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Rep. Lofgren Again Explains How And Why Domain Seizures Violate The Law

Free Speech

from the and-another-lawyer dept

Tue, Mar 15th 2011 09:37am -

We had just pointed to a lawyer explaining why the domain seizures by the government were likely to be unconstitutional. That was in response to some of our commenters who insist that anyone who actually understands the law would clearly see that such seizures are perfectly fine. Well, here’s another lawyer who disagrees — and she also happens to be a Congressional Representative, Zoe Lofgren. Obviously, we’ve covered her basic concerns with these seizures, and now she’s done an interview with Ars Technica, where she goes into much more detail. She notes that this appears to be outside of ICE’s mandate. That the reasons behind the seizures were too broad (such as in the seizure of Torrent-Finder, a search engine, which suggests the government could just seize Google if it wanted to).

Lofgren correctly points out that falling back on the legality of seizures for things like drugs does not apply, because this is a First Amendment issue, and then points out that it appears to be prior restraint:

Ars: So how did these seizures differ from, say, narcotics seizures in which some of the same issues about a non-adversarial hearing apply?

Rep. Lofgren: You’re never going to have a free speech issue when it comes to a pile of cocaine.

Ars: The recording industry also objected to the First Amendment concerns you raised, saying that the First Amendment is “not a shield for illegal behavior.”

Rep. Lofgren: They completely missed the point, and I would think intentionally so. This is prior restraint of speech, and you can’t do that in America.

Nice to see yet another “lawyer” speaking out about this, and especially nice that it happens to be someone in Congress, who can hopefully get more attention on this concerning subject.

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Comments on “Rep. Lofgren Again Explains How And Why Domain Seizures Violate The Law”

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244 Comments
Anonymous Coward says:

Put 8 lawyers in a room and you will generally get 8 divergent opinions.

Put 8 economists in a room and you will generally get 8 divergent opinions (9 if one is from Harvard).

More to the point, attorneys considering this issue generally see both sides of the argument, and to the extent that one may say one thing and another something different, it simply reflects differing interpretations of the relevant case law…something that is not entirely unexpected since even among the judiciary one court may decide an issue one way and another court just the opposite.

Anonymous Coward says:

Re: Re: Re:

I’m sure there are some good arguments. I just don’t see anyone making them. Not specific, legal arguments. All we get is conclusions of how it’s illegal. Where’s the analysis?

I actually think there are good due process arguments. I just don’t see anyone actually making the arguments. All they say is that it violates due process without explaining exactly why. When I’ve got my due process arguments more refined, I’ll share with the class. 🙂

Jesse (profile) says:

Re: Re: Re: Re:

Isn’t prior restraint an example of censorship without adequate due process? Or isn’t that the complaint here?

The argument is that these domains were seized prior to any adversarial hearing (i.e. without due process). What sort of argument are you looking for? Was there a hearing that we don’t know about? What is stopping ICE from seizing other search engines like Google (legally speaking)?

It’s true many of us aren’t lawyers, but I think it’s fair to ask for the lawyers among us to answer those questions.

Dark Helmet (profile) says:

Re: Re: Re: Re:

“I actually think there are good due process arguments.”

I agree. For instance, govt. In Rem seizures of these domains takes an overly simplistic view of what a domain is. A domain is not ONLY property used potentially in the commission of a crime. It’s also a vehicle for speech, and address, AND property. To pretend it’s the same as a gun or a vehicle is downright silly.

As for the In Rem seizures themselves, the Supreme Court laid out guidelines for when they are to be used, and one of them is “where some valid governmental interest is at stake that justifies postponing the hearing until after the event”. Now, that is something for the lawyers in this case to fight over, since the seizure has already occurred, but I’m having trouble defining the valid govt. interest here. This is a business interest, not one of government importance, such as situations of narcotics and/or weapons, where great amounts of physical harm to the constituency can be expected.

There is an argument to be made for Fifth Amendment violation, as the seizures have already occurred.

Techdirt has already examined the argument that at least some of these sites did indeed contain protected speech and the censoring of that protected speech w/o a hearing is indeed a violation of the first amendment. This appears to be one of the controversial points made, as most people will say that infringement isn’t speech and, when challenged with the fact that not all sites directly infringed and many of them contained non-infringing (protected) speech, will then go on to state that because data of the speech exists on the server the speech is not censored. This is an extremly specious argument.

Next, we have the silliness of treating a domain like a vehicle property rather than treating it like land owned by a private party. Case law in real estate (I know, not directly applicable) has made it clear that In Rem seizure of property is not justifiable because it can be neither moved nor concealed. This is exactly like a domain address. I would argue that they should be treated as such.

Finally, even if we assumed that nothing up to the seizures violated Due Process (DDDEEEERRRRPPPP!), what is the justification for not having a meaningful hearing soon after the siezure? From my reading, most cases in which normal Due Process has been excepted, you get a speedy hearing afterwards. Can you cite cases by chance in which In Rem siezures have been done after which the suspects had to wait MONTHS (still going, so maybe years?) not just to get their hearing, but to even know what the hell happened? Can we agree that domain names are such that these seizures may unintentionally (sincker!) cause the sites to be shut down completely due to interference with normal traffic?

Now, one or two of these considerations might be able to be explained or put aside. But it seems clear that there is waaaayyy too much smoke here for there to be no fire….

Anonymous Coward says:

Re: Re: Re:

You can always get some laywer to agree. The question is if the ideas have any true legal merit. The idea of “prior restraint” has already been killed, especially in relation to commercial activities (the sites in question were generally involved in commerce).

Central Hudson Gas & Elec. Co. v. Public Serv. Comm is on point.

“Is the expression protected by the First Amendment? For speech to come within that provision, it must concern lawful activity and not be misleading.”

Unlawful commercial communications do not enjoy first amendment protections. Without those protections, there can be no prior restraint.

The politician is really just mouthing very typical stands made online (you can find her point almost word for word on other sites attributed to other people), but it doesn’t add much to the discussion. As the courts have allowed that some protected speech may be lost in the process of handling illegal, unprotected speech, there isn’t much to stand on here.

I would go further to suggest that the speech, taken as a whole, may in fact contribute to the illegal acts, and as such could be considered part of the unprotected speech (furtherance of the illegal acts). It is hard to say without all of the content to be seen.

However much she does not like it, the first amendment is not a shield for illegal acts, and the standards are even lower for commercial speech.

Anonymous Coward says:

Re: Re: Re: Re:

The politician is really just mouthing very typical stands made online (you can find her point almost word for word on other sites attributed to other people)

Exactly. She’s reading a script given to her by Masnick/tech types. She’s SillyCon Valley’s paid shill in Congress. What else would we expect her to do? She’s wants to keep her seat, she’d better do what the geeks and nerds tell her to.

Anonymous Coward says:

Re: Re: Re:2 Re:

I’d rather listen to the nerds than say, oh I don’t know, this guy:

http://www.wired.com/entertainment/music/magazine/15-12/mf_morris?currentPage=all

Morris insists there wasn’t a thing he or anyone else could have done differently. “There’s no one in the record company that’s a technologist,” Morris explains. “That’s a misconception writers make all the time, that the record industry missed this. They didn’t. They just didn’t know what to do. It’s like if you were suddenly asked to operate on your dog to remove his kidney. What would you do?”

Personally, I would hire a vet. But to Morris, even that wasn’t an option. “We didn’t know who to hire,” he says, becoming more agitated. “I wouldn’t be able to recognize a good technology person ? anyone with a good bullshit story would have gotten past me.” Morris’ almost willful cluelessness is telling. “He wasn’t prepared for a business that was going to be so totally disrupted by technology,” says a longtime industry insider who has worked with Morris. “He just doesn’t have that kind of mind.”

Karl (profile) says:

Re: Re: Re: Re:

The idea of “prior restraint” has already been killed, especially in relation to commercial activities (the sites in question were generally involved in commerce).

Whether a site is “generally involved in commerce” is not what determines “commercial speech.” It is strictly limited to speech that “proposes a commercial transaction.” In other words, it refers solely to the advertisements themselves.

Putting advertisements on a blog does not make everything on that blog “commercial speech.”

Central Hudson Gas & Elec. Co. v. Public Serv. Comm is on point.
Interesting. Let’s quote more of that case:

Held: A regulation of appellee New York Public Service Commission which completely bans an electric utility from advertising to promote the use of electricity violates the First and Fourteenth Amendments.

Although the Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression, nevertheless the First Amendment protects commercial speech from unwarranted governmental regulation. For commercial speech to come within the First Amendment, it at least must concern lawful activity and not be misleading. Next, it must be determined whether the asserted governmental interest to be served by the restriction on commercial speech is substantial. If both inquiries yield positive answers, it must then be decided whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

Let’s look at some other cases that are “on point.”

Held: As applied to appellee’s proposed mailings, ? 3001(e)(2) is unconstitutional.

[…]Advertising for contraceptives […] relates to activity that is protected from unwarranted governmental interference. Thus, appellee’s proposed commercial speech is clearly protected by the First Amendment.

– Bolger v. Youngs Drug Products Corp.

“Commercial speech” is not wholly outside the protection of the First and Fourteenth Amendments, and the Virginia statute is therefore invalid.

– VA. Pharmacy Bd. v. VA. Consumer Council

Commercial speech, which serves individual and societal interests in assuring informed and reliable decisionmaking, is entitled to some First Amendment protection, and the justifications advanced by appellee are inadequate to support the suppression of all advertising by attorneys.

– Bates v. State Bar Of Arizona

This does not mean that all advertising is entitled to First Amendment protections. See e.g. Ohralik v. Ohio State Bar Assn.

It does mean that even commercial speech can involve prior restraint.

Unlawful commercial communications do not enjoy first amendment protections. Without those protections, there can be no prior restraint.

Firstly, it would not be “unlawful commercial communications,” it would be “unlawful advertisements.” Nobody is suggesting that the advertisements themselves were unlawful. You’re simply applying the wrong standard here.

Secondly, even they did have unlawful advertisements, that does not mean “there can be no prior restraint.” There can be prior restraint of speech even when laws do not target communication at all. This is why the O’Brien standard exists. That standard is controlling in all these cases.

Thirdly, there was prior restraint. There is absolutely, positively no question about this. Speech that is protected by the First Amendment was blocked. You could argue that the government’s interest in prosecuting copyright infringement or child pornography justifies prior restraint, but prior restraint it is.

(you can find her point almost word for word on other sites attributed to other people)

Considering that ICE was quoting piracy damages “almost word for word” from industry studies, even though those studies were called “unreliable” by the government itself, your statement is the ulitmate in hypocrisy.

As the courts have allowed that some protected speech may be lost in the process of handling illegal, unprotected speech

No, they absolutely have not.

the first amendment is not a shield for illegal acts

And prosecuting “illegal acts” is not a shield from the First Amendment.

Karl (profile) says:

Re: Re: Re:3 Re:

LOL! Yeah right, Karl that’s completely wrong!

^^
That’s it.

No, he’ll probably also quote obscure and inapplicable case law, that he takes totally out of context to support his claim, and ignore everything in the ruling that explicitly say he’s wrong. Like he did with the Central Hudson case above, and (I’m sure any second now) he will do with the Arcara case, yet again.

p.s. I’m pretty sure it’s AJ too, but I’m not going to jump to conclusions. It doesn’t really matter, either way he’s wrong.

PS- You’re my hero Karl

Thanks very much, but I’m just an old fat guy with way too much time on his hands. Save the hero-worthip for the lawyers that overturn these seizures. I’m just arguing on the internet, those guys are actually doing something about it.

Anonymous Coward says:

Re: Re: Re:5 Re:

It’s not that I’m an expert, it’s that you’re so obviously wrong.

Hardly. If anything, your comments only continue to show that you have no grasp of the fundamentals.

Did you see what I dug up for you? http://www.techdirt.com/articles/20110314/01204913484/more-reasons-why-homeland-security-seizing-domain-names-is-unconstitutional.shtml#c1861 I’ll await your comment.

Karl (profile) says:

Re: Re: Re:6 Re:

Did you see what I dug up for you? [re: Nimmer]

No, I did not. I looked at it just now. Very interesting. Pity Nimmer did not actually name the case. Still, I’ll see if I can get his book.

He doesn’t actually say if the judge took First Amendment issues into account. He could have, but it seems like he didn’t. If not, that definitely would prove your point.

And this Karl:

Yeah, I just tried Googling it again. I still couldn’t find the full text of the case online. If this is true:

Thus, property was seized (1) ex parte upon the issuance of a warrant, (2) it was property used allegedly as a tool or instrumentality of criminal copyright infringement, (3) no crime was ever charged or proved against the claimant or anyone else, (4) the government waited 6 months before bringing the forfeiture proceeding.

…then I admit, some of what I said was wrong.

And if I’m wrong, then the seizure laws need to be changed. Like, yesterday.

Still betting on the ICE seizures being dismissed, though. Those other cases didn’t have an entire section of copyright law that was ignored by the government. Plus, domain names are not really “articles by means of which such copies of phonorecords may be reproduced.”

But I’m not as certain as I was.

Karl (profile) says:

Re: Re: Re:8 Re:

Hmm. Just read it.

I pointed it out before, but these seizures happened under a law that has since been repealed, 17 USC 509. This stuff does happen all the time, and is often inconsequential. In this case, however, it might be significant.

17 USC 509(b) used Title 19 for its seizure rules. 17 USC 506(c) uses an entirely different statute, 18 USC 46, for its seizure rules. This is a pretty significant change.

Do the “burden of proof” rules in 19 USC 1615, also apply to the seizure laws in Title 18? I don’t believe so. For example, they directly contradict the “General rules for civil forfeiture proceedings” laid out in 18 USC 983 (stipulating that charges must be brought within 60 days, or the property is returned).

19 USC 1615 is the entire reason the judge ruled as he did. It’s possible – not certain, but possible – that this couldn’t happen under the current statutes.

And even in this case, the burden initially rested on the government to show probable cause. And there was a whole lot more to this case. (For example, the fact that the defendant and his secretary admitted outright that he had manufactured the copies himself.) Even so, the other item seized – the “memory writer” – had to be returned, as the government had not met its burden of showing probable cause that it was used to manufacture the infinging software.

Will ICE have enough to show probable cause in these cases? I don’t know. In a few cases at least, probably not.

On the other hand, it’s clear that the judge did not take the First Amendment into account. Neither did the defendants even attempt to raise a First Amendment defense.

Karl (profile) says:

Re: Re: Re:3 Re:

It’s not prior restraint.

So, what do you call the government blocking speech that is protected by the First Amendment?

If it was that simple, a bank robber would wear a protest sign around his neck and yell “you can’t prosecute me! prior restraint!”

A successful defense against bank robbery would not mean that bank robbery is protected expression.

Your inability to grasp the simplest legal concepts is remarkable.

When you can’t defend yourself, insult the speaker. WINNING!

Anonymous Coward says:

Re: Re: Re:4 Re:

So, what do you call the government blocking speech that is protected by the First Amendment?

Every government remedy blocks protected speech in some way. It’s not necessarily prior restraint just because protected speech is blocked.

A successful defense against bank robbery would not mean that bank robbery is protected expression.

His point went over your head, like most points made to you do.

When you can’t defend yourself, insult the speaker. WINNING!

He’s simply pointing out the reality of the situation.

Anonymous Coward says:

Re: Re: Re:4 Re:

So, what do you call the government blocking speech that is protected by the First Amendment?

First of all, because that speech is in tandem with overt and substantial copyright infringement, it does not enjoy First Amendment protections. And even if they did, the Supreme Court has stated “every civil and criminal remedy imposes some conceivable burden on First Amendment protected activities.”

Just calling something “prior restraint” doesn’t make it so. You apparently need to learn how the law works.

A successful defense against bank robbery would not mean that bank robbery is protected expression.

Your statement makes no sense at all. I was demonstrating to you why a person cannot exonerate their illegal behavior with a protected speech defense.

Karl (profile) says:

Re: Re: Re:5 Re:

Your statement makes no sense at all. I was demonstrating to you why a person cannot exonerate their illegal behavior with a protected speech defense.

Obscenity is also illegal behavior. But an attempt to shut it down ex parte certainly raises First Amendment concerns.

Also, let me present you with a hypothetical scenario, which I also raised in another thread.

Suppose that an overactive DEA agent decided that High Times magazine was “aiding and abetting” drug use, because they allowed advertisements for bongs (from third parties) to appear in the magazine.

So, this DEA agent gets a judge to rubber-stamp an affidavit showing probable cause, then conducts an ex parte seizure of all of their magazines, printing presses, and records.

I’m pretty sure this would be considered prior restraint. Do you think it shouldn’t?

…HOWEVER: if what the A.C.’s above say is true, then apparently someone who is accused of criminal copyright infringement actually has fewer First Amendment rights than someone accused of aiding and abetting drug trafficking. It doesn’t make sense, but there you have it.

Karl (profile) says:

Re: Re: Re:6 Re:

…And to reiterate:

a person cannot exonerate their illegal behavior with a protected speech defense.

If their “illegal behavior” is alleged copyright infringement, then yes, absolutely, they can. A successful protected speech defense completely exonerates a person from copyright infringement.

That was my entire point.

Anonymous Coward says:

Re: Re: Re:7 Re:

I’m not talking about “alleged”. The court made an objective determination that criminal copyright infringement occurred, and issued a warrant.

If you’re talking about fair use, that is legally using copyright. It’s not criminal copyright infringement.

Two completely different acts.

Do you have a single instance of a court that confused criminal copyright infringement and fair use?

Karl (profile) says:

Re: Re: Re:7 Re:

Sorry, but that analogy is daft.

Are bongs illegal?

Selling drug paraphernalia is illegal. Most “head shops” get around this by saying they’re for tobacco use only. That didn’t stop Operation Pipe Dreams from happening.

So, the scenario I present is not far-fetched in the least.

For the sake of argument, let’s say the advertisements claimed the bongs were for tobacco use only, but the DEA agent simply didn’t believe it. Prior restraint? Why or why not?

Karl (profile) says:

Re: Re: Re:2 Re:

I find it interesting that in all the discussions I see about this subject here on this blog, no one ever seems to bring up the fact that these sites are actually guilty.

Because they’re probably not. In one case (dajaz1), the supposedly infringing content was authorized. A couple others obeyed DMCA takedown notices. One was a search engine, so could not possibly control the content on the third-party sites it linked to.

In the other (copyright-related) cases, they’re almost certainly not guilty of criminal infringement. (Civil infringement? Probably.)

And even if they were guilty, it doesn’t excuse taking down non-infringing content as collateral damage. (There’s a reason copyright’s “safe harbors” rules exist.) The actions by ICE are more damaging to the public than infringement ever could be.

Anonymous Coward says:

Re: Re: Re:3 Re:

Because they’re probably not. In one case (dajaz1), the supposedly infringing content was authorized.

No, the site was full of infringing content. Even though the ICE agent used 4 examples (of still-copyrighted songs)
given by a record label employee in his affidavit, it wasn’t the basis for their investigation and doesn’t exonerate the site.

A couple others obeyed DMCA takedown notices.

Saying you obey some safe harbor notices doesn’t exonerate a site that is full of infringing material. No safe harbor there.

One was a search engine, so could not possibly control the content on the third-party sites it linked to.

That site offers direct downloads on their front page. They’re guilty of direct infringement, and wouldn’t even dare to appeal.

All these sites are guilty. Suggesting the government would go after all of them when they weren’t is some stretch and just smells like wishful bias.

Karl (profile) says:

Re: Re: Re:4 Re:

Also:

it wasn’t the basis for their investigation and doesn’t exonerate the site.

Those four songs were the only evidence presented in the affidavit. It may not exonerate the site, but it certainly should make the seizure invalid.

Saying you obey some safe harbor notices doesn’t exonerate a site that is full of infringing material. No safe harbor there.

I would hope it does, because YouTube is “full of infringing material” too. Also, obeying all DMCA notices should, at the very least, be a defense against “willful” infringement.

That site offers direct downloads on their front page. They’re guilty of direct infringement, and wouldn’t even dare to appeal.

No, they don’t. They provide inline links to content on other sites. Nothing is stored on their server, so they don’t pass the “server test” standard codified in Perfect 10 v. Google (among others).

And they are appealing the seizures.

All these sites are guilty.

Oh. Well, if you say so, I guess it’s true.

Anonymous Coward says:

Re: Re: Re:5 Re:

Those four songs were the only evidence presented in the affidavit. It may not exonerate the site, but it certainly should make the seizure invalid.

You need to read the affidavit again. To think the government would be dumb to enough to bring a case like that over 4 songs is beyond silly. Remember something, that affidavit’s legalese wasn’t drafted by the ICE agent, but by a very sharp DOJ lawyer. Government’s seizure power for that site is covered by something besides the song examples. Read it a little more thoroughly.

And Torrent-Finder is appealing? That is seriously the funniest thing I’ve heard in weeks.

Karl (profile) says:

Re: Re: Re:6 Re:

You need to read the affidavit again.

I just did. Nope, that’s about it. The only songs he downloaded were the four that were sent in by the label reps.

He viewed some album info on the site, described the site as a “linking site” (no mention that much of the blog was original content), and leaves it at that. The rest of the affidavit was a determination that the site had advertisements, and a lengthy determination of the various parties’ identities (webmaster, webhost, ISP, etc).

Karl (profile) says:

Re: Re: Re:8 Re:

Still don’t understand? mmmkay.

Don’t believe me? Read it yourself. The dajaz1 evidence starts on page 53.

There is nothing there about them appealing.

When they hire an IP lawyer, and that lawyer starts up talks with the EFF, it’s a pretty safe bet they’re going appeal. When they get a chance.

It was also written up in PaidContent.org.

Other sites certainly are appealing – a couple of their lawyers made comments here to that effect.

vivaelamor (profile) says:

Search Engines

I find her statement about Torrent Finder especially encouraging: “Further, I think it’s just stunning to think that they would believe that linking sites?they went after Torrent Finder. It’s a search engine! What’s that got to do with this? I mean, if they’re right that they can simply seize that search engine, they can seize Yahoo or Google or Facebook”.

Nice to see her pointing that out. One of the biggest issues with the seizures is the fact that applied equally their justification covers pretty much anything, especially Techdirt and TorrentFreak (for discussing the issues); and Google (for operating a search engine).

Anonymous Coward says:

Good grief, Mike. She’s just a grandstanding politician. She’s only demonstrating that she doesn’t actually research what the law really is. First she says that subdomain licensees of mooo.com should sue the government for defamation. I showed you how the United States is immune to lawsuits for defamation. Jokes on her. Now she’s saying it’s prior restraint. A century’s worth of case law unwaveringly says otherwise when it’s criminal copyright infringement. Funny how she leaves that part out (as do you). You don’t seem to understand that saying something is different that arguing something while citing relevant case law. She hasn’t given ANY legal analysis. She just spouts unsubstantiated opinion that the law doesn’t back up. If she were arguing the other side, you’d be tearing her a new one for spreading FUD. Instead, you think it’s somehow proof that the seizures are illegal. Jokes on you.

Grandstanding. And you’re EATING IT UP!

velox says:

Re: Re: Re:3 Re:

AJ, you are passing judgement about whether it’s grandstanding based on whether you agree with what is being said.

A person can be exactly correct in everything they say and still be grandstanding, so it’s not the content of what is said, but the manner and purpose of the statements.

Morton is calling press conferences and making public statements, the facts of which may or may not be true, but an additional political message being transmitted is the following: ‘Here’s how we’re attacking crime. See what a good job we are doing. Here’s how valuable we are.’

In a government administrative job, this kind of behavior is good for your resume. It’s good for your budget; and incidentally – it’s good for campaign contributions to the guy who appointed you.
That’s grandstanding.

Anonymous Coward says:

Re: Re: Re:

I’m waiting for someone on your side of the debate to produce some legal arguments that cite actual case law that applies to ex parte seizures in criminal copyright, trademark, or child porn cases… So far, it’s just a bunch of conclusory statements with no support. If it’s so obviously illegal, why’s it so hard to find case law that proves it?

velox says:

Re: Re: Re:4 Re:

Getting opinions from Average Joe and Terry Hart is analogous to relying on the medical student and the guy who graduated from medical school last year (aka “the intern”) to decide whether to operate when you’ve been diagnosed with cancer.
Yes, they might know more than those of us who are laymen, but their experience level is zilch.

Anonymous Coward says:

Re: Re: Re:5 Re:

Getting opinions from Average Joe and Terry Hart is analogous to relying on the medical student and the guy who graduated from medical school last year (aka “the intern”) to decide whether to operate when you’ve been diagnosed with cancer. Yes, they might know more than those of us who are laymen, but their experience level is zilch.

And yet you can’t rebut any of the arguments. Very telling. Clearly you have nothing.

velox says:

Re: Re: Re:6 Re:

You’ve had so many rebuttal arguments directed your way, but you remain unconvinced. Depending on where a person stands, that either says a lot about you, or it says a lot about the quality of arguments.
Suffice it to say however, there is not likely to be any rebuttal that will satisfy you because you already have cemented your opinions.

Anonymous Coward says:

Re: Re: Re:7 Re:

On the contrary, I’m quite open to the possibility that I’ve got something wrong, and I’m grateful when someone shows me that I’ve made a mistake. I did so just this morning: http://www.techdirt.com/articles/20110314/01204913484/more-reasons-why-homeland-security-seizing-domain-names-is-unconstitutional.shtml#c1569

I don’t start with my conclusion and work backwards. That’s Mike’s bag. I have an open mind.

Jay says:

Re: Re: Re:8 Re:

No you don’t. You come in with the exact same bag of tricks of dismissing arguments you don’t agree with, saying that the other side doesn’t hold up, and downright ignoring anything constitutional about the arguments presented. You argue from the letter of the law, which seems far more morally bankrupt. It’s the same as saying that if slavery were legal, the law holds up to moral standards because it’s on the books.

Anonymous Coward says:

Re: Re: Re:9 Re:

Sorry you feel that way. I am trying to keep an open mind. At first I actually agreed that the seizures were illegal on First Amendment grounds (and even said so in these comments). I read up more about the First Amendment and copyright law, and I changed my mind based on new information. I could change my mind again if a compelling argument or new research uncovers a different point of view. I really am open to new arguments.

Don’t mistake my disagreeing with other people’s arguments as being closed-minded. Far from it. I’ve already demonstrated that my mind can be changed. In fact, I’m even indicating that I think the due process arguments have merit. I’m still thinking those arguments through, though. I’ve more research to do on those issues before I try and speak about them intelligently.

At the moment I’m of the opinion that the First Amendment arguments are losers, and the due process arguments are tenable for some, but not all, of the defendants. That’s just my opinion, and it certainly could change the moment I see something in a different light.

And please, don’t confuse my interest in the legal arguments with my opinions about the policy arguments. They’re two distinct things.

velox says:

Re: Re: Re:10 Re:

“And please, don’t confuse my interest in the legal arguments with my opinions about the policy arguments. They’re two distinct things.”

Hmm. Based on all you’ve said here in recent months, that’s an interesting comment.
I guess we’ll see if you actually make any distinction between the logical basis for policy and the specific legal arguments needed to support that policy.

Anonymous Coward says:

Re: Re: Re:3 Re:

Legal analysis was given left and right. At least twice by respected lawyers, one of whom is in CONGRESS. Your responses are consistently ‘irrelevant’ and ignoring the points presented to you. You use circular logic and ignorance to try and prove your non-points, so from here out you are just ‘Ignorant Troll.’ Good day, sir!

Jay says:

Re: Re: Re: Re:

… Perhaps because of how ICE is abusing the law system? Maybe it’s the fact that the consequences, don’t add up? Perhaps it’s the fact that these supposed alleged criminals are losing rights BEFORE they get a chance to defend themselves? Or the fact that the 5th amendment is supposed to allow them to address a court before a year is up? How have the take downs from last july gone?

Think about those ideas before saying law trumps constitutional rights.

Anonymous Coward says:

Re: Re: Re:2 Re:

… Perhaps because of how ICE is abusing the law system?

Precisely how are they doing this? Looks to me like they’re just using the system Congress set up for them.

Maybe it’s the fact that the consequences, don’t add up?

Break the law, get in trouble. What’s the matter with that?

Perhaps it’s the fact that these supposed alleged criminals are losing rights BEFORE they get a chance to defend themselves?

They’re treated like other alleged criminals. They don’t get special treatment because it happens on the internet.

Or the fact that the 5th amendment is supposed to allow them to address a court before a year is up?

That’s not the legal standard.

How have the take downs from last july gone?

Still seized, and soon to be forfeited. Working well, I’d say. Just as intended.

Anonymous Coward says:

Re: Re: Re:4 Re:

A.C. here is just part of some larger campaign, analgous to the “Drive Drunk Go To Jail” tee vee commercial campaign. The idea of the tee vee campaign is to get juorors to be unconsciously biased against even the accusation of driving drunk, and to eliminate all distinctions like “Driving While Impaired”, “Driving Under the Influence”, etc etc. The concept of these campaigns is to make public consciousness of some issue into a black-and-white, right-or-wrong, no nuance sort of thing.

Jeremy7600 (profile) says:

Re: Re: Re:9 Re:

Guilty? What court case? Where was it proven that anyone infringed anything? The larger issue (the reason for the “seizure” was child pornography.) has nothing to do with copyright.

What do those sites have to do with people that are “guilty” of copyright infringement? Well, if you take down a domain that has 84,000 subdomains on the suspicion that 10 out of those 84,000 are distributing child porn, and 83990 of those sites are not, you’ve just witnessed what is called “prior restraint” Those 83990 sites were taken down when they had no reason to be taken down. Business websites, personal blogs, etc etc. Those 83990 sites have suddenly disappeared for no reason other than they used the same domain as some suspected child pornographers.

Its like someone else has stated, would you take down the entire empire state building if only a handful of the offices within are being used for some suspected illegal activity? I think not.

Anonymous Coward says:

Re: Re: Re:10 Re:

Its like someone else has stated, would you take down the entire empire state building if only a handful of the offices within are being used for some suspected illegal activity?

If you’re using this analogy to the mooo.com seizure it makes sense. If you’re using it against the sites that were dealing in infringement, it doesn’t.

Chosen Reject (profile) says:

Re: Re: Re:5 Re:

Do they also get their phone number confiscated and their mailing address stolen?

Their tools weren’t taken by the government. They still have their servers, their content, their IP addresses, their network connections, etc. All that was taken was a domain name, which it has been pointed out many times, is not infringing. It’d have to be a heck of a long domain name for the domain name itself to be infringing. So the government didn’t take away their tools, but they did take away their property.

This would be similar to asking the UPS to forward all mail to and from a supected drug dealer’s UPS mailbox to the police (note that I wrote UPS, not USPS). Doing so doesn’t take away the suspect’s ability to commit the crimes he’s suspected of committing, but it does take away his property and limiting his current avenues for speech.

So congratulations, you support the government taking away property and using prior restraint all without having an adversarial hearing and so far without even charging them. This is like security theater. They did nothing to actually stop infringement, while still taking property and using prior restraint.

btr1701 (profile) says:

Re: Re: Re:5 Seizures

> Suspected bad guys get their tools seized
> and their selves arrested all the time–and
> before they’re found guilty.

And that’s wrong. I don’t care if they’ve been doing it since the inception of the republic, it’s wrong.

Punishment should only be meted out after a finding of guilt, and don’t tell me that seizing homes, cars, boats, and bank accounts isn’t punishment, because that’s the ultimate FUD.

I’m a federal LEO myself and I have the power to seize property just like ICE has done in the cases I work, but I personally never choose to do it until the suspect has been arrested, charged, indicted, and either pled out or found guilty at trial. Only then do I proceed with the asset forfeiture proceedings and then I seize everything the law allows. I strip them bare if I can, but it’s fine because I’m doing it to someone who’s been found guilty beyond a reasonable dount or admitted their guilt and been adjudicated as such.

Dave (profile) says:

Re: Re: Re: Um, case law?

I’m having a rough time finding much case law at all that involves criminal copyright infringement, let alone ex parte seizures and cci (cci :), see what I did there?). Even harder still is finding any precedence at all for domain name seizures and cci. The real problem is they are inventing new laws or trying to twist existing laws to their means.

My wife said, “Homeland Security is just a baby organization, it’s still very new.” That is true. They are a 300 foot toddler running around wrecking havoc in downtown Constitutionville.

Jose_X (profile) says:

Re: Re: Re:2 Um, case law?

So wait, if this is all such new territory, I mean with domain name seizures and digital downloads and blogs with all sorts of discussions and virtual communities… then how is AC or anyone else going to find case law to support their side of the story?

AC, how are you going to find case law for these things?

Justification aside, the Internet (land lines, towers, routers, and all) is a tool enabling a huge amount of “piracy”. This is why ICE has decided to seize it. The seizure has been underway for a while, but it’s obviously going to take a while longer than removing a few digital domain names from lookup. [..I hear construction outside.. let me post.]

xebikr (profile) says:

Re: Re: Re:3 Um, case law?

The only thing new is ICE inventing new powers for itself. They can’t have case law or any law to back them up because there isn’t any. If they want new laws to give them these powers they need congress to pass some. I really think they were expecting that to happen and proceeded as if it already had. But it didn’t, and now they are trying to justify their actions by twisting existing laws until they snap.

Kevin (profile) says:

Re: Re: Re: Re:

Using an in-depth legal analysis from an industry lawyer is no better than the opinions stated here. Considering the track record of those lawyers and how often they have been said to be wrong should preclude their professional arguments from entering the conversation. Which would actually put the opinions stated here on a higher level and therefore more relevant than the professional.

As for the legal precedent, it is coming. It is really only a matter of time until the old guard is finally too old and the new guard seizes power. Now I am not saying go piracy, but simply that the world has moved on from how they want us to operate and they need to catch up or die denying that same fact.

Anonymous Coward says:

Re: Re: Re:

This is actually a very interesting point. I’d love to see the rulings from the 1910s on internet piracy.

Back then, it would have been printing presses and phonograph-making machines. Today it’s computers, servers, domain names, and disc-duplicating machines. The tools are different, but the fundamentals are the same.

Anonymous Coward says:

Re: Re: Re: Re:

A domain name would be similar to the address on your mail box of the warehouse that you’re duplicating the books or records. It would be like DHS running around grabbing these number off your mailbox so to the effect that google maps and the post office won’t know where you are, without giving you a legal recourse to contest it. Now if they confiscated/raided your home/building (aka a server) then that would be different.

Jose_X (profile) says:

Re: Re: Re: Re:

>> Back then, it would have been printing presses and phonograph-making machines.

I see, so how many millions of friends got $0 copies of the latest movies back when these machines were integrated with our daily personal and business activities?

You are perverting the word “seize” to apply to a state of electrons (or even levers).. to information. There is no tangible item. Physically seizing, which forms the background of this term in law, is very different from anything related to removing intangible information and “speech”.

Tom Landry (profile) says:

Re: Re:

Viewers to said sites were met with a statement to the effect that they were looking at a site connected to child porn. In what world does that have any bearing on copyright law? I’m not an attorney (thank christ) but I’m not sure that simply because uncovering copyright violations is in their mission statement doesn’t mean they can simply be absolved of that level of carelessness and incompetence.

G Thompson (profile) says:

Re: Re: Re: Re:

gain you are assuming that these business’s affected in Moo were US only entities.

International Entities have an absolute right to sue for defamation against the US Govt. The Sovereign defence does not affect them.

If you are talking about IP law stop being so US-Centric, especially when there is a high possibility that at least 20% of the affected parties were non-US based.

Anonymous Coward says:

Re: Re: Re:

You proved something?
Where?

This is what I posted previously. It took me 30 seconds to find this on Westlaw:

The Federal Tort Claims Act (?FTCA?) bars actions against the United States for wrongful use of civil proceedings and defamation. Claims ?arising out of … libel, slander, misrepresentation [or] deceit? are excepted from the United States’s general waiver of sovereign immunity. 28 U.S.C. ? 2680(h). Thus, defamation suits against the United States are prohibited. In fact, cases from other circuits make clear that an individual who is defamed by a federal employee acting within the scope of his or her employment has no remedy due to the protections afforded by the Westfall Act and the FTCA. See B & A Marine Co., Inc. v. American Foreign Shipping Co., Inc., 23 F.3d 709, 714-715 (2d Cir.1994); Aviles v. Lutz, 887 F.2d 1046 (10th Cir.1989).

Brumfield v. Sanders, 232 F.3d 376, 382 (3d Cir. 2000) (emphasis added).

Anonymous Coward says:

Re: Re: Re:2 Re:

Defamation can still be brought against employees. If you argue that ICE employees were not acting within the scope of employment, as Lofgren clearly suggests in ICE going beyond its mandate and not adhering to due process, the yes, I would imagine you can indeed sue for defamation.

No dice. They’re acting within the scope of their employment regardless. That’s not how that works.

Dark Helmet (profile) says:

Re: Re: Re: Re:

“Brumfield v. Sanders, 232 F.3d 376, 382 (3d Cir. 2000) (emphasis added).”

I find it curious that you chose not to add emphasis to the bit about the govt. employees acting within the scope of their employment. While it appears that the FTCA was principally designed to allow citizens to sue the federal govt. for the acts of individual employees, I see nothing in it (maybe you can help, oh awesome law student?) that would prohibit taking the actions of groups into question.

Ergo, prove that ICE, or multiple parties within, acted outside the scope of their mandate, and Brumfield v. Sanders no longer applies, sue the govt. for defamation, enjoy a nice relaxing rest of your life on a beach somewhere?

Adam Wasserman (profile) says:

Re: Re: Re: Re:

I see, you were referring to Westfall.

I will simply point out that any fool can use Westlaw (and I count myself amongst those fools) but a rigorous legal analysis requires more than just one citation.

The Westfall Act and the various provisions of 28 U.S.C. would also at first glance seem to preclude any award of damages to Steve Jackson Games (Steve Jackson Games, Inc. v. United States Secret Service) and yet Jackson prevailed with the District court awarding $50k in damages and $250k in legal fees no less. This award withstood appeal,and so we must conclude that immunity under 28 U.S.C. is not unlimited and may not be assumed i all cases.

It is also worth pointing out (and I will below) that the raid and seizures on Jackson were conduced under the justification of preventing the dissemination (publication) of a “stolen” document from Bell South. Sound at all familiar?

Anonymous Coward says:

Re: Re: Re:2 Re:

I see, you were referring to Westfall.

I will simply point out that any fool can use Westlaw (and I count myself amongst those fools) but a rigorous legal analysis requires more than just one citation.

The Westfall Act and the various provisions of 28 U.S.C. would also at first glance seem to preclude any award of damages to Steve Jackson Games (Steve Jackson Games, Inc. v. United States Secret Service) and yet Jackson prevailed with the District court awarding $50k in damages and $250k in legal fees no less. This award withstood appeal,and so we must conclude that immunity under 28 U.S.C. is not unlimited and may not be assumed i all cases.

It is also worth pointing out (and I will below) that the raid and seizures on Jackson were conduced under the justification of preventing the dissemination (publication) of a “stolen” document from Bell South. Sound at all familiar?

Fair enough. I never claimed to be any kind of expert on the FTCA. As advertised, my knowledge of it is about 30 seconds deep, in fact. My point was that I seriously doubt Lofgren knew that generally the U.S. is immune to defamation when she was grandstanding about how those mooo.com licensees should sue the government for defamation. My sense is that she’s just scoring political points, not making cogent legal arguments.

Adam Wasserman (profile) says:

Re: Re: Re:3 Re:

“My point was that I seriously doubt Lofgren knew that generally the U.S. is immune to defamation “

Why do you seriously doubt this? Do you know something about Ms. Lofgren’s abilities as a lawyer that I do not?

All I know is that she graduated J.D. cum laude, and among many other things a staff assistant to Congressman Don Edwards, in whose office she worked on, among other projects, the attempted impeachment of Richard Nixon. So I assume she would have studied United States v. Nixon where Nixon claimed immunity from rule of law regarding his disinclination to turn over the Watergate tapes. In this case the Supreme Court rejected Nixon’s claim to “an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”

What I am saying is that Ms. Lofgren is likely to have studied the question of immunity of public officials from prosecution.

I am not sure of the time-line, but I suspect she also was familiar with U.S. v. Isaacs, wherein the 7th. Circuit Court of Appeals upheld the conviction of former Gov. Otto Kerner, stating in their judgment that “there is no such legal theory as ?absolute immunity from criminal prosecution of a public official recognized by the courts in the United States.”

So you may wish to reconsider, or at suspend, your opinions on both Ms. Lofgren and the absolute immunity of public officials from prosecution.

Jesse (profile) says:

Re: Re:

“Now she’s saying it’s prior restraint. A century’s worth of case law unwaveringly says otherwise when it’s criminal copyright infringement. Funny how she leaves that part out (as do you).”

Who has proven criminal anything? Nothing has been proven, much less to a criminal level. This is speech restricted prior to any sort of criminal charge, much less conviction. Why is that so hard to recognize?

Anonymous Coward says:

Re: Re: Re:

Who has proven criminal anything? Nothing has been proven, much less to a criminal level. This is speech restricted prior to any sort of criminal charge, much less conviction. Why is that so hard to recognize?

All that’s needed is probable cause for seizure and forfeiture in a criminal copyright infringement case:

Although a criminal conviction would generally suffice to demonstrate probable cause, such a conviction is not a prerequisite to a civil forfeiture proceeding. Once the government establishes probable cause, the burden in forfeiture proceedings shifts to the claimant. The claimant then must demonstrate by a preponderance of the evidence that the defendant property was not involved in illegal activity. If the claimant fails to meet this burden, the government’s showing of probable cause alone will support summary judgment of forfeiture.

United States v. One Sharp Photocopier, 771 F.Supp. 980, 983 (D.Minn. 1991).

Jesse (profile) says:

Re: Re: Re: Re:

Even if that’s the case, embedding has never been established as criminal infringement. Inducing infringement is at most a civil matter.

I’m still confused because you are talking about civil forfeiture proceedings and then you talk about criminal convictions. I must not have a strong understanding of civil vs criminal.

Also does the “claimant” = “plaintiff?” And why does a defendant need to prove the absence of illegal activity? That seems backwards…

Lastly, when was the defendant ever given the opportunity to even prove innocence (as backwards as that sounds). It’s been months since the seizures and we have seen almost no proceedings.

Since when does “rubber stamp” equal “probable cause?” If there was probable cause, how did so many thousands of innocent websites get seized?

Karl (profile) says:

Re: Re: Re:2 Re:

Even if that’s the case, embedding has never been established as criminal infringement. Inducing infringement is at most a civil matter.

You probably want to use “contributory” or “vicarious” infringement. “Inducing” was used in Grokster (only), but that was a civil case, and that ruling sometimes used the three words interchangeably. The word “inducing” is part of the “aiding and abetting” language in criminal law, but the two standards are not remotely the same.

Other than that, you’re correct. Embedding (called “inline linking” in the courts) does not pass the “server test,” the test used to determine who is the primary infringer. Furthermore, post factum embedding, by itself, is not “providing aid” to the primary infringer. (Google v. Perfect 10.)

I’m still confused because you are talking about civil forfeiture proceedings and then you talk about criminal convictions. I must not have a strong understanding of civil vs criminal.

“Civil forfeiture” does not mean “forfeiture in a civil case.” It means, in layman’s terms, “forfeiture during the course of a criminal case, but before a conviction.” “Criminal forfeiture” means “forfeiture as a result of a conviction.”

Also does the “claimant” = “plaintiff?” And why does a defendant need to prove the absence of illegal activity? That seems backwards…

“Claimant” in this case means “a person who has a claim on the seized property,” which is almost always the defendant. As for the rest… backwards or not, it’s how the law works. (Keep in mind, though, that being found innocent of criminal charges will invalidate the seizure… assuming you’re charged.)

Lastly, when was the defendant ever given the opportunity to even prove innocence (as backwards as that sounds). It’s been months since the seizures and we have seen almost no proceedings.

Agreed. Apparently, ICE thinks that if the defendants are ever given a chance to defend themselves, everything’s peachy keen, even if “ever” means “whenever we feel like it.”

Since when does “rubber stamp” equal “probable cause?” If there was probable cause, how did so many thousands of innocent websites get seized?

To many law enforcement agencies, “probable cause” means, essentially, “because we say so.” It’s supposed to be the job of a judge to read the affidavit and determine whether the officers actually have probable cause, or are abusing their authority. Obviously that didn’t happen. Unfortunately, it often doesn’t.

Anonymous Coward says:

Re: Shilling... and you're EATING IT UP.....

Doesn’t there have to be a court case to determine if criminal copyright infringement occurred???? Or are you living in some ‘government utopia’ where anything the government says has to be 100% true and accurate and they would never mislead or misrepresent to push their own agenda.

Or are you just bending over grabbing your ankles and hoping that our government is really ‘here to help you’ (the are here for something, but it isn’t to help, assume the position and they will show you what they are good at)?

There can’t be any legal analysis done when there haven’t been any charges leveled or any court case brought…. do you need to go to back to grade school the basics of cause and effect?

Anonymous Coward says:

(such as in the seizure of Torrent-Finder, a search engines, which suggests the government could just seize Google if it wanted to).

I laughed so hard. Whoever thinks that is an idiot, plain and simple. Google is not a torrent-specific search engine. Also, torrents are, even if some of you please will claim otherwise, mainly a means to distribute “illegal” content; Google is not.

At least argument properly if you want to defend us users.

Anonymous Coward says:

Re: Re: Re:

Actually, torrent search engines are not the issue. They are just a subset of search engines such as Google.

Where the torrent sites get into trouble is that many have gone far beyond just regurgitating search results. Search for a torrent using Google and what you get is a list. Search for a torrent on some of the torrent sites and you get a whole lot more. It is the “whole lot more” that is at issue in court cases.

Steven (profile) says:

Re: Re: Re:

Torrents are also the primary means to distribute most open source software (outside of the various Linux distro installers). The technology (not sure about the actual file format) is used to distribute tons of game content behind the scenes.

I’ll grant that much of the torrent traffic is copyright infringement, but that is also a civil matter and is (as has been shown in several studies) generally harmless if not helpful.

Anonymous Coward says:

Re: Re: Re: Re:

Not that many, because, ovbiously, mostly illegal content is available. As to the opensource comment, why??? Who in the right mind would use a torrent when you have lightning fast FTP, HTTP, CVS, SVN, GIT, etc…………… most REAL developers won’t use torrents to spread their work.

Jose_X (profile) says:

Re: Re: Re:2 Re:

>> most REAL developers won’t use torrents to spread their work.

If you have limited funds and don’t get sponsorship, what option do you have? You can use torrents to spread an initial bundle and then rely on much smaller delta transfers afterward. And torrents are extremely fast if you have various people seeding it as happens frequently for popular distros isos. For those developers (and anyone else) who want to provide large official packages (eg, major data dumps), torrents can be a lifesaver.

p2p are also used by open search services already in order to scale the effort out among individuals and small businesses who aren’t extremely wealthy like Google and other major firms. More new uses will keep popping up as more individuals begin to participate in content creation, hosting, and sharing (even automatic sharing with friends and family). Specifically p2p is the poor-man’s distribution means. Important in order to keep a check on data only being accessible in large quantities from major providers.

My experience with p2p is for open source not Hollywood, so I naturally wondered why this person was ignoring the utility of legal torrents.

Anonymous Coward says:

Re: Re: Re:2 Re:

Really? Okay, so, distributing the upload bandwidth equally among fans to lower your own costs AND increase speed (believe me, FTP, HTTP, etcetera aren’t that great) makes it illegal to you?

I’m sure I can find plenty of REAL developers who use torrents. But, like you, I don’t feel like doing the work for you.

Anonymous Coward says:

Re: Re: Re:

Wow, you can quote a wiki page while being oblivious to its contents. -100 for you.

Adoption:
Hollywood – To try to battle piracy.
Broadcasters – To try to battle piracy.
Personal – Ok, you got me. +1 back.
Software – To try to battle piracy.
Government – Only example clearly states “used” (past tense). Find another one now.

Capitalist Lion Tamer (profile) says:

Re: Re:

The government could seize Google if it wanted to. ICE and the DHS are operating with what appears to be no oversight.

I can find “illegal” content with any search engine. It may be less streamlined than a torrent-only engine, but it will still find content, whether it’s at Rapidshare or Mediafire or wherever.

We already know various news companies are irritated that Google aggregates news and links to their sites. And if they’ve already seized domains just for having links to infringing material, how does a search result differ? It’s all links.

Oh, but it’s so tenuous, I hear you complain. And the person has to actually search for the infringing content. You have to perform your own searches at a torrent-specific engine and follow the links. Just because the word “torrent” isn’t present in the word “google” doesn’t mean they both do pretty much the same thing.

And, if nothing else, the US government and the major movie/music industries have proven already that they’re willing to move on even tenuous connections.

Trails (user link) says:

Re: Re:

“Also, torrents are, even if some of you please will claim otherwise, mainly a means to distribute “illegal” content;”

Yes, and those insidious world of warcraft patches!!

There’s two stupid things about trying to fault torrents:
1) It is an efficient means of distributed data transfer, and is agnostic to what data is being transferred. It has many legitimate uses.
2) Suppressing torrents, assuming that was practical(it’s not), would just give rise to another exchange mechanism.

Berenerd (profile) says:

Re: Re:

Ummm…so you are saying that Blizzard updating their game clients is illegal? Windows update (newer than the versions in XP) is illegal? They all use Torrent files. Linux distributes in torrent files as well. I offer pictures I take at conventions (like this weekend at PAX) via torrent…

I am curious if you still feel its all illegal?

Anonymous Coward says:

Re: Re:

A torrent search engine is amorphous to, they should not be liable for what others do even if the majority is about illegal content, there is still legal content that they do index and as long as they don’t guide you to only illegal material why are they different from Google?

They are not and if they go down so will Google in the future and BTW Google can be used to search for only torrents and they will find the same illegal material that others do are they responsible or not? Because if they are so is Bing, Yahoo, Baidu, Altavista and others, they all have those capabilities.

Google query:

green lantern filetype:torrent

Jesse (profile) says:

Re: Re:

Where’s the threshold? At what point, legally, does a search engine become seizable? What proportion of usership must be using the search engine for illegal purposes to outlaw the search enginge entirely? Please give me a precise, legal definition oh holy-knower-of-all-things-law-related.

Or maybe it has something to do with the name? If the name just sounds kinda illegalish, then it’s seizable? A “torrent” here, an “iso” there, throw in a dash of “pirate” and “bay” and presto magic, you’ve got yourself and illegal search engine!

Anonymous Coward says:

Re: Re: Re: Re:

Still, even though Mike loves the “Insightful button” sometimes for no apparent reason than liking the commenter, even with your mistake, you’re the most insightful post here. You’re the only one taking a real “out of the box” look at things with a neutral view.

You have to admit though, that sites like “torrentleech” or “feedthenet” that specialize in illegal content, (I could name countless others) create a “bad name” and “bad reputation” to the entire torrents system. Sure, some will distribute legit files, but that’s a tiny minority, as stated earlier.

So, how do you dissociate from the “bad”? It’s reputation is made, to gov and industries alike, as the enemy. How do you spin its bad name into a good one?

Also, we need to consider the fact that google was built as an indexer (to search through). How can ThePirateBay or ISOHunt compare to that? They were clearly built (or rebuilt) to help distribute illegal files. I agree there’s a fine line to cross, but simple judgment is enough to recognize the difference between the search engines. Even for ICE, which proved beyond the shadow of a doubt that they have no brain, this should be a nobrainer!

Jose_X (profile) says:

Re: Re: Re:2 Re:

Why do some AC continue to ignore that 17 USC 107 exists, making the download of any digital data a distinct matter from a criminal action?

You can’t apply 107 without the download first.

And the download need not be authorized since 107 specifically involves acceptable non-authorized uses (and many people wish not to be tracked or register with others if they can avoid it.. so p2p networks would be more convenient and obviously very useful when no central source exists).

Part of the fight against p2p is a fight against competition by smaller less well-funded entities. Remove the ability for people to share efficiently with each other bypassing major players like Facebook or whomever.

Anonymous Coward says:

Sadly, this is a politician attempting to “ride a story” rather than actually trying to do anything about the situation. The legal theories she tosses out have been killed off here already, even by basic law students.

More than anything she is sounding much more dangerous that your typical Washington type with no tech knowledge: She sounds like she has just enough knowledge to be dangerous, and not enough to know why.

Mike, why do you fall for what you would consider meaningless thrashing if it came from the other side of the debate?

The eejit (profile) says:

Re: Re:

You mean like Bradley Manning, the ‘Traitor of the Military’?

OR like Bush, the second most corrupt Governor in Tezas-state history?

OR like that crazy Saddam bloke who had smallpox and nuke and was willing to use them, honest, guv, it wasn’t that we were making shit up!

OH, and by the way; if her arguments have been killed off by law students, then the same can be done for the seizures themselves, as they’re based on the same law inverted. Nice work.

deadzone (profile) says:

Re: Re:

“More than anything she is sounding much more dangerous that your typical Washington type with no tech knowledge: She sounds like she has just enough knowledge to be dangerous, and not enough to know why.”

AC – look in the mirror as this basically describes you. I will concede that you seem more close minded and ignorant though.

Killer_Tofu (profile) says:

Re: Re:

ACs will NEVER be considered even basic law students. Just wanted to point that out for you. I still have yet to hear an actual debunking beyond “FUD, IRRELEVANT!”.
The large arguments set out by those that techdirt links to (try reading full articles once in awhile and clicking through) seem very much more convincing then anything I have read here by an AC.

Anonymous Coward says:

An open letter to IP maximalists

Dear suckers,

Thank you so much for pushing this legislation that removes the due process safeguards of adversarial hearings. I’ll enjoy having ICE seize your movie studio, record label and software company websites when it passes. Hopefully the final legislation will let us seize your bank accounts, advertising revenue, search engine placement and your little dog too. Muahahahahaha!

Signed,
All copyright, patent and trademark trolls

Anonymous Coward says:

Be sure to read the full Ars Technica article if you haven’t already. There’s a few more interesting tidbits, like this one:

You know, these guys in the content industry, they came to us when I was in the Congress when we did the Digital Millennium Copyright Act. They wanted to go farther; at one point, the original draft outlawed Web browsing, which I thought was interesting.

herodotus (profile) says:

You know, I LOVE the law students who come here and make fun of everyone who isn’t a lawyer for voicing an opinion about the laws of our republic.

It’s almost like they think that lawyers (and law students, even) should be able to determine the legal structure of our society without any input at all from the citizens who live in it.

But such arrogance is unconscionable.
Isn’t it?

Karl (profile) says:

Re:

logically conflated

So, why aren’t you criticizing the guy who said that copyright infringement was akin to bank robbery?

He presented a hypothetical scenario involving the First Amendment, and so did I. It’s not “conflation,” it’s analogy.

I noticed you dodged the question, too. Aiding and abetting drug trafficking certainly does not have more First Amendment protection than copyright infringement does. So, in my hypothetical situation, should the DEA be allowed to seize High Times?

If indeed that would be prior restraint, why shouldn’t these seizures – by your own standards – be considered prior restraint as well?

Anonymous Coward says:

Re:

there is no way to make an “objective determination” of their legal status?

At yet, since the 80s, courts have routinely issued ex parte seizure orders in civil infringement cases. Why? Because it’s quite easy to make an objective determination.

That point was made is an article I read last night: Jules D. Zalon, Ex Parte Seizure Orders: Don’t Kill the Goose That Laid This Golden Egg!, 23 Colum.-VLA J.L. & Arts 181 (1999).

In that paper, author notes that the paucity of published opinions about such seizures is not an indication that they are not commonplace. It’s just the opposite. As the author states: “Ironically, the very ease with which these orders are granted probably explains the dearth of cases upholding the procedures.”

The author also notes that he himself has personally obtained 200 such orders from courts. All ex parte. All without a prior adversary hearing. And all without First Amendment scrutiny.

Karl (profile) says:

Re:

Mike posted the letter to Rep. Lofgren that explained there were thousands of infringing works on that site. They have more evidence than just four songs, Karl.

The letter was from the RIAA, the same people who wrongly claimed the files were infringing. They’re hardly a source with clean hands.

And if they had more evidence than those songs, they should have put them in the affidavit. The seizure is only valid insofar as what was actually presented in the affidavit itself.

And I have repeatedly said that I am only talking about the seizure, not the case as a whole.

Modplan (profile) says:

Re:

http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/cjla23&div=15&id=&page=

From that first page offered by them:

The willingness of judges to grant these orders so easily is a double-edged sword. This article will describe the development of ex parte seizure orders and will raise a warning flag to litigators who believe that such orders will be automatically granted. Such an attitude, should it become pervasive, could well create hostility among judges, a hostility which might presage a stricter scrutiny of TROs.

https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=23+Colum.-VLA+J.L.+%26+Arts+181&srctype=smi&srcid=3B15&key=6aff897c302e06f190fda2b4ecfa01f9

The very first example given is counterfeiting, not copyright infringement, and the opening of the article appears to reference such a degree of ease as specifically being a double edged sword, not something that should be held up or meets a genuine legal standard.

Modplan (profile) says:

Re:

Related and critical article I found:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1310726

The Never-Ending Seizure Order: How Courts Have Granted Immortality to Congress’s Mayfly

When Congress passed the Trademark Counterfeiting Act of 1984, it created a new means of combating counterfeiting: the ex parte seizure order. Armed with such an order, trademark owners can seize counterfeit merchandise without giving advanced notice. Congress, aware that such a process could lead to abuse, created several express limitations to the seizure process. One such limitation was that seizure orders shall not last longer than seven days. Courts, however, are extending the life of seizure orders; some extensions last only days, others months, and still others go on for years. Under what authority have the courts so extended seizure orders, thereby thwarting what appears to be Congress’s clear intent that seizure orders under the Act last no longer than seven days? This Article details the problem that led to the Act’s passage, Congress’s goals embodied within the Act and its legislative history, the way courts have treated the Act and its newly minted seizure process, and the possible reasons why courts have found it within their power to extend seizure orders. Chief among these reasons is the breakdown of the adversarial process in counterfeiting suits, which often proceed only as Trademark Owner v. Various John Does.

Karl (profile) says:

Re:

At yet, since the 80s, courts have routinely issued ex parte seizure orders in civil infringement cases.

Are we talking about civil cases now? Because if so, then the “exigent circumstances” conditions must be met, and the seized items limited in scope. At least under the current seizure laws.

If we’re talking about civil seizures in criminal cases: I believe it was you that also posted the quotes from the Nimmer article in Entertainment Law Reporter. I’d like to quote (selectively, I’ll admit) from that same article:

Although, as Groucho learned to his peril, virtually any copyright infringement can give rise to criminal charges, few in fact actually do.

The reason that emerges from our review of the statutory criminal offenses for copyright and trademark crimes is that, given their infrequency, some special circumstance must catch the prosecutor’s eye. An ordinary infringement, albeit technically criminal, will be overlooked by the authorities in favor of civil remedies.

Thus, the character of the defendant, his offense, and his history of similar offenses will determine what action is taken; if a general rule is needed, run-of-the-mill infringements will not be prosecuted, while egregious, willful, repeated, sophisticated violations will give rise to criminal charges.

As we have already seen, the prosecutor needs more than a technical violation of a law on the books to spur him or her to action, and the goad that usually suffices is a violation that is egregious, willful, repeated, or sophisticated.

Though the mere fact that he is an egregious and sophisticated violator probably will draw an indictment against the infringer, it cannot hurt to emphasize other noteworthy features. Thus, instead of merely recounting a target’s act of infringing your client’s motion picture copyright, you will meet a quicker response if you can (truthfully) inform the authorities that the target, besides making copies of your movies, also is engaged in selling drugs in high schools and helping his brother to ship high-tech weapons to Iran.

Given all that: how many of the defendants were also publishing content that was not even allegedly infringing? Did the seizures also remove their ability to publish that non-infringing content? Were any First Amendment challenges raised in regards to that content? Were any seizures overturned on such grounds?

It’s not a rhetorical question, I’d really like to know. So far, I haven’t found a single case that meets these criteria.

Karl (profile) says:

Re:

That point was made is an article I read last night: Jules D. Zalon, Ex Parte Seizure Orders: Don’t Kill the Goose That Laid This Golden Egg!, 23 Colum.-VLA J.L. & Arts 181 (1999).

I found a copy of it online (PDF). It’s a very good read.

Spoiler alert! Here’s how it ends:

Congress never intended for the seven-day seizure order to become a substantive remedy unto itself. Rather, it was to be an evidentiary tool – a process by which trademark owners could prove infringement without the theretofore inevitable destruction of evidence. To use the seizure order as a substantive remedy unto itself is, to borrow a phrase, to use it as a sword, rather than a shield.

Modplan (profile) says:

Re:

You might find this one interesting too (haven’t read it myself yet):

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1558518

From the summary:

In this Article, we posit that the modern counterfeiting action has, in all but name, become an in rem action. Trademark owners and courts, however, continue to handle counterfeiting cases with only in personam procedures. The implications of this disconnect are myriad. In particular, the kinds of seizure and destruction orders routinely issued almost certainly violate the Due Process Clause and the Fourth Amendment. The solution to this dilemma is to call the modern counterfeiting action what it is – an in rem action, concerned only with the counterfeit goods – and to act accordingly by putting the proper procedures into place.

Anonymous Coward says:

Re:

And if they had more evidence than those songs, they should have put them in the affidavit. The seizure is only valid insofar as what was actually presented in the affidavit itself.

I’m not an expert on procedure by any means, but I believe that even if they get the seizure warrant thrown out, the government will be able to use the thousands of other pieces of evidence they have to make the seizure/forfeiture stick. The warrant was only for the domain name. It wasn’t for any records or anything like that. There is no “fruit of the poisonous tree” doctrine that’s going to help them throw evidence out.

Anonymous Coward says:

Re:

Are we talking about civil cases now? Because if so, then the “exigent circumstances” conditions must be met, and the seized items limited in scope. At least under the current seizure laws.

The criteria for the seizures is explained in that article. Of note is that possible First Amendment defenses are irrelevant.

Given all that: how many of the defendants were also publishing content that was not even allegedly infringing? Did the seizures also remove their ability to publish that non-infringing content? Were any First Amendment challenges raised in regards to that content? Were any seizures overturned on such grounds?

It’s not a rhetorical question, I’d really like to know. So far, I haven’t found a single case that meets these criteria.

Surprising few First Amendment challenges are reported. I think the lack of such reports is just a sign that the bad guys don’t usually mount defenses in the courts. Not to mention the arguments have little merit. The challenges are usually due process arguments.

Anonymous Coward says:

Re:

The letter was from the RIAA, the same people who wrongly claimed the files were infringing.

For the last time Karl, an email from a record label employee (which I still haven’t seen) authorizing the blog to release the songs is not valid digital distribution license or authorization on behalf of the record label (the copyright owner), and yet you continually act like it’s a slam dunk, non-issue. Have you really researched the issue sufficiently enough to say to a legal certainty that the files were non-infringing? Have you even seen the alleged authorization from the record label?

The only songs he downloaded were the four that were sent in by the label reps.

From page 3: “This affidavit is intended merely that there is probable cause and does not purport to set forth all my knowledge of or investigation into this matter.” Seems to me like he may have done more than download four songs, which in any event (as I mentioned before) were likely NOT authorized in the first instance.

Anonymous Coward says:

Re:

It’s possible – not certain, but possible – that this couldn’t happen under the current statutes.

Except you haven’t actually shown why, except to say that the forfeiture statute section has moved. You mentioned something about the 60 day return rule, but haven’t shown how that applies or changes the analysis. Again, Karl, it’s not enough to simply say “it moved, and some requirements are different.” Unless you can show that there has been a substantive change in the law which would render the prior case law irrelevant, you better believe a judge will rely on case law like One Sharp Photocopier. The government still does not need to prove an underlying criminal copyright violation in order to seizing property, which you insisted was untrue. How has that changed under the new code section? Are you prepared to admit you were wrong on this major point?

If anything the burden of proof was lowered in 18 USC 983 to require the government show that the property is subject to forfeiture based on a preponderance of the evidence, not probable cause. 983(c)(1).

the burden initially rested on the government to show probable cause. And there was a whole lot more to this case.

Right, and we haven’t yet seen the full criminal complaints here. There is more to these investigations besides the affidavits, just as there was in the case cited.

On the other hand, it’s clear that the judge did not take the First Amendment into account

Agreed. But perhaps that’s because there isn’t a solid case to be made. I know you and Mike think it’s a no-brainer, but lawyers and defendants have faced nearly identical forfeitures in other criminal copyright contexts (and in many cases where the stakes were much higher) and chosen not to challenge the statutes on First Amendment grounds. Perhaps there is a reason.

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