Once Again, Why Homeland Security's Domain Name Seizures Are Almost Certainly Not Legal
from the once-more,-with-feeling dept
Earlier this month, in discussing some of the Homeland Security/ICE domain seizures, Karl put together an excellent comment, going through the legal analysis as to why the domain seizures were almost certainly not legal. Karl is not a lawyer, so I sent the comment to a series of lawyers I know who are very much on top of First Amendment issues, and they came back saying that his post was accurate, so I asked him to turn it into a full post, and here it is. With COICA being brought back, the timing is particularly appropriate.
These seizures are the very definition of prior restraint.
The activities that these sites are doing has never been considered criminal infringement. Remember that "evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright." (17 U.S.C. 506(a)(2)) The state has not met their burden of showing that criminal activity occurred at all.
Moreover, it's pretty hard to claim "willful infringement" when a site has been declared completely legal under its own country's laws -- as is the case with Rojadirecta. If it's infringing, it's at most "innocent infringement," which is in no way a criminal act.
Furthermore, none of these sites are "primary" infringers. To be criminal, they must be considered an accomplice, and that requires much, much more proof than "contributory" or "vicarious" infringement does in tort cases. You must share the primary's actus reus and mens rea -- in layman's terms, you had to actively, intentionally, and directly participate, and moreover you had to know the act was criminal. It's amazingly obvious that this doesn't apply to many of these websites.
Under 17 U.S.C. 512's "safe harbors" provisions, if the sites followed the rules laid out therein, they are not liable for infringement at all, and the only relief available is laid out in 512(j). Nothing in 17 U.S.C. 506 takes those safe harbors away. Even if you wrongly believe it did, obeying the law would (once again) make you an "innocent infringer" at most, thus ineligible for criminal infringement under 506. Yet there was not even an attempt to show that the sites did not follow those rules. And apparently many did.
These seizures were also done ex parte, meaning that the defendants were not given prior notice, and were not given a chance to contest the seizures in a pre-seizure hearing. Nor, for that matter, were they given that chance after the seizures occured.
Fort Wayne Books v. Indiana makes it very clear that an ex parte seizure of potentially protected speech, with the intent to take material out of circulation, is prior restraint:
While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, books or films may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protection accorded searches for and seizures of First Amendment materials, renders invalid the pretrial seizure here. Even assuming that petitioner's bookstore and its contents are forfeitable when it is proved that they were used in, or derived from, a pattern of violations of the state obscenity laws, the seizure was unconstitutional. Probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films.
Note that even taking the offending material itself out of circulation is prior restraint. These seizures went beyond that, and attempted to take entire websites out of circulation, non-infringing speech and all.
Some rebut with Heller v. New York, but nothing in Heller contradicts Fort Wayne:
A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition. Nor, in this case, did temporary restraint in itself "become a form of censorship," even making the doubtful assumption that no other copies of the film existed. [Emphasis in original.]
In other words, Heller only applies when you seize a copy of the work, you do it to preserve it as evidence, and it does not prevent public access to the work itself.
Moreover, Heller quotes United States v. Thirty-seven Photographs, which lays out three requirements for ex parte seizures:
(1) there must be assurance, 'by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film'; (2) '[a]ny restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution'; and (3) 'the procedure must also assure a prompt final judicial decision' to minimize the impact of possibly erroneous administrative action. [Emphasis mine.]
These seizures fail every single one of those requirements. Those requirements were put in place "so that administrative delay does not in itself become a form of censorship." This is exactly what is happening here. Forfeiture proceedings for the first round of seizures were only initiated six months after the seizures occurred. The majority of sites still have not had a chance to contest them, and some have only recently been contacted by the government, months after the domains were seized.
Others may rebut with Arcara v. Cloud Books, in which an adult bookstore was closed down because of prostitution occuring on its premises. The usual claim is that "the First Amendment is no shield against criminal activity." But Arcara was only constitutional because "the sexual activity carried on in this case manifests absolutely no element of protected expression." Furthermore, "We have also applied First Amendment scrutiny to some statutes which, although directed at activity with no expressive component, impose a disproportionate burden upon those engaged in protected First Amendment activities."
Copyright infringement does, in fact, have "an element of protected expression" -- that is, a First Amendment defense can be raised (it need not be raised successfully). For that reason alone, Arcara does not apply. But even if the activity was not itself protected, the mere fact that it imposes a "disproportionate burden" upon free expression, disqualifies it from Arcara exemptions. Arcara absolutely, positively does not apply to these seizures.
In case you're wondering -- no, obscenity is not any more "presumptively protected" than copyright infringement is. (Hint: child pornography is a subset of "obscenity.") The same seizure rules (18 U.S.C. 46) apply to both; First Amendment challenges can be raised to both; obscenity, unlike infringement, is always a criminal offense; and the punishment for obscenity is about the same as for criminal infringement. (It's all in 18 U.S.C. 71.)
It's also a dodge to claim that domain names are not "presumptively protected speech." First of all, that's not true. Name.Space v. Network Solutions ruled that general top-level domains (just the .com, .net, etc parts) are not protected, solely because they cannot possibly be expressive. When the domain name can possibly be expressive -- such as when it includes the full creative URL -- it is presumptively protected speech, and First Amendment concerns apply. (See: every single "sucks site" case, and the one about Glenn Beck raping and murdering a young girl in 1990.)
But it's even more of a dodge because the domain names are not even allegedly infringing. They were seized solely to prevent the public from accessing the websites themselves. So the TLDs' status as "protected" is completely immaterial; it only matters whether the websites themselves are possibly protected expression.
And, of course, they are. The majority of the speech on some sites (forums, blog posts, comments, etc) is absolutely, 100% protected speech.
Now, about those seizure laws. 17 U.S.C. 506(b) references 18 U.S.C. 2323, which allows the seizing of any "article, the making or trafficking of which" is criminal infringement. Compare this with the ennumerated articles that can be impounded from 17 U.S.C. 503: "all copies or phonorecords," "all plates, molds, matrices, masters, tapes, film negatives, or other articles," and "records documenting the manufacture, sale, or receipt." These laws were clearly to be used for counterfeit goods, not file sharing.
According to 18 U.S.C. 2323(a)(2), the actual procedures for criminal seizure are in 18 U.S.C. 46. There are three sections dealing with civil forfeiture, none of which seem particularly appropriate. It seems that judicial forfeiture is covered exclusively in 18 U.S.C. 985. 985(d) states:ates:
Real property may be seized prior to the entry of an order of forfeiture if--
(A) the Government notifies the court that it intends to seize the property before trial; and
(B) the court--
(i) issues a notice of application for warrant, causes the notice to be served on the property owner and posted on the property, and conducts a hearing in which the property owner has a meaningful opportunity to be heard; or
(ii) makes an ex parte determination that there is probable cause for the forfeiture and that there are exigent circumstances that permit the Government to seize the property without prior notice and an opportunity for the property owner to be heard.
(2) For purposes of paragraph (1)(B)(ii), to establish exigent circumstances, the Government shall show that less restrictive measures such as a lis pendens, restraining order, or bond would not suffice to protect the Government's interests in preventing the sale, destruction, or continued unlawful use of the real property. [Emphasis mine.]
In other words, even with counterfeit goods, you're supposed to allow an adversarial hearing before seizing anything. An ex parte seizure order is the "nuclear option," to be used only when other methods are insufficient. The affidavits claim that these were indeed "exigent circumstances," but that claim is completely laughable on its face -- especially since the sites were operational for years at the same domain name, without risk of "destruction" or "sale," and the seizures did not preserve (or even help gather) any evidence whatsoever. And no, "continued unlawful use" is not an "exigent circumstance" when that "use" involves potentially protected expression, or, for that matter, when the use is not necessarily unlawful in the first place.
...Now, I'm not a lawyer, and I'm only repeating what I've been able to dig up. You can possibly disagree with some of the above. But in order for these seizures to be legal, you have to disagree with all of it. I'm sure some here will try (and many more will just call me a "freetard" or "pro-piracy" or "LOL!" at me). But no matter how you slice it, the legality of these seizures is not obvious. It's not even likely.
The more I read the law, the more convinced I become that the seizures were a repulsive abuse of power. ICE did this deliberately to route around safe harbors and the First Amendment. They had no intent of filing criminal charges and were hoping the domain owners would be scared into silence. It is prior restraint, and it is censorship, plain and simple.
Re: An appropriate defense
Exhibit A: A random collection of comments from Youtube.
Followed by Exhibit B: the flagged comments from Sophisticatedjanedoe's Favorite Posts of the Week.
Stupid
I thought cases like this went out the window in the late 90's, when the Internet happened, and everyone on the planet realized that curtailing offensive speech was a waste of time.
Still, it could get a lot worse. Look at Mike Diana. As part of his probationary sentence, he was ordered to stop drawing altogether - and to submit to random searches and seizures of his drawings and writings throughout his probation.
Hopefully whatever this guy faces won't be nearly so totalitarian.
Re: Re: Re: Re: Re:
I should have also pointed this out.
What about the fact that it causes harm to the victim? What about the interests of society?
What about non-consensual acts that do not cause physical harm to the victim? Are they somehow not rape?
And, what about when society decides that the rape doesn't harm their interests? Does this make it better?
The act doesn't need to physically harm the victim to be rape. It does not need social disapproval to be rape.
So, yes, the main evil is that it is done against the victim's will.
I'm saying this less to rebuke your statements, and more because these things simply need to be said. I didn't say them, and that was wrong of me.
Re: Re: Re: Re: Re: Even Mike can't help misreading the Constitution
For example an author writes a book. The book is stolen and a copy is sold to a publisher. The copy is not stolen property and subsequent copies would also not be stolen property. So the author's only recourse would be against the original thief.
It's important to note that, if this book weren't covered by copyright for whatever reason, that doesn't mean there aren't other ways to go after the thief and publisher. Trade secrets and privacy rights are examples.
Had copyright never existed, it's a pretty sure bet that the scenario you describe would have been covered by some other set of laws. (Since copyright is essentially a financial right, I'd guess it would be subsumed under trade secrets laws.) So, copyright laws aren't necessary to protect this particular right.
Which makes it all the more doubtful that this particular right is what the Founders were considering.
Re: Re: Re: Re:
Does this mean his training as a lawyer is complete?
He did say he just got his JD...
Re: Re: Re: Re:
Wow. So it's reasonable to think that the only reason rape is not OK is because it goes against the victim's will? That strikes me as very controversial. What about the fact that it causes harm to the victim? What about the interests of society?
We're off topic here, but I'll bite.
If an act "causes harm to the victim," but is genuinely consensual, then it's not unreasonable to think it's OK. Or, at the very least, not outright immoral. Obviously, I don't know (or care about) Mike's stance on this issue, but as far as I'm concerned, consensual acts between adults are nobody's business but theirs.
As far as the "interests to society" - again, if the acts are consensual, then what business is it of society's? How are the "interests to society" harmed by consensual acts between adults?
In fact, those who tout the "interests to society" line tend to be those whose not-so-subtle goal is to outlaw pornography. People like the religious right, or mid-80's anti-porn feminists. I'm a fan of neither group, to put it mildly.
But, getting back on track, this doesn't apply to copyright infringement. You have said that it is wrong even if it does not do any harm to the copyright holder, and even if society's interests are harmed in enforcing those rights. You are concerned solely with persecuting infringers, regardless of whether that helps society or not, regardless of whether that helps creative artists or not. So, obviously, you don't care about those things.
In fact, between you and Mike, it is Mike who is much more concerned about "harm to the victim" - since he, and not you, is the one who examines practical means to minimize the harm from infringement (or even to turn it into an benefit). It is he, and not you, who is concerned with "the interests of society" - since he has made it abundantly clear that copyright laws are supposed to serve the public first and foremost. (Something you continuously deny.)
Face it, Mike is far more moral than you are when it comes to copyright. I believe you already know this. It's why you lash out at him so much.
It's one thing to disagree with me, but you needn't call me names like this.
Those are the exact names that you call Mike all the time. I think you've even called me that once or twice, long ago.
I guess I should try to avoid sinking to your level. It requires an immense amount of restraint, and sometimes I slip up.
Re: Re: Even Mike can't help misreading the Constitution
I see your various arguments regarding copyright being a 'natural right', and raise you Karl's very well put refutation of them:
You have to understand: Crosbie believes that copyright was intended to protect unpublished writings only. In his eyes, the notion that copyright was supposed to be a post-publication monopoly is an abomination, a twisting of the intent of "copyright clause."
He is, in other words, a copyright abolitionist.
It is indeed ironic that his "natural rights" argument is echoed by copyright maximalists. But they are both wrong.
You linked to quotes about the post-publication monopoly not being a natural right. If you want to see a discussion with Crosbie directly, in which I show that the "copyright clause" was indeed talking about a post-publication monopoly, it is here:
http://www.techdirt.com/articles/20121025/18244920850/copyright-new-mercantilism.shtml#c135
Re: Re: Re: Re: Re: A sad misunderstanding
Incorrect. Nobody is ever forced.
All the major labels had roughly the same "standard" contract. That included assigning all the rights to the recordings, and it was not a point that the labels were willing to negotiate. There are very few cases where artists retained their copyrights, but these are all well-known, gold or platinum artists who were able to negotiate this in their second contract with the labels. You can very nearly count them on one hand.
And unless you signed with a major, you could not get on commercial radio, could not play most of the larger venues, and could not get your records into national record stores. The major labels acted (and act) collectively, essentially forming a total monopoly on music.
So, no, you weren't "forced." You were only "required" to assign the rights if you hoped to actually make a living at your art.
Many of those same artists use the work and it's wide distribution and promotion to be able to build a fan base and charge for access to their live shows.
Yes, they did, but this revenue stream is unaffected by piracy (it's actually increased in the past ten years). In fact, you don't need copyright at all to do this.
If they are forced back to working at the 7-11 after that, they likely are not the artist that the public wants to hear from, read, or buy art from, plain and simple.
We're talking artists that sold units in the tens of thousands, sometimes the hundreds of thousands. That simply isn't enough to make money under the old major label system.
There is no unlimited source of revenue to pay people who feel they are an artist, the system is built so that those who are appreciated by the public can make a living being an artist.
You're right, there is not an unlimited source of money. But under the old label system, the vast majority of that money did not go to the creative artist at all.
Most of the people under that system could not make a sustainable living, whether they were appreciated by the public or not. Most songwriters could not write songs unless they spent their time performing for the public; most book writers who are not good public speakers were forced to do speaking tours or lectures. The ones who didn't have to do this were a small, small, small minority of songwriters or authors. That was (and is) true even among the songwriters or authors on major labels or who were signed with big publishing houses.
Again, if you look at the top grossing artists on major labels, nearly all of them made a tiny percentage of their income from royalties. They all make their money from other things - live touring, product endorsements, etc.
The notion that copyright helps artists make money, is almost entirely a myth. It is a myth that naive artists believe, in the same way that they believe copyright is some sort of "natural right" earned by their labor, but it is a myth nonetheless. It is like the myth of the "rock star lifestyle:" something that is deliberately promulgated by people who earn their money off of artists, in order to keep a fresh supply of labor to stock the plantation.
Would you, as Mike Masnick appears to want to, deny the artists the rights to own the material they create?
Neither myself nor Mike are copyright abolitionists. Mike wants copyright to fundamentally benefit the general public - which, not coincidentally, is also copyright's Constitutional purpose.
I personally want to see copyright continue. I simply recognize that the current form is an abomination. It hurts artists more than it helps them, and it does tremendous damage to the public good.
Specifically, I would start by re-legalizing all forms of non-commercial copying and distribution. I would also like to see copyright transfers abolished by law: copyright "ownership" should remain with the artists, and only licenses should be allowed. There are a few other things I'd like to see, but listing them would make this a novel-length reply.
Re: Re: Re: Re: A sad misunderstanding
Sorry about the formatting...
Re: Re: Re: A sad misunderstanding
It would be hard for you to honestly deny that ownership and control of an end product is good for artists.
Under copyright law, most artists did not have ownerhip or control over the end product. They were forced to assign ownership and control of their copyrights to a third party (record labels, publishers, or studios), and merely received some form of royalties due to the copyright owner's exploitation of these rights.
And even then, they made the vast majority of their income through other means. For example, in 2004, the highest grossing artist was Paul McCartney. He made less than 15% of his income through copyright royalties.
Without some form of protection, there is a good possiblity that many of today's top artists would not be able to be artists on a full time basis, and would instead have to spend their time earning a living in other ways.
Even with this protection, the vast majority of creative artists were forced to make their living "in other ways." Of the artists who were actually signed to labels (a very small minority), 9 out of 10 were forced to make their living outside of copyright industries. Less than 10% of artists on a major label wer ever able to recoup their costs, meaning that they made not one cent on artist royatlies. They were eventually forced to make their living in other ways (such as working at the local 7-11) in order to make ends meet.
Whatever you think copyright accomplishes, allowing artists to make a living at their art was never one of them.
Re: Re: Re: Re: Re: Re: Re: Re: WHOA! Stop at: "everyone just wants stuff for free".
I'm not asking Mike to debate me HERE.
Even if we believed that (which none of us here do), it's still completely wrong.
You have, repeatedly, asked Mike to debate you in these very comments.
Examples:
In response to Mike's rational silence to your insulting and irrational comments, you insult him personally and misrepresent everything he's said on this site:
You're not here for debate. You're not giving your impartial opinion. You are nothing other than an extremist advocate, whose motivations are to smear anyone who disagrees with your radical agenda.
Re: Re: Re:
I don't get your point.
Let's apply it to scientific progress.
Did David Hume actually tell us how to measure the speed of light in a vacuum? No, he didn't.
On the other hand, Hume gave us a "framework" for discovering how light traveled in a vacuum. That framework was empirical science. Hume said that unless your data about how fast light traveled was accompanied by actual, measured, empirical data, it shouldn't even be considered a scientific discovery.
Mike is saying something similar. Unless potential copyright statutes can actually be empirically proven to provide a public benefit, they should not be considered "good" copyright statutes. This is entirely in accord with copyright law, from the Founders forward. If, on the other hand, copyright statutes are only alleged to be for the public benefit, without any data whatsoever to back this assertion up, then they should be disregarded - exactly as Hume disregarded any scientific theory that was not based on empirical evidence.
The fact that it has taken copyright law centuries to catch up to scientific theory, says that copyright law is outdated, illogical, and not even remotely scientific. It condemns copyright law to the same kind of "truthiness" that said that the sun revolves around the earth.
Re:
This sounds good as a high-level principle, but you never explain exactly how we measure the "the progress."
Well, except when he said this: "If we go by the originalist mandate, 'science' was the part that copyright was about, and it meant 'learning.' The framers of the Constitution were focused on promoting learning and education via copyright, not a specific entertainment business."
But since Mike explicitly called this a "framework," your statement isn't even a criticism. This isn't a "solution" to questions about copyright law, it's a systematic approach to answering the questions.
For the record, the Supreme Court has defined it as "promoting broad public availability of literature, music, and the other arts." (Twentieth Century Music Corp. v. Aiken.) I think the court got it right.
Re: Re: Re:
Oh look. More sweeping pronouncements stated as fact that are not based on any evidence.
Exactly like your statement about Mike, which is part of the point.
The other part of the point is that your stated opinions have never been about benefiting creative artists. They have only been about using and abusing the law to go after supposed "pirates."
You yourself have stated outright that it doesn't matter whether the infringement actually does any harm to the creative artists. You yourself have supported people who go after "pirates," but are in no way related to the creative artists. You yourself have called people "pirates" who are only trying to enjoy the content that they paid for, thus supported the artists. (That's assuming that paying for content actually benefits the actual creative artists, which is often not true.)
No matter who your friends are, your viewpoints support infringement lawsuits and the lawyers who benefit from them. And nothing else.
So artists don't matter? Techies don't matter? I don't agree.
I don't agree either, but that's not what I said. For the purposes of copyright law, artists matter because art matters to the public. "Techies" matter because technology matters to the public.
What matter is the public use of art and technology. Whatever benefits the public use is a good under copyright law; whatever limits the public use is an evil under copyright law.
But we give the exclusive rights to the artists/authors so that in turn can benefit the public. We don't give the rights to the public first.
We couldn't "give rights to the public first," because those rights are removed from the public in order to create copyright rights in the first place. The rights that the public holds are free speech rights. Copyright removes some of those free speech rights from everyone except the author, who now has the "exclusive right" to those free speech rights.
In theory, these rights are voluntarily given up by the public, and held exclusively by authors, because granting authors a monopoly will incentivize authors to make more works available for public use. (A use which is temporarily limited by copyright law.) The public does this, because the public benefits more from the use of those works, than it loses by giving up those particular free speech rights.
"Protecting" copyright industries has little to do with copyright law, exactly as "protecting" technology industries has little to do with copyright law. The sole gauge of copyright's success is in determining how much those laws benefit the general public.
And yet I said: "Of course the public is a stakeholder too . . . ."
..."at the ballot box," then said their interest was "derivative" of the interests of artists and "techies."
That's not a stakeholder, that's an onlooker. A stakeholder is invited to actively participate, and their interests are considered primary. To be a stakeholder, the public absolutely must have groups at the table who represent their interests: free speech groups, civil liberties groups, educational groups, organizations representing public libraries, groups representing the blind or disabled, and so forth.
Unless these groups are provided at least as much input as private industry organizations (whether entertainment or technology), the whole process is flawed.
Re: Re: Uh oh
JonMon reportedly left Turbine a few years before it was sold.
Aha. I knew Turbine was sold to Warner. I didn't know that Monsarrat was one of the people who cashed out.
That makes me feel better... at least for my friend, knowing that he doesn't have to work for this guy.
Re:
it does boil down to your tech buddies vs. my artist friends.
You don't have "artist friends." You have "lawyer friends."
And part of Mike's job is to do consulting work for artists, to help them make more money. So, he has "artist friends" too.
The public's interest is derivative of those two interests.
This is flat-out ridiculous. The public's interest is the only interest that matters.
This is to say that the public doesn't benefit from artists and technology - certainly, they do. But as far a copyright is concerned, those two interests are derivative of the public's interest. Not the other way around.
I know you love to pretend that the public isn't a stakeholder, that they're just onlookers in the copyright debates. They're not.
Re: Re: Re: Re: WHOA! Stop at: "everyone just wants stuff for free".
On another note, NOW can you shut up about Mike not having a stance?
That's not the same A.C. The whiny, "debate meeeee!!!" A.C. is in fact Average Joe.
Average Joe would never, in a million years, say something like "IP is a privilege provided for by the government and no one is entitled to anything the government provides."
Uh oh
You know, a friend of mine (and someone who is putting out one of my LP's) does sound design for Turbine. I was considering asking him if I could get a job programming there, after I graduate. I probably won't now.
I'll have to ask him if it's possible to talk some sense into his boss...
Re: Re:
And he thinks piracy is not OK because (and only because) the victims don't like it. Reminds me of the argument that rape victims should just like it.
The fact that you just equated rape - a crime of violence, involving physical violation - with copyright infringement - which involves no violence, no physical violation, and affects the "victims" so little that they can't even tell when it happens - shows that you have no moral center whatsoever.
But, leaving that aside, and saying for the sake of argument that they are even vaguely equivalent, what your saying still doesn't make any sense.
Because if copyright infringement were rape, Mike would be saying, "rape is not OK, because it happens against the victim's will."
This is not very controversial, and it is not even remotely like the argument that rape victims "should just like it."
So, not only are you an immoral scumbag, you're a lying immoral scumbag.
Re:
Maybe the Attorney General is privy to evidence that you are not?
Maybe he - or anyone else, ever - should actually show any evidence to back up his claim.
After all, Holder is the one claiming there is a connection to terrorism. The burden of proof is on him to provide evidence for his assertion.
He has provided none. Nobody else has provided any. The reason is that none exists.
And before you ask Mike to show "that there is no such evidence," you know very well that this is factually impossible. You can't prove a negative.
Example: there is no evidence whatsoever that Santa Claus does not exist. That does not mean that Santa Claus exists. And it does not mean that, if someone asserts that Santa Claus does in fact exist, we can't rake him or her over the coals for it.