Oops: After Seizing & Censoring Rojadirecta For 18 Months, Feds Give Up & Drop Case

from the took-'em-long-enough dept

Looks like we've got something of a repeat of the Dajaz1 insanity, in which the US government seized and censored a website for over a year before giving up and handing the domain back -- though this time it's with Rojadirecta. You may recall the Rojadirecta case, where two domains have been held by the US government on a highly questionable legal theory for over a year and a half -- well, the government just dropped the case, and it appears that the domains will be returned.

The case began when ICE seized two Rojadirecta domains from the Spanish company Puerto 80. As we noted at the time, Puerto 80 had been found legal (twice) in Spain, so it was hard to fathom that there could be "willful" infringement here.

Of course, over time, the situation got even more ridiculous. As with Dajaz1 and other sites, the US Attorneys in charge of the case stalled when the site fought back. In the case of Rojadirecta, Puerto 80 decided to stop waiting and sued the government. From there, something of a comedy of errors by the government ensued, with bizarre and unsupportable claims, and (worst of all) repeated attempts to mix and match different pieces of the law to dance around the fact that there was no legal basis for the seizure and the whole thing was unconstitutional. Each time the feds would present an argument, as you picked it apart, you could see that even they didn't seem to understand the law.

It appears that someone over there finally figured it out. We'd been waiting a while to hear from the court, and the last thing we'd heard was Rojadirecta/Puerto 80 pointing to Judge Posner's recent ruling about how a site embedding clips from elsewhere isn't infringing. Some copyright maximalists insisted that this had nothing to do with Rojadirecta, and that Rojadirecta would still lose... but not everyone agreed.

Today the government filed a "voluntary dismissal" notice of the case against Rojadirecta.org and Rojadirecta.com. You can see the short dismissal notice below. What's unfortunate, of course, is that the government might now get away with this blatant censorship and disregard for basic due process, without a court ruling showing that it was an illegal move by the feds. In other words: without punishment, the feds may feel free to do this again. This is now the second (and third) example of the government seizing a domain and censoring it for over a year on a very questionable legal theory -- and when the pressure finally gets to be enough, the government turns tail and runs, giving back the domain with no explanation or apology for blatant censorship. That's unacceptable.

Mark Lemley, who was on the legal team defending Puerto 80, told me:
We're obviously thrilled that after 18 months it looks like we will get the domain names back. I think this is a sign that you can stand up for what's right in copyright law and win.
That's true... but just the fact that they had to fight this for 18 months while the government held their domains raises serious questions about the government's actions here. It's probably not worth it for Puerto 80 to pursue things any further, but it's unfortunate that in both cases where people have fought back against the government's over-aggressive seizures of domain names, the government has tried to wait them out... and then finally admitted by default that it was wrong, and handed back the domains.

I expect that we may see a few more such cases as well. Unfortunately, though, we may not get a clear legal ruling telling the government it can't do this -- meaning that they'll be free to continue to abuse their powers in such a manner going forward.

Update: Added the letter that the DOJ sent with the dismissal notice, suggesting that the MyVidster ruling impacted their thinking...


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    Anonymous Coward, Aug 29th, 2012 @ 12:56pm

    Is Rojadirecta still going ahead and suing despite the other case being dropped though? Hopefully they do...

     

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    Eric Goldman (profile), Aug 29th, 2012 @ 12:59pm

    The government will almost certainly abandon any case they are going to lose. That way, they will avoid accountability indefinitely. Meanwhile, the government will keep grabbing new domain names using the same BS theories. Eric.

     

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    Dark Helmet (profile), Aug 29th, 2012 @ 1:02pm

    Pshhhh!

    "We're obviously thrilled that after 18 months it looks like we will get the domain names back. I think this is a sign that you can stand up for what's right in copyright law and win."

    And I'm obviously thrilled that there are apparently people like Mark who are so far and away more optimistic and capable of looking for the silver lining of things. Because this would leave me even MORE fucking pissed off than if the government had managed to cobble some bullshit amalgamam of laws to justify what they did. At least then they would...you know...fucking SAID SOMETHING YOU RAGING HARDONS.

    To just drop the case and give back the domain after 18 months of "fuck you"ing without a further word would be enough to put me in the fucking nuthouse. Next time, ICE, just go to the owners of the sites and piss on their leg. At least that way they can keep conducting their legal business, you asshats....

     

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    Tim K (profile), Aug 29th, 2012 @ 1:03pm

    You only have one example that you continually point to of the government doing this...I mean two, or three...But, but still, it's really not a problem at all, right?

     

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    MrWilson, Aug 29th, 2012 @ 1:08pm

    Time to go through all the comments on the old articles on Techdirt about Rojadirecta and gleefully read the predictions of the AC trolls about how Puerto 80 is just a bunch of pirates who will have their asses handed to them by the DOJ.

     

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      Josh in CharlotteNC (profile), Aug 29th, 2012 @ 1:11pm

      Re:

      But the two or three known ACs will never bother to respond, they'll give up and turn tail just like the government did. I honestly don't expect them in this thread at all - or at least not for hours until they can get their marching orders from the financial backers they won't name.

       

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      Gwiz (profile), Aug 29th, 2012 @ 2:08pm

      Re:

      ...gleefully read the predictions of the AC trolls about how Puerto 80 is just a bunch of pirates who will have their asses handed to them by the DOJ.

      I think AJ (Average Joe) owes Mike, Karl and a bunch of others an apology or two for claiming that they are idiots with no knowledge of the law.

      I highly doubt it will happen, though. AJ doesn't strike me as a stand-up enough guy to admit he was wrong.

       

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        Atkray (profile), Aug 29th, 2012 @ 3:02pm

        Re: Re:

        AJ has really disappeared since the spring. I have wondered if he finally finished law school and just is too busy or if he actually learned something and has changed his opinions.

        At first I even thought Wally might be a reformed AJ.

         

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          Mike Masnick (profile), Aug 29th, 2012 @ 3:21pm

          Re: Re: Re:

          AJ has really disappeared since the spring.

          Disappeared? Or just stopped commenting signed in. Take a guess...

           

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            The Groove Tiger (profile), Aug 29th, 2012 @ 3:32pm

            Re: Re: Re: Re:

            Cue Anonymous Coward complaining that his privacy is somehow being violated by this statement, don't you dare reveal who he is, and never mind how he doesn't think any other person has any right to privacy or having their identities protected.

             

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        average_joe (profile), Aug 29th, 2012 @ 4:01pm

        Re: Re:

        I think AJ (Average Joe) owes Mike, Karl and a bunch of others an apology or two for claiming that they are idiots with no knowledge of the law.

        I highly doubt it will happen, though. AJ doesn't strike me as a stand-up enough guy to admit he was wrong.


        Hi, Gwiz. This is a voluntary dismissal, not a judgment on the merits. What I've said before still stands: It's not prior restraint, and it's not a violation of due process. If I'd been proved wrong, I'd gladly admit it. I'm bummed the government decided not to prosecute (for now; they can always file again). I wanted a decision on the merits.

        Seems to me that Puerto 80 can still file against the government for the perceived constitutional wrongs. Even though the government is giving the domains back, that doesn't erase the cause of action for the alleged wrongs. Maybe Puerto 80 will pursue it. I hope so.

         

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          Anonymous Coward, Aug 29th, 2012 @ 4:54pm

          Re: Re: Re:

          It's not prior restraint, and it's not a violation of due process.


          The government shut down a communication channel for a year and half. And the government shut that expression down without the procedural safeguards of Freedman.

          What do you want to call it? A fuck-up? A constitutional fuck-up? A giant constitutional fuck-up?

          A giant constitutional fuck-up that might well have been avoided—if the government had willingly shouldered its proper burden in an adversary hearing prior to the seizure?

           

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            average_joe (profile), Aug 30th, 2012 @ 6:32am

            Re: Re: Re: Re:

            The government shut down a communication channel for a year and half. And the government shut that expression down without the procedural safeguards of Freedman. What do you want to call it? A fuck-up? A constitutional fuck-up? A giant constitutional fuck-up? A giant constitutional fuck-up that might well have been avoided—if the government had willingly shouldered its proper burden in an adversary hearing prior to the seizure?

            Freedman and its progeny are all obscenity cases. When it's obscenity, the Court has found that more procedural safeguards are needed. Those procedural safeguards have never been applied to the copyright context, nor is there any reason ever to do so. The key is understanding the underlying rationale. The problem with identifying obscenity is that it's a subjective analysis. Whether something is obscene turns on local community standards. Such is not the case with copyright. Determination of copyright infringement is an objective analysis.

            Prior restraints are content-based restrictions; copyright laws are content-neutral. You just don't have the same First Amendment concerns. With obscenity, there is a possibility that the work at issue will turn out to not be obscene, i.e., will turn out to be constitutionally-protected speech. There's no similar concern with copyright. Once a determination has been made that the work in question is copyrighted, its suppression is not the suppression of constitutionally-protected speech. Even if the alleged infringer can prove a defense, such as license, it's the license that protected the speech, not the First Amendment. The only exception would be if the use was protected by fair use, in which case it might be a constitutionally-protected use. But, as Techdirt likes to point out, determination of fair use is simple and objective. Not like obscenity.

            Prior restraints take on two forms: a licensing scheme, or an injunction. With these seizures, we have neither. The danger of a prior restraint is that it will be used for censorship. I mean real censorship (not the TD over-inflated version), that is, speech restrictions based on viewpoint or subject matter. Copyright enforcement is about protecting proprietary rights, not censorship.

            What's more, seizing a domain name is not even a restraint. All that's happened is a piece of property that's been tainted by past wrongful acts has been seized so that it may be forfeited. The owners of the property (and their users) are free to carry on their protected speech activities, they just can't use the seized piece of property. There is no licensing scheme and no injunction preventing them from speaking their minds. This is demonstrated by the fact that Rojadirecta was back up and running under a new domain name shortly after their property was seized.

            Another distinction from Freedman is that here it's not expressive materials themselves that are being seized (such as a quantity of allegedly obscene magazines). Instead, it's an instrumentality that is seized. So it's not like seizing the magazines. It's more like seizing the truck that delivers the magazines, or the printing press that produces them. And the reason it's seized is because of the role it plays in copyright infringement. The fact it's also used for protected activities is irrelevant:
            Following the logic in Arcara, forfeiture may be ordered for assets used in, to promote, or obtained from a criminal violation, whether or not these assets “incidentally” happen to include expressive materials. Under such logic, the forfeiture is not “prior restraint.”
            Am. Library Assn. v. Thornburgh, 713 F. Supp. 469, 486 (D.D.C. 1989).

            Other than in obscenity and child pornography cases, I'm aware of no court ever saying the Freedman procedural safeguards are necessary. Take away the issues of censorship, and the need for the added safeguards disappears.

            Courts routinely reject the prior restraint argument in the context of copyright:
            Reduced to its simplest terms, the petitioner's argument suggests that any injunction entered by the District Court with respect to the initial broadcast of the Movie would constitute a “prior restraint” in violation of the First Amendment. We disagree.

            The copyright owner's rights spring from Article 1, § 8, Clause 8 of the Constitution, which provides in pertinent part as follows:

            The Congress shall have the power ... to promote the Progress of Science and the Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

            The Copyright Act of 1976, codified at 17 U.S.C. § 101 et seq., sets out the rights of a copyright owner and the method of vindicating those rights. The “[e]xclusive rights in copyrighted works” [17 U.S.C. § 106] include certain severable rights, such as the right to prepare derivative works7, the right to reproduce the copyrighted work in copies8, and the right to display the copyrighted work publicly (“in the case of literary, dramatic ... works, ... including: the individual images of a motion picture ...” 17 U.S.C. § 106(5)). Moreover, the Copyright Act specifically authorizes injunction as a remedy for infringement. Section 502(a) (17 U.S.C.) provides that: “Any court having jurisdiction of a civil action arising under this title may ... grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” (emphasis added). Accordingly, the Copyright Act clearly contemplates injunctive relief to “prevent” infringement.9 Section 501(a) (17 U.S.C.) (entitled “Infringement of copyright”) states: “Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 118 ... is an infringer of the copyright.” Therefore, in the context of the instant case, subject to proper proof, it is certainly conceivable that petitioner, ABC, could be an “infringer” of the “exclusive rights” of the plaintiff, the copyright owner. As this court recently noted in Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 849 (11th Cir.1990):

            With respect to copyright protection, “[t]he first amendment is not a license to trammel on legally recognized rights in intellectual property.” *144 Dallas Cowboys [Cheerleaders, Inc. v. Scoreboard Posters, Inc.], 600 F.2d [1184] at 1188 (5th Cir.1979). Since the Copyright Act is the congressional implementation of a constitutional directive to encourage inventors by protecting their exclusive rights in their discoveries, copyright interests also must be guarded under the Constitution, and injunctive relief is a common judicial response to infringement of a valid copyright. [citations omitted.]
            In re Capital Cities/ABC, Inc., 918 F.2d 140, 143-44 (11th Cir. 1990).

            As a last resort, Penguin argues that issuance of a preliminary injunction against its work would constitute a prior restraint in *1575 violation of the First Amendment. The Court rejects this argument.

            Penguin's book is undoubtedly noncommercial speech entitled to full First Amendment protection. However, enforcement of the copyright code is a long-sanctioned means of securing the important governmental interests underlying the copyright code. Copyright law accommodates the concerns of the First Amendment through its exclusion of protection for ideas, and through the fair use doctrine. See Sid & Marty Krofft, 562 F.2d at 1170 (“[T]he idea-expression dichotomy already serves to accommodate the competing interests of copyright and the first amendment. The ‘marketplace of ideas' is not limited by copyright because copyright is limited to protection of expression.”); New Era Pubs. Int'l v. Henry Holt & Co., 873 F.2d 576, 584 (2d Cir.1989) (rejecting district court's First Amendment rationale for denying preliminary injunction because “the fair use doctrine encompasses all claims of first amendment in the copyright field,” and “[a]n author's expression of an idea, as distinguished from the idea itself, is not considered subject to the public's ‘right to know’ ”), cert. denied, 493 U.S. 1094, 110 S.Ct. 1168, 107 L.Ed.2d 1071 (1990); cf. Harper & Row 471 U.S. at 560, 105 S.Ct. at 2230 (“In light of the First Amendment protections already embodied in the Copyright Act's distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, we see no warrant for expanding the doctrine of fair use ...”); Zacchini, 433 U.S. at 577 n. 13, 97 S.Ct. at 2858 n. 13 (“We note that Federal District Courts have rejected First Amendment challenges to the federal copyright law on the ground that ‘no restraint [has been] placed on the use of an idea or concept.’ ”); New York Times Co. v. United States, 403 U.S. 713, 726 n. *, 91 S.Ct. 2140, 2147 n. *, 29 L.Ed.2d 822 (1971) (Brennan, J., concurring) (copyright cases inapposite to prior restraint discussion because copyright cases deal with restraint of form of expression, not the ideas expressed). The Supreme Court has shown no receptivity to First Amendment arguments in the copyright context; to the contrary, it has noted that “the Framers intended copyright itself to be the engine of free expression” by supplying “the economic incentive to create and disseminate ideas.” Harper & Row, 471 U.S. at 558, 105 S.Ct. at 2229. Although it is possible that some rare newsworthy photograph or work might require copyright to temporarily step aside in the interest of the First Amendment, this is not that case.
            Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 924 F. Supp. 1559, 1574-75 (S.D. Cal. 1996) aff'd, 109 F.3d 1394 (9th Cir. 1997).

            Defendants argue that this injunction is overly broad and represents an unconstitutional prior restraint on freedom of the press.

            We have repeatedly rejected First Amendment challenges to injunctions from copyright infringement on the ground that First Amendment concerns are protected by and coextensive with the fair use doctrine. See Twin Peaks, 996 F.2d at 1378; New Era Pubs. Int'l, ApS v. Henry Holt & Co., 873 F.2d 576, 584 (2d Cir.1989) (“[T]he fair use doctrine encompasses all claims of first amendment in the copyright field.”); Wainwright, 558 F.2d at 95 (“Conflicts between interests protected by the first amendment and the copyright laws thus far have been *75 resolved by application of the fair use doctrine.”). We have already determined that, as to the copyright claim, Comline's infringing abstracts were not fair uses of the Nikkei articles, and accordingly we reject defendants' First Amendment challenge.

            The injunction is only intended to bar abstracts that constitute copyright infringement and are beyond fair use. Abstracts that do not infringe Nikkei's copyright, such as the two discussed above, are not barred by the injunction. The phrase “substantial similarity,” conveying its particular legal significance, was designed to designate the proper boundary of the injunction. For additional clarity, however, we modify the injunction to replace “substantially similar to any article or work” with the phrase “substantially similar to the copyrighted elements of any article or work.” We affirm the injunction as modified.
            Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 74-75 (2d Cir. 1999).

            Passport first argues that the preliminary injunction is unconstitutional because (1) Passport can present a plausible fair use defense; (2) commentators have suggested in such situations that a preliminary injunction might be an unconstitutional prior restraint; and (3) some cases have refused to grant preliminary injunctions based on, at least in part, First Amendment principles.

            We need not jump into this briar patch. We have held that First Amendment concerns in copyright cases are subsumed within the fair use inquiry. In other words, if the use of the alleged infringer is not fair use, there are no First Amendment prohibitions against granting a preliminary injunction. See, e.g., A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1028 (9th Cir.2001) (“Uses of copyrighted material that are not fair uses are rightfully enjoined.”); Dr. Seuss Enters. v. Penguin Books USA, Inc., 109 F.3d 1394, 1403 (9th Cir.1997).
            Elvis Presley Enterprises, Inc. v. Passport Video, 349 F.3d 622, 626 (9th Cir. 2003).

            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's plenty more where that came from.

            The court here does a great job of explaining why the extra procedural protections are not always necessary, even when it's expressive materials being seized. The context is counterfeiting, but the logic applies perfectly to copyright. I highly recommend reading this a couple times, since it gets to the heart of why the First Amendment concerns are not present:
            The events that transpired in Pittsburgh do require this court to consider whether proper Fourth Amendment procedural safeguards were followed prior to the seizure of Boggs' 2 presumptively expressive materials.2 In Pittsburgh, the Secret Service obtained warrants for Boggs' residence, person and studio; there is no dispute that both a “search” and a “seizure,” as those terms are commonly understood, occurred. The question for this court is whether the magistrate's authorization of the warrant afforded the proper rigorous procedural protections and was based on sufficient information so as to ensure against the unjustified suppression of legitimate First Amendment speech.5

            When the subject matter of a search is expressive material, the potential for a seizure to act as a de facto prior restraint of that speech requires a more searching inquiry before issuing a warrant. “Thus, while it is the general rule under the Fourth Amendment that any and all contraband, instrumentalities and evidence of crimes may be seized on probable cause, it is otherwise when materials presumptively protected by the First Amendment are involved.” Fort Wayne Books v. Indiana, 489 U.S. 46, 63, 109 S.Ct. 916, 927–28, 103 L.Ed.2d 34 (1989) (recognizing the risk of prior restraint); see also Roaden v. Kentucky, 413 U.S. 496, 501, 93 S.Ct. 2796, 2799–2800, 37 L.Ed.2d 757 (1973) (“A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material.”); Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961).

            Plaintiff contends that for the government to seize his art en masse, as occurred in Pittsburgh, the government was required to first secure judicial approval in an adversary hearing on notice. As authority for this proposition, plaintiff cites Fort Wayne Books, 489 U.S. at 63, 109 S.Ct. at 927–28. However, this court finds that the concerns triggering the need for the pre-seizure adversary hearing in that and similar cases are not present in the Pittsburgh seizure.

            Fort Wayne Books, along with Roaden, Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), Huffman v. United States, 470 F.2d 386, 392 (D.C.Cir.1971) and the other cases cited in support of plaintiff's argument that additional process is demanded for warrants covering expressive materials have one common thread—they are obscenity cases. The probable cause determination in such cases centers around whether the subject of the potential seizure violates an obscenity statute. This court agrees that obscenity cases do provide a good starting point for the analysis that the court is undertaking here, as they present the paradigm situation in which presumptively expressive materials are routinely seized, raising the specter of prior restraints and censorship pending prosecution.

            The analogy is not a perfect one, however. The rationale behind requiring special procedures (such as in camera review or adversary hearings on notice) before authorizing a seizure pursuant to an obscenity statute is that a determination as to whether a photo, film or book is obscene (and therefore unprotected) versus only pornographic (and therefore protected) is inherently subjective. “Because the line between protected pornographic speech and obscenity is dim and uncertain, a State is not free to adopt whatever procedures it pleases for dealing with obscenity, but must employ careful procedural safeguards to assure that only those materials adjudged obscene are withdrawn from public commerce.” Fort Wayne Books, 489 U.S. at 79, 109 S.Ct. at 936 (citations omitted); see also Roth v. United States, 354 U.S. 476, 488, 491, 77 S.Ct. 1304, 1310–11, 1313–14, 1 L.Ed.2d 1498 (1957) (recognizing the complexity inherent in determining whether materials are obscene). “The line between speech unconditionally guaranteed and speech which may be legitimately regulated, suppressed or punished is finely drawn. The separation of legitimate from illegitimate speech calls for ... sensitive tools.” Marcus, 367 U.S. at 730–31, 81 S.Ct. at 1715–16. If obscenity seizures were to be authorized on nothing more than an officer's affidavit, the affiant would have substantial, if not exclusive power to make the difficult determination as to whether the material in question taken as a whole, appeals to the prurient interest in sex, or portrays in a patently offensive way, sexual conduct specifically defined by the applicable state law. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). For a magistrate or other judicial officer to make a probable cause determination based merely on the bald affidavit of a police officer presents too much of a possibility that the subjective impression of that police officer will act as a prior restraint on protected speech. It is the evaluative aspect and sensitivity inherent in making an obscenity determination that requires a magistrate to have more that the officer's word at his or her disposal. “When presumptively protected materials are sought to be seized, the warrant requirement should be administered to leave as little as possible to the discretion or whim of the officer in the field.” Zurcher v. Stanford Daily, 436 U.S. 547, 564, 98 S.Ct. 1970, 1980–81, 56 L.Ed.2d 525 (1978).

            The difficulty encountered in determining whether materials are obscene is not present when determining whether materials might violate counterfeiting statutes. While an obscenity determination requires evaluation, a counterfeiting determination requires only observation. The seizures in the instant case were executed based upon potential violations of Chapter 25 of Title 18 of the United States Code. To make a finding of probable cause that the relevant statutes were being violated, the issuing magistrate needed to be convinced of only three facts: 1. that the bills were made or executed in whole or in part after the similitude of United States obligations, 18 U.S.C. § 474 para. 5; 2. that the bills were color reproductions, 18 U.S.C. § 504(1); and, 3. that they were more than three-fourths or less than one and one-half the size of actual United States currency, id. No subjective” determinations were required—all the factors can be established with the naked eye. Any law enforcement officer—or even a lay person—who has average familiarity with United States currency could make the necessary observations of similarity, size and color to conclude that Boggs Bills potentially violate the counterfeiting statutes at issue. The concern underlying *8 the additional process for obscenity warrants—that a law enforcement officer will use his or her own internal definition of “prurient interest” or “patently offensive” to restrain speech based upon a mere dislike of the speech—is practically nonexistent here. The criteria that renders something as counterfeit does not require reaching a legal conclusion, but rather a factual one. When a determination can be made entirely on observation rather than evaluation, the traditional warrant requirement is sufficient, even when presumptively protected materials are at issue.

            Perhaps the most apt analogy to the instant case is not obscenity seizures, but rather warrants issued in child pornography cases where a determination of potential violations of applicable law can be made on the basis of mere observation. The courts have held that probable cause determinations in the child pornography area can be made solely on the basis of affidavits even though potentially expressive speech could be restrained when the affiant is wrong. “Identification of visual depictions of minors engaging in sexually explicit conduct, in comparison [to the legal determination as to whether materials are obscene], is a factual determination that leaves little latitude to the officers.” United States v. Kimbrough, 69 F.3d 723, 727–28 (5th Cir.1995); United States v. Koelling, 992 F.2d 817, 822 (8th Cir.1993) (noting that while there is some chance of a mistaken seizure, generally, “most minors look like minors and most adults look like adults, and most of the time most law enforcement officers can tell the difference.”); United States v. Smith, 795 F.2d 841 (9th Cir.1986). The child pornography holdings demonstrate that courts do not require more rigorous procedural safeguards or an adversarial hearing prior to seizure when law enforcement officers have objective and non-evaluative criteria by which to make their determinations. Similarly, in order to demonstrate probable cause in support of the Boggs warrant, all that had to be ascertained was that the bills were in the likeness of United States currency, that they were in color, or that they were of an impermissible size. Such objective criteria obviate the necessity for anything more than the standard Fourth Amendment inquiry required for issuance of a warrant.

            Substantial deference is given to a magistrates' determination that probable cause exists. Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721 (1984); United States v. Vaughn, 830 F.2d 1185, 1187 (D.C.Cir.1987); United States v. Desantis, 802 F.Supp. 794, 803 (E.D.N.Y.1992) (noting that a magistrate's finding of probable cause is in and of itself a factor tending to uphold the validity of a warrant). It is this court's conclusion that the information contained in Secret Service Agent Thomas Abraham's Affidavit in Support of Application for Search Warrant (“Abraham Affidavit”) provided a legally sufficient basis for the magistrate to issue the warrant authorizing the Pittsburgh search and seizure. In a November 20, 1992 conversation, Boggs admitted to Abraham that, pursuant to “Project Pittsburgh,” he had printed $1 million of Boggs Bills and that he would circulate them in Pittsburgh over the next two years. Abraham Affidavit ¶ 17. Having seen Boggs Bills before—specifically, the fifteen Boggs Bills taken in Wyoming—Abraham was able to conclude that they were “sufficiently similar to genuine bills that they satisfy the test of similitude” in violation of 18 U.S.C. § 474 para. 5, that they were color reproductions, and that they were approximately the same size as genuine bills, in violation of 18 U.S.C. § 474, para. 6 and 18 U.S.C. § 504 (printing of photographic likenesses). Abraham Affidavit ¶ 18. This court also holds, based on the above analysis, that the affidavit was, by itself, a legally adequate basis upon which the magistrate could make the probable cause determination. As the warrant was supported by probable cause and did not require additional procedural protections prior to its issuance, this court holds that the Pittsburgh seizure did not violate plaintiff's First Amendment rights.
            Boggs v. Merletti, 987 F. Supp. 1, 6-8 (D.D.C. 1997) aff'd sub nom. Boggs v. Rubin, 161 F.3d 37 (D.C. Cir. 1998)

             

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              Anonymous Coward, Aug 30th, 2012 @ 8:00am

              Re: Re: Re: Re: Re:

              So you'd like to label this as just a fuck-up.

              A giant constitutional fuck-up.

              In a nation profoundly committed to the idea that debate on public affairs should be robust, uninhibited and wide-open, the loss of First Amendment freedoms —even for a moment— is undoubtedly irreparable injury.

              The government fucked-up here, and there is no way they can pay for the damage.

              You, yourself, are persistent in ignoring the teaching of Marcus and A Quantity of Books. In Alexander, the court had no problem in identifying seizures as a mechanism for prior restraint. As a point of historical fact, the great English cases of the 1770's, Entick v Carrington and Wilkes v Wood were seizures in the service of censorship.

              No matter what label you stick on the government's actions in the instant case, the government utterly suppressed all expression through the Rojadirecta .com and .org domain names for a year and a half. And the government suppressed the entirety of that expression without a final determination that the expression was unprotected.

              The government fucked-up—and cannot repair the injury.

               

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                average_joe (profile), Aug 30th, 2012 @ 8:58am

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

                So you'd like to label this as just a fuck-up.

                A giant constitutional fuck-up.


                That isn't at all what I said. I'm happy to chat with you, but your purposeful misrepresentation is not appreciated.

                You, yourself, are persistent in ignoring the teaching of Marcus and A Quantity of Books. In Alexander, the court had no problem in identifying seizures as a mechanism for prior restraint. As a point of historical fact, the great English cases of the 1770's, Entick v Carrington and Wilkes v Wood were seizures in the service of censorship.

                Marcus v. Search Warrant is an obscenity case. What was seized was obscene materials. When it's obscenity, a mere affidavit is not sufficient. You need a judicial determination of obscenity. None of the Court's reasoning in Marcus applies when it's copyright, and no court has ever said that an affidavit is insufficient to take copyrighted materials or instrumentalities out of circulation. Why? Because there is no concern of censorship like there is with obscenity.

                The Copyright Act even provides for injunctive relief because prior restraint is not an issue when it's copyright. This point is critical, yet you completely ignore it.

                Quantity of Copies of Books v. Kansas is an obscenity case. As in Marcus, a mere affidavit is insufficient to base a warrant on. Such is not the case when it's copyright. No court has ever held that the extra procedural safeguards needed when it's obscenity apply when it's copyright. Every court to address the argument has rejected it. You completely ignore this.

                Alexander v. United States is an obscenity case. While it was a RICO case, the predicate acts were obscenity violations. The forfeitures there wasn't a prior restraint, it was subsequent punishment, since there had already been a trial on the issue of liability.

                It's strange that you cite Alexander, since its language backs my arguments:
                Petitioner first contends that the forfeiture in this case, which effectively shut down his adult entertainment business, constituted an unconstitutional prior restraint on speech, rather than a permissible criminal punishment. According to petitioner, forfeiture of expressive materials and the assets of businesses engaged in expressive activity, when predicated solely upon previous obscenity violations, operates as a prior restraint because it prohibits future presumptively **2771 protected expression in retaliation for prior unprotected speech. Practically speaking, petitioner argues, the effect of the RICO forfeiture order here was no different from the injunction prohibiting the publication of expressive material found to be a prior restraint in Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). As petitioner puts it, see Brief for Petitioner 25, the forfeiture order imposed a complete ban on his future expression because of previous unprotected speech. We disagree. By lumping the forfeiture imposed in this case after a full criminal trial with an injunction enjoining future speech, petitioner stretches the term “prior *550 restraint” well beyond the limits established by our cases. To accept petitioner's argument would virtually obliterate the distinction, solidly grounded in our cases, between prior restraints and subsequent punishments.

                The term prior restraint is used “to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.” M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4–14 (1984) (emphasis added). Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints. See id., § 4.03, at 4–16. This understanding of what constitutes a prior restraint is borne out by our cases, even those on which petitioner relies. In Near v. Minnesota ex rel. Olson, supra, we invalidated a court order that perpetually enjoined the named party, who had published a newspaper containing articles found to violate a state nuisance statute, from producing any future “malicious, scandalous or defamatory” publication. Id., at 706, 51 S.Ct., at 627. Near, therefore, involved a true restraint on future speech—a permanent injunction. So, too, did Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971), and Vance v. Universal Amusement Co., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980) (per curiam), two other cases cited by petitioner. In Keefe, we vacated an order “enjoining petitioners from distributing leaflets anywhere in the town of Westchester, Illinois.” 402 U.S., at 415, 91 S.Ct., at 1576 (emphasis added). And in Vance, we struck down a Texas statute that authorized courts, upon a showing that obscene films had been shown in the past, to issue an injunction of indefinite duration prohibiting the future exhibition of films that have not yet been found to be obscene. 445 U.S., at 311, 100 S.Ct., at 1158–1159. See also New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971) (per curiam) (Government sought to enjoin publication of the Pentagon Papers).

                By contrast, the RICO forfeiture order in this case does not forbid petitioner from engaging in any expressive activities *551 in the future, nor does it require him to obtain prior approval for any expressive activities. It only deprives him of specific assets that were found to be related to his previous racketeering violations. Assuming, of course, that he has sufficient untainted assets to open new stores, restock his inventory, and hire staff, petitioner can go back into the adult entertainment business tomorrow, and sell as many sexually explicit magazines and videotapes as he likes, without any risk of being held in contempt for violating a court order. Unlike the injunctions in Near, Keefe, and Vance, the forfeiture order in this case imposes no legal impediment to—no prior restraint on—petitioner's ability to engage in any expressive activity he chooses. He is perfectly free to open an adult bookstore or otherwise engage in the production and distribution of erotic materials; he just cannot finance these enterprises with assets derived from his prior racketeering offenses.

                The constitutional infirmity in nearly all of our prior restraint cases involving obscene material, including those on which petitioner and the dissent rely, see post, at 2782, 2785–2786, was that the Government had seized or otherwise restrained materials suspected of **2772 being obscene without a prior judicial determination that they were in fact so. See, e.g., Marcus v. Search Warrant of Kansas City, Mo., Property, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973); Vance, supra. In this case, however, the assets in question were ordered forfeited not because they were believed to be obscene, but because they were directly related to petitioner's past racketeering violations. The RICO forfeiture statute calls for the forfeiture of assets because of the financial role they play in the operation of the racketeering enterprise. The statute is oblivious to the expressive or nonexpressive nature of the assets forfeited; books, sports cars, narcotics, and cash are all forfeitable alike under RICO. *552 Indeed, a contrary scheme would be disastrous from a policy standpoint, enabling racketeers to evade forfeiture by investing the proceeds of their crimes in businesses engaging in expressive activity.

                Nor were the assets in question ordered forfeited without according petitioner the requisite procedural safeguards, another recurring theme in our prior restraint cases. Contrasting this case with Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S.Ct. 916, 103 L.Ed.2d 34 (1989), aptly illustrates this point. In Fort Wayne Books, we rejected on constitutional grounds the pretrial seizure of certain expressive material that was based upon a finding of “no more than probable cause to believe that a RICO violation had occurred.” Id., at 66, 109 S.Ct., at 929 (emphasis in original). In so holding, we emphasized that there had been no prior judicial “determination that the seized items were ‘obscene’ or that a RICO violation ha[d] occurred.” Ibid. (emphasis in original). “[M]ere probable cause to believe a legal violation ha[d] transpired,” we said, “is not adequate to remove books or films from circulation.” Ibid. Here, by contrast, the seizure was not premature, because the Government established beyond a reasonable doubt the basis for the forfeiture. Petitioner had a full criminal trial on the merits of the obscenity and RICO charges during which the Government proved that four magazines and three videotapes were obscene and that the other forfeited assets were directly linked to petitioner's commission of racketeering offenses.

                Petitioner's claim that the RICO forfeiture statute operated as an unconstitutional prior restraint in this case is also inconsistent with our decision in Arcara v. Cloud Books, Inc., 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986). In that case, we sustained a court order, issued under a general nuisance statute, that closed down an adult bookstore that was being used as a place of prostitution and lewdness. In rejecting out-of-hand a claim that the closure order amounted to an improper prior restraint on speech, we stated: *553 “The closure order sought in this case differs from a prior restraint in two significant respects. First, the order would impose no restraint at all on the dissemination of particular materials, since respondents are free to carry on their bookselling business at another location, even if such locations are difficult to find. Second, the closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited—indeed, the imposition of the closure order has nothing to do with any expressive conduct at all.” Id., at 705–706, n. 2, 106 S.Ct., at 3177, n. 2.

                This reasoning applies with equal force to this case, and thus confirms that the RICO forfeiture order was not a prior restraint on speech, but a punishment for past criminal conduct. Petitioner attempts to distinguish Arcara on the ground that obscenity, unlike prostitution or lewdness, has “ ‘a significant expressive element.’ ” Brief for Petitioner 16 (quoting **2773 Arcara, supra, 478 U.S., at 706, 106 S.Ct., at 3177). But that distinction has no bearing on the question whether the forfeiture order in this case was an impermissible prior restraint.

                Finally, petitioner's proposed definition of the term “prior restraint” would undermine the time-honored distinction between barring speech in the future and penalizing past speech. The doctrine of prior restraint originated in the common law of England, where prior restraints of the press were not permitted, but punishment after publication was. This very limited application of the principle of freedom of speech was held inconsistent with our First Amendment as long ago as Grosjean v. American Press Co., 297 U.S. 233, 246, 56 S.Ct. 444, 447, 80 L.Ed. 660 (1936). While we may have given a broader definition to the term “prior restraint” than was given to it in English common law,2 our decisions have steadfastly preserved the *554 distinction between prior restraints and subsequent punishments. Though petitioner tries to dismiss this distinction as “neither meaningful nor useful,” Brief for Petitioner 29, we think it is critical to our First Amendment jurisprudence. Because we have interpreted the First Amendment as providing greater protection from prior restraints than from subsequent punishments, see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558–559, 95 S.Ct. 1239, 1246–1247, 43 L.Ed.2d 448 (1975), it is important for us to delineate with some precision the defining characteristics of a prior restraint. To hold that the forfeiture order in this case constituted a prior restraint would have the exact opposite effect: It would blur the line separating prior restraints from subsequent punishments to such a degree that it would be impossible to determine with any certainty whether a particular measure is a prior restraint or not.

                In sum, we think that fidelity to our cases requires us to analyze the forfeiture here not as a prior restraint, but under normal First Amendment standards. So analyzing it, we find that petitioner's claim falls well short of the mark. He does not challenge either his 6–year jail sentence or his $100,000 fine as violative of the First Amendment. The first inquiry that comes to mind, then, is why, if incarceration for six years and a fine of $100,000 are permissible forms of punishment under the RICO statute, the challenged forfeiture of certain assets directly related to petitioner's racketeering activity is not. Our cases support the instinct from which *555 this question arises; they establish quite clearly that the First Amendment does not prohibit either stringent criminal sanctions for obscenity offenses or forfeiture of expressive materials as punishment for criminal conduct.
                Alexander v. United States, 509 U.S. 544, 550-55, 113 S. Ct. 2766, 2771-73, 125 L. Ed. 2d 441 (1993) (bolding mine).

                Your point that seizures of materials can be a prior restraint is well-received, and I thank you for making it, yet you haven't explained away the fact that when it's copyright there is no need for a prior adversarial hearing. As I've said (and shown), a mere affidavit is sufficient when it's copyright. The reason is because copyright infringement is an objective determination, not a subjective one. As the court in Boggs put it, the determination requires observation, not evaluation.

                No matter what label you stick on the government's actions in the instant case, the government utterly suppressed all expression through the Rojadirecta .com and .org domain names for a year and a half. And the government suppressed the entirety of that expression without a final determination that the expression was unprotected.

                If the speech was suppressed, why was it available only days later using a different URL? It's not like seizing quantities of materials since those materials are taken out of circulation. What was seized was a domain name, not a quantity of allegedly obscene materials. You're trying to force this seizure into the Court's rubric for seizures of quantities of allegedly obscene materials. The Court's reasoning doesn't apply when it's copyright.

                Now, if materials that are allegedly infringing are seized, they can be taken out of circulation without a prior adversarial hearing. When it's copyright, an affidavit alone is sufficient to establish probable cause. This is true whether it's allegedly infringing materials or instrumentalities of infringement. It's only when they're allegedly obscene do you get the extra procedural safeguards. You haven't addressed this distinction, which is critical, and I suspect it's because you cannot.

                 

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                  Anonymous Coward, Aug 30th, 2012 @ 10:09am

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

                  The reason is because copyright infringement is an objective determination, not a subjective one.


                  Whether that is true or not, there is no objective argument that the expression that the government actually seized —the domain names— is at all similar to any of the allegedly infringed works. No objective argument.

                  Even if the seized domain name were substantially similar to any allegedly infringed work, the domain name would still be a short word or phrase not subject to a legitimate copyright claim or registration.

                  Copyright is supposed be a limited —limited— statutory monopoly. The very essence of copyright misuse is an attempt to leverage and extend that limited monopoly into a broader monopoly. A copyright registration over some work, does —should not— must not grant a monopoly over some unrelated word or phrase.

                  The copyright claimants have no legitimate claim to exclusive use of the word “Rojadirecta.”

                   

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                    average_joe (profile), Aug 30th, 2012 @ 10:22am

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

                    Whether that is true or not, there is no objective argument that the expression that the government actually seized —the domain names— is at all similar to any of the allegedly infringed works. No objective argument.

                    Even if the seized domain name were substantially similar to any allegedly infringed work, the domain name would still be a short word or phrase not subject to a legitimate copyright claim or registration.


                    You don't appear to understand the basis for the seizures. The domain names weren't seized because they were infringing materials. They were seized because they were instrumentalities of infringement. 18 U.S.C. 2323 permits the forfeiture of "[a]ny property used, or intended to be used, in any manner or part to commit or facilitate the commission" of criminal copyright infringement. They were seized for forfeiture as an instrumentality of infringement. What you're saying makes no sense since no one is claiming that the domain names themselves are infringing. They are a tool used to infringe, not an infringing material. The distinction is critical.

                    Copyright is supposed be a limited —limited— statutory monopoly. The very essence of copyright misuse is an attempt to leverage and extend that limited monopoly into a broader monopoly. A copyright registration over some work, does —should not— must not grant a monopoly over some unrelated word or phrase.

                    The copyright claimants have no legitimate claim to exclusive use of the word “Rojadirecta.”


                    Copyright misuse is not in issue. The claimants have made no claim to the word "Rojadirecta." You're quite confused about the basis for the seizures.

                     

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                      Anonymous Coward, Aug 30th, 2012 @ 10:34am

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

                      The domain names weren't seized because they were infringing materials.


                      They were seized because they were “bad words”.

                      I understand very well.

                       

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              Modplan (profile), Aug 30th, 2012 @ 8:36am

              Re: Re: Re: Re: Re:

              Prior restraints are content-based restrictions; copyright laws are content-neutral. You just don't have the same First Amendment concerns. With obscenity, there is a possibility that the work at issue will turn out to not be obscene, i.e., will turn out to be constitutionally-protected speech. There's no similar concern with copyright.

              This alone as the premise of your argument makes no sense. You are basically stating fair use doesn't exist (even as you attempt to acknowledge it later). That with a claim of copyright infringement, there is never the possibility of a fair use ruling and so it turns out to be protected speech. That is after all the entire basis of fair use - that there are certain kinds of infringement that are actually protected speech, exempted from the copyright holders normal control over how a work may be used. This ability for certain kinds of infringement to be considered fair use is somehow not akin to finding certain obscene materials to be protected speech?

              Also regarding Arcara, see the previous lengthy debates. Arcara only worked because the case was not about copyright at all, or even about the content of what was being sold at the store and as the court argued, meant they didn't have to consider first amendment protections, issues like fair use, etc. Arcara only works if the case isn't about copyright or content at all. And again, as regularly pointed out in those debates, Arcara still recognised situations where similar means could be found to be prior restraint if the target of the remedy placed undue burden on protected speech.
              Yet we have not traditionally subjected every criminal and civil sanction imposed through legal process to "least restrictive means" scrutiny simply because each particular remedy will have some effect on the First Amendment activities of those subject to sanction. Rather, we have subjected such restrictions to scrutiny only where it was conduct with a significant expressive element that drew the legal remedy in the first place, as in O'Brien, 3 or where a statute based on a [478 U.S. 697, 707] nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity, as in Minneapolis Star. This case involves neither situation, and we conclude the First Amendment is not implicated by the enforcement of a public health regulation of general application against the physical premises in which respondents happen to sell books.

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

              I really don't get how you can keep claiming that Arcara states it's OK to seize anything relating to copyrighted works, or that copyright is somehow immune to First Amendment consideration.

              We recognize that the D. C. Circuit spoke too broadly when it declared copyrights "categorically immune from challenges under the First Amendment."

              Eldred v Ashcroft

              http://www.law.cornell.edu/supct/html/01-618.ZO.html

              The entire basis of your post also ignores the fact that the aim of the government seizure was to limit the distribution of certain materials. These materials were claimed to be copyright infringing. To state that this is akin to Arcara is to completely misread it, which is something you're fond of doing apparently.

              Saying that seizing the domain name is simply seizing the instrument is the same as saying seizing the printers you use to produce your newspaper is simply seizing the instrument. What we care about are to what ends are they seizing the instrument. Are they seizing it because of a health and safety issue as in Arcara, or because they wanted to stop the dissemination of certain materials they presume to be illegal?

              In which case we come back to your attempt at dissecting the obscenity analogy.
              But, as Techdirt likes to point out, determination of fair use is simple and objective. Not like obscenity.

              For someone who claims to read Techdirt avidly, you really like claiming exactly the obvious of what they state.

               

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                average_joe (profile), Aug 30th, 2012 @ 9:20am

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

                This alone as the premise of your argument makes no sense. You are basically stating fair use doesn't exist (even as you attempt to acknowledge it later). That with a claim of copyright infringement, there is never the possibility of a fair use ruling and so it turns out to be protected speech. That is after all the entire basis of fair use - that there are certain kinds of infringement that are actually protected speech, exempted from the copyright holders normal control over how a work may be used. This ability for certain kinds of infringement to be considered fair use is somehow not akin to finding certain obscene materials to be protected speech?

                I'm sorry if I'm unclear. Fair use is always a possibility. When it's wholesale copyright infringement though, like a website that's offering up entire copyrighted movies, then fair use isn't in play. The investigating officer or agent can determine that fair use is not in issue. Probable cause can be established by an affidavit without a prior adversarial hearing. If there were a colorable fair use argument, I think that extra procedural safeguards would be necessary, under the Court's prior restraint jurisprudence. I'm aware of no cases of infringement where the government has seized a domain name and fair use was even on the table. While fair use is possible, it's not practical. And don't forget that not all fair use is protected by the First Amendment. The time-shifting in the "Betamax" case comes to mind. The Court never once brought up the First Amendment in determining that time-shifting is fair use. Some fair uses are protected by the First Amendment, and some are not.

                Also regarding Arcara, see the previous lengthy debates. Arcara only worked because the case was not about copyright at all, or even about the content of what was being sold at the store and as the court argued, meant they didn't have to consider first amendment protections, issues like fair use, etc. Arcara only works if the case isn't about copyright or content at all. And again, as regularly pointed out in those debates, Arcara still recognised situations where similar means could be found to be prior restraint if the target of the remedy placed undue burden on protected speech.

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

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


                The section you quoted involves the issue of whether a substantive copyright statute gets heightened First Amendment scrutiny. The Court there refused to apply heightened scrutiny to the statute at issue. The Court has never applied heightened scrutiny to a copyright statute because copyright is about protecting property rights, not about restricting viewpoints or speech about certain subject matters.

                I really don't get how you can keep claiming that Arcara states it's OK to seize anything relating to copyrighted works, or that copyright is somehow immune to First Amendment consideration.

                We recognize that the D. C. Circuit spoke too broadly when it declared copyrights "categorically immune from challenges under the First Amendment."

                Eldred v Ashcroft

                http://www.law.cornell.edu/supct/html/01-618.ZO.html


                The Court in Eldred said that copyright statutes don't get a free pass. As long as the traditional contours of the idea/expression dichotomy and fair use are left intact, the statute need only pass rational basis scrutiny. The CTEA, the statute at issue there, left the traditional contours intact and passed rational basis scrutiny. The forfeiture statute at issue with these seizures is not a substantive copyright statute, so the test from Eldred doesn't apply. I think the forfeiture statute would get heightened scrutiny as a content-neutral regulation of speech. But we've moved way past the issue of prior restraint, which is a whole different animal.

                 

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          MrWilson, Aug 29th, 2012 @ 5:21pm

          Re: Re: Re:

          While I agree that it'd be great to see a judgment on the merits, the fact that the DOJ dropped the case indicates that they didn't think they could win. Which means even they didn't think they had enough evidence or the law on their side to follow through. It's more damning than if they had a judgment against them because quitting means that they never had enough of a well-supported reason to seize the domains in the first place.

          This is yet another case of the DOJ taking orders from the entertainment industry and assuming nobody would fight them on it.

           

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            Corby (profile), Aug 29th, 2012 @ 7:13pm

            Re: Re: Re: Re:

            I wonder if the DOJ in the Megaupload case will file for voluntary dismisall if it transpires in the extradition hearing next year (for which the DOJ etc. have now been told that they now have to/must give fuller discloser of evidence etc.) that Kim Dotcom and co. cannot be extradited. I bet that if Kim Dotcom and co. wins against extradition and cannot be extradited that should the DOJ file for voluntary dismisal of Megaupload that it will refuse to give back all the assets and monies seized from Kim Dotcom.

             

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          Anonymous Coward, Aug 29th, 2012 @ 7:19pm

          Re: Re: Re:

          Even though the government is giving the domains back, that doesn't erase the cause of action for the alleged wrongs.

          As long as copyright law is respected by the people, and thanks to efforts like these, the United States has clearly dealt a blow to scofflaws everywhere.

          Piracy is pretty much dead.

          USA! USA! USA!

           

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          techflaws (profile), Aug 30th, 2012 @ 3:11am

          Re: Re: Re:

          This is a voluntary dismissal, not a judgment on the merits.

          And they certainly wouldn't do that when the law was on their side? Yeah, this is as convincing as your legal theories.

           

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            average_joe (profile), Aug 30th, 2012 @ 6:34am

            Re: Re: Re: Re:

            And they certainly wouldn't do that when the law was on their side? Yeah, this is as convincing as your legal theories.

            Or it could be that the facts weren't on their side, and rather than risk setting a bad precedent, they gave up. We don't really know why they gave up. I wish we did.

             

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          Anonymous Coward, Aug 30th, 2012 @ 11:59am

          Re: Re: Re:

          Hi Average Joe,

          Can we remove your voice and ability to type for 18 months? We think you said something 'bad' and we will eventually prove it (possibly, if the entertainment industry can create the necessary evidence).

          Or we will just give it back to you 18 months later with a, "Oops, our bad, nothing to see here, move along please."

          You will be free to communicate using any methods that don't involve voice or typing, so we don't feel that this would be 'prior restraint' or a violation of your due process....

          Lawyers just don't understand....

           

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            average_joe (profile), Aug 30th, 2012 @ 12:41pm

            Re: Re: Re: Re:

            If I used a domain name to violate copyright laws, that property could be seized and forfeited. I'm not prohibited from saying what I like, I'm only prohibited from using that particular piece of tainted property. You haven't removed my voice or ability to type, you've only taken away a single piece of property because I used it in the past to violate other people's rights. It's not a prior restraint because an affidavit establishing probable cause is sufficient for First Amendment purposes--no prior adversarial hearing is needed since the determination of infringement is objective and the Court's obscenity cases don't apply when it's copyright. And it's not a violation of due process since probable cause was demonstrated to a neutral magistrate who issued a seizure warrant. You may not like the seizures, but the arguments that they're unconstitutional are not at all convincing.

             

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              Anonymous Coward, Aug 30th, 2012 @ 1:23pm

              Re: Re: Re: Re: Re:

              the determination of infringement is objective


              Just a comment or so ago, you admitted, “The domain names weren't seized because they were infringing materials.”

              Does your personal finding that the seized domain names were not infringing materials —does that pass your so-called objective test—or flunk it?

               

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                average_joe (profile), Aug 30th, 2012 @ 2:34pm

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

                Just a comment or so ago, you admitted, “The domain names weren't seized because they were infringing materials.”

                Does your personal finding that the seized domain names were not infringing materials —does that pass your so-called objective test—or flunk it?


                The agent who investigated the website determined that it was being used for infringement. That determination was objective. It doesn't turn on agent's own personal definition of "prurient interest" or "patently offensive" like an obscenity determination would. The agent didn't have to ascertain the community's local values to determine if the work was obscene instead of merely pornographic (an inherently subjective determination). That agent then presented an affidavit to a neutral magistrate who made his or her own determination that there was probable cause. My own personal beliefs are irrelevant. I don't really get your point.

                 

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    Mike42 (profile), Aug 29th, 2012 @ 1:08pm

    The government drops the case right after the RIAA & MPAA reveal that their budgets are being massively cut.

    Coincidence? I think not.

     

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    Anonymous Coward, Aug 29th, 2012 @ 1:11pm

    This is one of the best chances you can get a case for damages. I hope they will go all the way to set a presedence.

     

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    Anonymous Coward, Aug 29th, 2012 @ 1:17pm

    Here again is demonstration that the government appears to get it's marching orders from the industries that have embedded their ex-employees in the bureaucracy. The law is what we say it is, not what is on the books, until they are called on it. Then stonewalling hoping it will go away starts. Why has not Rojadirecta not sued the government for failure to make a case or return the domain within a year; rather than ICE making the claim to get the domains back they must bring it to court, in direct violation of what the law does say? Here we have not a year but a year and a half. Were it not for Rojadirecta bringing the case to court, they still wouldn't have their domains back. The judge in this case should rule the US government in contempt of breaking it's own laws. It's a perversion of justice only the rich can afford.

     

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    Trevor DeBus (profile), Aug 29th, 2012 @ 1:21pm

    Thought

    The current suit is likely to be dropped because the issue is a moot point now that one side gave in. Next time, should the affected website sue for an emergency injunction against seizure, and then show irreparable harm, using these cases as exampmes of abuse? Just a thought...

     

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    Anonymous Coward, Aug 29th, 2012 @ 1:22pm

    It appears that someone over there finally figured it out. We'd been waiting a while to hear from the court, and the last thing we'd heard was Rojadirecta/Puerto 80 pointing to Judge Posner's recent ruling about how a site embedding clips from elsewhere isn't infringing. Some copyright maximalists insisted that this had nothing to do with Rojadirecta, and that Rojadirecta would still lose... but not everyone agreed.

    So what's the argument that Judge Posner's opinion in Flava Works applied to Rojadirecta? Seems to me that it's no help. Whereas there was no evidence that myVidster encouraged anyone to link to infringing material, could the same be said of Rojadirecta? The court in Spain found that Rojadirecta itself facilitated infringement, did it not?

     

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      That One Guy (profile), Aug 29th, 2012 @ 1:46pm

      Re:

      The court in Spain found that Rojadirecta itself facilitated infringement, did it not?

      Considering it was apparently ruled to be completely legal twice, I rather doubt it.

       

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        Anonymous Coward, Aug 29th, 2012 @ 1:50pm

        Re: Re:

        Facilitating infringement is legal there, apparently. The operators of Rojadirecta posted the links themselves, unlike myVidster where it was the users.

         

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          PaulT (profile), Aug 29th, 2012 @ 2:27pm

          Re: Re: Re:

          So... it was legal in Spain by your own admission then, yes? In which case, by your own claim, when was it found guilty of infringement then? Don't tell me you're talking put of your ass and then trying to deflect when facts are raised again!

           

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            Anonymous Coward, Aug 29th, 2012 @ 2:55pm

            Re: Re: Re: Re:

            Yes, it was legal in Spain. The court found that Rojadirecta facilitated infringement, but that facilitation is (apparently) not illegal in Spain. It would be illegal here, which is what matters. From Rojadirecta's filing of what the court in Spain said:
            The actions of making available and advertising the games that are transferred facilitate download, but they do not provide the means of doing so; therefore, in principle, the can be qualified as acts of mere intermediation.
            Link: ia600604.us.archive.org/28/items/gov.uscourts.nysd.380557/gov.uscourts.nysd.380557.2.0.pdf

            And that brings up another way that Flava Works doesn't apply. In Flava Works, it was only the public performance right at issue. With Rojadirecta, there are also the reproduction and distribution rights.

             

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              E. Zachary Knight (profile), Aug 29th, 2012 @ 5:42pm

              Re: Re: Re: Re: Re:

              I think the point is that punishing a foreign company/website for perceived crimes in the US is just wrong. What will the US do next, start ticketing people in France for jaywalking?

               

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              PaulT (profile), Aug 30th, 2012 @ 1:02am

              Re: Re: Re: Re: Re:

              "The court found that Rojadirecta facilitated infringement, but that facilitation is (apparently) not illegal in Spain."

              Great, but that doesn't seem to fit with your original claim:

              "The court in Spain found that Rojadirecta itself facilitated infringement, did it not?"

              If it wasn't, then your following arguments are pure crap since they're based on a lie. Pick a position, stick to it, and provide citations for your claims when you make them instead of trying to deflect to more convenient areas. That's all we ask...

               

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      Josh in CharlotteNC (profile), Aug 29th, 2012 @ 1:51pm

      Re:

      Shouldn't it be inherently obvious that a ruling that says 'providing links to and embeds of copyrighted materials is not infringement' is relevant? What else was the government accusing Puerto80 of, if not that?

       

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        Anonymous Coward, Aug 29th, 2012 @ 2:22pm

        Re: Re:

        Shouldn't it be inherently obvious that a ruling that says 'providing links to and embeds of copyrighted materials is not infringement' is relevant? What else was the government accusing Puerto80 of, if not that?

        That isn't at all what Judge Posner said in Flava Works. He said that if uploading and linking to an infringing video violates the public performance right, myVidster wasn't a contributory infringer since there was no evidence that it had encouraged anyone to do that. He also said that if uploading, linking to, and streaming an infringing video violates the public performance right, myVidster wasn't a contributory infringer there either since there was no evidence that anyone used the myVidster site to stream infringing videos. Judge Posner gave the plaintiffs a roadmap to making a claim that'll stick, and just because there is no preliminary injunction, it doesn't follow that myVidster will win in the end. That case isn't over yet.

         

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      Mike Masnick (profile), Aug 29th, 2012 @ 3:20pm

      Re:

      Added an embed indicating that while *you* may not be convinced, it looks like the Posner ruling had an impact on making the DOJ turn tail and run away... They say that "recent judicial authority" is part of their reasons. They may be lying, but for all the doubts you've raised, it doesn't appear the DOJ itself see them, which says something, considering the crazy legal theories they'd put forth to date.

       

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        Anonymous Coward, Aug 29th, 2012 @ 3:41pm

        Re: Re:

        I agree that Flava Works is probably the "recent judicial authority" the government spoke of. But we don't really know what they're really thinking since they didn't really say.

        Nonetheless, I've asked you to explain why you think Flava Works applies to Rojadirecta. Care to explain? Seems to me the facts are significantly different, and Flava Works doesn't do all that much work, if any, for Rojadirecta.

         

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    El Bob (Means "The" Bob), Aug 29th, 2012 @ 1:27pm

    Pfft....OJ got off too.

     

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    Anonymous Coward, Aug 29th, 2012 @ 1:47pm

    so, given the past performance here, how long before the govt back down from Mega then? do they think Dotcom will cease any legal action, cause i doubt if he will, particularly when he releases the names he supposedly has of who gave the go ahead for the shut downs and seizures

     

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    Geeker (profile), Aug 29th, 2012 @ 1:59pm

    Having to endure 18 months of being fobbed off and stone-walled like this is atrocious and totally unacceptable. If they do persevere with legal action, they have to realise that it will be prohibitively expensive, as well as an extremely long haul ...and for what in the end?

    I really can't see that the perpetrators will be held accountable or punished in any way for their illegal actions.

    Shameful! Grrrr

     

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    FormerAC (profile), Aug 29th, 2012 @ 2:12pm

    There will never be a clear ruling

    There will never be a clear ruling because our government does not want one. They are wrong and they know they are wrong. But they have the power, and are willing fire at whatever target their masters decide.

    They don't want a ruling. They don't want this to go to trial. They just want to put the site out of business. Mission accomplished.

     

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      Geeker (profile), Aug 29th, 2012 @ 2:23pm

      Re: There will never be a clear ruling

      I agree and take your point, but, they actually didn't accomplish their mission, the site switched to rojadirecta.me

       

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    Ehud Gavron (profile), Aug 29th, 2012 @ 3:14pm

    Misuse of seized property

    If the government seizes your car, they impound and store it. They do not get to use it.

    The the government seizes your house, they place a cute yellow and black tape around it. They do not get to use it.

    When the US government seizes your domain name -- unlawfully, some would claim -- they put up a site. They use it. THAT is unlawful.

    The US government's obsession with removing rights of individuals has become a loathsome self-growing disease.

    ICE and DHS and all the other uniformed cop-wannabes are now abusing as many rights as they can under the guise of protecting the United States.

    We need protection from our overbearing government.

    E

     

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      John Fenderson (profile), Aug 29th, 2012 @ 4:21pm

      Re: Misuse of seized property

      What about all those police auctions where you can buy the stuff they've seized? Cars, houses, etc. They are certainly using the seized property in that case.

      I think you may be confusing two things: impounding and seizing.

       

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    Mike Masnick (profile), Aug 29th, 2012 @ 3:19pm

    Updated...

    Updated to add the letter the DOJ sent, which indicates that "recent judicial authority involving issues germane" to the case helped them make the decision. That certainly hints at their realization that the MyVidster case sunk their case...

     

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    Lupo, Aug 29th, 2012 @ 4:21pm

    Jajá

    Hola, soy español... ¿qué quieres que te piratee?

     

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    Spike (profile), Aug 29th, 2012 @ 9:06pm

    So does this mean that Beshara and the other staff of NinjaVideo that were convicted will have their sentences overturned and get out of jail?

    Somehow I doubt it. How was that case any different than Rojadirecta? Oh yeah, it was on US soil where they couldn't even mount a proper defense.

    What about Richard O.Dwyer (TVShack)?

    This is nothing but a clusterfuck. The DoJ should be forbidden from doing this crap in the future.

     

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      Mike Masnick (profile), Aug 29th, 2012 @ 10:51pm

      Re:

      So does this mean that Beshara and the other staff of NinjaVideo that were convicted will have their sentences overturned and get out of jail?

      No.

      Somehow I doubt it. How was that case any different than Rojadirecta? Oh yeah, it was on US soil where they couldn't even mount a proper defense.

      While the NinjaVideo folks did not mount a very good defense, that was partially their own fault in choosing very poorly when it came to legal help, and also some differences on the facts. With Ninja there were criminal charges filed against the operators. Not so with Puerto80.

      With Ninja there was some evidence that they uploaded and hosted content themselves -- which is where the real problem was. That's not the case with Rojadirecta.

      What about Richard O.Dwyer (TVShack)?


      Yeah, that case now becomes more difficult for the DOJ (slightly), but we'll see what happens.

       

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    Anonymous Coward, Aug 30th, 2012 @ 3:21am

    is it time yet?

    can we roll out the alternate DNS mechanism now or do we wait for the THIRD STRIKE to take it out of the hands of the irresponsible & unacountable?

     

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    Anonymous Coward, Aug 30th, 2012 @ 4:22am

    Am I the only one who found it hilarious that after the comment was made about Average Joe disappearing, then the comment about him "disappearing or just not signing in", that he suddenly shows up?

     

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      average_joe (profile), Aug 30th, 2012 @ 6:37am

      Re:

      I follow this case closely. I was reading the comments, saw Gwiz's comment about whether I'd admit defeat, and I signed in to explain that it's not exactly a defeat since the legal issues were never ruled on. Read into as you wish. I read TD everyday. It's one of my favorite blogs. I disagree with almost every single thing Mike posts about copyright, but I'm still an avid reader.

       

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        Gwiz (profile), Aug 30th, 2012 @ 9:43am

        Re: Re:

        Hey AJ. It's good to see you using your avatar once again instead of relying on the plausible deniability of anoyomity in regards to past comments.

        Just to be clear, my original comment was really regarding your arguments supporting the DOJ stretching legal theory to it's limits by conflating civil copyright and criminal copyright together which would seem to make the prior restraint and due process arguments moot if the whole thing was based on faulty legal theory.

        Then Mike posted the DOJ letter, which I haven't read yet because the Docstoc embeds aren't working for me (anyone got links?). So I'm not sure how the Posner ruling plays into this, really.

         

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          Anonymous Coward, Aug 30th, 2012 @ 9:51am

          Re: Re: Re:

          I haven't read yet because the Docstoc embeds aren't working for me (anyone got links?).


          The Wired Threatlevel blog story, “Oops! Copyright Cops Return Seized RojaDirecta Domain Names – 19 Months Later” by Ryan Singel, (Aug 29, 2012) has links to PDFs for both the order and the letter.

           

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          average_joe (profile), Aug 30th, 2012 @ 9:52am

          Re: Re: Re:

          Hey AJ. It's good to see you using your avatar once again instead of relying on the plausible deniability of anoyomity in regards to past comments.

          Just to be clear, my original comment was really regarding your arguments supporting the DOJ stretching legal theory to it's limits by conflating civil copyright and criminal copyright together which would seem to make the prior restraint and due process arguments moot if the whole thing was based on faulty legal theory.

          Then Mike posted the DOJ letter, which I haven't read yet because the Docstoc embeds aren't working for me (anyone got links?). So I'm not sure how the Posner ruling plays into this, really.


          Gotcha. That's a whole different kettle of fish. I think Puerto 80 and the government were both quite confused about what the liability theories were. Was Puerto 80 the direct infringer or were they the accomplice? Did they have to show that infringement had occurred, or was it enough to show that the site could potentially facilitate infringement? Every brief presented a different theory of the case, and both sides were for the most part talking right past each other. The whole thing was a mess. If anything, I think the case showed the government the weaknesses in its theories. The next time, they'll have a more coherent strategy.

           

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    Ninja (profile), Aug 30th, 2012 @ 5:11am

    Now we can throw this case at the trolls along with Daja1z. I expect them to remain deaf and blind to reality though.

    Hopefully there will be more and more cases till there's a good amount of evidence to challenge the constitutionality of ICE/DOJ.

    Motherfucking Eagles ;/

     

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    Sheogorath (profile), Sep 1st, 2012 @ 9:12pm

    Masters

    FormerAC said: "There will never be a clear ruling because our government does not want one. They are wrong and they know they are wrong. But they have the power, and are willing fire at whatever target their masters decide."
    The U.S. Government said: "Bending over for a Mouse is what we do best!"

     

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