So, basically, "I don't care if there's a chilling effect on speech when I don't agree with that speech."
You jump through a lot of hoops to try to explain why blog posts providing explanatory information should be censored, but come on. I think we'd all agree that providing artists with information to help them in their careers shouldn't be a crime.
Terry, with all due respect to your lack of experience in this field, your analysis was one opinion. Multiple lawyers who actually work in the field have noted that your analysis was lacking, and that someone in Justin Bieber's shoes could easily face felony charges under SOPA.
Saying "I know a bunch of lawyers" isn't an answer.
Bieber won't face felony charges.
I'll be happy to debate you or your secret lawyer friends on that issue.
I find it interesting, however, that you position yourself as the final arbiter of interpretations of the bill, and then mock others -- including many who have been in this field much longer than you.
I didn't mock anyone. I didn't position myself as final arbiter. I offered my opinion, and I'm sorry your feelings were hurt by that.
Separately, the fact that you keep harping on the concerns people had about previous copyright laws, ignoring that many of those concerns contributed to the softening of those bills (and that other concerns turned out to be wholly prescient), makes me wonder when you switched over from your claim of objective analysis to one in which you simply parrot the dying legacy industry's talking points, come hell or high water.
I know, freedom of speech and constitutional rights, who needs them, right? Sorry, I think these are important. I'll keep hammering on them, come hell or high water.
Separately, voting for your own comments is considered pretty crass.
Ha ha ha! Thanks big brother. I must have missed the rules you laid down. I don't see them in the FAQ either. Is this a bootable offense? Cause I always thought 'crassness' was something the crowd would take care of.
I'm sorry your feelings were hurt by that.
If you don't want people voting for their own comments then block it, otherwise you sound like Emily Post.
With all due respect, this interpretation is incorrect.
(B) applies to "an offense referred to in subparagraph (A)".
The offenses referred to in (A) include 506 (criminal copyright infringement), 2318 (Trafficking in counterfeit labels, illicit labels, or counterfeit documentation or packaging), 2319A (Unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances), etc.
So if you substitute those into the language of (B), you get:
"Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of [criminal copyright infringement; trafficking in counterfeit labels, illicit labels, or counterfeit documentation or packaging; unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances; etc.]"
In other words, there is no requirement that the property in (B) is limited to that which is used to make physical articles.
This is the intended interpretation of Congress. It's supported further when you realize that the subsections (A), (B), and (C) correspond to the classic categories of forfeitable property: contraband, instrumentalities or tools, and proceeds or fruits.
Re-read the post, as it addresses precisely what you call a fatal flaw. The domains were not seized based on direct infringement or indirect infringement -- they were seized as property used to facilitate the commission of infringement.
Like if the cops seized a getaway car. It's irrelevant who owns the car, or if the driver is the actual bank robber, an accomplice, or just a buddy doing a favor. What's relevant is whether the property has a substantial connection to the commission of the crime (with an exception for the "innocent owner").
I'm dying to know what you think the holding in Arcara was then. Closing down a book store doesn't involve free speech?
You're leaving a lot out. One case was in 1972, the other in 1973, before copyright law was totally re-written. There were explicit seizure rules in Title 17 that do not exist today.
The copyright law changed, but the Constitution didn't.
Furthermore: one of them was that, when something was being seized, "a copy of the affidavit, writ and bond are served" to the defendants - something that did not happen in the ICE cases. And unlike these cases, the defendants had an opportunity to contest the seizures. This is why the judge ruled in Jondora:
Here provisions exist to apply for relief from seizure. These are deemed sufficient to comply with Constitutional mandate.
No such provisions exist in the ICE cases. No affidavit, writ, or bond was ever served to the defendants. They still have not been given an opportunity to contest the seizures.
The domain owners were given notice and were given opportunity to contest. Additionally, the due process safeguards afforded to property owners in seizure cases are stronger than they were back then. Prior to CAFRA, the government needed to only prove probable cause before property was forfeited. Now they have to prove by a preponderance of the evidence. Prior to CAFRA, the "innocent owner" defense was not available, now it is. Those cases were upheld as Constitutional under far less stringent procedural safeguards.
So, there was indeed an adversarial hearing prior to the preliminary injunction. Exactly like there was in Napster and Aimster, and exactly unlike the ICE seizures.
I don't know why you're ignoring my previous point, but I'll say it again: in non-copyright speech cases, preliminary injunctions are seen as impermissible prior restraints. Yes, both plaintiff and defendant can make their case, but the decision to grant a preliminary injunction is based only on the likelihood that speech is allegedly unprotected. It is only with a final judicial determination that speech can be blocked without running afoul of the First Amendment.
To say that the mere opportunity to contest a preliminary injunction in noncopyright speech cases satisfies the First Amendment goes against the vast majority of case law and does damage to free speech.
In other words, why do you think the fact that the defendants had the chance to testify before the issuance of a preliminary injunction in New Line Cinema satisfies the First Amendment when courts have repeatedly struck down preliminary injunctions in libel and obscenity cases even though defendants had the same chance to testify?
I don't believe this is actually a correct statement of the law, Terry. We've now cited numerous cases that all say seizing speech requires greater scrutiny. I find it odd that you keep denying this.
All those cases involving seizing materials that were allegedly obscene, not infringing copyright. True, both involve speech, but there's a distinction between how courts analyze them. Speech concerns are handled internally when it comes to copyright, as the Supreme Court has held twice (Eldred and Harper & Row) and as tons of lower courts have approached it.
In New York Times v. US, the Supreme Court alluded to permissible restraints based on copyright:
The Congress has authorized a strain of prior restraints against private parties in certain instances... Such orders can, and quite often do, restrict what may be spoken or written under certain circumstances. See, e. g., ... Article I, § 8, of the Constitution authorizes Congress to secure the "exclusive right" of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another.
The court in Jondora Music Publishing v. Melody Recordings, 362 F.Supp 494, explicitly rejected the application of some of those numerous cases you cited to to a copyright seizure case:
On the constitutional issue, defendants further state that a seizure and impounding of their duplicating material without an adversary hearing prior to the seizure is a clear violation of the defendants' rights under the first amendment, citing Quantity of Copies of Books v. Kansas ... and Freedman v. Maryland. Since defendants concede they copy the creative works of others I perceive no first amendment issue.
Also see Duchess Music v. Stern, 458 F.2d 1305, where the 9th Circuit upheld the seizure of 25,000 allegedly infringing tapes pending a hearing on the merits.
Other courts have been even less generous for those who raise the First Amendment in copyright cases:
We do not find any denial of freedom of expression to the "tape pirate". What he seeks is not the freedom to express himself artistically or otherwise, but the right to make exact and identical copies of sound recordings produced by others. We fail to see as any protected first amendment right a privilege to usurp the benefits of the creative and artistic talent, technical skills, and investment necessary to produce a single long-playing record of a musical performance. (US v. Bodin, 375 F.Supp 1265).
I know you don't agree with this distinction between copyright and other types of speech for first amendment purposes. But it is an accurate description of the law, so I stand by my statement.
That's not what Karl said. Karl noted that even when there were preliminary injunctions -- such as in Napster and Aimster, there was still an adversarial hearing in which those companies were able to present their reasons against the injunction. They may have lost, but a hearing was held.
Karl is wrong, and ironically arguing for less First Amendment protection than is currently given. Preliminary injunctions are rarely given in speech cases because they are not based on a final judicial determination that the speech is unprotected, only on establishing the likelihood that speech is unprotected. See Vance v. Universal Amusement, 445 US 308.
The same isn't true in copyright infringement cases. Preliminary injunctions are routinely granted, a la Napster, Aimster, etc. -- even in cases where defendants arguably have a fair use defense (New Line Cinema v. Bertlesman Music, 693 F.Supp. 1517).
Ah. So, please point me to where I can find OnSmash's content?
Oh, you can't?
Separately, as already noted, DHS explicitly claimed that its purpose was to block the speech on these sites. I'm not sure why you ignore that. You're playing a game that appears intellectually dishonest. You defend the seizures by pointing to the content on the site, but you ignore the content on the site when people point out that the First Amendment was violated.
You're defending the indefensible.
This is wrong. I'm not sure why you would state something that is flat out wrong, but you did. Karl has already pointed out why so I'm not going to repeat it.
Onsmash's new site shows up on the first page of Google results when you search for Onsmash.
As for your following points, I've explained above. As I also said above, you don't agree with the law, fine. But that doesn't make me 'intellectually dishonest' for describing the law.
Um, if content is authorized, copyright infringement cannot occur. It does not need a fair use defense or the idea/expression dichotomy, it is not and never will be infringement.
Say I want to do a Beatles cover. I pay the statutory rates to the Harry Fox company, and release it. Can I be sued for infringement? No. It is authorized. It is, by definition, not infringing. If the government seized a domain where I was selling my CD, would it be prior restraint? Yes. Since it's not infringing, my cover song is protected expression.
That is exactly what happened in one case. The songs listed in the affadavit were sent in by label representatives, with the express purpose of being posted on the music blog. They are not infringing. No defense (fair use or otherwise) is even necessary.
Yes, the existence of a valid license means no copyright infringement occurred. But that doesn't subject the seizure to heightened First Amendment scrutiny, requiring a preseizure hearing. Agree or disagree, that's an accurate statement of the law.
And the seizures should have followed those conditional prohibitions. They did not. The cases we are talking about (blogs, forums, search engines) absolutely fall under the category of those "specifically defined online service providers." Blanket injunctions against those sites would have been denied.
Again, safe harbors are a defense. Defenses have to be asserted by the defendant, not investigated by the law enforcement agency making the seizure. But even if it turns out a web site qualifies for a safe harbor, that doesn't affect the seizure, and it doesn't have any bearing on whether the First Amendment requires a preseizure hearing.
Not prior to an adversarial hearing, they're not. A full trial may not be required, but an adversarial hearing is. Even for tort cases, where the burden of proof is significantly lower.
Preliminary injunctions are routinely awarded in copyright infringement cases. See Napster and Aimster, for example.
A preseizure hearing is required by the Constitution in all cases where the seizure has the effect of adversely effecting potentially protected speech. A warrant is insufficient. See Fort Wayne Books v. Indiana.
Nope. Preseizure hearing is only required for large-scale seizures -- where it has the effect of taking the speech out of circulation -- of presumptively protected speech because of their content. It's not required where the impact on protected speech is incidental to the seizure.
I don't see why not. The case itself makes it perfectly clear: it only applies in cases that "manifest absolutely no element of protected expression." Note that it doesn't matter if the activity is not protected in the final analysis; it must only have an "element" of protected expression.
It applies where the conduct at which the law or regulation is targeting has no element of protected expression. Facilitating the infringement of entire songs or movies has no element of protected expression.
Even if it does, that doesn't mean the seizure is prohibited without a preseizure hearing, it just means the constitutionality of it is analyzed under the O'Brien test. I think even under that test, these seizures would be constitutional.
Furthermore, even laws against acts completely unrelated to free expression can be prior restraint, if they "impose a disproportionate burden upon those engaged in protected First Amendment activities." Blogs, search engines, and forums are all "protected First Amendment activities," so according to Arcara itself, these seizures are unconstitutional. Indeed, the seizures could not be carried out against anyone other than those engaged in potentially protected expression.
That doesn't make sense. It means every internet regulation is entitled to First Amendment scrutiny because every internet regulation disproportionately burdens web sites. That's like saying every law violates equal protection because humans are a class of people and every law disproportionately affects that class of people.
It's not a bad article, but it misses some fundamental points.
Mike brought one up. I'll bring up another: If it is authorized content, it cannot possibly be infringing - and materials that are not infringing are absolutely, positively protected by the First Amendment, Copyhype's claim to the contrary notwithstanding.
Authorized content is protected by the First Amendment, but through copyright law's internal mechanisms (idea/expression dichotomy and the fair use doctrine) rather than through separate First Amendment scrutiny. So, unlike with cases involving obscenity, a seizure before a hearing is not a prior restraint.
He also ignores that copyright law has very clear and explicit rules for dealing with injunctions against Internet infringement. (To refresh your memory, it's Title 17, Chapter 5, Sec. 512.)
Those are conditional prohibitions against injunctions for certain specifically defined online service providers. 512 certainly isn't a blanket prohibition on injunctions for all "internet infringement."
Whether or not the sites seized qualify for these safe harbors is certainly an issue, one that can be raised as a defense. But this defense is irrelevant to the question of whether a preseizure hearing is required by the Constitution.
If, as he claims, we can "think of seizures as cousins of preliminary injunctions," then the seizures themselves should follow the same procedures. They did not even come close to doing so. In fact, I suspect that the very reason they were called "seizures" is because if they were injunctions, they would be explicitly unlawful.
They would not be. Preliminary injunctions are routinely awarded in copyright infringement cases.
He also brings up the old canard of Arcara v. Cloud Books, which has been debunked as irrelevant so many times that it's starting to become a bad joke.
No offense to Mike or the TD community, but I don't find the "debunking" of Arcara in any way persuasive.
If you're arguing that criminal law never recognizes indirect liability, that's just flat-out wrong.
Aiding and abetting -- or facilitating the commission of a crime -- makes you as guilty as the person actually committing the crime; that's basic criminal law.
And just to be clear, 18 USC § 2 expressly says so.
Note that portion of the decision speaks only to Google's liability for direct infringement. As far as liability for indirect infringement goes, the court affirmed the finding that Google was not vicariously liable but remanded on the issue of contributory infringement.
Seizure is taking property into custody, forfeiture is deprivation of property without compensation. This article had 7 paragraphs explaining the difference. It indicated the separate constitutional requirements for each required by law.
Um. No. The content is taken down *PRIOR* to an adversarial trial. You know that. It does not require the owner of the website be informed of the action or give them a meaningful chance to be notified of the hearing.
There is due process *for some* parts of the bill, not for all.
What parts are lacking due process?
Furthermore, even the process you describe above almost certainly violates the First Amendment and the concept of "prior restraint" in that it takes down an entire website, rather than narrowly targeting specifically infringing works.
You may want to look up the meaning of "prior." A "prior restraint" stops speech before it is made. And copyright infringement is not protected by the First Amendment. This bill is limited to domains where the entire site is dedicated to infringement.
Determination, not trial. I know you know that, but it's not clear from the way you stated it.