If, however, a computer were used by a violator (or co-conspirator or aider or abetter) primarily to store data used to further the infringement, the violator could be held to have substantially controlled the property and the computer would be subject to forfeiture. Another safeguard contained in this Act is the requirement that, for seizure under a criminal facilitation theory, the property be used to substantially facilitate the crime.

    ICE is clearly going beyond the bounds of what Congress intended. And they are violating the First Amendment in order to do it. All at the behest of the major media industries.

    It is very clear that this needs to stop, and right now.

     

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  63.  
    identicon
    Anonymous Coward, Jun 9th, 2012 @ 8:25pm

    Re: Re:

    Bush didnt get a pass. Obama will that is the difference.

     

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  64.  
    identicon
    Anonymous Coward, Jun 9th, 2012 @ 8:28pm

    Re: Re:

    meanwhile Obama extends Bush's policies and Obama gets a pass from everyone...that is the difference. You need to read the post again and get your head out of your ass...Obama is doing everything Bush did and more and suddenly only techdirt cares..we dont see the AP, Reuters, or Newsweek caring anymore do we?

     

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  65.  
    identicon
    Mel, Jun 9th, 2012 @ 9:16pm

    Re: Re: Re: Re: Re: Re: Shut it down

    Yet we know what was contained in that affidavit could not be proven and as such the domain was returned. All four songs listed came directly from rights holders one of which wasn't even signed to a major label nor represented by the person making the claim it was infringing.

    False and misleading claims do not facts make. Anyone can say anything they want, it doesn't make it the truth. The beautiful thing about facts is they are impossible to prove false. One has to be able to back their words up and that did not happen. Making a statement that the site was committing a crime knowing that no such crime could be proven is disingenuous at best. No matter how many wishes you make on every star will you ever be able to make that statement factual.

    And trust me I've read the affidavit so many times I'm positive I could recite it word for word on command.

    Have a great day though

    xoxo

     

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  66.  
    icon
    Karl (profile), Jun 9th, 2012 @ 9:24pm

    Re: Re: Re: Re: Re: Re: Shut it down

    It's not bullshit to explain the truth.

    True, but what you said was not the truth. The domain name was not "tainted by past criminal copyright acts." There were no past criminal copyright acts.

    At best, there was probable cause to believe that there were current criminal copyright acts being committed. And as it turns out, those beliefs were wholly without merit.

    Dajaz1 is not, and was not ever, engaging in criminal copyright infringement. In fact, so far there's been no evidence that he is involved in any form of copyright infringement at all.

     

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  67.  
    identicon
    Anonymous Coward, Jun 9th, 2012 @ 9:26pm

    Re: Re: Re: Re: Re: Re: Shut it down

    The website could be up and running on another domain name in a matter of hours.


    “[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.” Schneider v State (1939).

     

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  68.  
    identicon
    Anonymous Coward, Jun 9th, 2012 @ 9:35pm

    Re: Re: Re: Re: Re: Re: Shut it down

    There was probable cause to seize the domain name as being tainted property.


    Probable cause is not a sufficient basis. Fort Wayne Books v Indiana (1989):
    “[W]ile the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved. Lo-Ji Sales, Inc. v. New York,(1979).

    Emphasis added.

     

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  69.  
    identicon
    Adrian Lopez, Jun 9th, 2012 @ 10:36pm

    Re: Re: Re: Re: Re: Re: Shut it down

    Of course the entire website is affected. So what? The website could be up and running on another domain name in a matter of hours.

    If the loss of a domain is such a trivial matter, then what is the point of seizing that domain in the first place? The domain itself is not infringing content, so there's really no point in seizing it unless doing so has an effect akin to shutting down the allegedly infringing website.


    And the special procedures used in obscenity cases just aren't applicable when it's copyright. You don't get a prior adversarial hearing when it's an instrumentality of criminal infringement being seized.

    Where has it been established that seizures leading to the suppression of constitutionally protected speech don't require an adversarial hearing in cases involving alleged copyright infringement?


    It would be ridiculous to let criminals immunize their tools the way you suggest they should be able to.

    What's ridiculous is for the government to seize the domain of a website containing protected speech when doing so isn't necessary in building a case against the website's operators. I understand the need for pretrial seizure in certain cases, but such a tool should be used as a scalpel instead of a hatchet. The government is wielding a hatchet.

     

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  70.  
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    Anonymous Coward, Jun 9th, 2012 @ 11:14pm

    Its just too bad the RIAA doesn't get huge fines for this BS.

     

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  71.  
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    G Thompson (profile), Jun 10th, 2012 @ 12:12am

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

    So using that centric argument blogs from the USA (law or otherwise) have no basis for spouting off beliefs on law in other foreign jurisdictions.

    Cool, I'll remember that when people like yourself spout on about MegaUpload, Rojadirecta, TPP, ACTA, WIPO, Defamation, et.al

    Though if you read your original comment you will notice that their was no specification of stating US or otherwise "law blogs" though if you want to change your statement after the fact go right ahead, otherwise it is wise to specify exactly what you are waffling on about. TD might be a USA blog/forum though it has a wide range of International commentary on it so next time try not to be so provincial

     

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  72.  
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    techflaws (profile), Jun 10th, 2012 @ 12:23am

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

    ACs that try (and fail) to redefine the meaning of censorship now count as substantive articulations of US law? I think not.

     

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  73.  
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    Anonymous Coward, Jun 10th, 2012 @ 7:45am

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

    In the practice of law in the US it is foolish (and almost certainly a basis for a malpractice claim, perhaps even a basis for discipline by the bar of the state in which the practitioner is admitted, as well in specific instances by federal agencies before which an individual is authorized to practice) to render legal advice associated with the substantive law of a foreign jurisdiction. For this one consults with a practitioner in the relevant foreign jurisdiction.

    I assumed, apparently erroneously, that my comment would be understood with the above in mind.

     

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    The eejit (profile), Jun 10th, 2012 @ 8:27am

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

    so [insert nation here] law specialists don't apply in their relevant legal specialties?

    ...Good to know.

     

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    average_joe (profile), Jun 10th, 2012 @ 8:39am

    Re: Re: Re: Re: Re: Re: Re: Shut it down

    If the loss of a domain is such a trivial matter, then what is the point of seizing that domain in the first place? The domain itself is not infringing content, so there's really no point in seizing it unless doing so has an effect akin to shutting down the allegedly infringing website.

    Actually, with civil in rem forfeiture, the court operates under the legal fiction that the domain name itself is conscious and culpable. The domain name itself is condemned. The purpose is chiefly remedial, although in part it's punitive as well. It serves to deter others from allowing their property to be used for crime. It's seized to abate a nuisance and to stop its continued use an instrumentality of crime.

    Where has it been established that seizures leading to the suppression of constitutionally protected speech don't require an adversarial hearing in cases involving alleged copyright infringement?

    What constitutionally-protected speech has been suppressed? There's no injunction, no licensing scheme. People are completely free to continue any speech they want. There is no restraint. They just can't used the condemned piece of property (the domain name) anymore. Moreover, prior restraint is not an issue when its simple piracy:
    Furthermore, it is well-settled law that the prior restraint doctrine is inapplicable in cases where one's proprietary interests are at stake, such as infringements of copyright or trademark. See e.g., Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184 (5th Cir.1979). In upholding a preliminary injunction in a case involving a potential copyright infringement, the Fifth Circuit noted that “[t]he first amendment is not a *931 license to trammel on legally recognized rights in intellectual property.” Id. at 1188 (citing Zacchini, 433 U.S. at 577, 97 S.Ct. 2849).
    Bosley v. Wildwett.com, 310 F. Supp. 2d 914, 930-31 (N.D. Ohio 2004).

    The First Amendment doesn't protect property that being forfeited as an instrumentality of crime. When it's obscenity there are extraordinary procedural hurdles. When it's copyright there aren't these hurdles because prior restraint is not an issue. That's all that's happening here. You guys are pretending like the court has issued an injunction forbidding people from running a website. No judge has done that. All that's happened is that a tainted piece of property has been seized via court order. The fact that the property was also used for noncriminal, protected conduct is irrelevant.

    What's ridiculous is for the government to seize the domain of a website containing protected speech when doing so isn't necessary in building a case against the website's operators. I understand the need for pretrial seizure in certain cases, but such a tool should be used as a scalpel instead of a hatchet. The government is wielding a hatchet.

    When there is evidence to believe that a piece of property is being used for crime, that piece of property may be seized and forfeited. It's really as simple as that. The government has been forfeiting tainted property for centuries. Just because it's a domain name, it doesn't get special treatment. Sorry.

     

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    G Thompson (profile), Jun 10th, 2012 @ 8:48am

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

    I wasn't actually of the opinion you were, or even I was offering legal advise.

    And stating that opining about legal argument without stating that you are acting in a manner that could be construed as representing a client or potential client is in no way unethical. Otherwise any legal practitioner could not offer any opinion about any laws, foreign nor domestic without falling afoul of ethical and negligent obligations.

    Myself I have never taken your or any AC's (or any pseudonym's ofr that matter) advice as anything other than an opinion or a statement of beliefs that they have in a personal matter. Now if on the other hand you were stating it in an official manner with your real name (believe it or not this pseudonym of mine IS actually my real surname and one initial) then I might look at it more as a ethical breach if it in my professional opinion it crossed that line in the sand.

    Legal blogs are not rendering legal advise, and if you think they are then you really need to look at most disclaimers on those blogs. "Simple Justice" and "Volokh Conspiracy" and even "ABA journal" for examples would shoot you down in flames for even making that assumption. They offer opinion, based on their knowledge and experience ONLY, nothing more, nothing less.

    Why are we even having this conversation anyway, when it is all over a statement you made about law blogs not, in your experience, having reported or opined on the dajaz1 scenario. I and others have shown that they have, and no matter your beliefs about whether dajaz1 was treated fairly or was about censorship or somewhere in between that still leaves the situation that you have been proven wrong and that their were some law blogs that did do it.

    If on the other hand you would like a debate on the legal definitions of international law, reciprocity, digital evidence, or even admiralty law et.al then I would be more than willing to chat with you privately via email and offer specific advice.

     

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    average_joe (profile), Jun 10th, 2012 @ 8:53am

    Re: Re: Re: Re: Re: Re: Re: Shut it down

    “[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.” Schneider v State (1939).

    I know the EFF and others love to pull out that quote, but unfortunately for you and them, it's not applicable here. Domain names aren't public places, which is what the Court is referring to there. Domain names are simply pieces of property.

    Instead of just looking at the end of the sentence that you cherry-picked, why don't we look at the whole paragraph:
    It is suggested that the Los Angeles and Worcester ordinances are valid because their operation is limited to streets and alleys and leaves persons free to distribute printed matter in other public places. But, as we have said, the streets are natural and proper places for the dissemination of information and opinion; and one is not to have the exercise of his liberty of expression in appropriate places **152 abridged on the plea that it may be exercised in some other place.
    Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 163, 60 S. Ct. 146, 151-52, 84 L. Ed. 155 (1939).

    It's clear that the issue there is whether an ordinance that prohibits pamphleteering on public streets and alleys violates the First Amendment. The Court is saying that it's no answer to say that they can just pamphleteer elsewhere. With the domain name seizures, a piece of property tainted by past crimes is being forfeited. The government is not restricting what physical, public locations are open for people to use for expressive conduct.

    The issue in that Supreme Court case you're looking at would be analyzed today under the public forum and/or the time, place, manner restriction doctrines. Neither of those doctrines is applicable here. That quote sounds great, all pulled out of context and twisted as you (and others) are using it. But that argument is complete bunk. Sorry.

     

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    Anonymous Coward, Jun 10th, 2012 @ 9:09am

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

    There are many similarities between US and UK law because in large measure they have a common foundation. At the same time, however, there are many dissimilarities such as, for example, "fair use" in the US that is not a mainstay of copyright law in the UK. France is even more afield in that its copyright laws are based upon a fundamentally different premise.

    So, yes, in matters of substantive law one is a fool to wax poetic on other nation's laws. The laws of physics are the same in the US as they are in Latvia. The same cannot be said of laws under their respective legal systems.

     

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    average_joe (profile), Jun 10th, 2012 @ 9:13am

    Re: Re: Re: Re: Re: Re: Re: Shut it down

    Probable cause is not a sufficient basis. Fort Wayne Books v Indiana (1989):

    “[W]ile the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved. Lo-Ji Sales, Inc. v. New York,(1979).

    Emphasis added.


    That's another line that sounds great for your side, but it's not applicable here either. First of all, expressive materials aren't being seized here. That case applies when allegedly obscene materials are themselves seized. The domain name seizures are seizures of instrumentalities of crime, not of expressive materials. Moreover, there are no heightened requirements for seizure of allegedly copyright-infringing materials or instrumentalities. The reason is because the same fears of prior restraint are not present when it's copyright. None of that language your side keeps pulling out from the obscenity line of cases applies when it's copyright. The fact is, probable cause is sufficient to seize infringing materials or instrumentalities of infringement. There is no Fourth Amendment exception for copyright like there is for obscenity.

     

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    Anonymous Coward, Jun 10th, 2012 @ 9:28am

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

    You appear inclined to read much more into comments I happen to provide than is intended. And, yes, nothing I may provide here is in any way intended to constitute legal advice upon which others may rely.

    BTW, I read daily the "Volokh Conspiracy" and find it to be quite thought provoking because it relies upon the subject matter expertise of its authors (and even among them there are strong differences of opinion). There are others that do likewise, but they tend to be in the distinct minority. What these sites do have is a commitment to serving as honest brokers, exploring all sides of an issue.

     

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    G Thompson (profile), Jun 10th, 2012 @ 9:50am

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

    I agree and apoligise if I read more into your comment on professional ethical obligations than I was meant too, though It made no sense when in the context of the original comment.

    Volokh is one of the ones I read whenever I have the time too as well, as are a few international, US ones, plus my own Australasia specific ones. Though most of mine are more inclined towards Criminology and Evidence, with a bit of psychology thrown in for good measure - yep I enjoy the insanity :)

    There's an old joke, if you ask two lawyers a question you will get three answers (or more). And Honest brokering of data that allows discourse and critical discussion within it's own posts and within the community via comments is what I enjoy most of all. TD tries to do this though sadly the angst and distrust towards AC's (whoever they are) is beginning to affect a lot of this critical debate. Though there have been some specific and troubling troll-like AC's. Painting all AC's with this brush is NOT warranted.

    Though if you really want a law blog, go to a law blog. TD really isn't one, which is what I like actually, since I find it refreshing and sometimes highly amusing to someone living outside the USofA. [Though I'm wondering why Mike hasn't posted about that idiot called Brett Kimberlin etc yet its very relevant to online censorship etc]

    Have a great rest of your weekend.

     

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    average_joe (profile), Jun 10th, 2012 @ 9:55am

    Re: Re: Re: Re: Re: Shut it down

    This is a common refrain, except it's simply not true. Not all of the cases were obscenity cases, for one thing. For another, none of the rulings limited themselves to obscenity (or child pornography), but used the general term "speech."

    When it's simple piracy, there is no free speech concern. To suppress the speech before a proper determination that it's unprotected is a prior restraint. There is a right to publish the speech, even though they may be sanctioned subsequently. None of that applies when it's simple piracy. No court has ever in over two centuries used the extraordinary procedural safeguards when it's simple piracy. The fact is, it's an easy-to-make, objective determination whether something is infringing. That determination can be made ex parte, and the Copyright Act even so expressly provides for such measures.

    And it's also not true that it is "inapplicable" to copyright infringement. Plenty of copyright cases have denied preliminary injunctions because they conflicted with the First Amendment, or were overbroad (Suntrust v. Houghton Mifflin, OPG v. Diebold, New Era v. Henry Holt, Abend v. MCA, Silverstein v. Penguin Putnam, etc). Because of this, an injunction is a "harsh and drastic" discretionary remedy (Kass v. Arden-Mayfair, quoted in Universal v. Sony).

    Yes, when there is a fair use argument, then the First Amendment is involved. But when it's simple piracy, there is no First Amendment concern.

    And I dare you to find even one copyright case that held that blocking speech which was not even allegedly infringing was acceptable.

    Arcara held that shutting down a bookstore was not a prior restraint, even though doing so would have an obvious effect on the protected speech and conduct that occurred there. As the Court explained there in the footnote, it's not a prior restraint because it's not a licensing scheme and it's not an injunction, and the bookstore owners are free to continue their protected activities elsewhere.

    Nowhere in Arcara was this even hinted at. That passage was explicitly talking about "the closure order," not licensing or injunctions.

    That footnote you're looking at is exactly about the two quintessential types of prior restraints. You would recognize that if you were more familiar with prior restraint doctrine.

    We're talking about ex parte seizures, not forfeitures.

    The seizure is how the court exercises dominion over the property so that it may be forfeited. The action that's filed is a forfeiture action. It is forfeiture that ultimately condemns the property. The seizure is how the court takes control of the property in the interim until final judgment is rendered. At the magic moment of forfeiture judgment, title passes to the government. (I believe it actually relates back to the date of the seizure, but I'm not sure about that.) Anyway, this whole action is forfeiture, and the seizure is just part of the procedure of forfeiture. When the thing being seized for forfeiture is an instrumentality of criminal infringement, you don't get special Fourth Amendment treatment. Probable cause is sufficient to seize an instrumentality of criminal infringement.

    A sanction can only be "subsequent" if it follows after an adversarial process. I'll let CDT v. Pappert explain it to you:

    The Act and Informal Notice process are not prior restraints in the traditional sense. They do not prevent speech from reaching the market place but remove material already available on the Internet from circulation. Alexander v. United States, 509 U.S. 544 (1993) ("The term 'prior restraint' describes orders forbidding certain communications that are issued before the communications occur.") However, they are administrative prior restraints as that term has been interpreted by the Supreme Court. According to the Court, "only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." Freedman v. Maryland, 380 U.S. 51, 58 (U.S. 1965). Thus, if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint.

    Hard to get much clearer than that.


    Pappert was an administrative prior restraint. The domain name seizures, done by court order, are not. Administrative prior restraints are done by the executive branch of government. The domain name seizures are judicial, not administrative. So right there, Pappert is distinguishable since it was administrative. As the court in Pappert explains, the extraordinary procedures found in obscenity cases are also needed in child pornography cases:
    Defendant argues that fewer procedural protections are required for the removal from circulation of child pornography, as compared with obscenity, because the child pornography determination is easier than *659 the obscenity determination. The Court rejects this argument.

    This argument is based on defendant's position that Fort Wayne Books was distinguished in dicta by Camfield v. City of Oklahoma City, 248 F.3d 1214, 1227 (10th Cir.2001). According to the court in Camfield, “we do not necessarily agree with the implication that compliance with Fort Wayne Books is always required whenever the government seeks to remove suspected child pornography from public access.” Id. “Child pornography differs from obscenity in two important respects. First, child pornography is afforded even less constitutional protection than obscenity. Second, as courts have noted in the context of probable cause determinations, the difficulty encountered in determining whether material is obscene often is absent when determining whether material contains child pornography.” Id. For example, with child pornography a court does not have to assess whether the work, “taken on the whole, contains serious literary, artistic, political, or scientific value.” See New York v. Ferber, 458 U.S. 747, 761, 764, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). However, the Camfield court did not reach the issue because the child pornography statute examined in that case did require an examination of the artistic merit of the work as a whole, and the court held that the difficulty in making this assessment rendered compliance with Fort Wayne Books necessary. Id. at 1228. The court noted, however, that the appellant “does not cite, nor have we found, any cases which have held that the complete removal of suspected child pornography from public circulation without a prior adversarial hearing constitutes a prior restraint.” Id.

    Camfield was decided before the Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). Ashcroft affects this Court's analysis of Camfield in two respects. First, the Supreme Court acknowledged in Ashcroft that virtual pornography is indistinguishable from real child pornography. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 254, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (“Experts, we are told, may have difficulty in saying whether the pictures were made by using real children or by using computer imaging.”). Second, the Court held that virtual child pornography can be protected speech. Both of these statements make a child pornography determination more difficult because a court now must assess whether the alleged child pornography is virtual. Pls.' Reply at 30–31. In a case decided after Ashcroft, the First Circuit affirmed a decision to vacate a conviction for possession of child pornography because the government did not present evidence proving that the child in the image was “not confabulated, but real.” United States v. Hilton, 363 F.3d 58, 64 (1st Cir.2004).

    The actions taken by the OAG when it sought a court order demonstrate that the OAG understood the kind of evidence a court would require before suppression of presumptively protected material. The OAG consulted a doctor before obtaining the only court order issued under the Act to make certain the images subject to the order were child pornography. Defendant did not take any such precautions before issuing Informal Notices. FOF ¶ 88.

    The Supreme Court's opinion in Ashcroft undercuts the Camfield court's assertion that an obscenity determination is more difficult than a child pornography determination. Based on the Court's guidance in Ashcroft and the measures taken by the OAG, this Court cannot conclude that fewer procedural protections are necessary before child pornography is removed from circulation than those that are required for obscenity. Moreover, even if *660 fewer protections were necessary, the ex parte, probable cause determination provided for in the Act is insufficient.
    Ctr. For Democracy & Tech. v. Pappert, 337 F. Supp. 2d 606, 658-60 (E.D. Pa. 2004).

    The domain name seizures aren't like the administrative restraints in Pappert. With the domain names, a piece of property tainted by past criminal acts is being seized and forfeited. Pappert doesn't negate such forfeitures. As the court in Pappert makes clear, since determination of child pornography is tricky just like determination of obscenity is, the extraordinary procedures are required. Such is not the case with simple piracy where the determination is simple and objective.

    The website was singled out for "a strong social element." That social element is fully, 100% protected expression. It is selective enforcement penalizing protected speech. Whatever you want to call it, at the very least it raises significant First Amendment questions.

    You have identified no subject matter and no viewpoint that is being singled out. Sorry.

     

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    Anonymous Coward, Jun 10th, 2012 @ 10:32am

    Re: Re: Re: Re: Re: Re: Re: Shut it down

    But you forget, when it comes to the internet, one is guilty first unless they are found innocent.

    That's basic American law for you.

     

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    Anonymous Coward, Jun 10th, 2012 @ 10:34am

    Re: Re: Re: Re: Re: Re: Shut it down

    But this whole piracy thing has been figured out though, right? Thanks to the law. Go law!

     

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    average_joe (profile), Jun 10th, 2012 @ 11:20am

    Re: Re: Re: Re: Re: Re: Shut it down

    Sorry, more evidence.

    As further evidence that the cases do not constitute "obscenity doctrine," consider that they are also applicable to hate speech (R. A. V. v. St. Paul, Corry v. Stanford, etc) or defamation (Near v. Minnesota, etc). Essentially, for these cases to not apply to copyright, you are arguing far more than that deal with obscenity. You are arguing that copyright is categorically immune from First Amendment scrutiny. This is something that the Supreme Court explicitly said is false (Eldred v. Ashcroft).


    That line about being "categorically immune" was referring to substantive copyright laws. The Court said that as long as the built-in First Amendment accommodations of fair use and the idea/expression dichotomy are intact, a substantive copyright law (like the CTEA or Section 514 of the URAA) gets no further First Amendment scrutiny. This forfeiture statute is not a substantive copyright law. It doesn't define the scope of the substantive copyright rights. So that test from Eldred doesn't apply here.

    But that all misses the point. I'm saying that when it's simple piracy, there is no prior restraint issue. Instrumentalities of criminal copyright infringement can be seized upon a showing of probable cause and forfeited if the government proves its case by a preponderance of the evidence. There is no doubt that the domain names can be forfeited (Arcara establishes that). And you don't get the extraordinary procedures when it's copyright like you do when it's child pornography or obscenity. The reason is because it's simple to establish infringement, and there's no concern about enforcement turning into a censorship regime, which the ill that prior restraint doctrine seeks to cure by demanding more procedures when it's child pornography or obscenity (and some others). Copyright is about protecting proprietary interests, not a judgment about the content of the work that's being protected. Copyright is oblivious to the viewpoint or subject matter of the copyrighted work. You just don't have the same concern about censorship (real censorship, not the version Techdirt promotes).

    One other thing. The "harmonization" of seizure laws took place in the PRO-IP Act of 2008. Nobody - not even PRO-IP's harshest critics - thought the new seizure laws could be used to sieze domain names or shut down websites. The general consensus was that the new seizure laws allowed seizing computers that were owned and operated by the primary infringers.

    Thanks to the Internet, we can now look at the entire Congressional record online. And it is clear that the consensus is correct:

    Sec. 202. Harmonization of Forfeiture Procedures for Intellectual Property Offenses. Section 202 harmonizes all forfeiture and restitution laws for intellectual property offenses by amending 18 U.S.C. Sec. 2318, 2319, 2319A, 2319B to bring these provisions substantially in line with 18 U.S.C. 2320, which was enacted into law last year. The new provisions contain additional safeguards, such as the requirement that property involved in the commission of an offense be owned or predominantly controlled by the violator, a co- conspirator, or an aider and abettor of the violation in order to be seized under the civil forfeiture provisions. The definition of aiding and abetting is taken from Central Bank of Denver, NA. v. First Interstate Bank of Denver, N.A. 29

    [Footnote] Furthermore, such property is not subject to seizure unless a substantial connection between the property and the offense is proven. Use by a violator (or co-conspirator or aider or abetter) of commercially valuable digital communications or e-commerce services for, e.g., electronic mail or data storage, absent extraordinary circumstances, would not constitute predominant control of the servers and similar facilities used to provide the services. If, however, a computer were used by a violator (or co-conspirator or aider or abetter) primarily to store data used to further the infringement, the violator could be held to have substantially controlled the property and the computer would be subject to forfeiture. Another safeguard contained in this Act is the requirement that, for seizure under a criminal facilitation theory, the property be used to substantially facilitate the crime.


    That passage doesn't say that it applies to Section 2323, which is the section the government is using as authority for the forfeitures. Those additional safeguards were intentionally left out of Section 2323. If Congress wanted to extend those safeguards to forfeitures commenced under Section 2323, it knew how to make it so. Congress chose not to. The legislative history you've cited doesn't apply here.

    ICE is clearly going beyond the bounds of what Congress intended. And they are violating the First Amendment in order to do it. All at the behest of the major media industries.

    Section 2323 says that "any property" can be forfeited if it's used to commit or facilitate criminal infringement. You've identified nothing which shows that Congress did not intend for domain names to be excluded from the extremely broad "any property" language Congress expressly chose to use in the statute without limitation.

    It is very clear that this needs to stop, and right now.

    I understand your disagreement with the soundness of the policy, but that doesn't mean it's unconstitutional.

     

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    Anonymous Coward, Jun 10th, 2012 @ 11:26am

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

    An Aussie, huh? I can recall a couple of instances when questions came up concerning Australian law and I retained local counsel to provide the information needed by my clients.

    Re most law blogs (and far too many law review and journal articles to my liking), their bias is palpable and the exploration of all sides of issues is missing entirely. All I really want is to find information and analysis that delves into the pros and cons of specific legal issues so that I can better understand the nuances of law. At one time or another one will be required to present arguments in one case that are diametrically opposed to arguments presented in another. If the nuances are well understood, it is possible to present effective arguments that do not do violence to the orderly development of the law.

    Merely FYI, my initial visit to this site was to try and garner information about counterpoints to much of what is existing law. I have learned quite a bit, but unfortunately the pro and con aspects of law seem to fall by the wayside in the discussions.

    You might find it interesting that a couple of years ago TD was nominated to an ABA survey of top legal blogs as one pertaining to IP law. Even though it is most definitely not such a blog, I was saddened when the eventual "winner" was one hosted by an idividual whose bias is so palpable to the point that I can only stomach reading it about once a month. Since then, however, more honest broker blogs have secured the honor.

    Best wishes Down Under,

    Mike Slonecker

     

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    i can tell you you one thing, Jun 10th, 2012 @ 12:39pm

    ifs theres anything i have learned about US law it is that itcan be twistedinto anything no matter how bad it is.

    just look at the way joe does it.

     

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    Karl (profile), Jun 10th, 2012 @ 3:33pm

    Re: Re: Re: Re: Re: Re: Re: Shut it down

    Heya, Joe. Welcome back?

    That line about being "categorically immune" was referring to substantive copyright laws.

    Not really. The court just said that copyright was not categorically immune from the First Amendment. The decision itself could be said to be based on substantive copyright law; that is, the court determined that since there were defenses to be raised under copyright law, those defenses (fair use, idea/expression) removed the conflict between copyright and the First Amendment.

    But we are talking about a situation in which the government blocks both allegedly infringing and protected speech without the opportunity for those defenses to be raised at all. If the idea/expression dichotomy and fair use didn't exist, do you actually believe copyright would be lawful under the First Amendment? If not, then a procedural law which doesn't allow those defenses to be raised automatically comes in conflict with the First Amendment.

    I'm saying that when it's simple piracy, there is no prior restraint issue.

    If the defendant is never contacted in any way, there is no such thing as "simple piracy." This case proves it. It appeared to be a "simple piracy" case, but in fact, every single one of the songs was authorized. Every single one was protected expression. There is no evidence that there was any "piracy" on the site at all.

    Arcara establishes that

    Joe, we've been over this many times before. Arcara only applies when the conduct that drew the legal remedy is "nonexpressive." It does not apply to any kind of speech regulation. It very explicitly does not apply if there is "an advance determination that the distribution of particular materials is prohibited."

    The case was even quoted in Fort Wayne v. Indiana. Not because the court contemplated for a moment that it was applicable, but because Arcara explicitly held that using criminal statutes "as a pretext for closing down a bookstore because it sold indecent books" demanded heightened First Amendment scrutiny. And we both know what the court held in Fort Wayne.

    The idea that Arcara applies here is simply and objectively wrong. I honestly have no idea why you keep bringing it up.

    I've already cited a bunch of cases that held that preliminary injunctions cannot be overbroad, and where they were denied on First Amendment grounds. On the other hand, neither you nor anyone else has ever cited a case that said it was acceptable to block protected speech along with infringing speech.

    And you don't get the extraordinary procedures when it's copyright like you do when it's child pornography or obscenity. The reason is because it's simple to establish infringement

    Are you actually saying that it's easier to establish infringement than it is to establish child pornography? That is the most ridiculous thing I've ever heard in my entire life.

    Those additional safeguards were intentionally left out of Section 2323.

    Section 2323 was created a year before PRO-IP - that is, a year before it applied to copyright infringement. It wasn't "intentionally left out" of the statute, it wasn't put in.

    The reason I am quoting the record is because it shows what Congress intended. Whatever reasons they had for leaving 2323 alone (I'm guessing statutory simplification), it wasn't so the government could shut down websites without notice.

    Section 2323 says that "any property" can be forfeited if it's used to commit or facilitate criminal infringement.

    Not exactly. It's "any property used" to "commit or facilitate" the "making or trafficking" of any infringing "article."

    It's twisting the law to block a website full of non-infringing speech, especially when the website owners are not the primary infringers.

    I understand your disagreement with the soundness of the policy, but that doesn't mean it's unconstitutional.

    If the yearlong blocking of a website full of authorized content is not unconstitutional, then the First Amendment is in big trouble. So is copyright itself, since the government is suppressing exactly the behavior that copyright is supposed to promote.

     

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  89.  
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    Karl (profile), Jun 10th, 2012 @ 4:12pm

    Re: Re: Re: Re: Re: Re: Shut it down

    I can tell that this is going to get tiring real fast. You've already made all of these arguments before. They weren't convincing then, and they're not convincing now.

    So, I'll keep it brief:

    When it's simple piracy, there is no free speech concern.

    Until the defendants have a chance to present a defense (or at least be contacted!) then there is no such thing as "simple piracy."

    Yes, when there is a fair use argument, then the First Amendment is involved.

    Many of those cases did not involve a fair use argument.

    Arcara

    ...was not a copyright case. And it has never been used as a precedent in any copyright case. That's because it unequivocably does not apply to any form of speech restriction (including copyright).

    You can quote Arcara until you're blue in the face. You will still be wrong.

    That footnote you're looking at is exactly about the two quintessential types of prior restraints.

    At least one of which is happening right now. Besides, Arcara explicitly mentioned "the closure order," which is neither a licensing scheme, nor an injunction. If they meant injunctions or licensing schemes, they would have said so. They didn't. You're putting words in the judges' mouths.

    The seizure is how the court exercises dominion over the property so that it may be forfeited.

    The difference is that forfeiture happens after an adversarial hearing, and seizures do not. That is a big difference. If Fort Wayne was about the former, the case would have swung the other way.

    Pappert was an administrative prior restraint. The domain name seizures, done by court order, are not.

    Funny how that distinction is not mentioned at all in the case. You know what is? "A judicial determination in an adversary proceeding."

    With the domain names, a piece of property tainted by past criminal acts is being seized and forfeited.

    There were no "past criminal acts." There was (at best) probable cause to believe there were ongoing criminal acts. And in this case, even the "probable cause" was a joke. No criminal acts occurred at all.

    As the court in Pappert makes clear, since determination of child pornography is tricky just like determination of obscenity is, the extraordinary procedures are required. Such is not the case with simple piracy where the determination is simple and objective.

    Apparently it's not "simple and objective," since the court got it absolutely wrong in this case. That's what happens when the government doesn't even bother to find out if the materials are authorized or not.

    You have identified no subject matter and no viewpoint that is being singled out.

    Perhaps not a specific viewpoint, though that could probably be argued. The "subject matter" is the "social aspect" of the site, which is constitutionally protected speech. It probably wouldn't get the website off the hook, but it does point to selective enforcement. That's a problem, and it stems from the fact that ICE simply took the MPAA/RIAA at face value, without considering the other side at all. (If they had, Dajaz1 wouldn't have been seized at all, much less for a year because law enforcement couldn't be bothered to do its own police work.)

     

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  90.  
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    Karl (profile), Jun 10th, 2012 @ 4:42pm

    Re: Re: Re: Re: Re: Re: Re: Re: Shut it down

    Domain names aren't public places, which is what the Court is referring to there. Domain names are simply pieces of property.

    Nope:
    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 Co. v. Webfeats

     

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  91.  
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    Anonymous Coward, Jun 10th, 2012 @ 4:52pm

    Re: Re: Re: Re: Re: Re: Shut it down

    "The website could be up and running on another domain name in a matter of hours."

    The argument that this justifies wrongfully and illegally taking down a website is so ridiculous that this quite is a good reason why it's hard to tell an IP extremist apart from someone being sarcastic.

    That a website can be up and running under another domain name doesn't make illegally taking down a website any more legal.

     

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  92.  
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    Anonymous Coward, Jun 10th, 2012 @ 4:53pm

    Re: Re: Re: Re: Re: Re: Re: Shut it down

    quote *

     

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  93.  
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    Anonymous Coward, Jun 10th, 2012 @ 4:57pm

    Re: Re: Re: Re: Re: Re: Re: Re: Shut it down

    "What constitutionally-protected speech has been suppressed?"

    The speech expressed on this website.

    "There's no injunction"

    Free speech was suppressed.

    "The purpose is chiefly remedial, although in part it's punitive as well."

    To punish them for not breaking the law?

    "It serves to deter others from allowing their property to be used for crime. It's seized to abate a nuisance and to stop its continued use an instrumentality of crime."

    It didn't work because the domain was illegally seized which is (or should be) a crime and clearly the feds weren't deterred from breaking the law and committing a crime.

    "People are completely free to continue any speech they want."

    Except that they might have their website seized by the government, which is a govt. imposed deterrent to free speech.

    "Moreover, prior restraint is not an issue when its simple piracy:"

    There was no infringement here so prior restraint, even by your own sentence, prior restraint is an issue.

     

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  94.  
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    Anonymous Coward, Jun 10th, 2012 @ 5:01pm

    Re: Re: Re: Re: Re: Re: Re: Re: Shut it down

    "First of all, expressive materials aren't being seized here."

    That's a lie.

    "The reason is because the same fears of prior restraint are not present when it's copyright."

    By this logic the govt. can arbitrary seize all the websites it wants, for political purposes, suppressing all the speech it wants, under the pretext that they're trying to suppress infringement. Under that pretext they are immune from all punishment.

    Your logic is so terrible that it's hard to believe you even take yourself seriously.

     

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  95.  
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    Anonymous Coward, Jun 10th, 2012 @ 5:07pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Shut it down

    Nope:

    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 Co. v. Webfeats


    That case concerns the situation where someone uses someone else's mark in their domain name. That case dealt with Mishkoff using Taubman's mark in his domain name, taubmansucks.com. That case has nothing to do with these seizures. Use of someone else's IP in the domain name itself is not the issue in the domain name seizures. That case applies when the domain name itself potentially violates someone else's IP rights. You really have to look at the context of the case. You can't just cherry-pick lines out of context. Sorry.

     

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  96.  
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    Karl (profile), Jun 10th, 2012 @ 5:28pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Shut it down

    hat case concerns the situation where someone uses someone else's mark in their domain name.

    So, an IP (though not copyright) case that was determined to conflict with the First Amendment. Seems apropos.

    Also, I'm not the one making the ludicrous claim that domain names are "simply pieces of property."

    You can't just cherry-pick lines out of context.

    Pot, I'd like you to meet my friend kettle.

    In any case, I'm not the only one doing that bit of "cherry-picking:"
    Through the use of chat rooms, 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. [...]

    The Government first contends that, even though the CDA effectively censors discourse on many of the Internet's modalities - such as chat groups, newsgroups, and mail exploders - it is nonetheless constitutional because it provides a "reasonable opportunity" for speakers to engage in the restricted speech on the World Wide Web. [...] In invalidating a number of laws that banned leafletting on the streets regardless of their content - we explained that "one 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." Schneider v. State (Town of Irvington), 308 U.S. 147, 163 (1939).
    - Reno v. ACLU

    (To be clear: The CDA was unconstitutional because it was "content-based." But here the court is saying that it would be unconstitutional even if it wasn't - for exactly the reason Purple A.C. said.)

     

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  97.  
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    Anonymous Coward, Jun 10th, 2012 @ 5:56pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Shut it down

    So, an IP (though not copyright) case that was determined to conflict with the First Amendment. Seems apropos.\

    It's not at all apropos. The situation is completely different when the domain name itself contains characters that violate someone else's IP rights, and when the website the domain name points to does the same. The fact that you don't recognize a difference between these two types of cases is quite telling.

    Also, I'm not the one making the ludicrous claim that domain names are "simply pieces of property."

    And yet the domain names are being seized and forfeited because they're pieces of property used to infringe. You call it a "ludicrous claim," but you can't refute that the DOJ and the courts are operating under that very same claim.

    Pot, I'd like you to meet my friend kettle.

    You say that, but you provide no example of any line I'm quoting out of context. You really have nothing, I suppose.

    In any case, I'm not the only one doing that bit of "cherry-picking:"

    Through the use of chat rooms, 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. [...]

    The Government first contends that, even though the CDA effectively censors discourse on many of the Internet's modalities - such as chat groups, newsgroups, and mail exploders - it is nonetheless constitutional because it provides a "reasonable opportunity" for speakers to engage in the restricted speech on the World Wide Web. [...] In invalidating a number of laws that banned leafletting on the streets regardless of their content - we explained that "one 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." Schneider v. State (Town of Irvington), 308 U.S. 147, 163 (1939).

    - Reno v. ACLU


    And none of that applies when it's a piece of tainted property being forfeited. Just like the bookstore in Arcara could be shut down, despite the fact that protected expression and conduct took place there, so too can a domain name be forfeited, despite the fact that some people use it for protected activities.

    (To be clear: The CDA was unconstitutional because it was "content-based." But here the court is saying that it would be unconstitutional even if it wasn't - for exactly the reason Purple A.C. said.)

    And a forfeiture statute that has nothing to do with content-based restrictions being unconstitutional. Instrumentalities of crime can be seized and forfeited. You haven't--and can't--deny that.

    I understand your confusion, given the fact that you've no formal training in law, and the fact that you haven't studied these issues in depth.

     

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    Jay (profile), Jun 10th, 2012 @ 7:06pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Shut it down

    Please show evidence of infringement

     

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  99.  
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    Karl (profile), Jun 10th, 2012 @ 7:18pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Shut it down

    It's not at all apropos.

    Well, considering how much the seizure apologists here claim copyright is immune to First Amendment challenges, I thought so.

    Though, no, not so much to the comment I was replying to. You're right about that.

    And yet the domain names are being seized and forfeited because they're pieces of property used to infringe.

    Which is unlawful prior restraint, in my opinion. No judge has declared these seizures lawful, so I guess we'll find out, assuming it ever gets that far.

    And none of that applies when it's a piece of tainted property being forfeited.

    It does, however, show that domain names are not simply "pieces of property." Both cases say pretty explicitly that they are avenues of expression.

    Nor are they "tainted," since there was never anything other than probable cause (at best) that the websites were criminally infringing.

    Incidentally, none of the copyright-infringing domain names have been forfeited, that I know of. Dajaz1 was returned, Rojadirecta is ongoing (and the judge dismissed the original complaint), and I don't believe forfeiture proceedings for any of the others have been started. I could be wrong.

    Just like the bookstore in Arcara could be shut down

    The bookstore in Arcara could be shut down because the conduct which drew the legal remedy was not any form of expression (protected or otherwise); was not directed primarily at entities that engaged in expression (like websites); and did not require any advance determination that materials were unprotected. If any of those things are true, Arcara is inapplicable, and an appropriate First Amendment standard (e.g. O'Brien) must be used instead. In this case, all three conditions are not met.

    You guys really need to stop with the Arcara bullshit. It unequivocably does not apply to these seizures, just as it would not apply to child pornography, libel, obscenity, trade secrets, national security, hate speech, or any other form of unprotected speech. No judge has ever ruled that it has.

    (As an aside: the bookstore in Arcara was not, in fact, shut down. The statute was found to be prior restraint under the New York State constitution.)

    And a forfeiture statute that has nothing to do with content-based restrictions being unconstitutional.

    That sentence didn't parse. You're talking about forfeiture statutes in general, or this particular case?

    Regardless - in general, when a seizure is based on a content-based restriction, it must past heightened First Amendment scrutiny. (Forfeiture happens after an adversarial hearing, so usually it does not.)

    The reason this seizure wasn't constitutional does not have to do with the difference between content-based and content-neutral speech restrictions. It has to do with the fact that it was done ex parte, and the owners were denied any access to the court for over a year, before the domain was returned (without telling the owner or their lawyers). It has to do with the fact that none of the material on the site was criminally infringing (and there is no evidence that it was civilly infringing either). And regarding these seizures in general, it has to do with the fact that they are overbroad, blocking speech that is not even allegedly infringing.

    Instrumentalities of crime can be seized and forfeited. You haven't--and can't--deny that.

    No, I haven't denied it, nor did I suggest that they couldn't. I only pointed out - correctly - that when those "instrumantalities" are vehicles for protected speech, additional First Amendment safeguards are required, including a pre-seizure adversarial hearing.

    I understand your confusion, given the fact that you've no formal training in law, and the fact that you haven't studied these issues in depth.

    I don't understand your egotism, given that you're anonymous, and I have no reason to suspect either that you studied law, or studied these issues in depth. At the very least, I have done the second; and when I am confused, I ask one of my many lawyer or law student friends. So thanks for being patronizing, but I don't need your help.

     

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  100.  
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    John Fenderson (profile), Jun 11th, 2012 @ 2:23pm

    Re: Re: Re: Re: Re: Re: Shut it down

    If your comments are correct, and I am not implying they aren't, then the whole thing stands as yet another piece of evidence for how corrupt and unjust our laws and legal system are.

     

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  101.  
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    average_joe (profile), Jun 11th, 2012 @ 5:29pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Shut it down

    Which is unlawful prior restraint, in my opinion. No judge has declared these seizures lawful, so I guess we'll find out, assuming it ever gets that far.

    You seem to be forgetting that it was judges who ordered these seizures in the first place, obviously believing them to be lawful. And given the fact that there's no special Fourth Amendment exception for when the seizure is for the purpose of forfeiting a tainted instrumentality, they had no reason to think the seizures unlawful. Just like closing the bookstore in Arcara was no restraint at all, even though it might be hard for the store to relocate, it's no restraint at all with the domain names. No one is being restrained from speaking. There is no injunction, no licensing scheme. People can say whatever they want. They just can't use that piece of tainted property. It is deodand, so to speak, offered to the gods. http://en.wikipedia.org/wiki/Deodand

    It does, however, show that domain names are not simply "pieces of property." Both cases say pretty explicitly that they are avenues of expression.

    They are avenues of expression, no doubt. So was the bookstore in Arcara, but it could be forfeited too.

    Nor are they "tainted," since there was never anything other than probable cause (at best) that the websites were criminally infringing.

    That's contradictory. All that is needed to seize it is probable cause, just like other instrumentalities of crime. If you admit that there's probable cause, then you admit that there is enough evidence that the property is tainted so as to justify its seizure so it can be forfeited later.

    Incidentally, none of the copyright-infringing domain names have been forfeited, that I know of. Dajaz1 was returned, Rojadirecta is ongoing (and the judge dismissed the original complaint), and I don't believe forfeiture proceedings for any of the others have been started. I could be wrong.

    I know one DOJ press release said that many had been not only seized but forfeited. That's no surprise. The government is getting default judgments, since so few are challenging the forfeitures.

    The bookstore in Arcara could be shut down because the conduct which drew the legal remedy was not any form of expression (protected or otherwise); was not directed primarily at entities that engaged in expression (like websites); and did not require any advance determination that materials were unprotected. If any of those things are true, Arcara is inapplicable, and an appropriate First Amendment standard (e.g. O'Brien) must be used instead. In this case, all three conditions are not met.

    You're mixing up the doctrines a bit. The bit about "the conduct which drew the legal remedy" refers to the O'Brien line of cases, and the bit about "was not directed primarily at entities that engaged in expression" refers to the Minneapolis Star line of cases. Neither of those lines of cases are used for prior restraint analysis. Prior restraint is a separate doctrine; it's a separate argument.

    The bit about "did not require any advance determination that materials were unprotected" is from the footnote in Arcara, and as I mentioned above, refers to the two quintessential types of prior restraints--injunctions and licensing schemes. Advance determination refers to an advance determination by the censor in a licensing scheme.

    You guys really need to stop with the Arcara bullshit. It unequivocably does not apply to these seizures, just as it would not apply to child pornography, libel, obscenity, trade secrets, national security, hate speech, or any other form of unprotected speech. No judge has ever ruled that it has.

    Arcara stands for the proposition that if forfeiting a bookstore is not a prior restraint, then forfeiting a domain name isn't either. And then, of course, there are arguments both ways about whether the forfeiture statute gets heightened scrutiny under some other First Amendment test like in O'Brien. But Arcara is so dismissive of the argument that shutting down the bookstore is a prior restraint, that it puts the argument in a footnote, listing the two quintessential prior restraints and saying that neither was in play. Just like with the domain name seizures. It's one thing to argue that it's a prior restraint, but another to say that the statute gets heightened scrutiny because of some other doctrine. For clarity, you shouldn't mix up the two.

    (As an aside: the bookstore in Arcara was not, in fact, shut down. The statute was found to be prior restraint under the New York State constitution.)

    Right. But the New York constitution provides more protection the federal one. And under the federal Constitution, the one that matters with these forfeitures, shutting down the bookstore wasn't a prior restraint.

    That sentence didn't parse. You're talking about forfeiture statutes in general, or this particular case?

    I'm not sure what I was saying there. LOL!

    Regardless - in general, when a seizure is based on a content-based restriction, it must past heightened First Amendment scrutiny. (Forfeiture happens after an adversarial hearing, so usually it does not.)

    True, but copyright isn't a content-based restriction on speech--it doesn't get treated to strict scrutiny like statutes that prescribe/proscribe viewpoint or subject matter. I think understanding that is critical to understanding why the Court treats copyright differently. Sure, it's a burden on speech--by design, no less. But it's not a burden in the sense that it limits what people can say. It doesn't lock up the marketplace of ideas. In fact, it contributes to that marketplace as the engine of free expression. Other speech restrictions--the ones that get heightened scrutiny--don't encourage the creation of protected expression. Only copyright does that. Copyright is special as far as speech restrictions go because it's not other speech restrictions. Trying to clump it in with obscenity doesn't work because the two are completely different.

    The reason this seizure wasn't constitutional does not have to do with the difference between content-based and content-neutral speech restrictions. It has to do with the fact that it was done ex parte, and the owners were denied any access to the court for over a year, before the domain was returned (without telling the owner or their lawyers). It has to do with the fact that none of the material on the site was criminally infringing (and there is no evidence that it was civilly infringing either). And regarding these seizures in general, it has to do with the fact that they are overbroad, blocking speech that is not even allegedly infringing.

    But no speech is being blocked. There is restraint at all. Just like there was no restraint at all in Arcara. Once you accept that a domain name can be forfeited, your only hope of having it be a prior restraint is to argue that there's not enough process before the seizure takes place. As I've explained above, you don't get those extraordinary procedures when it's copyright.

    Even the district court in the Pappert case, in the lengthy section I quoted above, went through the analysis to decide if the extraordinary procedures used in obscenity cases should be used when it's child pornography. The court wouldn't have gone through that analysis if the answer is always the same. And with copyright, the answer is that it's not a prior restraint to make an ex parte seizure of an instrumentality of criminal infringement. The reason is because it's an easy determination to make. It's objective.

    I gave you a cite above of a court saying that prior restraint doesn't apply when it's copyright. The court spoke a little too broadly, because I agree, as you pointed out, there can be a prior restraint issue if there's fair use. But when it's simple piracy, you don't have those First Amendment concerns. There is no prior restraint issue.

    No, I haven't denied it, nor did I suggest that they couldn't. I only pointed out - correctly - that when those "instrumantalities" are vehicles for protected speech, additional First Amendment safeguards are required, including a pre-seizure adversarial hearing.

    That's an oversimplification. You don't get the preseizure hearing when it's copyright for all the reasons why copyright is a different restriction on speech than other restrictions such as obscenity laws or child pornography laws. Copyright doesn't block viewpoints or subject matter. It's not censorship. (Again, real censorship, not Techdirt's version of it.)

    I don't understand your egotism, given that you're anonymous, and I have no reason to suspect either that you studied law, or studied these issues in depth. At the very least, I have done the second; and when I am confused, I ask one of my many lawyer or law student friends. So thanks for being patronizing, but I don't need your help.

    Didn't mean to ruffle your feathers. It's clear though that you're confused about a lot of this. I'm sure if you heard someone talk that knew only some programming theory, but not a lot, that you would cringe a little too when they tried to explain the theory. It's not personal. And given your lack of legal training, it shouldn't be too surprising. I think it's cool that you're into this stuff too, even if you do have it all wrong. (Just kidding!) This is complicated stuff, and I'm glad to bounce my ideas off of you.

     

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    Niall (profile), Jun 12th, 2012 @ 4:47am

    Re: Re: Re: We need more politicos like these

    If 'clonging' them would be more like "smacking them upside the head until they do what they are paid to do by the public, not private contributors" then I'd be happy.

     

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    Niall (profile), Jun 12th, 2012 @ 4:48am

    Re: Re: We need more politicos like these

    Because the last Ron act was sooooo good.

     

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    Karl (profile), Jun 12th, 2012 @ 7:58pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Shut it down

    You seem to be forgetting that it was judges who ordered these seizures in the first place, obviously believing them to be lawful.

    No judge "ordered" the seizures. They didn't make a judicial determination of infringement, they merely rubber-stamped the seizures (literally, in Dajaz1's case). Just like the judges did in Fort Wayne.

    And given the fact that there's no special Fourth Amendment exception for when the seizure is for the purpose of forfeiting a tainted instrumentality

    There is when the "instrumentality" is an avenue of expression, as domain names are.

    Just like closing the bookstore in Arcara was no restraint at all

    Arcara does not apply. It says so right in the language of the ruling. Additionally, the closure order in Arcara was not done ex parte.

    All that is needed to seize it is probable cause, just like other instrumentalities of crime.

    Avenues of expression are absolutely not "just like other instrumentalities of crime." If that were true, the adult bookstore in Fort Wayne could be shut down on probable cause of RICO violations.

    I know one DOJ press release said that many had been not only seized but forfeited.

    I was talking about the ones that were guilty of copyright infringement (and not e.g. trademark infringement). Also, since ICE and the DOJ outright lied before (claiming no sites were contesting the seizures), they're not a trustworthy source as far as I'm concerned.

    You're mixing up the doctrines a bit. The bit about "the conduct which drew the legal remedy" refers to the O'Brien line of cases, and the bit about "was not directed primarily at entities that engaged in expression" refers to the Minneapolis Star line of cases. Neither of those lines of cases are used for prior restraint analysis. Prior restraint is a separate doctrine; it's a separate argument.

    "Administrative prior restraint" was what the CDT court called it, so I'm pretty comfortable using the phrase. In essence, "prior restraint" now means "prior to a judicial determination," and probable cause is simply not enough for a judicial determination.

    The bit about "did not require any advance determination that materials were unprotected" is from the footnote in Arcara, and as I mentioned above, refers to the two quintessential types of prior restraints--injunctions and licensing schemes. Advance determination refers to an advance determination by the censor in a licensing scheme.

    If they would have meant that, they would have said it. And it's clear from the context - the end of that passage was "the imposition of the closure order has nothing to do with any expressive conduct at all" - that it's not what they meant.

    Additionally, if they would have meant that they were talking about the O'Brien or Minneapolis Star standards, then they would have used those standards to determine the closure order's constitutionality. They did not.

    Arcara stands for the proposition that if forfeiting a bookstore is not a prior restraint, then forfeiting a domain name isn't either.

    Arcara does not say that "forfeiting a bookstore is not a prior restraint." It says that closing a building as part of "the enforcement of a public health regulation of general application" is not a prior restraint, even if that building happens to be a bookstore. Other examples the ruling gave were "Fire Code violations or health hazards from inadequate sewage treatment." On the other hand, according to Arcara, if any statute "single[s] out bookstores," it would require heightened First Amendment analysis.

    Sure, it's a burden on speech--by design, no less. But it's not a burden in the sense that it limits what people can say.

    Okay, so you're talking not about seizures in general, but these seizures in particular, or copyright infringement seizures at least. Fair enough.

    Copyright doesn't have to be a "content-based" restriction to get heightened First Amendment scrutiny. It only has to be a speech restriction. These seizures may not get strict scrutiny, but they do require some scrutiny, because not even allegedly unprotected speech was shut down. Even statutes unrelated to the suppression of speech must pass the O'Brien standard if they burden protected speech in the process.

    At the very least, the mere fact that they are a burden on speech makes Arcara inapplicable. Arcara applies to neither content-based restrictions, nor content-neutral restrictions. It does not even apply to conduct with both "speech" and "nonspeech" elements. It explicitly, in no uncertain terms, applies only to utterly nonexpressive conduct.

    It's pretty clear that you don't like what the case actually says, so you're trying to reinterpret it so that it says what you'd like it to say. But the language in the case is explicit.

    But no speech is being blocked.

    This is ridiculous, as the seizure affidavit explicitly says that the seizure was to "prevent third parties from continuing to access" the site. Additionally, if this were true, ICE would not have told Mozilla to block the MafiaaFire add-on, claiming it "circumvented a seizure order."

    I gave you a cite above of a court saying that prior restraint doesn't apply when it's copyright.

    I must have missed it, then. The closest case you cited was Eldred, which did not say that "prior restraint doesn't apply when it's copyright." If the government lengthened the statute of limitations for obscenity charges, that probably wouldn't be unconstitutional either, but that wouldn't mean "prior restraint doesn't apply to obscenity."

    Didn't mean to ruffle your feathers. It's clear though that you're confused about a lot of this. I'm sure if you heard someone talk that knew only some programming theory, but not a lot, that you would cringe a little too when they tried to explain the theory.

    Though I admit I'm not a lawyer, I'm in no way confused. I've been following free speech cases for about twenty-five years (I lived two counties over from Fort Wayne when that case was going on). Everyone was claiming "this time it's different" back then, too.

     

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

  105.  
    icon
    average_joe (profile), Jun 13th, 2012 @ 11:04am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Shut it down

    No judge "ordered" the seizures. They didn't make a judicial determination of infringement, they merely rubber-stamped the seizures (literally, in Dajaz1's case). Just like the judges did in Fort Wayne.

    The magistrate judge made a determination that there was probable cause that the domain name was forfeitable as instrumentality of crime, and thus the seizure warrant was issued. Fort Wayne involved the seizure of large quantities of books and films because there was probable cause to believe that they were obscene. Even though the seizure was couched as enforcement of a RICO law, ultimately it boiled down to a seizure of materials based on merely probable cause. This violated the Marcus v. Search Warrant line of cases that require extraordinary procedural safeguards when it's the seizure of allegedly obscene materials.

    The reason those safeguards are needed is because of the problem with prior restraint. But with simple piracy, there is no issue with prior restraint:
    Furthermore, it is well-settled law that the prior restraint doctrine is inapplicable in cases where one's proprietary interests are at stake, such as infringements of copyright or trademark. See e.g., Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184 (5th Cir.1979). In upholding a preliminary injunction in a case involving a potential copyright infringement, the Fifth Circuit noted that “[t]he first amendment is not a *931 license to trammel on legally recognized rights in intellectual property.” Id. at 1188 (citing Zacchini, 433 U.S. at 577, 97 S.Ct. 2849).
    Bosley v. Wildwett.com, 310 F. Supp. 2d 914, 930-31 (N.D. Ohio 2004).

    There is when the "instrumentality" is an avenue of expression, as domain names are.

    It's not that simple. You have to look at the context. If you use a printing press to print and publish protected works, but you also use the press for criminal copyright infringement, then that press can be seized upon a showing of probable cause that it can be forfeited. The fact that you also use the press for protected activities doesn't mean you get the extraordinary procedural safeguards that apply when it's the seizure of quantities of materials. Protecting proprietary rights doesn't raise the same problems as occur when dealing with obscene (or similar) materials. It's not a restraint because there is no legal impediment to anyone publishing anything.

    Arcara does not apply. It says so right in the language of the ruling. Additionally, the closure order in Arcara was not done ex parte.

    Arcara says lots of things and stands for lots of things. Several doctrines are involved. I pointed out already how the footnote dismisses the prior restraint argument. That part certainly applies since the domain name forfeitures aren't prior restraints for the same reasons. It's not a licensing scheme, and it's not an injunction. The issue in Arcara was whether the bookstore could be forfeited at all, even after a trial on the merits, because of its status as an avenue of protected expression. Focusing on the ex parte/inter partes distinction misses the point. Since there wasn't any restraint of expressive materials (despite the fact that the bookstore would be closed), there was no reason to consider whether the procedural protections were adequate. It didn't pass prior restraint scrutiny because it was enforced post-trial. It passed muster because it wasn't even a restraint.

    Avenues of expression are absolutely not "just like other instrumentalities of crime." If that were true, the adult bookstore in Fort Wayne could be shut down on probable cause of RICO violations.

    But the Court made very clear that at bottom, even though the seizure of the books and films in Fort Wayne Books was couched in terms of the RICO statute, nevertheless it was a seizure of a large quantity of presumptively-protected materials based on merely probable cause. The fact that it was the RICO law and not an obscenity law being enforced didn't matter since either way the necessary extraordinary procedural safeguards hadn't been used. The jurisprudence on seizures of large quantities of allegedly obscene materials doesn't apply when it's copyright, because, as I have explained, prior restraint doesn't apply when it's simple piracy.

    I was talking about the ones that were guilty of copyright infringement (and not e.g. trademark infringement). Also, since ICE and the DOJ outright lied before (claiming no sites were contesting the seizures), they're not a trustworthy source as far as I'm concerned.

    But can you think of a single reason why the government wouldn't be getting default judgments? Your skepticism makes little sense to me. Do you know how easy it is to win when the other side doesn't even show up?

    "Administrative prior restraint" was what the CDT court called it, so I'm pretty comfortable using the phrase.

    It's only an administrative prior restraint if it's brought about by the administrative branch of government, i.e., the executive branch. These domain name seizures are judicial prior restraints, if they're prior restraints at all (which they're not). It is simply incorrect to refer to the domain name seizures as administrative prior restraints, since they're not administrative.

    In essence, "prior restraint" now means "prior to a judicial determination," and probable cause is simply not enough for a judicial determination.

    Probable cause being sufficient judicial determination is the rule, not the exception. The Fourth Amendment rule is that a judicial determination of probable cause is sufficient for a warrant to issue. If you want to impose an exceptional rule, like the one from the obscenity line of cases you rely on, then you have to show why those exceptions apply when it's copyright. They don't. As I quoted for you just above, when it's copyright (specifically simple piracy), there's no issue with prior restraint. To understand why, you should be looking at the ill prior restraint doctrine seeks to cure. Enforcement of proprietary rights is not pretext for censorship of First Amendment-protected expression.

    If they would have meant that, they would have said it. And it's clear from the context - the end of that passage was "the imposition of the closure order has nothing to do with any expressive conduct at all" - that it's not what they meant.

    They've said it so many times, and the prior restraint argument was so weak, that they relegated the issue to a dismissive footnote. As I said above, if you read up on prior restraint doctrine and become much more familiar with it, you will recognize what that footnote is saying. They're saying it's not a prior restraint because it's not a restraint at all, despite the fact that the bookstore will be closed and their relocation no doubt difficult.

    Additionally, if they would have meant that they were talking about the O'Brien or Minneapolis Star standards, then they would have used those standards to determine the closure order's constitutionality. They did not.

    The Court in Arcara explicitly mentioned both lines of cases and explained why neither was relevant to the forfeiture of the bookstore. Those are different tests--tests that have nothing to do with prior restraint. The O'Brien line of cases, the Minneapolis Star line of cases, and the Arcara line of cases are all different First Amendment scenarios. The Court in Arcara said O'Brien and Minneapolis didn't even apply. Even if they did apply, though, there's no reason to think that the Court would have found that forfeiture statute failed the tests therein.

    Arcara does not say that "forfeiting a bookstore is not a prior restraint." It says that closing a building as part of "the enforcement of a public health regulation of general application" is not a prior restraint, even if that building happens to be a bookstore. Other examples the ruling gave were "Fire Code violations or health hazards from inadequate sewage treatment." On the other hand, according to Arcara, if any statute "single[s] out bookstores," it would require heightened First Amendment analysis.

    Right. If First Amendment-protected activities are singled out, then the statute would get heightened scrutiny under the Minneapolis Star line of cases. But, the forfeiture statute didn't single out bookstores. Nor does the forfeiture statute with the domain name seizures, 18 U.S.C. 2323, single out First Amendment-protected activities. Minneapolis Star doesn't apply here either.

    Copyright doesn't have to be a "content-based" restriction to get heightened First Amendment scrutiny. It only has to be a speech restriction. These seizures may not get strict scrutiny, but they do require some scrutiny, because not even allegedly unprotected speech was shut down. Even statutes unrelated to the suppression of speech must pass the O'Brien standard if they burden protected speech in the process.

    That's not the O'Brien standard. O'Brien applies when the same activity has both a protected expressive element and a nonexpressive element. In that case, it was destroying a draft card. Although on its face, the law wasn't about regulating expression, it nevertheless punished conduct that had a protected expressive element. Be careful to notice the critical part of O'Brien that the Court in Arcara said made it distinguishable from the forfeiture statute there. It has to be a situation where the very same act is both protected and unprotected. The government can surely punish the destruction of a draft card for reasons that have nothing to do with protected expression. But people have a right to protest the war. Since the statute prohibited an act that was partially protected expression, the First Amendment demands heightened scrutiny of that statute. All this means is that the government interest has to be weighed against the burden imposed. Even the draft card-burning statute in O'Brien was upheld, despite its admitted effect on protected activity.

    At the very least, the mere fact that they are a burden on speech makes Arcara inapplicable. Arcara applies to neither content-based restrictions, nor content-neutral restrictions. It does not even apply to conduct with both "speech" and "nonspeech" elements. It explicitly, in no uncertain terms, applies only to utterly nonexpressive conduct.

    You keep saying Arcara is inapplicable, without specifying which part. As I mentioned, there's more than one First Amendment argument at play in that case. The prior restraint part of Arcara can apply to these forfeitures even if the O'Brien part doesn't. It's not an all-or-nothing thing. You're mixing it all up, instead of breaking it down into its constituent pieces.

    I actually the argument that O'Brien applies to the forfeiture statute is the only good First Amendment argument you've got. But I don't think it's nearly as simple as you make it out to be. Even if we assume that, say, hyperlinking to an infringing work, is sufficiently imbued with protected expression so as to make the conduct presumptively protected by the First Amendment (a point I do not concede), there's no reason to think that the forfeiture statute wouldn't pass heightened scrutiny.

    This is ridiculous, as the seizure affidavit explicitly says that the seizure was to "prevent third parties from continuing to access" the site. Additionally, if this were true, ICE would not have told Mozilla to block the MafiaaFire add-on, claiming it "circumvented a seizure order."

    Seizing and forfeiting the property prevents others from using the property. That's part of the point. But no speech is being blocked--people are free to say whatever they want. There is no legal impediment.

    Though I admit I'm not a lawyer, I'm in no way confused. I've been following free speech cases for about twenty-five years (I lived two counties over from Fort Wayne when that case was going on). Everyone was claiming "this time it's different" back then, too.

    You are mixing up different First Amendment doctrines, including overbreadth, prior restraint, O'Brien, etc. That's OK, though. This stuff is complicated. I'm confused too.

     

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  106.  
    icon
    Karl (profile), Jun 13th, 2012 @ 5:42pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Shut it down

    The magistrate judge made a determination that there was probable cause that the domain name was forfeitable as instrumentality of crime, and thus the seizure warrant was issued.

    Which is exactly what the judge did in Fort Wayne. According to the Indiana Supreme Court:
    The remedy of forfeiture is intended not to restrain the future distribution of presumptively protected speech, but rather to disgorge assets acquired through racketeering activity. Stated simply, it is irrelevant whether assets derived from an alleged violation of the RICO statute are or are not obscene.

    Obviously, the U.S. Supreme Court disagreed. In other words, even if the bookstore was an asset "acquired through racketeering activity," it could not be seized ex parte:
    We do not question the holding of the court below that adding obscenity law violations to the list of RICO predicate crimes was not a mere ruse to sidestep the First Amendment. And, for the purpose of disposing of this case, we assume without deciding that bookstores and their contents are forfeitable (like other property such as a bank account or a yacht) when it is proved that these items are property actually used in, or derived from, a pattern of violations of the State's obscenity laws. Even with these assumptions, though, we find the seizure at issue here unconstitutional.

    In this case, just as in Fort Wayne, the seizure blocked "a large quantity of presumptively-protected materials based on merely probable cause." In fact, the materials weren't presumptively protected, but not even allegedly unprotected.

    Bosley v. Wildwett.com

    That case was primarily dealing with commercial speech and publicity rights, not copyright. That aside, the quote you're referring to is talking about preliminary injunctions not being unconstitutional. And, I agree, they're not. They happen after an adversarial hearing, and are limited to only the infringing material.

    The two issues which make these seizures unconstitutional - that they were done ex parte, and that they shut down undeniably protected speech - were simply not present in that case. Nor were they present in the other cases that Bosley cites: Dallas Cowboys Cheerleaders v. Scoreboard Posters and Zacchini v. Scripps-Howard. Both dealt with preliminary injunctions after adversarial hearings.

    In fact, preliminary injunctions under those circumstances are also constitutional regarding obscenity. See Kingsley Books v. Brown.

    Since you brought it up, keep in mind that "commercial speech is such a sturdy brand of expression that traditional prior restraint doctrine may not apply to it." Yet, even here, there are Constitutional limits to what the government can do:
    First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.
    - Central Hudson Gas & Electric Corp. v. Public Service Commission of New York

    If you use a printing press to print and publish protected works, but you also use the press for criminal copyright infringement, then that press can be seized upon a showing of probable cause that it can be forfeited.

    It most certainly cannot.

    Even in the 80's anti-bootlegging operations, record presses were not seized. The bootleg recordings themselves? Sure. The masters and plates? Absolutely. The goverment did occasionally seize things like photocopiers, if they were directly owned by the bootleggers themselves. But not once, in that long and contentious history, did the government seize a pressing plant that pressed both bootlegs and legitimate records.

    If the FBI seized United Record Pressing because bootleggers used their services, you bet your ass that would be unconstitutional. If the DOJ seized a record store that sold bootlegs alongside legitimate recordings, that would also be unconstitutional. That's why it never happened.

    I pointed out already how the footnote dismisses the prior restraint argument. That part certainly applies since the domain name forfeitures aren't prior restraints for the same reasons. It's not a licensing scheme, and it's not an injunction.

    Um, no. The only reason the First Amendment complaint was dismissed is because the offending activity was completely nonexpressive. It had absolutely nothing to do with "licensing schemes" or "injunctions" or any of the other things you're claiming it said but didn't.

    A statute does not have to "enjoin" speech for Arcara to be inapplicable. It doesn't have to be a "licensing scheme" for Arcara to be inapplicable. It only needs to deal with an offense that has "the semblance of expressive activity." If the offending activity is any more expressive than prostitution, fire code violations, or health hazards from inadequate sewage treatment, then Arcara simply does not apply. If the statute singles out entities that primarily engage in any kind of expressive activity - protected or not - then Arcara doesn't apply. Arcara is much, much, much more narrow than you claim.

    Also, I'm not the one who brought it up. You're the one who is claiming Arcara overrides Fort Wayne Books. It doesn't. And without Arcara to use as a shield against the First Amendment, your argument doesn't hold water.

    Seizing and forfeiting the property prevents others from using the property. That's part of the point. But no speech is being blocked

    Seriously, this is laughable on its face. The stated purpose was to block the website, and the government is threatening those who direct users to the same speech happening on different "property."

    You are mixing up different First Amendment doctrines, including overbreadth, prior restraint, O'Brien, etc.

    They're all related. But if it makes you feel better, I'll just use "unconstitutional" from now on.

     

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