Homeland Security Presents 'Evidence' For Domain Seizures; Proves It Knows Little About The Internet – Or The Law

from the holy-crap dept

Earlier this week, we noted how the owners of the various hiphop blogs and Torrent-Finder, the torrent search engine, that were seized by Homeland Security’s Immigration and Customs Enforcement (ICE) group still hadn’t been provided the details on why their domains were seized. However, that’s no longer the case. A partial affidavit and the seizure warrant for those sites has been released, and it highlights how ridiculously clueless Homeland Security is on this issue (you can read the whole thing at the bottom of this post). What’s troubling isn’t just that the folks who made the decision to seize these domain names don’t seem to know what they’re talking about, but that they seem to have relied almost exclusively on the MPAA for their (lack of) knowledge on the subject at hand.

It looks like the four blog/forum sites (RapGodFathers, OnSmash, Dajaz1 and RMX4U) and Torrent-Finder were all lumped together into a single warrant and affidavit. The affidavit was written by a Special Agent with ICE, named Andrew Reynolds, who indicates in the affidavit that he only recently graduated from college (he notes that he’s only been on the job for one year, but before that he was a “student trainee with the group”). Much of the affidavit relies heavily on the MPAA. This fits with what ICE assistant deputy director Erik Barnett said soon after the seizures, admitting that they basically just took what sites Hollywood said were a problem and seized them.

In this case, Mr. Reynolds repeats the debunked stats the MPAA has given out concerning “losses” to Hollywood, including the claim of “domino effects” of piracy — a claim that has been debunked so many times it’s getting stale. The “domino” effects are really all about double, triple and quadruple counting the same dollars — and, perhaps more importantly, they only look at the domino effect (they usually call it a “ripple effect”) in one direction, ignoring the fact that money not spent on movies still gets spent elsewhere (potentially boosting those other industries). That doesn’t mean that it’s okay to not pay for movies — but it means that claiming some massive economic “harm” here is misleading at best. Even the GAO — from the same government Agent Reynolds works for — has debunked the MPAA’s stats, in part because the MPAA refused to explain how it came up with those numbers.

Most of the reasoning behind seizing the blogs is left out of the released document, but the entire section on Torrent-Finder is there, and the level of confusion by Mr. Reynolds is worrisome. First of all, he calls it a “linking” and a “bit torrent website.” Earlier in the affidavit, these terms are defined loosely — without any indication of the unsettled nature of the legal question concerning whether or not simply linking to potentially infringing content is, itself, infringing. Instead, it’s simply assumed that linking is not just infringement, but potentially criminal infringement. That’s scary. And wrong.

Meanwhile, a “bit torrent website” is defined is a “website through which illegal copies of movies and television shows are shared and transferred.” The problem here, of course, is that Torrent-Finder is not, in fact, a “bit torrent website.” It hosts no tracker. It hosts no infringing content. It’s a search engine. That distinction is entirely ignored. In fact, Agent Reynolds appears to blame Torrent-Finder for anything it finds as a search engine. Anyone at any search engine (or who understands how the internet works) should be horrified by this. It’s like saying that Google is liable for everything and anything that people can find by doing a search on Google. Think about that for a second.

From there, it gets even more ridiculous. As part of Agent Reynold’s argument as to why Torrent-Finder is liable he points to a series of posts by the Torrent-Finder Admin in the site’s forums. Specifically, he names the following:

I was able to view several posts by the user “Torrent Finder,” including “Top 10 Most Pirated Movies on BitTorrent,” “Piracy in the Music Industry,” “Piracy Can Boost Book Sales Tremendously,” “The First Episode of ‘The Walking Dead’ Leaks to BitTorrent,” and “Piracy domain siezure bill gains support.”

Agent Reynolds helpfully provides some of these “posts” in the exhibit. And therein we discover a serious problem. The exhibit shows a page from TorrentFreak.com, the popular blog (who we link to quite often) doing its weekly research report — and not Torrent-Finder. In fact, if you do searches on those “posts” that Agent Reynolds claims are by Torrent-Finder, you quickly discover that a few are blog posts on TorrentFreak, one is a post from ZeroPaid and the last one is a story at CNET’s News.com by Declan McCullough.

In other words, the “support” that Agent Reynolds provides for why Torrent-Finder’s domain should be seized is that he claims that Torrent-Finder’s admin linked directly to infringing material. But that’s not true. Instead, the admin was simply pointing to a bunch of different news stories. Even worse, some of those news stories highlight why the claims of the MPAA, which Agent Reynolds relies upon, are simply made up — such as TorrentFreak’s story about comic artist Steve Lieber (which was actually based on a Techdirt story about how Steve Lieber embraced the so-called “pirates” and ended up making a lot more money — we later interviewed Steve about his experiences). The CNET article is all about the COICA law — which is about the legality of seizures like this one. How is that evidence of probable cause?

Even going beyond the fact that Agent Reynolds can’t seem to figure out that a search engine is different than a torrent tracker or a torrent hosting site, he also seems to think that linking to blog posts like the ones we write here is probable cause for criminal behavior. Holy crap! That’s just downright scary.

The entirety of the evidence against Torrent Finder appears to be that because you could do a search that takes you to another site and because the site’s admin linked to some blog posts that discuss — but do not encourage — the state of file sharing, that there is probable cause of criminal behavior and your domain can and should be seized without any adversarial trial.

Agent Reynolds’ cluelessness in the matter is compounded by the fact that it appears the only folks outside of ICE that he spoke to about what he was doing were at the MPAA itself — which is hardly an unbiased party. It would be like investigating whether or not an upstart bank was committing fraud, by only talking to a large banking competitor. Who would think that’s appropriate? Apparently Agent Reynolds and his bosses at ICE.

Equally troubling is that magistrate judge Margaret Nagle signed off on the warrants (literally, with a rubber stamp) without questioning any of this, from the look of things. Nowhere is there any discussion on how the seizure of domain names has nothing to do with the actual servers. Nowhere is there any discussion about first amendment issues in seizing domain names. Nowhere is there any discussion about prior restraint. Nowhere is there any discussion about the difference between a search engine and a torrent tracker. Nowhere is there any discussion about the difference between an infringing file and a torrent. Nowhere is there any discussion about the difference between a link to a news blog post about current events and encouraging people to download infringing content.

I thought the whole thing was ridiculous before. But now that I’ve read the affidavit — at least the part about Torrent Finder — it’s become clear that this is a colossal screwup on the part of Homeland Security, ICE and the US government, based on a freshly minted ICE agent who doesn’t seem to understand the technology, being lead around by the nose by MPAA staff with an agenda.

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Comments on “Homeland Security Presents 'Evidence' For Domain Seizures; Proves It Knows Little About The Internet – Or The Law”

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236 Comments
Anonymous Coward says:

Re: Re: Re:

No, the only blatant falsehoods being thrown around are by Mike Masnick, who sets a new slimeball low with his disingenuous misrepresentation of the facts set forth in the affidavit.

There is so much fail in what Masnick wrote it’s difficult to know where to begin. But one thing is for sure, his specious character assassination of the federal agent demonstrates his fondness for gutter tactics when cornered with reality. For 40+ pages the agent carefully lays out exactly who he is and what his experience was when he went to Torrent-Finder. Even then, at the beginning of the affidavit he states:

“This affidavit is intended to show merely that there is probable cause for the requested seizure warrants and does not purport to set forth all of my knowledge of or investigation into this matter.

Then Masnick just starts lying:

In other words, the “support” that Agent Reynolds provides for why Torrent-Finder’s domain should be seized is that he claims that Torrent-Finder’s admin linked directly to infringing material. But that’s not true.

Yeah, it is.

Reynolds:

“(torrent finder) lists terms which indicate the production and distribution of pirated content as well as the concealment of the user’s identity while downloading pirated content.
On or about October 15, 2010, the website’s homepage displayed several “high speed downloads”, the first of which was tiled “Secretariat Ripped”.

On October 18, 2010, I searched Torrent-Finder for the movie “The Town” and received four results which contained the word “cam” in the file title. At the of this search, the movie “The Town” was still playing in theaters and was not yet released to the general public for home viewing. I clicked on the link to the torrent file listed as “The Town CAM”… which displayed the torrent hosting website Kick Ass Torrents.
At his point I was still on the Torrent Finder website, but was able to see a page of the Kick Ass Torrents website associated with he Town movie file.”

He then downloaded the movie and documented the download for evidence.

Then Masnick conveniently forgets the laws regarding contributory infringement and lies about the forum posts:

The entirety of the evidence against Torrent Finder appears to be that because you could do a search that takes you to another site and because the site’s admin linked to some blog posts that discuss — but do not encourage — the state of file sharing

Reynolds:

“I learned that the above-referenced postings contained links and information to pirated movies…as of October 26, 2010, these movies were playing in theaters and the copyright holders did not authorize their third party distribution over the internet by Torrent-finder or any other website.”

Masnick wanted to make a bet with me. Here’s the bet Masnick:

If torrent-finder is cleared of all charges, I’ll donate $500 to a charity of your choice.

If they aren’t, you donate $500 to MusiCares.

http://www2.grammy.com/Musicares/

Anonymous Coward says:

Re: Re: Re: Re:

Then charge Google, as well, you insufferable fool. They link as directly as Torrent-Finder does. So far, no search engine has ever been successfully charged with contributory infringement. To be contributory, one has to knowingly place the links, not let a webcrawler application do it for them. That means they have to be cognizant of what the file actually contains. And a torrent file, itself, contains NO infringing material.

Mike Masnick (profile) says:

Re: Re: Re: Re:

If torrent-finder is cleared of all charges

Considering no charges have been filed, that’s a difficult bet to take.

Either way, my point has never been that Torrent Finder may not be guilty of contributory infringement. My point is that the way you prove contributory infringement is THROUGH A TRIAL, not by seizing the domain. Also, my focus was on the blogs, and not on Torrent Finder, which is somewhat different.

So I would make the same bet if we can bet over whether or not the seizure of one of the blogs will be deemed legal. If the seizure itself is challenged and at a final level it’s deemed legal (i.e., Supreme Court, or at whatever court level this case ends), I’ll gladly donate $500 to MusiCares, which is a good charity.

However, if it’s deemed that the seizures were not in accordance with the law, then you donate $500 to the EFF.

Anonymous Coward says:

Re: Re: Re:2 Re:

my point has never been that Torrent Finder may not be guilty of contributory infringement.

Then what exactly was your point in that manifesto you posted?

If the seizure itself is challenged

And what if it isn’t challenged? I’m happy to use the same parameters with the other sites.

Take the bet.

Rose M. Welch (profile) says:

Re: Re: Re:3 Re:

Then what exactly was your point in that manifesto you posted?

It’s easy to see Mike’s point, because he stated the following:

“My point is that the way you prove contributory infringement is THROUGH A TRIAL…”

See? His point is outlined after the words ‘my point’. What was that you were saying about being willfully ignorant, again?

Mike Masnick (profile) says:

Re: Re: Re:3 Re:

Then what exactly was your point in that manifesto you posted?

I’ll make this easy by cutting and pasting:

“My point is that the way you prove contributory infringement is THROUGH A TRIAL, not by seizing the domain.”

And what if it isn’t challenged?

And what if DHS never files charges? Point is, the operator of OnSmash has claimed he’s going to challenge it, so I believe we’ll have a challenge.

So I’ll make the bet over the legality of the seizures. Are you up for it?

Anonymous Coward says:

Re: Re: Re:4 Re:

Yes.

And that would be once all (if any) appeals are finished.

If this case ended up in Stanton’s court, he could screw it up like he did the YouTube case.

I would feel bad for the OnSmash people if it turns out they were unaware of the illegal nature of the mixtapes they posted.

But ignorance is not a good defense in court.

Anonymous Coward says:

Re: Re: Re:4 Re:

My point is that the way you prove contributory infringement is THROUGH A TRIAL, not by seizing the domain.

Funny, I don’t see that mentioned ANYWHERE in your long manifesto post above. Change of direction in the face of new evidence, perhaps?

And why exactly do think a trial is deserved? Do you know a trial is not guaranteed in every case? Do you understand when and how summary judgment is used?

And what is your precedence for saying the seizures were illegal?

Mike Masnick (profile) says:

Re: Re: Re:5 Re:

Funny, I don’t see that mentioned ANYWHERE in your long manifesto post above. Change of direction in the face of new evidence, perhaps?

Huh?!? What “new evidence” are you speaking of? My point is clearly made above. I’m sorry if you have trouble reading and understanding, but that was the point.

And why exactly do think a trial is deserved?

Are you serious? Are you honestly claiming that it’s okay for the government to seize websites with no trial?

Do you know a trial is not guaranteed in every case? Do you understand when and how summary judgment is used?

Uh, summary judgment at least gets a judge to hear both sides.

And what is your precedence for saying the seizures were illegal?

This from the guy who still think Arcara applies? *Sigh* Please read the comments in this thread. Even your ideological soulmate Average_Joe was forced to admit that he was wrong, and that seizures of this nature are not allowed when First Amendment issues are in play.

Anyway, we’ll see how this ends up in court.

Anonymous Coward says:

Re: Re: Re:6 Re:

I have no idea why, but you seem to think websites are under some sort of greater First Amendment protection than anything else.

They aren’t.

If you have a case that says they are, please point us to it.

Part of the problem piracy apologists face when getting upset about websites that are targeted for illegal activity is that all the evidence is right out there in the open. What material facts are you questioning in these seizures?

Indeed, proving a First Amendment issue would have to somehow show that the defendants were somehow stifled from exercising their right to free speech. They weren’t. They were not restrained from exercising any examples of protected expression; either by exercising such expression on someone else’s website, or a website that they were free to create themselves.

From your nemesis:

“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.”

I don’t see any possibility at all that these cases go to trial, but if a motion for summary judgment is requested, there is little question that Arcara v Cloud will indeed be invoked.

O’Connor: “Any other conclusion would lead to the absurd result that any government action that had some conceivable speech-inhibiting consequences, such as the arrest of a newscaster for a traffic violation, would require analysis under the First Amendment.”

Sorry.

Mike Masnick (profile) says:

Re: Re: Re:7 Re:

I have no idea why, but you seem to think websites are under some sort of greater First Amendment protection than anything else.

It’s not a “greater” First Amendment protection. It’s that they HAVE First Amendment protection. And if you don’t believe websites have First Amendment Protection, I’m afraid it’s really difficult to take you seriously.

Do you really want me to go list out all the cases that say you’re wrong again? And do you REALLY want me to go back and explain for the 9th time why Arcara does not apply — and why the ruling in Arcara even says it does not apply to these situations?

Time for you do hit the books, kiddo:
* Fort Wayne Books v Indiana
* Near v. Minnesota
* CDT v. Pappert

Anyway. I’m done arguing with you. It’s such a waste of time. Let’s see what happens in court.

Anonymous Coward says:

Re: Re: Re:8 Re:

* Fort Wayne Books v Indiana
* Near v. Minnesota
* CDT v. Pappert

1. In Fort Wayne Books v Indiana “there was no determination that the seized items were “obscene” “

As set forth in the Reynolds affidavit, there is no question infringement was occurring. I’m guessing that’s why you blew off my request regarding the material facts involved in the seizure.

2. Re: Near v. Minnesota, I laid out above exactly why prior restraint is not applicable. Read it again, kiddo.

3. Re: CDT v. Pappert; we’ve discussed this case before, and it has no bearing on these seizures. No non-infringing sites were seized or blocked.

Anyway. I’m done arguing with you.

LOL

Anonymous Coward says:

Re: Re: Re:8 Re:

And if you don’t believe websites have First Amendment Protection, I’m afraid it’s really difficult to take you seriously.

Nice strawman.

And do you REALLY want me to go back and explain for the 9th time why Arcara does not apply

LOL You’ve never done that. But humor me and give it a try.

and why the ruling in Arcara even says it does not apply to these situations?

oh yes, please do. This should be a good one…

Gabriel Tane (profile) says:

Re: Re: Re:9 Re:

“LOL You’ve never done that. But humor me and give it a try.”

He just did… and you even replied to them. I?m not 100% familiar with the cases he cited, so I’m not going to argue them with you. But I will bring up this one point:

“3. Re: CDT v. Pappert; we’ve discussed this case before, and it has no bearing on these seizures. No non-infringing sites were seized or blocked.”

It?s whether or not the websites had any non-infringing content that?s the focus here. If any of those sites that were seized had any non-infringing content, that content would have to be protected. Blocking that content would be prior restraint.

(re Arcara v Cloud Books non-applicability) “LOL You’ve never done that. But humor me and give it a try.”

He really has shown how it does not apply to this… because the ‘illegal activity’ is expression, where in the AvCB case, the illegal activity wasn’t expression.

“oh yes, please do. This should be a good one…”

The whole reason AvCB says the closure of the book store was NOT prior restraint is because the illegal activity (prostitution) was held to not be expression.

And finally, in response to your “LOL” reaction to Mike saying he’s done with this… Sounds like you’re claiming some kind of victory. If you want to do so… claim victory by browbeating other people with your willful ignorance until they walk away in disgusted annoyance… well, congrats I guess. Good for you.

Anonymous Coward says:

Re: Re: Re:10 Re:

You really have no clue what you’re talking about, do you?

CDT v Papert isn’t applicable, sorry.

Your claim that since some non-infringing speech was present that only the illegal behavior can be acted on is childish, and shows you do not understand the law or even how the DMCA works.

You’ve completely botched Arcara v Cloud. Go read that paragraph again and repost it in its entirety here. That is, if you aren’t embarrassed once you realize you’re wrong.

Modplan (profile) says:

Re: Re: Re:11 Re:

How exactly does the DMCA work? The DMCA allows for a rights holder to indicate when they believe a work/file is infringing. That work/file and only that one needs to be taken down if the service provider decides they do not want to stand up for it as fair use (which they almost always take it down regardless just to be on the safe side), with a process to contest the claim. It’s also been ruled that infringement occurring out of wilful ignorance is also allowed, so long as a service provider complies with takedown notices properly.

You’ve completely botched Arcara v Cloud.

How so? He stated correctly that Arcara v Cloud ruled that the reason the store was allowed to be ordered to close down without concern for the First Amendment was because the reasons were not related to expression. At the very least in Arcara v Cloud, there was a hearing to judge this question in some way – the entire point about this case being there was no consideration given to first amendment issues with an adversarial hearing – the domains were seized, without even going into the fact that the site owners haven’t been charged with anything, and that seizing of the domains is in no way needed to gathering evidence, as pointed out by others.

average_joe says:

Re: Re: Re:6 Re:

Even your ideological soulmate Average_Joe was forced to admit that he was wrong, and that seizures of this nature are not allowed when First Amendment issues are in play.

That’s not exactly accurate. Domain names only fall into the First Amendment exception to the Fourth Amendment if they are “materials presumptively protected by the First Amendment.” Do you have any proof that domain names are “presumptively protected”?

Anonymous Coward says:

Re: Re: Re:7 Re:

N.Y. v P.J. video would be helpful here.

” No “higher” probable cause standard was required by the First Amendment for issuance of the warrant in question. An application for a warrant authorizing the seizure of materials presumptively protected by the First Amendment should be evaluated under the same probable cause standard used to review warrant applications generally, namely, that there is a “fair probability” that evidence of a crime will be found in the particular place to be searched. Evaluating the supporting affidavits here under this standard, the warrant was supported by probable cause to believe that the movies were obscene under New York law, and they should not have been suppressed. Pp. 475 U. S. 873-878.”

Mike Masnick (profile) says:

Re: Re: Re:8 Re:

N.Y. v P.J. video would be helpful here.

Heh. I’ll just point to Fort Wayne Books, which discusses NY v. P.J. and states:

“our cases firmly hold that mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation. See, e. g., New York v. P. J. Video, Inc., 475 U.S. 868 (1986); “

So, um, I wouldn’t rely on NY v. PJ too closely since the Supreme Court seems to think it says something different.

Anyway, some other case law for you to perhaps look into to edumacate yourself:

Marcus v. Search Warrant
Lee Art Theatre, Inc. v. Virginia

If you read the analysis of the various case law on this, it’s pretty clear that NY v. PJ is a pretty narrow ruling, and all of these others cases suggest that the seizure here, without any exploration of the evidence was a mistake.

Anonymous Coward says:

Re: Re: Re:9 Re:

I can’t believe you’re trying to hang your hat on these 2 obscenity cases; you’re clearly confusing and misinterpreting the First Amendment issues at play.

Both of the seizures in your two examples were done under the presumption that the material was obscene; except the courts are very sensitive to that sort of thing when it comes to books and films and feel (rightly so) that a specific judgement of obscenity can not be made that way. IOW, seizure was based on something that had yet to be proven illegal.

Not the case at all with ICE seizures.

Mike Masnick (profile) says:

Re: Re: Re:10 Re:

Both of the seizures in your two examples were done under the presumption that the material was obscene;

Just as the seizures here were done under the presumption that the material was infringing.

IOW, seizure was based on something that had yet to be proven illegal.

Ditto.

Not the case at all with ICE seizures.

Uh, really? That’s flat out wrong. Especially with the blogs in question, it appears that the takedowns occurred over music sent *by the labels* to the sites.

Seriously, this is not a fight you’re going to win.

Mike Masnick (profile) says:

Re: Re: Re:12 Re:

I asked you what material facts you disagreed with and it looks like I finally have my answer: you believe the material on the blogs wasn’t infringing.

There’s many factual errors in the affidavit, including not recognizing what is happening on one site, and what happens when one site links to another. There is also confusion over how BitTorrent works, and what a torrent is.

But, yes, when it comes to the blogs, a big part of the concern is that much of the content was not infringing. Some of it may have been, but that’s the sort of thing you determine in court. Which, again, is the whole freaking point that I’ve already explained a bunch of times.

Go look up “Joell Ortiz Covers the Classics” and tell us what you learned.

I learned that there’s a mixtape called that? I’m not sure your point?!?

Mike Masnick (profile) says:

Re: Re: Re:7 Re:

That’s not exactly accurate. Domain names only fall into the First Amendment exception to the Fourth Amendment if they are “materials presumptively protected by the First Amendment.” Do you have any proof that domain names are “presumptively protected”?

I think you’re wrong in limiting the review solely to the domain name. As Karl noted, in other cases, something so simple as a tax on ink was seen as prior restraint. So it can easily be argued that seizing a domain name is prior restraint on the text on the associated website.

However, the question of whether or not a domain name itself is protectable speech is an interesting one, and one I hadn’t considered. The rulings in PETA vs. Doughney and Name.space vs. NSI at least suggest it’s *possible* to consider domain names alone as protectable *in certain cases*. At the very least, that would suggest that a First Amendment analysis should have been done before the domains were seized.

The Name.space ruling is more interesting here. It focused more on the TLD itself (the “.com” part), but discusses in the ruling how domain names, if they’re expressive, likely can be protected by the First Amendment.

Anonymous Coward says:

Re: Re: Re:8 Re:

The Name.space ruling is more interesting here. It focused more on the TLD itself (the “.com” part), but discusses in the ruling how domain names, if they’re expressive, likely can be protected by the First Amendment.

In
Bosley Medical Institute v Kremer
(2005), the Ninth Circuit explains

An infringement lawsuit by a trademark owner over a defendant’s unauthorized use of the mark as his domain name does not necessarily impair the defendant’s free speech rights. As noted by the Second Circuit, “[d]omain names … per se are neither automatically entitled to nor excluded from the protections of the First Amendment, and the appropriate inquiry is one that fully addresses particular circumstances presented with respect to each domain name.” Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 585 (2d Cir.2000). In Panavision, we stated that “[a] significant purpose of a domain name is to identify the entity that owns the web site,” 141 F.3d at 1327, and we explained in Mattel that a source identifier is not entitled to full First Amendment protection. 296 F.3d at 900. While a summary judgment motion might have been well-taken, an anti-SLAPP motion to strike was not. We reverse the grant of the anti-SLAPP motion to strike and remand to the district court for further proceedings on the state law claims.

(Emphasis in original.)

Looking at Mattel v MCA Records, we see that trademark law reconciles itself with the First Amendment through the commercial speech doctrine.

The legislative history bearing on this issue is particularly persuasive. First, the FTDA’s sponsors in both the House and the Senate were aware of the potential collision with the First Amendment if the statute authorized injunctions against protected speech.

Anonymous Coward says:

Re: Re: Re:8 Re:

I think you’re wrong in limiting the review solely to the domain name.

The focus on the domain name appears to be a tactical maneuver designed to reach around the fatal constitutional defect in a pre-trial seizure of the entire site. The argument is that they didn’t really seize ?expression?. They just seized the domain name.

I read the argument as an admission that seizing entire sites would be overbroad. Moreover, I see the argument as an admission of bad faith by the warrant applicant. We can all see that the seizures were designed to disable the sites.

Nevertheless, I think it’s important to meet the domain name argument head-on. A court that would literally argue that proper nouns not speech has lost its common reason. RAV v St Paul is instructive on this point:

We have sometimes said that these categories of expression are “not within the area of constitutionally protected speech,” or that the “protection of the First Amendment does not extend” to them. Such statements must be taken in context, however, and are no more literally true than is the occasionally repeated shorthand characterizing obscenity “as not being speech at all.” What they mean is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)–not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content.

(Citations omitted.)

Anonymous Coward says:

Re: Re: Re:10 Re:

No such fine line exists…

There is no allegation that the domain names ?the things actually seized? infringe.

There is no allegation that the entirety of the sites infringe.

You can’t wave around the phrase ?copyright infringment? ?or the phrase ?trademark infringment? for that matter? like some all-powerful magic wand zapping into invisibility the expression that you politically disagree with.

Anonymous Coward says:

Re: Re: Re:11 Re:

Copyright infringement isn’t “a magic wand”, it’s what was occurring on those sites. Pretending it didn’t shows either willful ignorance or a state of denial.

The existence of some legal behavior on those blogs (torrent-finder can not even claim that defense) does not excuse the illegal behavior. We’ve been over this a million times. Gov could not go seize all the infringing content on the site but leave alone whatever legal things happened to be left afterwards.

If it was just a couple random examples of infringement, DMCA notices would have been fine. But that’s not what they were. They were literally swamped in infringing material and thus not eligible for DMCA protection.

Anonymous Coward says:

Re: Re: Re:12 Re:

Gov could not go seize all the infringing content on the site but leave alone whatever legal things happened to be left afterwards.

Because the government’s purpose was not to secure evidence and preserve that evidence for trial.

The government couldn’t target its seizures narrowly, because the government intended to suppress speech without a trial. The government intended to censor the sites without any adversary hearing.

Mike Masnick (profile) says:

Re: Re: Re:10 Re:

You guys keep screwing up by using these obscenity examples. In these cases, the court behaves in a vastly different manner because of the fine line between obscenity and protected free expression.

No such fine line exists in the completely unprotected act of copyright infringement.

Someone seems wholly unfamiliar with the fine line between what is and what is not infringing — and the fact that a TON of content on these blogs was not infringing. I’m not saying all of it was non-infringing, but significant portions appear to be. The fact that the gov’ts affidavit relies on songs that the labels sent these sites directly is really damning here.

Anonymous Coward says:

Re: Re: Re:11 Re:

The fact that the gov’ts affidavit relies on songs that the labels sent these sites

whoah, whoah there cowboy. Do you have a cite or evidence that “the gov’ts affidavit relies on songs that the labels sent these sites“??

That sounds like something you pulled out of your ass, twisted, then presented as fact.

Anonymous Coward says:

Re: Re: Re: Re:

I did not need a definition, jackass. You do understand that difference between ‘who’ and ‘what’, right?

My point is that your use of ‘apologists’ is a strawman as you cannot actually point to one. I guess I should not find it shocking that ‘insiders’ make stuff up as needed to support their position.

To be clear, I am not an ‘apologist’ and I am not supporting the MPAA or Homeland Security here. Just pointing out your BS.

Gabriel Tane (profile) says:

Re: Re: Re:2 Re:

You’re right… the ‘apologies’ cannot be pointed-to because they are all anonymous cowards. I’ll take you at your word that you’re not included therein.

And if you think ‘us insiders’ are making up the fact that there is a hostile group of ACs who, in the arena of file sharing, repeatedly argue against established proof and refuse to back their own positions with like kind, then you must be new here.

Gabriel Tane (profile) says:

Re: Re: Re:4 Re:

I’m sorry… did I have a language-setting changed or something? [looks up] Nope… I did post that in english.

As I said “the ‘apologies’ cannot be pointed-to because they are all anonymous cowards.” (yes, I misspelled “apologists”… my bad for relying on spellchecker). But, I can show you some of thier posts… sit tight…

Gabriel Tane (profile) says:

Re: Re: Re:4 Re:

Here you go… some of these may be the same AC, or even Mr. Anonymous himself… that’s the bad thing about AC… can?t really identify them across posts. The snowflakes don’t track infinitely

http://www.techdirt.com/articles/20101214/02371412269/owners-hiphop-blogs-seized-homeland-security-still-havent-been-told-why.shtml#c1847

http://www.techdirt.com/articles/20101214/02371412269/owners-hiphop-blogs-seized-homeland-security-still-havent-been-told-why.shtml#c599

http://www.techdirt.com/articles/20101210/17301212243/oh-look-digital-downloads-arent-saving-music-industry.shtml#c916

http://www.techdirt.com/articles/20101210/17301212243/oh-look-digital-downloads-arent-saving-music-industry.shtml#c724

http://www.techdirt.com/articles/20101210/17301212243/oh-look-digital-downloads-arent-saving-music-industry.shtml#c269 (granted, this one is not Anonymous or an AC… it’s Darryl.)

http://www.techdirt.com/articles/20101210/17301212243/oh-look-digital-downloads-arent-saving-music-industry.shtml#c459

That good for you?

Gabriel Tane (profile) says:

Re: Re: Re:6 Re:

Wh…what?!? Are you serious? We tell you that the ‘apologists’ are the ACs that come on here and defend copyright et al, arguing constantly despite facts being cited and given to them. We tell you that they don’t back up their statements with similar citation. You then say “oh that’s a straw man if you can’t point to one”… So I give you not one but five links to their posts (including one from Darryl, who is a NAMED apologist) and you still say ‘they don’t exist’?

I can’t make up my mind if that’s being thick, willful ignorance, or a learning disability.

Anonymous Coward says:

Re: Re: Re:7 Re:

There may be 5 or less individuals that disagree with you. I suppose you a free to group them as apologists but it makes you sound juvenile, the same as calling those who do not follow copyright exactly are called pirates. It makes much more sense to group ‘insiders’ as freetards than it does to group a very small number of individuals as apologists. At the end of the day the name calling is not helping either side. If you want to sound like an idiot, be my guest. Creating a group that does not exist is silly. Arguing with individuals like myself is one thing, making a up a group to argue against (a group that does not exist outside of your own head) is another matter. So, no I do not see the links you provided as a group, I see them as individual posts.

Gabriel Tane (profile) says:

Re: Re: Re:8 Re:

Well, I’m sorry reality seems a bit twisted in your head.

There may be 5 or less… or a million or more. That’s the problem with Anonymous posting… we never really know from one post to another. Regardless of the number of people, Marcus gave them the title of “apologists” so that those who would find humor in his statement would know who he’s talking about.

As far as the posts I linked being individual posts… I selected a small example of the many posts from the past here. I’m not going to go digging through to find enough examples to satisfy your laziness.

We’re not creating some kind of boogey-man group here… We’re taking a small number (comparatively) of commenters out of a larger number of AC’s and saying “these are the ones we’re talking about”. What’s hard to understand about this?

And if its derogation you’re on about, I think you’re reading more into than is there. We’re not trying to insult these people with ‘apologist’ like it’s a dirty word.

Gabriel Tane (profile) says:

Re: Re: Re:10 Re:

Look… if you want to go around accusing people of racisim or biggotry, you might want to pick a better word to attack than “apologist”… especially since it was used benignly.

The only reason this has gone on for 13 Re’s is because I usually try to defend myself when someone assumes incorrectly about my intention or point of view. But in this case, since you’re grouping me in with racist white-supremisists, I’m done. Keep your opinion about me. I’m done trying to fix ignorace with you. If this keeps going, I?m sure I?ll be called a nazi next.

Gabriel Tane (profile) says:

Re: Re: Re:8 Re:

I’ve gone round and round with you on Arcara before Anonymous. I’m not ‘afraid to debate you’. I just get frustrated by willful ignorance and refusal to accept fact.

I’m not a piracy apologist, but if you want to label me thus, it’s your error, not mine. I’ve never said piracy was legal, but I do argue that it is not harmful to anyone except the established media recording and distribution system.

And you can try to rouse me by personal attacks all you want. I’ve learned to ignore childish name-calling since grade school.

So, tell this ‘little man’ how I’m a coward. And I challenge you to respond with more than “LOL”.

Marcus Carab (profile) says:

Re: Re: Re:2 Re:

God you are insufferably disingenuous sometimes.

Yes, I am accusing you of being an apologist, and those like you, because I believe you are grasping at pathetic straws to defend a truly awful position that you shouldn’t want to defend in the first place.

Yes it is an opinion. Yes it is an accusation. Yes it is, in short, an insult. Deal with it.

Marcus Carab (profile) says:

Re: Re: Re:3 Re:

To be clear, I am not an ‘apologist’ and I am not supporting the MPAA or Homeland Security here. Just pointing out your BS.

And if that’s true, how do you not already understand what I meant? Also, that sentence kind of sounds like you do acknowledge that those supporting the MPAA and HS are apologists…

Anonymous Coward says:

Re: Re: Re:4 Re:

Hey, apologist is your word. I used it in an effort to communicate with you on your level. You set up a strawman and I pointed out your BS, thats it. Pointing out your BS does not make me an MPAA/HS supporter or an ‘apologist’ as you put it. I’m not on anyones side, I just don’t appreciate the strawman, it makes your argument weaker when you start making stuff up.

Anonymous Coward says:

Re: Re: Re:3 Re:

No one in this thread is apologizing for anything. I do not see any support in this thread for MPAA/HS. The ‘apologists’ that Marcus is referring to do not exist, thus ‘apologists’ is a strawman. Disagreeing with your opinion does not mean that I am in support of whatever you oppose, it might just mean that I think you are wrong.

The Infamous Joe (profile) says:

Re: Re: Re:4 Re:

I know you’re a troll, but enough is enough, pal. Are you suggesting that there are no apologists for the MPAA, that visit this site? Is this your first visit here? Come off it already.

We’re all *so* very impressed with your mastery of the trolling arts, you’re the best troll evah. Now move along, nothing to see here.

Anonymous Coward says:

Re: Re: Re:7 Re:

“Because arguing semantics is helping?”

How can we ever understand each other if we do not discuss it? Is the use of the word ‘apologist’ any different than the use of the words ‘pirate’ or ‘stealing’? I mean obviously anyone that uses the word apologist is nothing more than a freetard.

Anonymous Coward says:

Re: Re: Re:9 Re:

As far as I can tell, there is a single commenter in this thread that is arguing against the post. At best that is a single apologist vs. a group of apologists. Though again I think apologist is a misnomer. However, the apologists strawman came out before there were even any comments. Its clear that you all have no intention of having a real discussion, you are just looking to quickly dismiss any opposing view. If you want to be taken seriously then act like it. Is this 4chan or techdirt?

Gabriel Tane (profile) says:

Re: Re: Re:10 Re:

Aaaand fail. Go back and read the first mention of ‘apologists’… it was “I find myself morbidly curious to see how the apologists will defend these seizures now…”

Doesn’t take a genius to figure out that he was referring to the apologists from other posts… posts where commenters were defending the seizures. And it was tongue in cheek. You’re the one that keeps taking these things and saying “NO! STRAWMAN STRAWMAN STRAWMAN!!!”

I don’t understand this strange problem you have with the fact that 1) there are repeated posters, usually under the name of Anonymous Coward, who defend the position of copyright enforcement (and over-enforcement) and 2) we call them apologists because it fits the definition.

If you read around, you’ll see that all of us “paranoid insiders” are having conversations elsewhere with other people. This is the one we’re having with you. Believe me… we wish we weren’t.

Anonymous Coward says:

Re: Re: Re:11 Re:

By your own definition (or by Marcus’s) you are an apologist too. If there is a controversy here at all and you defend any side then you are an apologist. Its clear that the word apologists is used in a derogatory way. This kind of inflammatory/derogatory language is not helping your position. Its too bad that you cannot see that.

Gabriel Tane (profile) says:

Re: Re: Re:12 Re:

The only apologist I would be is one for Free Speech. If you look back through my posts, you’ll see that I defend against the circumvention of Free Speech through prior restraint in this case. I don’t say “piracy is OK” or “downloading is ok”… I say that what the government did was wrong. That’s not ‘defending’… that’s attacking.

And it’s clear to you that it’s derogatory… that’s how you choose to interpret it. I say that you’re wrong. And as one of the people you accuse of using the term, I’d say that I’m a better judge of my own intention, thank you very much.

If you see it as inflammatory/derogatory, even after I’ve that it’s not, and it affects you’re opinion of me or my argument? well, sorry, but I?m not going to feel that one as a loss.

Koral says:

Re: Re:

We wont. Its a common misconeception that the left always agrees with their leadership, despite being told we are fracutred and weak and such. Its generally known as “Projection;” In order to justify your own actions, the right has to see the left as doing *at least* as bad as they are. Otherwise the right couldnt possibly justify their behavior.

So even though the left has remained critical of its politicians (Rahm didnt call us names for nothing), the right wing pretends we follow the same sort of Disney Lemming behavior that they themselves so readily fall into.

The right even claims that the left is responsible for rightwing systems put in place over the last few years. Some ignore the fact that a system was put in by republicans in the first place, complain that they just hate the left because they’re on the left. At least they’re honest.

The worst ones, of course, are the ones who have absolutely no idea that they have been lead to attack Obama and the left for doing things years ago, when it was actually *the right wing* that did those things. Ive seen Obama blamed for things that happend in 2003. Ive heard several rightwing sites say that Action-Flight Bush’s “Mission Accomplished” banner was left wing propaganda.

The eejit (profile) says:

Re: Re:

Bull and Shit. There are legitimate uses for Peer traffic and use of trackers. Blizzard use it for their patching system.

Torrent sites, such as Isohunt, rarely actually host the data. IF they do, it’s typically fror things that you won’t find easily, such as fansubs of Japanese anime that isn’t licensed in other countries. That, I mighty add, is not illegal (ESPECIALLY in cases of JRPGS that aren’t Final Fantasy/Dragon Quest)

Freak says:

Re: Re: Re:3 Re:

Marcus, most studios actually embrace the ‘piraters’ over here. They help extend the anime’s fanbase, and 80% of the anime that’s licensed over here, (Warning, number pulled from arse), are due to the fanbase growing over here from pirating it.

The best proof I can think of right now, is Battle Programmer Shirase, where, in the last episode, the studio explicitly thanks the people “Watching overseas, subtitled, without permission”.

The growth of anime outside of Japan is nearly purely due to piraters. Most studios, (and very few publishers), recognize this, and many manga-kas and anime writers/drawers make their start making infringing material, and selling it at cons, like comi-ket.

So, it’s actually never been ruled on. Especially since the community pulls any fan-translations the industry asks them too. Often before they, specifically, are asked. There have actually been cases where the publishers use the ‘pirates’ for marketing. For example, Romeo X Juliet was allowed to be translated . . . up until the last episode. The publisher appears to, (no hard evidence, AFAIK), have waited until that time to ask people to stop. It worked pretty dang well.
There is also one case, where I was involved as a fan translating team type-setter/editor person-thing, where the publisher has asked if they can use our fan-translations for the official english release, in the same letter they asked us to C&D.

Basically, the ‘legality’ of it is something people in the community are all aware of.

Jay says:

Re: Re: Re:4 Re:

Marcus is correct about fansubs though.

Link

There’s a BUNCH of grey tape in the anti-piracy league however…

Even CNN did a huge thing about how the artists are losing money due to most of the advertising revenue drying up in the conventional routes.

Nevermind the fact that DVDs are just one part of the business, anime is still shown on TV, and there is PLENTY of other ways to ensure the success of franchises than going after subbers, dubbers, and websites that merely translate the manga/anime.

anonymous coward says:

Re: Re: Re: Re:

As a member of a fansubbing group, I can tell you that it is extremely rare for us to be attacked. In fact, we’ve more often been approached for our subs to be used. The tacit approach for our particular genre is that we soft sub, we sub well, we sub fast, and even the parent companies have used our subs – in return they leave us the hell alone.

Gabriel Tane (profile) says:

Re: Re: Re: Re:

Hmmm… interesting. So bittorrents are dangerous? Can harm others? Didn’t know that. I guess that means my uTorrent is loaded. OMG THINK OF THE CHILDREN!

But seriously, you’re failing a couple of points here. First, hosting the data elsewhere isn’t ‘a nice little dodge’… it’s the whole point of the conversation. Especially since Torrent-Finder wasn’t hosting it anywhere. Guess what, child porn is ‘hosted elsewhere’ and that’s not Google’s ‘dodge’ if some sicko uses them to search for it.

Second, as far as your talk of regulation and laws… you’re almost right there. We do have laws in place to take down bittorrents (or anything) that is being used illegally… DMCA is one that comes to mind. But that’s not what the government did. They took the whole site down with no evidence (or worse, as we’re seeing here: faulty evidence) that they had done anything wrong.

Dark Helmet (profile) says:

Re: Re: Re: Re:

“There are legitimate uses for TNT, detcord, and fully automatic assault rifles. There is a reason why, even with some legitimate uses, they are either illegal or highly restricted in use.”

Right. Because they cause demonstrable physical harm. Can the same be said for bittorrent technology as a whole? Are you, again, suggesting outlawing the technology?

“Hosting the data elsewhere is a nice little dodge that does not remove intent.”

The intent is to search for torrents. That’s not illegal!!!

Dark Helmet (profile) says:

Re: Re:

“Sadly, a bit torrent search engine is a site that helps to distribute or share pirated material.”

No, they help to distribute or share TORRENTS. How the hell is the search engine supposed to know what’s infringing and what isn’t?

Or do you think we should just outlaw bittorrent technology as a whole?

Anonymous Coward says:

Re: Re: Re: Re:

Another tired argument.

Let’s turn it around. If the only way to rob a bank was to own a car, and the only reason to own a car was to rob banks, you might want to outlaw car ownership.

A torrent finder’s only job is to aid in finding torrent files, the vast majority of which (high 90% range) are illegal or illicit in one form or another. Further, it provides you direct access to the key file you need to file share the illegal material (by pointing you to the torrent file in question).

There is no other use for a torrent finder. You can’t find anything else with it. While it might be possible to use it for a legal activity, most torrent finders are not. Any site that has a top list (most popular links, example) will clearly indicate what the site is used for.

As another example, IRC servers are not in and of themselves illegal. However, most bot herders use IRC as their command and control channels. Shutting down the servers, blocking domain names, or otherwise disrupting access to those IRC servers are the most effective way to end many botnets. This has happened before and will happen again. IRC in and of itself is not illegal, but depending on how it is used, makes all the difference.

Oh, yeah… the car used in the bank robbery? The police tend to seize those vehicles too.

Rose M. Welch (profile) says:

Re: Re: Re:2 Re:

If the only way to rob a bank was to own a car, and the only reason to own a car was to rob banks, you might want to outlaw car ownership.

Yes, that might be an outcome if cars were only used in the commission of a crime. However, here in the real world, both cars and torrents have many legal applications.

A torrent finder’s only job is to aid in finding torrent files, the vast majority of which (high 90% range) are illegal or illicit in one form or another.

Citation needed. πŸ™‚

Further, it provides you direct access to the key file you need to file share the illegal material (by pointing you to the torrent file in question).

You mean like Google points you directly to copyrighted images, that you can then illegally download? Huh, imagine that. We should ban Google, too!

There is no other use for a torrent finder. You can’t find anything else with it.

And we come back around again. Yes, torrent search engines search torrents. That doesn’t mean that all torrents are illegal, or that torrent searches are illegal. Try again.

While it might be possible to use it for a legal activity, most torrent finders are not. Any site that has a top list (most popular links, example) will clearly indicate what the site is used for.

Yes, to find torrents, which may or may not be infringing.

As another example, IRC servers are not in and of themselves illegal. However, most bot herders use IRC as their command and control channels. Shutting down the servers, blocking domain names, or otherwise disrupting access to those IRC servers are the most effective way to end many botnets. This has happened before and will happen again. IRC in and of itself is not illegal, but depending on how it is used, makes all the difference.

Yes, good point. Depending on what people choose to do with these tools, they may be committing a crime. I don’t think that anyone disputes that.

However, you seem to be saying that we should block people from using IRC channels as well, because some people use them for illegal activities. At that point, why not ban cars? Oh, and pawn shops, because some people sell stolen goods to them, thereby creating a market for stolen goods. And don’t forget about computers.

I mean, man, the illegal things that you can do with computers…

You want all of those things to be banned, right?

jjmsan (profile) says:

Re: Re:

Meanwhile, a “bit torrent website” is defined is a “website through which illegal copies of movies and television shows are shared and transferred.” Note the word “and” that means the site needs to do both simply locating sites that have such material or links to such material does not satisfy the definition. In your definition all computer owners would be guilty of pirating materials because it facilities owners access to such materials.

Richard Kulawiec says:

Re: Re: Re:

Meanwhile, a “bit torrent website” is defined is a “website through which illegal copies of movies and television shows are shared and transferred.”

But that’s not how BitTorrent works. (It does not work “through” web sites. It uses its own protocol.)

Incidentally, those who allege that there are no legitimate uses for BitTorrent should probably begin their remedial education by reading:

https://secure.wikimedia.org/wikipedia/en/wiki/BitTorrent_%28protocol%29#Adoption

It would appear that Amazon, several broadcasting corporations, the British government, Blizzard (the WoW folks), and others are quite happily using it.

Miachel Townes says:

Re: Re:

Sadly, a bit torrent search engine is a site that helps to distribute or share pirated material. In pure terms, they are correct.

By that reasoning we can also blame a chemist who makes ink for a pen used by a chip designer to take notes about a processor he’ll design that ends up powering the computer that hosts the search engine.

Just wondering says:

Would it be illegal ...

… for me to start a website that tells people where they can buy knock off drugs or stolen watches?

Now, I know that these are tangible goods that truly be “stolen” and doesn’t equate to bits in the ether but i was just wondering if it is illegal to tell someone where they can find these things.

:Lobo Santo (profile) says:

Re: Would it be illegal ...

And if so, how specific does the information need to be?

For example, if I have a website that says “Hey, you can buy illegal drugs in Mexico!” am I now encouraging illegal activity, and therefore likely to have my domain seized under some batch of bullshit?

*sigh* Just waiting for dot-P2P… Maybe I should trying to get on the dev team just to help speed it along.

HrilL says:

Re: Would it be illegal ...

Maybe and only if you only link and point people to counterfeit and or stolen drugs/watches.

If you link to both non stolen/counterfeit and stolen counterfeit then that should be completely legal as you’re just proving access to drugs and watches online and take no part in determining if your sources are legal or illegal. Let your users decide

Anonymous Coward says:

Re: Re: Re:

I’m on a mule.

There is civil infringement, and there is commercial infringement as well (aka, infringment for profit). While a civil case might be used against a home pirate pushing out the latest autotuned crap, there is criminal liablity that would exist, example, for burning 1000 CDs with the material on them and reselling them as originals.

The use of torrent files to drive advertising dollars, or charging a fee to access infringing files could also be considered criminal infringement, although I am not aware of cases that have used only this logic.

The owners of the pirate bay made millions of dollars from advertising on the site (well hidden far out of the reach of authorities… I know at least one company that was buying advertising with them in a deal that ran somewhere near half a million a year). TPB was a commercial entity, a money making scheme. Copyright violation for profit.

william (profile) says:

Poor Reynolds. The morons over at ICE/HS probably say, “hey this guys is freshly out of college and young. He must know how this thing works. Let’s put him on this hired job from MPAA since we ourselves has absolutely no idea what’s going on.”

On the other hand, any college student with some kind of technological knowledge would know a few of the basics on the Internet and file sharing. Based on how clueless this is, seems like ICE/HS is really getting the “cream” of the crop isn’t it.

Or, another possibility… MPAA’s clueless lawyers actually wrote this! either being clueless or intentionally misleading, and Reynolds is just signing them without checking!

man that last possibility is scary…

MrWilson says:

Re: Re:

“Based on how clueless this is, seems like ICE/HS is really getting the “cream” of the crop isn’t it.”

If their employees were the cream of the crop, they wouldn’t be their employees.

How many intelligent people who think for themselves are also going to be so blindly patriotic to take a crappy ICE desk job that likely doesn’t pay well enough to pay off your student loans. Agent Reynolds is probably still living at home and only got the ICE job because his fratbuddy’s dad works at DHS.

Anonymous Coward says:

Damn, that kid got served up as kibble. Just over a year on the job probably still has a mentor and he’s likely just thinking hell yeah they’re letting me do some fairly important paper work. I don’t feel bad for him especially if he graduated from college and does not know/understand what he’s doing and its consequences. But it sure does seem like someone decided to use the kid as a meat shield from the backlash of this.

Ken Downs (profile) says:

Not a screw-up

Mike,

I was with you until the very end, when you called it a screw-up. It was not a screw-up, in the sense that it was not a mistake made in an otherwise reasonable process. This IS the process now, this is the new business as usual. My money says the agent is not going to be embarrassed or busted, and can look forward to a wonderful career in the new America. We will likely hear from him in the coming years as this bright rising star makes a name for himself in even more astounding accomplishments that make the world safe for his masters.

The gloves are off, from here on out expect even the pretense of due process to start disappearing.

Mischab1 says:

Page 16 of the affidavit (right before they skip to page 30) has quoted parts of RapGodFathers.com’s terms of service where it says…

RapGodFathers.com is based on its links to third party sites. The linked sites are not under the control of RapGodFathers.com and RapGodFathers.com is not responsible for the content of any linked sites or links contained in a linked site…The links are gathered automatically…

We do no manually check every file for copyright issues, and therefore we do not assume any responsibility or liability for the contents of the…

It sure sounds to me like they are saying ‘We do not know which links are legalillegal. Use at your own risk.’

Gabriel Tane (profile) says:

So... let's look at the score

Regardless of the conversations we’ve had over whether or not Torrent-Finder is guilty of infringement, contributory infringement, or nothing at all… the government’s entire case against them is based on completely different websites?!? First post was right… I can’t wait to see the shill’s defense of this one. To borrow from some of the hiphop blogs still MIA (but not forgotten): Shit goan’ be GOOD!

btr1701 (profile) says:

Discussion

> Equally troubling is that magistrate judge
> Margaret Nagle signed off on the warrants
> (literally, with a rubber stamp) without
> questioning any of this, from the look of
> things. Nowhere is there any discussion…

I agree with you that most everything about this stinks, but I’m not sure why you’d expect there to be a discussion between the judge and the agent in an application for a seizure warrant. Such documents aren’t like blog posts where the magistrate comments on aspects of the agent’s argument. The application is just that– the agent’s argument. If the magistrate wants to question an agent’s reasoning or fact-finding, he/she will do it verbally when the agent presents it for signature.

Steven (profile) says:

Re: Discussion

I think the point being that the judge’s job is to protect against invalid seizure warrants, and should be especially careful in cases such as these when first amendment issues are relevant.

The fact that the warrant didn’t even pay lip service to the first amendment should have made the judge at least question, and probably reject the warrant.

average_joe says:

Re: Re: Discussion

I think the point being that the judge’s job is to protect against invalid seizure warrants, and should be especially careful in cases such as these when first amendment issues are relevant.

The fact that the warrant didn’t even pay lip service to the first amendment should have made the judge at least question, and probably reject the warrant.

That’s just not how it works. The judge is only considering whether sufficient facts have been alleged to constitute probable cause. Whether or not the seizure of the domain name violates the First Amendment is not relevant to the court’s analysis of the application’s sufficiency. Of course such concerns could be raised at trial, but for the warrant purposes they are irrelevant.

Anonymous Coward says:

Re: Re: Re: Discussion

Whether or not the seizure of the domain name violates the First Amendment is not relevant to the court’s analysis of the application’s sufficiency.

Substantially repeating a comment from the previous discussion….

The Supreme Court disagrees with you.

In Fort Wayne Books v Indiana, the Supreme Court struck down a pretrial seizure on First Amendment grounds.

Respondents also moved, in a separate “Verified Petition for Seizure of Property Subject to Forfeiture,” for the particular judicial order that is the subject of our consideration here. Specifically, respondents asked the Allen County Circuit Court “to immediately seize . . . all property `subject to forfeiture’ as set forth in [the CRRA] complaint.” […]

The trial court, ex parte, heard testimony in support of the petition and had supporting exhibits before it. On the same day, the court entered an order finding that probable cause existed to conclude that Fort Wayne Books was violating the State RICO law, and directing the immediate seizure of the real estate, publications, and other personal property comprising each of the three bookstores operated by the corporate defendants. […]

We granted Fort Wayne’s petition for certiorari for the purpose of considering the substantial constitutional issues raised by the pretrial seizure.

[…]

[W]hile the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved. It is “[t]he risk of prior restraint, which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizure of First Amendment materials” that motivates this rule. These same concerns render invalid the pretrial seizure at issue here. […]

For the reasons given above, the judgment in No. 87-470 is reversed […]

(Citations omitted. Emphasis added.)

average_joe says:

Re: Re: Re:2 Discussion

Substantially repeating a comment from the previous discussion….

The Supreme Court disagrees with you.

In Fort Wayne Books v Indiana, the Supreme Court struck down a pretrial seizure on First Amendment grounds.

That’s a great quote, thanks. I stand corrected. I was thinking of the “general rule” and I didn’t know the Court identified this exception. I’ll tell my professors that I was ill-prepared for internet debate on the matter. πŸ™‚

So the issue then is whether or not domain names are “materials presumptively protected by the First Amendment.” Apparently the judge here did not think that they are. I’m inclined to agree with that since I don’t think domain names are speech. The protected speech would be the information on the server, and that was left untouched.

What’s your take?

Marcus Carab (profile) says:

Re: Re: Re:3 Discussion

The protected speech would be the information on the server, and that was left untouched.

Interesting… though that raises a question that’s almost more alarming: is domain name seizure being used as a shortcut to skirt the first amendment question while still essentially achieving the desired censorship? That would be problematic too…

Gabriel Tane (profile) says:

Re: Re: Re:3 Discussion

It’s not the protected speech itself that was blocked… rather it was the ability to publish that speech. Arguments could be made that the sites could have acquired new names, released their IP address to their readers, etc. But the opinion is that if the government seized that domain name it could be equated to the government seizing a printing press. The owners could acquire a new one, but it’s still censorship and prior restraint.

Any, by the way, I think AC was saying that the domain names themselves (Such as “www.torrentfinder.com”) is the proper noun. Not sure what that proves, but I think that’s where he was going.

Karl (profile) says:

Re: Re: Re:3 Discussion

So the issue then is whether or not domain names are “materials presumptively protected by the First Amendment.”

In Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, a tax on ink was considered prior restraint.

I think seizing a domain name also qualifies.

(Not for the same reasons – I’m bringing it up to show just how little needs to be done by the government to be considered prior restraint.)

Jason says:

Re: Re: Re:3 Discussion

My take is that they are the press, and the means for speech, and yes, speech.

Honestly, that logic is no different than saying that my mouth isn’t speech, therefor you’re perfectly within your rights to hold your hand over it to keep me from speaking.

“Domain names aren’t speech” ?Where the hell do these people come from?

average_joe says:

Re: Re: Discussion

Regardless of when or in what format the magistrate questions it (I can’t see how you think that’s what Mike was talking about) – the point is there are a lot of legal grey-areas-at-best in the application, and scrutinizing/questioning them is exactly what the magistrate is supposed to do

Agents applying for warrants don’t have to defend the possible constitutional implications of the warrant’s execution. That’s for the lawyers to do later. The only thing the judge is looking for is whether the alleged facts sufficiently constitute reasonable suspicion.

Marcus Carab (profile) says:

Re: Re: Re: Discussion

Do they not also need to confirm that the seizure is vital (or at least relevant) to the investigation?

I fail to see why seizure would happen here at all – the domain names themselves play no role in building a case against these websites. So why were they alone seized?

It would actually make a lot more sense if it was the servers and the data that had been seized, since that might arguably be necessary to obtain and preserve the hard evidence of criminal infringement. But the domain names? Why? For what purpose?

This seems like a punitive seizure, and by my understanding that’s not what seizures are for.

Anonymous Coward says:

“As part of Agent Reynold’s argument as to why Torrent-Finder is liable he pints to a series of posts by the Torrent-Finder Admin in the site’s forums. Specifically, he names the following: “

While it does certainly sound like Agent Reynold was drunk, I doubt that “he pints” anything. Perhaps you meant points Mike? πŸ˜›

Anonymous Coward says:

> But that’s not true. Instead, the admin was simply pointing to a bunch of different news stories.

I would guess it is even more indirect. The admin probably did not link to these news stories. Instead, he probably added these news sites’ RSS feeds, which then generates these links automatically.

This is important because, if he added the torrentfreak RSS feed, he has no control over what torrentfreak will publish. Whatever torrentfreak publishes will be effortlessly linked to automatically. So, if for instance there is a link to a torrentfreak article saying “here is a list of cool P2P programs”, it does not mean the admin intended to link to a list of cool P2P programs at all!

Rekrul says:

I thought the whole thing was ridiculous before. But now that I’ve read the affidavit — at least the part about Torrent Finder — it’s become clear that this is a colossal screwup on the part of Homeland Security, ICE and the US government, based on a freshly minted ICE agent who doesn’t seem to understand the technology, being lead around by the nose by MPAA staff with an agenda.

So ends the myth that things will be more balanced once the younger, supposedly more tech-savvy generation replaces all the older members of the government and law enforcement…

Anonymous Coward says:

Re: Re:

20-somethings think they invented computers the same way teenagers think they invented sex.

Some of us were on the internet before there was a http, a www, or a .com, before Mosaic (they haven’t the faintest idea what that was) or Netscape.

Back in the day when gophers did not live in holes, Agent Reynolds was still laying loads in Pampers.

Darryl says:

his comments were about bittorrents not about torrent freak.

I was able to view several posts by the user “Torrent Finder,” including “Top 10 Most Pirated Movies on BitTorrent,” “Piracy in the Music Industry,” “Piracy Can Boost Book Sales Tremendously,” “The First Episode of ‘The Walking Dead’ Leaks to BitTorrent,” and “Piracy domain siezure bill gains support.”

Agent Reynolds helpfully provides some of these “posts” in the exhibit. And therein we discover a serious problem. The exhibit shows a page from TorrentFreak.com, the popular blog (who we link to quite often) doing its weekly research report — and not Torrent-Finder.

Note how he said USER “Torrent-finder”.

And after that he refered to BitTorrents.

Which is correct, and in no way shows any lack of understanding by the judge, or any of the parties.

He was making the CORRECT claim, that these are common topics for BitTorrent sites. This is what they do, this is how they conduct their activities.

And can you deny that those posts are not based on fact? as damning as they are ?

You would have to be a very stupid person who could not go to a torrent site, and click on the “most popular” torrents, see how many leaches and seeders there are for each title, and be able to determine if that title is copyrighted, to someone else, apart from those listed in the leaches and seeders lists..

Its also very very easy to prove what a seeder or a leacher is uploading and downloading illegal material.. its states your ip address, that today that is as good as your identification.

The Infamous Joe (profile) says:

Re: his comments were about bittorrents not about torrent freak.

Darryl is that you? Very little caps, no carriage return after every sentence, and html formatting?? I accidentally read your post not knowing it was you.

However, I still don’t understand your point. Are you saying that torrent freak has a user named torrent finder? Because the judge didn’t do anything to a user, it was a domain that was siezed.

Also, if you feel so sure that an IP address links to a person, tell me your external ip adress. We’ll put that theory to the test. πŸ™‚

Paul keTing (profile) says:

Calming the flames.

Getting back to the point. The issue here is the seizures and whether there was sufficient probable cause to support them. This is not a trial, it is akin to an arrest only what has been arrested is a thing and not a person.

The law is quite clear that in regards to a seizure of property that involves the 1st amendment a higher standard applies. Here I fault entirely the magistrate who is morally and legally charged to protect the constitutional rights at issue.

I have read many of these orders and the “supporting” affidavits because I represent the registrars of the domains. I can tell you that they cause me to be sick to my stomach. I was a law student back in the days when the courts had just moved forward in protecting constitutional rights. My overall reaction at the time was “duh” why would you think it should be different. I am constantly shocked at the conti ulus erosion of rights that has taken place since the 1980s in the US and it is one of the reasons I choose to no longer live there.

In every order I have seen the entire theory of infringement has been based on information provided by the tm or copyright holder. I have seen no case in which the agent (by the way it is always the same agent – someone thinking of robo signatures here?) investigated anything. And the references to the information provided by the tm or copyright holder is never attributed. It reminds me of the question my father always had – who are THEY –

The affidavits are nothing short of the worst hearsay I have seen in a long time. This is beyond the obvious technical errors in understanding how the Internet works.

Essentially, if you removed XXX.com from the affidavits and rep,aced it with THE NY TIMES you would be able to seize the printing facility of the NYT.

They have classified adverbs that “allow” a reader to buy counterfeit goods. They publish the same classifieds repeatedly. They have a se toon for “most popular”. They allow the advertiser to select a preferred position in the paper by paying more.

Are newspapers also used for legitimate purposes? You bet.
Are torrent sites used for legitimate purposes? You bet
Are sites that sell counterfeit goods also used to sell legitimate goods? You bet.

The argument is not about the relative percentages of “good” vs ” bad” uses. If this were the case would we ban all Nazi commentary since they contributed nothing “good”?

The constitution was not put there to protect the majority. It was put there to protect the MINORITY so that they would be assured of having their rights protected in the light of opposition from the majority.

This is a basic issue I have with IP “protection” in general. IP rights protectors start from the proposition that they have the right and I must justify mine. This turns the concept on it’s head. IP “rights” are an exception to the norm. They are in every sense a prior restraint. They must be continually challenged to see if the exception remains warranted so as to act as a prior restraint.

Paul Keating

Anonymous Coward says:

Re: Calming the flames.

… the seizures and whether there was sufficient probable cause to support them….

The characterization ?sufficient probable cause? conflates the issues.

There are two related but independent issues: First, does the affidavit supporting the warrant disclose probable cause within its four corners? Second, is probable cause sufficient to seize domain names?

Probable cause alone has two components: First, the facts disclosed must warrant a person of ordinary prudence in the belief that a crime has been or is being committed. Second, the facts disclosed must tilt towards a substantial probability that fruits, instrumentalities, contraband or evidence of a particular crime will be seized.

But probable cause is not sufficient to overcome the strong constitutional presumption against prior restraints.

Anonymous Coward says:

Re: Calming the flames.

… I represent the registrars of the domains.

The registrar has a further issue, somewhat separate from the registrant. The plain terms of the ?Seizure Procedure? compel speech.

Attachment A, I. Seizure Procedure on p.005 of the fax, the order provides:

D. Upon seizure of the Subject Domain Names, the Subject Registrars shall modify any records, databases, tables or documents that are used by the Subject Registrars to identify the owner of the Subject Domain Names to reflect the seizure of the Subject Domain Names. […]

E. The Subject Registry shall take any steps required to propagate the changes detailed in Section D to any applicable DNS servers.

An order to modifrecords, etc. and to publish those modified records is compelled speech.

There’s a whole slew of first amendment concerns raised when the government compels speech.

Especially when the government the compels the speech of a party unrelated to the proceeding.

Thomas (profile) says:

Real point..

is that “homeland security” has become nothing more than an agent for the entertainment industry. They are no longer concerned about such things as terrorists plotting things like nerve gas attacks on U.S. citizens, but rather they worry about the extravagant lifestyles of the entertainment industry executives. The DOJ has pretty much done the same. Considering how much dirty money the entertainment industry funnels to the Congress and the various agencies it is not surprising.

Jay says:

Hey law guys!

Here’s something you should also pay attention to. Isaac Newton says for every action, there is an equal but opposite reaction.

protest of anti sharing law

Exodus of bittorrent sites

Since the US is using dubious grounds to go after people, those people are moving to more secure areas. The law is a little safer, and the US has a bigger hassle in front of them.

This is how the US is using protectionism to favor certain businesses. And it harms us with less tax revenue, less innovation, less, less, less…

hopeful says:

and nothing said here or anywhere else about the screw ups that have been made is going to matter. nothing is going to change. the MPAA, RIAA and all other entertainment industries will continue down the same (illegal?) paths, while condemning everything that they dont like or think should not be happening, simply because they are lining pockets that turn the proverbial ‘blind eye’. what is true, however, is that when money isn’t spent on, for example, music or movies, it is spent on something else. that money still goes into the economy, just by a different route. regardless of the rights and wrongs of file sharing, people only have so much to spend. think of the greater economic problems that will be caused when internet connections are cut. it’s going to be more harmful to more companies when on line purchases are decimated and all without increasing the sales of cds and dvds! governments need to think how much money they will lose then!

Anonymous Coward says:

He should be sued for lying on the form for the Judge.

If this butt nugget doesn’t get taken to task, then others will follow in his footsteps.

Money speaks volumes over should or shouldn’t.
If this guy was lying, he was perjuring himself to the judge who signed the warrant.

That could be the end of his career with DHS. A large chunk of personal spending money could disappear as well.

Judges hate being lied to. And some have some pretty crazy fines.

xenomancer (profile) says:

misindirection(ismness)

I’m waiting for the day one of the small minds driving this litigious farce conjures the capacity to read a book and comes across the magic of numeric descriptors. We may see attempts at criminalizing dotricenal contributory infringement; but by that point I expect to be voting at a MAFIAA approved music/movie store/”shopping experience” rather than a public library or other contemporary public facility.

Another Kevin says:

Search Engine

As far as I know, there have been no criminal charges, because non-commercial copyright infringement hadn’t been criminalized yet, but certainly settlements have been extracted and as a result students have been forced to leave school over general-purpose search engines linking to unauthorized copies of copyrighted material. Jesse Jordan of Rensselaer Polytechnic Institute was one. http://www.authorama.com/free-culture-6.html has a precis of his story. And I’m probably liable for copyright infringement for linking to it, because I’m sure it links to something that links to something that links to a torrent.

Gabriel Tane (profile) says:

re: #91 from Anonymous

I’m moving this out into a new thread because it’s getting difficult to read in-thread.

“CDT v Papert isn’t applicable, sorry.”

See… this is exactly what I was talking about. You always come in here and post “you’re wrong…sorry” without actually pointing out anything to back yourself up. What, are we supposed to just take your word for it? If you’re going to debate or argue, do so. But just saying “nuh uh! you’re wrong!!” is not arguing, it’s hiding in ignorance.

“Your claim that since some non-infringing speech was present that only the illegal behavior can be acted on is childish, and shows you do not understand the law or even how the DMCA works.”

Really? You really think prior restraint is childish? And if you think that’s not what the DMCA does, you are more wrong than I thought possible. The DMCA protects non-infringing expression by targeting only the infriging content. That’s why it forces the take-down of the infringing video on YouTube, not the whole site.

“You’ve completely botched Arcara v Cloud. Go read that paragraph again and repost it in its entirety here. That is, if you aren’t embarrassed once you realize you’re wrong.”

I’m still waiting for you to demonstrate how it doesn’t work… but if you insist…

U.S. Supreme Court
Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986)
Arcara v. Cloud Books, Inc.

No. 85-437

Argued April 29, 1986

Decided July 7, 1986

478 U.S. 697

Syllabus

A New York statute authorizes closure of a building found to be a public health nuisance because it was being used as a place for prostitution and lewdness. After a county Deputy Sheriff’s undercover investigation of respondents’ “adult” bookstore disclosed that illicit sexual activities, including solicitation of prostitution, occurred on the premises, a civil complaint was filed against respondents seeking closure of the premises under the statute. Respondents answered by alleging, inter alia, that a closure would impermissibly interfere with their First Amendment right to sell books on the premises, and that the closure statute was not intended to apply to establishments other than houses of prostitution. The New York trial court denied respondents’ motion for a summary judgment, holding that the statute applied to respondents. The Appellate Division affirmed. The New York Court of Appeals reversed on First Amendment grounds. Applying the test of United States v. O’Brien, 391 U. S. 367, for determining the validity of a statute regulating conduct that has an expressive element, the court held that the closure statute failed the part of the O’Brien test that requires the statute to be no broader than necessary to achieve its purpose, because the closure order was much broader than necessary to achieve the restriction against illicit sexual activities and because an injunction against continuing those activities could achieve the same effect without restricting respondents’ bookselling activities

[1]Held: The First Amendment does not bar enforcement of the closure statute against respondents’ bookstore. United States v. O’Brien, supra, has no relevance to a statute directed at imposing sanctions on nonexpressive activity, and the sexual activities carried on in this case manifest absolutely no element of protected expression. The closure statute is directed at unlawful conduct having nothing to do with books or other expressive activity. Bookselling on premises used for prostitution does not confer First Amendment coverage to defeat a statute aimed at penalizing and terminating illegal uses of premises. Pp. 478 U. S. 702-707.

65 N.Y.2d 324, 480 N.E.2d 1089, reversed.

BURGER, C.J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, STEVENS, and O’CONNOR, JJ., joined. O’CONNOR,

Page 478 U. S. 698
(emphasis, bracked numbers added by me)

[1] right here is what we?ve stated time and time again. The illegal activity in this case was non-expressive. It does not apply when the illegal activity is expressive .

This is the last time I?m mentioning it. I?m going to save a link to this comment, and anytime you say ?LOL show me where AvCB doesn?t apply?, I?m just going to give you this link. I?ve already given too much time to you. If you want to point out, with detailed analysis as to where I?m wrong, feel free. I?ll read it. But if you respond with something like ?LOLz!1!! You are still wrong!!!?, I?ll ignore it and you.

Modplan (profile) says:

Re:

Do you realise I myself have already cited Arcara previously?

The First Amendment does not bar enforcement of the closure statute against respondents’ bookstore. United States v. O’Brien, supra, has no relevance to a statute directed at imposing sanctions on nonexpressive activity, and the sexual activities carried on in this case manifest absolutely no element of protected expression. The closure statute is directed at unlawful conduct having nothing to do with books or other expressive activity. Bookselling on premises used for prostitution does not confer First Amendment coverage to defeat a statute aimed at penalizing and terminating illegal uses of premises. Pp. 702-707. We imposed a greater burden of justification on the State even though the tax was imposed upon a nonexpressive activity, since the burden of the tax inevitably fell disproportionately – in fact, almost exclusively – upon the shoulders of newspapers exercising the constitutionally protected freedom of the press.

[..]

It is true that the closure order in this case would require respondents to move their bookselling business to another location. 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=u s&vol=478&invol=697

My previous occasion I cited it:

http://www.techdirt.com/articles/20101128/15545412022/five-questions-homeland-security-concerning-its-online-censorship-campaign.shtml#c1304

vitruvian (profile) says:

his comments were about bittorrents not about torrent freak.

Even if your assertion that it’s that easy to determine which torrents are infringing were conceded, you somehow seem to have missed that the posts in question were a) not original to torrent-finder, but derived from other sites, likely through RSS feed, and b) more importantly, not torrents or even links to torrents, but articles and blog posts, i.e., reportage and speech. Ergo, not damning at all, if the putative charge is infringement through bittorrent. Or, if they *are* ‘damning’, then the New York Times needs to be taken down whenever they post an article to their site about the use of bittorrent, too.

Anonymous Coward says:

Syllabus [was re: #91 from Anonymous]

Syllabus

Quoting the syllabus is generally considered bad form.

From the Legal Research FAQ:

2.2.1 Federal Case Law Reporters

United States Reports (U.S.):

The official reporter for decisions of the U.S. Supreme Court. The actual opinion of the Court is preceded by a “syllabus,” written by a Court employee, summarizing the issues decided. The Syllabus is not part of the opinion, and should be relied on only for a quick overview of the case. The Supreme Court once rebuked a litigant for carelessly quoting a Syllabus rather than the opinion it inaccurately summarized. See United States v. Detroit Lumber Co., 200 U.S. 321,337 (1906).

(Emphasis added.)

US v Detroit Timber (1906):

In the first place, the headnote is not the work of the court, nor does it state its decision,- though a different rule, it is true, is prescribed by statute in some states. It is simply the work of the reporter, gives his understanding of the decision, and is prepared for the convenience of the profession in the examination of the reports.

(Emphasis added.)

This objection has nothing at all to do with your main point. I’m only addressing the bad form involved in quoting the syllabus.

average_joe says:

I’ve been thinking more about the domain name as speech issue, and I’ve been reading relevant caselaw. It appears that my instincts were wrong and domain names can be protectable speech. However, domain names are commercial speech, not core speech, and commercial speech is not necessarily protected by the First Amendment. Domain names are commercial speech because they facilitate the public’s access to websites, and they serve as the primary identifier of the source of information, products, or services.

In Central Hudson, the Supreme Court held that for commercial speech to come within First Amendment protection, “it at least must concern lawful activity and not be misleading.” In other words, if the commercial speech is being used for unlawful purposes, there is no First Amendment protection. The domain names in these seizures are commercial speech, and they are not protected by the First Amendment because they being used for unlawful activity.

Anonymous Coward says:

Re:

If I am not mistaken, PirateBay, was more of a political organization that used much (obviously not all.. would you?) of the money made from contributions and advertising to fight law suits to protect entities and end users in cases like these.

If they made a fortune along the way… good for them. Thank you for fighting and raising awareness and welcome to capitalism.

Anonymous Coward says:

Re:

I didn’t call you anything. I just pointed out that derogatory depends on your point of view. If you are a racist then perhaps the N word is just commonplace and not derogatory. If you are an insider perhaps apologist is just commonplace and not derogatory. If you are a copyright holder perhaps pirate and stealing are just commonplace and not derogatory. The sad part is that you are so indoctrinated in techdirt rhetoric that you fail to see where it goes wrong.

btr1701 (profile) says:

Re:

> The domain names in these seizures are commercial
> speech, and they are not protected by the First
> Amendment because they being used for unlawful
> activity.

Apparently not. As more and more details emerge as to what facts the ICE agent and the court relied upon in conducting these seizures, it’s apparent that the activity on many of the seized blogs was completely lawful.

Linking to an article that criticizes U.S. copyright policy is hardly illegal. Hell, *directly* criticizing U.S. copyright policy isn’t illegal, so linking to a site that does so can hardly form the basis for a government seizure. Yet that’s what the ICE agent said he relied upon in his affidavit.

The agent apparently also relied on RIAA’s say-so that the downloads offered on some of these blogs were infringing, however the blog owners are now provinding rather iron-clad proof that the files in question were sent to them by the record labels themselves to be offered for download for marketing purposes.

The list goes on… bottom line, the blanket statement that “all these sites were engaging in unlawful activity” is hardly accurate.

dr flodo (profile) says:

Discussion

That’s just not how it works. The judge is only considering whether sufficient facts have been alleged to constitute probable cause. Whether or not the seizure of the domain name violates the First Amendment is not relevant to the court’s analysis of the application’s sufficiency. Of course such concerns could be raised at trial, but for the warrant purposes they are irrelevant.

It isn’t this simple. What is the purpose of seizure – to gain evidence? Or to effect a pretrial punishment that sends a scalding message? There are few precedents for the seizure of non-tangible goods that are also income sources for these companies. The net effect is to shut them down – rights and fairness are only pretenses.

Gabriel Tane (profile) says:

Terms

Or, even better, let’s go after Dell, IBM, Gateway (are they still around?) for making the computer they’re used on. But why stop there? We can go after the mining companies for mining the silicon used to make those computers. Or [insert deity here] for making the universe those elements were made in!

See how silly it gets? This is why we don’t blame the tools or the tool makers for what happens with those tools. That’s why we don’t ban guns, hammers, knitting needles, nail clippers (apparently), knives, box cutters, axes, saws, chainsaws, forks, spoons (ouch), umbrellas, bricks, rocks, clubs, sticks, pointy sticks, fire, … need I go on?

Anne Ominous Coward says:

Articles like this are to be expected

The “freetards” — the people who just want to take everything for free — will come up with a zillion arguments trying to label any tactic that might stop their criminal activity as being harmful, misguided, or even illegal, because they just don’t want their own criminal activity to be stopped. Well, tough. We have to stop this online intellectual property crime wave.

Jeffrey A. Williams says:

Registrants DO NOT control IP addresses or their own domains

Registrants do not control IP addresses nor their own registered Domain names, hosting companies and/or their Registrar are the usual managers of almost every Domain name registrants IP address translation to their REGISTERED Domain Name. Nor does the Registrant control their DNS, that is done usually also by their hosting company or registrar. Ergo those sections of the affidavidt that claim such are entirely wrong. Very few Registrants host their own Domain’s.

Robert A. Rosenberg (profile) says:

Re:

The standard practice for fan subs is (or at least once was) for the subs to get pulled as soon as the studio gets off its ass and licenses the show for distribution outside of Japan. The subers, rightfully in my opinion, see their role as filling a need that the Studios are not servicing and acting as free publicity for the studio. They also supply a market for the original Japanese Versions that the supposed US Licensee refuses to supply. Disney for example has the US rights to the each Sentai (AKA Power Ranger in the US) Series which is made into a sliced and diced version of the Japanese Action Footage with a rewritten story line and US (now Australian) actors doing the non-costumed filler scenes. To see the actual show, you must go to a Hong Kong FanSubber (or the Region 2 DVDs from Japan which do not come with English Subtitles). Disney has only shown parts of one original episode which was shown as part of an PR episode called “Lost In Translation” (a name which is ironic since they did not even translate the dialog accurately but turned it into a “Whats Up Tiger Lilly” type spoof).

Since most of the studios do not market to the US, IMO, they can show no loss of income from their non-existent sales and thus the Subbers are doing them a service since many of the shows that are now available here in the US are due to the distribution of the subs which created a market for when they finally released here in the US.

I fail to see how I can deprive a studio of income when they refuse to sell an item to me. Ripping a commercial DVD (rented for example from Netflix or Blockbuster) is a different issue.

Anonymous Coward says:

Don’t be too harsh on the boy. ?Maybe the Agent suffers from the Dunning-Kruger Effect: when someone is sufficiently unaware of the depth of their own ignorance, they tend to greatly overestimate their own competence. ?This leads to a projection of great confidence in one’s own abilities. ?Colleagues defer to these people in error; therefore those suffering under the DK Effect often win control of projects requiring deep expertise that they do not begin to possess. ?The other side of the DK coin is that actual experts, who often possess a magnified awareness of every nanodeficit in their talents, will themselves modestly downplay their profound grasp of a subject. ?This commonly leads to the perverse situation in organizations?where adepts defer to idiots – to our peril.

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