Rojadirecta Sues US Government, Homeland Security & ICE Over Domain Seizure

from the with-top-notch-legal-support dept

This morning, we wrote about the list of sites that ICE knew was challenging its domain seizures, and some people complained that there still were no details. There’s been a lot happening behind the scenes, but the first bit of public information is now available, as the company behind Rojadirecta, Puerto80 has officially filed suit against the US government, demanding the return of its domains. Not only that, but it’s brought on some top notch legal talent to help them. The company is represented by Ragesh Tangri and Mark Lemley from Durie Tangri. If you’re at all familiar with intellectual property law, you know who Lemley is, and know the level of respect he gets within intellectual property circles. In fact, it’s interesting to note that one of Lemley’s papers is one that we’ve seen frequently cited by those who believe the domain seizures are legal. The fact that he’s arguing on the other side seems pretty telling.

As for the filing itself, it details the stalling by the US government that we pointed out last month:

Contrary to the grounds on which the domain names were seized, the Rojadirecta site is not violating copyright law, let alone criminal copyright law. Rojadirecta explained this to the government when, on February 3, 2011, it sent ICE and the Department of Justice a letter requesting immediate return of the subject domain names pursuant to 18 U.S.C. ? 983(f). Following that letter, counsel for Puerto 80 Projects, S.L.U. (?Puerto 80? or ?Petitioner?), the company which owns the sites, repeatedly tried to discuss the seizure with the government, but was unable to engage with the government until it notified the U.S. Attorney?s Office of its intent to seek a temporary restraining order and file a petition for immediate return of the seized domain names. It was not until then that Puerto 80 was able to have a substantive conversation with the appropriate officials. Hoping to avoid burdening the court, Puerto 80 held off filing the instant petition pending the outcome of those negotiations. On May 26, 2011, the government informed counsel for Puerto 80 that the only acceptable ?compromise? would entail Puerto 80 prohibiting its users from linking to any U.S. content anywhere on its sites. Because this ?solution? would prohibit Puerto 80 from engaging in lawful acts not prohibited by copyright law, Puerto 80 chose instead to challenge the seizure in court.

The filing notes that it is asking the court to speed up the process, as it tried to be patient, but the delays in reclaiming the domain are harming Puerto 80’s business. It also notes that “in hopes of avoiding having its property tied up in lengthy forfeiture proceedings, Puerto 80 decided to engage in good faith negotiations with the government and held off filing the instant petition pending the outcome of those discussions.” It then lists out all of the detailed attempts to get the domains back. It involves multiple attempts by Puerto 80’s lawyers to discuss this with the Justice Department, and as we heard from pretty much all the sites in this process, talking to anyone substantial proved to be quite difficult. It also notes that “the government attempted to dissuade Puerto 80 from filing anything in district court.” That supports our contention that the government really wanted to avoid a legal challenge…

As for the specific legal arguments, it starts out by pointing out that under the rules for seized property, there are certain conditions under which the seized property should be returned — with a key one being that “the property will be available at the time of the trial.” As we’ve discussed at length, the key official reason for seizures is to preserve evidence. That’s why this is a key element here: if the evidence will be there, there is no reason for the seizure.

Then out come the big guns, starting with the claim (as we’ve suggested in the past) that the seizure represents unlawful prior restraint (i.e., a violation of the First Amendment). Here’s a big chunk of the filing, included in its entirety (minus footnotes), because it’s quite interesting:

The seizure imposes another hardship on Puerto 80, in that it constitutes an invalid prior restraint and suppresses its users? and readers? protected First Amendment activities. See Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63 (1989) (?[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 . . . ., it is otherwise when materials presumptively protected by the First Amendment are involved.?). See also Maryland v. Macon, 472 U.S. 463, 468 (1985) (?The First Amendment imposes special constraints on searches for and seizures of presumptively protected material, and requires that the Fourth Amendment be applied with ?scrupulous exactitude? in such circumstances.?) (internal citation omitted); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326, n.5 (1979) (noting that the First Amendment imposes special constraints on searches for, and seizures of, presumptively protected materials). In Fort Wayne, state and local officials (respondents) filed a civil action pursuant to Indiana?s RICO laws, alleging that the defendant bookstores had engaged in a pattern of racketeering activity by repeatedly violating Indiana?s obscenity laws. 489 U.S. at 50-51. Prior to trial, respondents petitioned for, and the trial court granted, immediate seizure of the bookstores pursuant to a state law that permitted courts to issue seizure orders ?upon a showing of probable cause to believe that a violation of [the State?s RICO law] involving the property in question has occurred.? Id. at 51. On appeal, the Supreme Court held that the pretrial seizure order was unconstitutional, stating that ?mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation.? Id. at 66. As in Fort Wayne, the government here has seized an entire business and effectively suppressed all of the expressive content hosted on it, including political discussions, commentary, and criticism by the site?s users?without it being determined whether the seizure was ?actually warranted? under the relevant statutes. Id. at 67.

In Center for Democracy & Technology v. Pappert, 337 F. Supp. 2d 606, 619 (E.D. Pa. 2004), the Eastern District of Pennsylvania struck down, on First Amendment grounds, a Pennsylvania statute that permitted the state?s Attorney General or a district attorney to seek a court order requiring an Internet Service Provider (?ISP?) to ?remove or disable items residing on or accessible through? the ISP?s service upon a showing of probable cause that the item constituted child pornography. The district court found that the statute imposed an unconstitutional prior restraint on speech. It concluded that under Fort Wayne Books and Bantam Books v. Sullivan, 372 U.S. 58 (1963), a court must ?make a final determination that material is child pornography after an adversary hearing before the material is completely removed from circulation.? Pappert, 337 F. Supp. 2d at 657 (emphasis added). The court further noted that the state statute ?allow[ed] for an unconstitutional prior restraint because it prevents future content from being displayed at a URL based on the fact that the URL contained illegal content in the past.? Id.

In the instant case, the government effectively shut down an entire website, suppressing all of the speech hosted on it, based on an assertion that there was probable cause to believe that some of the material linked to by the website (though not found on the website itself) might be infringing. The site?s owner was not provided any advance notice, nor was he provided the opportunity to contest the seizure before (or, for that matter, shortly after) the government shut down the site. Nor were the site?s users afforded any notice or opportunity to contest the seizure. Because case law is clear that ?mere probable cause to believe a legal violation has transpired is not adequate to remove [protected material] from circulation,? Fort Wayne, 489 U.S. at 66, the seizure of the expressive materials in this case violates the First Amendment. See also Pappert, 337 F. Supp. 2d at 657 (finding that a procedure that permits a judge to make an ex parte finding of probable cause that material is child pornography, with no opportunity for the content publisher to receive notice or be heard, violates the First Amendment). This First Amendment deprivation extends not just to registered users of Rojadirecta, but also to anyone wishing to visit the website. See, e.g., Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976) (?[T]he protection afforded is to the communication, to its source and to its recipients both.?); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969) (?It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences . . . . That right may not constitutionally be abridged . . . .?).

If you want the key bit, it’s from that third paragraph above. One of the footnotes also points out (as we’ve noted elsewhere) that the government appears to have made up, whole cloth, the idea that linking to infringing content can be seen as criminal infringement:

Indeed, several courts have held that the act of indexing and linking to copyrighted material? which was the government?s basis for seizing the domain names?is not direct or indirect copyright infringement. See Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006); see also Ticketmaster Corp. v. Tickets.com, Inc., No. CV 99-7654 HLH(BQRX), 2000 WL 525390, at *2 (C.D.Cal. Mar. 27, 2000) (finding that hyperlinking to other sites does not constitute direct infringement); Arista Records, Inc. v. MP3Board, Inc., No. 00 CIV. 4660, (SHS) 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002) (unreported) (linking to content does not implicate distribution right and thus, does not give rise to liability for direct copyright infringement); Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195, 1202 n.12 (N.D. Cal. 2004) (?Hyperlinking per se does not constitute direct copyright infringement because there is no copying.?).

Finally, the filing points out that the domain names did not meet the conditions set out under US law to qualify for seizure in the first place, saying that it is not contraband, evidence, “particularly suited for illegal activities” or “likely to be used to commit additional criminal acts.” That last one, I assume, is the one that most supporters of the seizures will take issue with, but, the argument is again laid out in tremendous detail:

Puerto 80 does not host any infringing material on the websites which operate under the subject domain names… In the same way a search engine or other site which aggregates links to existing material on the Internet, Rojadirecta provides an index of links to streams of sporting events that can already be found on the Internet through a search for those sites or simply by typing the URL for the site directly. Id. Such activity does not constitute direct copyright infringement, much less criminal infringement. See supra, at note 8. Indeed, United States Senator Ron Wyden (D-Or) made this point in a letter he wrote to ICE Director John Morton and Attorney General Holder expressing concern over the government?s seizure of the subject domain names….

Puerto 80?s operation of the Rojadirecta site does not constitute contributory infringement because the subject domain names are capable of?and are, in fact, used for? substantial non-infringing uses. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, reh?g denied, 465 U.S. 1112 (1984); Arista Records LLC v. Lime Group LLC, 715 F. Supp. 2d 481, 517-18 (S.D.N.Y. 2010) (summary judgment inappropriate where material fact existed as to whether file-sharing program, which was ?used overwhelmingly for infringement,? is ?capable of substantial non-infringing uses.?).

Nor is Rojadirecta a site devoted simply to linking to such streams. In addition to providing a forum for discussion on sports, politics, and a variety of other topics, the Rojadirecta site enables users to post links to authorized sports broadcasts. For example, on Saturday, February 12, 2011, the Rojadirecta site (hosted on the rojadirecta.es domain name) provided a link to ?9:30am Hockey (NHL): Los Angeles ? Washington.?… Clicking on this link opened a new window for the Yahoo! sports website for the National Hockey League, and provided a live stream of the match between the Los Angeles Kings and Washington Capitals. Id.

Nor does Puerto 80?s operation of the Rojadirecta site constitute vicarious liability because it does not have ?a right and ability to supervise that coalesce[s] with an obvious and direct financial interest in the exploitation of copyrighted materials.? Softel, Inc. v. Dragon Med. & Sci. Commc?ns Inc., 118 F.3d 955, 971 (2d Cir. 1997) (quoting Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963) (emphasis added)). Puerto 80 does not receive any revenue that is derived from specific content hosted on, or streamed by, the sites to which it links…. In other words, Puerto 80 does not receive any revenue from any site to which a user can link from the subject domain names based upon the content of that site. Id. To the extent there is any site to which Rojadirecta links that contains infringing material, Puerto 80 receives no specific financial benefit from a user clicking through to that site and viewing such content…. Because Puerto 80?s revenues are not tied to whether or not infringing material is linked to or accessed, the government cannot show that Puerto 80 has a ?direct financial interest in the exploitation of copyrighted materials? which ?coalesce[s] with? any right or ability to supervise what is linked to on the site. See Artists Music, Inc. v. Reed Publ?g (USA), Inc., Nos. 93 civ. 3428(JFK), 73163, 1994 WL 191643, at *6 (S.D.N.Y. May 17, 1994) (direct financial benefit not established where defendant leased space at a trade show for a fixed fee to exhibitors who played infringing music, but defendant?s revenues were not dependant on whether exhibitors actually played music or what they played); Viacom Int?l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514, 521 (S.D.N.Y. 2010) (in DMCA safe-harbor context, ?financial benefit directly attributable to the infringing activity? not established ?where the infringer makes the same kind of payment as non-infringing users of the provider?s service?) (quoting Senate Judiciary Committee Report and the House Committee on Commerce Report, H.R. Rep. No. 105-551, pt. 2 (1998)).

Furthermore, the filing points out that the government totally failed to meet the requirements to show criminal copyright infringement, and notes that the government cannot show that Rojadirecta meets those requirements.

The full filing is embedded below, but I’ve pulled out most of the key points above… Earlier this morning we had supporters of the domain seizures insist that no one was actually filing lawsuits in the US over this. It will be interesting to see how they respond to this particular filing.

Filed Under: , , , , , , , ,
Companies: puerto 80

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Rojadirecta Sues US Government, Homeland Security & ICE Over Domain Seizure”

Subscribe: RSS Leave a comment
278 Comments
Jay (profile) says:

3:1 odds

I’m looking at Karl’s post along with David’s post.

It’s intriguing that three separate people, citing case law, come to a very similar conclusion.

Terry Hart says otherwise.

I’m very interested in seeing how this plays out. Will a judge understand what’s at stake, or will Terry’s procedural analysis equate to the justifiability of taking down sites with little regard to the 1st and 4th Amendments?

HothMonster says:

Re:

I have a feeling he will stay either:

1)Stay out of this comments section so he doesn’t have to admit he was wrong.

2)Insult the filing and say its all wrong and he can’t wait to see it batted down by the courts

3)Accuse Mike of making all this up

I certainly don’t see him saying “Well I was wrong, apparently there may have been some First Amendment issues and maybe these sites really do think they were in compliance with the law despite my previous allegations that they are all a bunch of dirty fucking thieves and would never challenge this because they knew they were wrong and they have no legal legs to stand on.”

On topic: busy day but I look forward to reading this filing on the train home.

Chris Rhodes (profile) says:

Waste of time..

I think this is the unfortunate truth of the matter.

1. The government does what it wants.
2. The courts almost never call them on it.
3. What are you going to do about it, serf?

Talk all you want; they don’t have to listen. Sue them and the courts will balk. Come election day, you’ll have a “choice” between their Republican stooge or their Democrat stooge, and through clever redistricting, even that non-choice has mostly been removed from you. Violence just gets you a spot on the news as a “terrorist”. What’s left?

Mike Masnick (profile) says:

Re:

Interesting the plaintiff’s cite CDT suing the government to make it harder to fight child porn.

Center for Democracy & Technology v. Pappert, 337 F. Supp. 2d 606, 619 (E.D. Pa. 2004)

Classy move

Interesting for the commenter above (why don’t you just admit who you work for) to misrepresent CDT v. Pappert in order to falsely associate anything having to do with free speech with child porn.

Classy move.

DannyB (profile) says:

If Rojadirecta has been in negotiations then the government lied

The government can claim that is totally different.

In order to make something totally different one must first add an infinitesimal microscopic particle of difference. Then it is and can rightfully be claimed to be totally different.

If terrorism is involved, the particle of difference can be imaginary. (Note terrorism automatically includes copyright infringement, interfering with obsolete business models, or thinking wrong thoughts.)

Gwiz (profile) says:

Re:

Interesting the plaintiff’s cite CDT suing the government to make it harder to fight child porn.

No, it’s actually more interesting that the plaintiffs cited a case that was struck down for being unconstitutional prior restraint on speech, even though it involved CP.

Regardless of how disgusting the crime may be, the laws to fight that crime MUST fall within the constraints of the Constitution. Period.

Jay (profile) says:

War is Peace

Mr DannyB, #51213-N0CR1M3

Your continued satire has come under heavy scrutiny. We, the government cannot have anti-subversives interfering with our groupthink. Your thoughtspeak seems incentivized for riots and as such, must be culled.

The crime of doublethink in government is not punishable by law and as such we hereby order you for re-citizen training. Your rations are directly proportionate with your love of Big Brother. War is Peace. Training begins at 0000 hours.

Anonymous Coward says:

So, where are the others?

And I don’t see how CDT is going to be considered, as the circumstances in that case (which did qualify as prior restraint) are not anything like these cases.

With regard to criminal infringement, I’m not sure that what was occuring has to be classified as direct infringement; the intent and scope of the site’s behavior could likely be what brings that charge.

Jay (profile) says:

Re:

“So, where are the others?”

They’re playing a game of cat and mouse, with the government holding all the cards.

“With regard to criminal infringement, I’m not sure that what was occuring has to be classified as direct infringement; the intent and scope of the site’s behavior could likely be what brings that charge.”

So then why hasn’t the government brought any charges?

Anonymous Coward says:

Re:

Agreed about CDT. The memo makes about the best arguments they can make, but I don’t think it’s enough to win the day.

As far as the criminal infringement goes, the memo points out that the site’s owners are not criminal infringers. That may be so, but it’s irrelevant. The domain name was seized because it was property used to commit criminal infringement. It matters not if the owner is the criminal.

I’m about halfway through the memo, and so far, I haven’t seen any argument that can’t be rebutted easily.

PrometheeFeu (profile) says:

I really really hope some people from ICE go to jail. I know it won’t happen, but I really hope they do. We should change the doctrine of qualified immunity and instead make officials personally responsible for their illegal actions. I’m sure a lot of people would act much more responsibly if they risked losing their house or or going to jail when they acted illegally.

xenomancer (profile) says:

Re:

Interesting that CP is similarly brought up as just a talking point by those seeking to undermine the First Amendment. Validating logical rule based solely on emotional appeals would have us back in the stone age. CP is already considered unprotected speech; stop trying to strip the rights of others for the illusion of your own self-satisfactory smug comfort.

[/rant]

Anonymous Coward says:

Re:

Falsely represent?

CDT sought to overturn Pennsylvania’s Internet Child Pornography Act (18 Pa Cons. Stat. 7621-7630). It argued that it constituted an unlawful prior restraint of free speech.

Why do you deny what is so obviously true? CDT fought to overturn a law directed exclusively at child pornography. Read the case for yourself.

You wisely fled the ensuing discussion after your article suggesting that a website that links to anything is OK, because the site itself host nothing illegal. You either do not realize or do not care that limitless “free speech” rights can have some pretty horrendous consequences. Maybe that’s Ok with you, not me however.

The Infamous Joe (profile) says:

Re:

You either do not realize or do not care that limitless “free speech” rights can have some pretty horrendous consequences. Maybe that’s Ok with you, not me however.

I agree wholeheartedly! Just typing the words “child pornography” should immediately result in the death penalty because if I copied and paste those words into google, I might find actual child pornography! Free speech speech is pro-CP! Down with free speech!

Chris Rhodes (profile) says:

Re:

I really really hope some people from ICE go to jail.

In the US, a SWAT team can get a rubber-stamped warrant detailing a seemingly innocuous crime but inexplicably allowing for a no-knock raid anyway, kick down the wrong door, unload their automatic weapons into innocent men, women, and children, destroy video evidence of the shooting afterwards by detaining witnesses and crushing their phones and if they are very, very unlucky, they might get a paid vacation out of it (I believe they call them “internal investigations”) while the police chief tries to round up the medals to pin on them.

You can’t even prosecute a DA here for arresting and charging people with crimes that don’t exist, and you think they are going to arrest some bureaucrat because he might have infringed on someone’s first amendment rights? Buwahahaha! You must be new here.

Anonymous Coward says:

Re:

I think the term Mike used was “falsely associate” not “represent.” And your comment was designed to falsely associate the Pappert case with efforts to “make it harder to fight child porn.” I presume you would similarly deride all 4th Amendment litigation as part of efforts to “make it harder to fight crime,” but that would be equally misleading.

The Pappert case is instructive for many reasons, including the detailed discussion of methods for blocking web content. It is a frequently-cited case for that purpose. It is not at all clear that the court’s decision made it harder to fight child porn. It just struck down one particularly clumsy attempt by a state government ostensibly aimed at doing so. It is therefore a good illustration that even where the stated purpose of a law is a noble one, the mechanisms the government employs to achieve taht purposes have to compete with other important interests, and must comport with the other parts of our law that protect fundamentally important principles (like the Constitution).

So yes, citing to the case is classy, without irony.

Jason says:

Re:

“You either do not realize or do not care that limitless “free speech” rights can have some pretty horrendous consequences. Maybe that’s Ok with you, not me however.”

Mike (nor anyone else here) has ever been a proponent of limitless free speech. Over…and over….and over he and others have argued for due process, especially prior to preemptive restraint.

Both the actions of ICE and the unfortunately poorly conceived PICPA were unconstitutional. That’s all. I think it’s okay to require and expect that our Constitutional Representative Democracy-ish government actually follow the Constitution.

Anonymous Coward says:

Re:

Well, from what I can see, the first amendment issues raised have been already asked in answered in other cases, where the courts have ruled that some protected free speech may be harmed incidentally to stopping unprotected speech. That is to say that you cannot operate a site that violates the law in a significant way, and attempt to hide behind a small amount of protected speech.

Prior restraint would also only apply if the appellant had no other options presented to them. Their servers were not taken, their offices were not raided, their work product was not removed. They can easily continue with their speech without restriction, except not with those domains pending a court case.

While the acts of indexing and linking to copyright material in and of itself has been accepted by the courts, those case have all been when looking at general indexes, and not specific cases. Sites that write blog posts that point specifically to infringing material on third party servers, and embed that content as part of their postings would certainly be going beyond mere indexing.

The scope of the material may be relevant as well. A site that is all about pre-release or hacked stuff by it’s own admission is aware that the material isn’t always legal. There is a point where they cannot claim the level of ignorance that a Google might be able to claim, as Google indexes everything, in an automated fashion. They don’t select links or write blog posts about them.

They are also fairly misleading about “Puerto 80 does not receive any revenue that is derived from specific content hosted on, or streamed by, the sites to which it links”, as people would not visit the Puerto 80 site unless this material is present. It’s disingenuous to pretend otherwise.

The filing is pretty much what was expected, and likely to get swatted down by the courts at every level, as the site owners end up on the stand trying to explain how they manage to be so ignorant about the very content their index, link to, and write about.

Anonymous Coward says:

Re:

Why would anyone from ICE go to jail? Were these sites not rife with illegal content, that to the naked eye would appear to be part of the site? Would the sites in question not exist for the major purpose of helping to prove access to illegally obtained content?

There is only one group headed for legal trouble, and it isn’t anyone from ICE.

As a side note, does this filing suggest that the site owners will present themselves in court in the US? Want to bet they will get served with enough paper from various copyright owners to make them have to pay extra luggage fees to get home?

Richard (profile) says:

Re:

Prior restraint would also only apply if the appellant had no other options presented to them. Their servers were not taken, their offices were not raided, their work product was not removed. They can easily continue with their speech without restriction, except not with those domains pending a court case.

That argument makes no sense. If seizing the domain was not a restraint on their ability to communicate then why on earth did ICE do it?

Dave (profile) says:

Re:

all this “whining” was actually valid criticism…

‘Valid criticism’ is understating it in a case where an arm of the government is flagrantly breaking the law and violating the rights of its citizens. So no, I’ll never have to admit anything of the sort. ๐Ÿ˜›

One thing you can always count on is someone whining. Frequently, it’s even the winners.

Richard (profile) says:

Re:

Why would anyone from ICE go to jail? Were these sites not rife with illegal content, that to the naked eye would appear to be part of the site?

Because the ends do not justify the means.

Illegality on the other side does not give you a free pass to do what you like regardless of the law.

Shoot a burglar and you will go to jail if the court deems it to be beyond reasonable force in the circumstances.

Just because Ben Johnson is on drugs it doesn’t mean that Carl Lewis isn’t an a* hole!

Anonymous Coward says:

Re:

I’ll risk being a laughingstock long before I advocate against laws that make for easier access to child porn. But hey, if you’re comfortable doing it Masnick that’s fine with me.

By the way, you ran away from the other discussion before you answered the question as to whether sites that exist primarily to link to child pornography should be protected under your tortured view of free speech. Judging from your comments, I’d say yes. But I wanted to give you chance to deny it, though I’m guessing you’ll cut and run again.

Anonymous Coward says:

Re:

I’ll risk being a laughingstock long before I advocate against laws that make for easier access to child porn. But hey, if you’re comfortable doing it Masnick that’s fine with me.

By the way, you ran away from the other discussion before you answered the question as to whether sites that exist primarily to link to child pornography should be protected under your tortured view of free speech. Judging from your comments, I’d say yes. But I wanted to give you chance to deny it, though I’m guessing you’ll cut and run again.

Mike Masnick (profile) says:

Re:

I’ll risk being a laughingstock long before I advocate against laws that make for easier access to child porn. But hey, if you’re comfortable doing it Masnick that’s fine with me.

I see. So, you would support a law that ends the internet, right? After all, that would decrease access to child porn.

You see, that’s the whole point. The problem with the law in CDT v. Pappert was that it was way too broad with massive unintended consequences. Same with the law you are so in love with: PROTECT IP.

Some of us are concerned with unintended consequences. You don’t care at all. Even if it means slicing up the First Amendment.

By the way, you ran away from the other discussion before you answered the question as to whether sites that exist primarily to link to child pornography should be protected under your tortured view of free speech. Judging from your comments, I’d say yes. But I wanted to give you chance to deny it, though I’m guessing you’ll cut and run again

Heh. Buck, I don’t need to play your game. Anyone who would be so sick and twisted as to distort CDT v. Pappert into being a case about making it easier to get child porn clearly has no interest in rational discussion. You would merely distort my answer (which is not what you think it is) into meaning something else.

Meanwhile, we do have you on record supporting kids who exercise their right to dance in public *getting raped in prison* which you seem to find funny: http://www.techdirt.com/articles/20110602/04271714524/do-little-dance-make-little-loveget-bodyslammed-tonight-jefferson-memorial.shtml#c4060

So let’s see, you’re the one who keeps distorting legal precedent and the statement of others to pretend they support child porn when they clearly do not. Yet you’re also the one who literally cheered on the idea that some kids get raped in prison.

Dude, seriously, you are a sick individual.

Aerilus says:

Re:

I’ve never understood the logic behind its more important to take child porn down than it is to catch anyone. isn’t the goal to catch child predators and stop the exploitation of children not to make sure we shut down websites with child porn, to me that secondary. why shut it down immediately why not harvest I.P. addresses use them to get legitimate criminal warrants against the account holders search there computers find the cached photos from the website. see with child porn it is illegal to posses where as with copyright infringement it is not illegal to posses a copy. a difference I am sure the MPAA would love to see removed.

Anonymous Coward says:

Waste of time..

I just found an apparently unironic use of “preaching to the choir” here to be funny, and that is the essence of TD, in my opinion.

It’s not unusual in that regard, any number of sites are similar: dailykos, freerepublic, groklaw, etc. I’m sure there’s probably one out there for pro-IP folks (although anything specifically oriented towards lawyers is likely to draw lots of contrary opinions, for obvious reasons).

PrometheeFeu (profile) says:

Re:

I’d like to know what sites you are talking about. In civilized countries (like Western democracies) we have a couple of principles such as the rule of law and the presumption of innocence. The basic idea to paraphrase an internet principle: Conviction or it didn’t happen.

Of course if you want to dump those principles, feel free. After all, I’m sure there won’t be any mistake and no police officer will ever bust down your door and arrest you because you kind of look like a guy they are looking for.

And to be completely honest, yes, I think child pornography viewing should be a low priority fight. By the point child porn is being viewed, 99% of the damage has been done. The real place to fight is not on the internet but rather in real life where real children are really being harmed in part because federal agents are wasting time hunting down little electrical discharges on copper wires.

PrometheeFeu (profile) says:

Re:

“Why would anyone from ICE go to jail?”

Prior restraint on speech without due process. It was totally unjustified to take the sites down without a lawsuit by abusing the asset forfeiture laws. I mean what were the website operators going to do to destroy evidence? Run away with the domain name? The only evidence that a domain name can ever provide is that person A paid so domain B would be connected to IP C. That information was recorded by the registrar and ICE could simply have asked for it. What ICE did was declare itself judge, jury and executioner. They deserve jail time for this wanton abuse of power.

“Were these sites not rife with illegal content, that to the naked eye would appear to be part of the site?”

Well actually no. In the United States and other civilized countries, people are deemed innocent until proven guilty. That fact that “to the naked eye” (You browse the web with your naked eye? That is so 1337!) there is some potentially infringing content does not mean we can throw away the basic principles of the justice system and seize property without any due process.

For one thing, there might not be any infringement. All the comments here are copyrighted material. Does that mean ICE should shutdown Techdirt? I have shelves of copyrighted materials in my home, does that mean ICE should be allowed to bust down my door and steal my books? I mean, some of them might look like they might be infringing. Copyrighted does not mean infringing. The only way to know if material is infringing is to go to court and let the two sides argue it out. In fact until a court declares the material infringing there was no infringement.

“Would the sites in question not exist for the major purpose of helping to prove access to illegally obtained content?”

I have no idea and honestly the only person allowed to make such a legal determination is a judge as part of a court case. But because ICE decided to just bat away this silly “due process” concept (who made up this annoying thing anyways) we just don’t know. Another way to put this is: those ICE agents abused their authority and they deserve to go to jail and face steep monetary penalties.

Richard (profile) says:

Re:

By the way, you ran away from the other discussion before you answered the question as to whether sites that exist primarily to link to child pornography should be protected under your tortured view of free speech.

And you ran away from the point that the laws against child porn are there for the completely opposite reason from those against copyright infringement.

In fact the laws against child porn and the laws against copyright infringement are SO completely contradictory to each other that one of them should surely be repealed. So which law do you want to keep.

Karl (profile) says:

Re:

Well, from what I can see, the first amendment issues raised have been already asked in answered in other cases, where the courts have ruled that some protected free speech may be harmed incidentally to stopping unprotected speech.

Really? Care to name one? The ones I’ve read make it clear that legal action is supposed to be narrowly tailored to halt the unprotected speech without stifling any potentially protected speech.

Prior restraint would also only apply if the appellant had no other options presented to them.

That is not at all what prior restraint means. Newspapers who pay a higher tax on ink certainly have “other options” than to stop publishing, yet that was found to be prior restraint.

While the acts of indexing and linking to copyright material in and of itself has been accepted by the courts, those case have all been when looking at general indexes, and not specific cases.

The accepted test for direct infringement is the “server test.” That is, it is only direct infringement if it’s distributed from your server.

Also, most of the cases cited above (e.g. Diebold, Ticketmaster) were not “looking at general indexes.”

They are also fairly misleading about “Puerto 80 does not receive any revenue that is derived from specific content hosted on, or streamed by, the sites to which it links”, as people would not visit the Puerto 80 site unless this material is present.

In order to be liable for vicarious infringement, plaintiffs must show “a direct financial benefit to the defendant.” How many people visit the site is immaterial. And, of course, that’s for vicarious infringement, which is not criminal.

The filing is pretty much what was expected, and likely to get swatted down by the courts at every level, as the site owners end up on the stand trying to explain how they manage to be so ignorant about the very content their index, link to, and write about.

I don’t think it’s going to get “swatted down” at any level. My guess is that the judge will toss the seizure on procedural grounds, and not touch the “big questions.” But if he or she does, I doubt very much it will go the way you think it will.

Gwiz (profile) says:

Re:

As a side note, does this filing suggest that the site owners will present themselves in court in the US? Want to bet they will get served with enough paper from various copyright owners to make them have to pay extra luggage fees to get home?

Wait. That doesn?t sound right to me.

I am not exactly sure how this works, but wouldn’t the copyright holders have to file whatever legal grievance they have in the country where the website’s business resides?

Anonymous Coward says:

Re:

If Rojadirecta had been using a Spanish domain, then ICE couldn’t have done anything. But they chose to use a US one, thus putting them under ICE’s jurisdiction. ICE can only do so much in a situation like that, and that is exactly what they did.
That brief above doesn’t make much sense in that someone from Spain doesn’t receive the same protections that a US citizen does.
As far as ICE was concerned, that site was using US property to commit a crime that infringed on US copyrights. So they took their US domain.

I see absolutely no reason why a judge would not agree with the seizure.

Anonymous Coward says:

Re:

They are also fairly misleading about “Puerto 80 does not receive any revenue that is derived from specific content hosted on, or streamed by, the sites to which it links”, as people would not visit the Puerto 80 site unless this material is present. It’s disingenuous to pretend otherwise.

“…as people would not visit the Puerto 80 site unless this material is present”

Pot meet kettle.

People would give all their money to creators if copyright did not exist. Wow – I can play too.

Anonymous Coward says:

Re:

Really? Care to name one? The ones I’ve read make it clear that legal action is supposed to be narrowly tailored to halt the unprotected speech without stifling any potentially protected speech.

Notice, he didn’t specify on which planet this supposedly happened. I think Xenu of the “Galactic Confederacy” and Planet ZX 432 might have been involved.

LadyMacbeth (profile) says:

ICE, Child Porn, Ludicrous arguments and other such trivia

It appears to me–:) although I’m new here so I could be wrong– that child porn is the AC watchword– One thing has nothing to do with the other, it’s simply bullshit rhetoric designed to be as inflammatory and as diversionary as possible and it’s working.

AC has no clear and defensible argument. Even if the site DOES make money from the posting of those links.. it is clearly a discussion board/index of sorts.. and we could argue that Google is much more so. Albeit they are an index,they are also a chat software, and google docs are being used to link to things that are in violation too.. we could make the argument… could you find all 12 million Warez sites if you couldn’t google them and get there to get your free/stolen/pirated software. It’s all in how you see it, but since Google is pretty much sacrosanct, I’m guessing we won’t see any infringement suits over their warez ihdexing and illegal download links.

The entire proceeding–hijacking sites– is as unconstitutional as it gets, and child porn has nothing to do with it. In fact. I bet you can FIND child porn sites out there that aren’t being seized.. the reality is that the media companies are holding the government by the throat because they are big donation factories LOL.

Realistically, if you REALLY even care about child pornography, then consider this… probably a thousand child porn sites escaped notice because the ICE was too wrapped up in kissing the corporate @ss and pulling down a few illicit tv show links..

As a Pennsylvanian who looked pretty closely at the child porn issue, it wasn’t only an issue of child porn and thank goodness the judge was smart enough to know that.

You can not seize a property without due process. With no advance notice, no commentary at all, it sets a very dangerous precedent. Your website IS personal property or business property. It should be subject to the same protections under the law that your home is. Once we allow ANY property to be seized without notice, we open a door that should not be opened.

If free speech and a few links offends you,make you cry wolf.. or in your case.. child porn… I’m guessing you’re part of some lock stepping media company,who pays you to suppress your common sense because people who do even a modicum of their own thinking, realize that sometimes you question the government and challenge their behavior–when it’s wrong, it’s wrong.
“a little rebellion now and then is a good thing” ..Jefferson

Prisoner 201 says:

Re:

So you would support any law that makes it harder to spread child pornography? No matter what other impacts the law may have?

If you answer yes to this question, you are in support of (for example) ridicilous things like banning all forms of communication that have not been approved in advance by the government. Dont worry, all “proper” free speech will be approved, because surely the government would never abuse a law like that. The very thought.

If you think that law is silly, then you do believe that laws can be overreaching (even laws protecting THE CHILDREN).

The question then becomes less binary – how much overreaching is acceptable? My example above is of course unfeasible, but where do you draw the line?

PRK (profile) says:

Re:

“You either do not realize or do not care that limitless “free speech” rights can have some pretty horrendous consequences. Maybe that’s Ok with you, not me however”

Having read a great many of the comments to this article and many others, it appears that you are enjoying free speech and others are complaining of the horrendous consequences. However, you continue to enjoy and others continue to apparently suffer but also to tolerate. I see no problems here.

I may not like what you have to say and find it rarely correctly backed up with authority but I will forever defend your right to have your say. Sound familiar?

Pot, Kettle, blah blah.

PRK (profile) says:

Re:

“By the way, you ran away from the other discussion before you answered the question as to whether sites that exist primarily to link to child pornography should be protected under your tortured view of free speech. Judging from your comments, I’d say yes. But I wanted to give you chance to deny it, though I’m guessing you’ll cut and run again.”

Are you really obtuse or are you simply promoting your employer? The entire issue is NOT about whether a site can be taken down. The entire issue is DUE PROCESS. Even the most rancid of child abusers is given a day in court – or would you rather simply take them out and shoot them first?

PRK (profile) says:

Re:

AC – “Why would anyone from ICE go to jail? Were these sites not rife with illegal content, that to the naked eye would appear to be part of the site? Would the sites in question not exist for the major purpose of helping to prove access to illegally obtained content?”

And exactly how do we know this? Oh yes, I forgot, the great ICE MAN said so. So if the police catch the bank robber in the act (notice I did not use a Child Porn example), they can just shoot him because the evidence was so clear as to not require a trial. Just think of the savings! We could do away with the entire judicial branch and all those lawyers.

Karl (profile) says:

Re:

Want to bet they will get served with enough paper from various copyright owners to make them have to pay extra luggage fees to get home?

You’re forgetting that the site already went through a long court process, back in their home country. The site won.

So, no, I don’t think “various copyright owners” will serve them, because they’ve already done it, and lost. That’s probably why they got ICE involved in the first place: the federal government could do what civil lawsuits could not.

Hans says:

Re:

“Why do you deny what is so obviously true? CDT fought to overturn a law directed exclusively at child pornography.”

I’m sorry you were abused as a child. But no matter how bad that person was, it does not mean we should re-write the Constitution to make it harder for that person. Some things are more important than you. Sorry.

Jason says:

Re:

“the first amendment issues raised have been already asked in answered in other cases, where the courts have ruled that some protected free speech may be harmed incidentally to stopping unprotected speech.”

Not with prior restraint based soley upon probably cause they haven’t. Prior restraint after both criminal and civil proceedings? Sure, but that’s the old due process thing we keep talking about.

I’m not against their being times when speech should be clammed up. But it better be tried in court first.

FM Hilton (profile) says:

How about evidence and other stuff?

Just because Homeland Security or ICE says that a website is illegally sponsoring or linking to others that supposedly have illegal content, does that constitute true evidence for seizure of a domain?
“Just because we say it is illegal, it is!”

Due process involves a lot of legal crap like that-I’m going to be willing to bet that most of the seizure warrants were based on hearsay and assumptions of what was illegal. Not a shred of hard evidence or proof, or very little.
The warrants were probably stacked in front of the judge who was told “Hey, this a good thing, just sign it..trust us. We’re from the government and we know our stuff.”

That being said, I hope Rojas wins this one-and in so doing, takes down the entire “Protect IP” scam that is so terribly popular right now.

Jason says:

Re:

“I’ll risk being a laughingstock long before I advocate against laws that make for easier access to child porn.”

I’m guessing (hoping) that was a miswording.

I’m your huckleberry. I’m NOT against laws that root out and destroy CP sites and their proprietors. I just think it ought to involve a hearing first, and then by all means, clap a big meaty hand of prior restraint over their mouths and beat them with blunt objects.

HothMonster says:

Re:

“I’ll risk being a laughingstock long before I advocate against laws that make for easier access to child porn.”

So, you will be a laughinstock long before you fight(advocate against) laws that make for easier access to child porn.

Just making it clear that you said you wouldn’t fight laws that make CP easier to access. We know you love it by how much you talk about it, I think its all you think about.

So now we know, you love prison rape and having sex with minors. Just like all copyright maximalists right?

Anonymous Coward says:

Re:

The poster above explains it better than I could: http://www.techdirt.com/articles/20110613/12021514673/rojadirecta-sues-us-government-homeland-security-ice-over-domain-seizure.shtml#c610

Keep in mind that this is only a petition for the return of the property in the interim. The government hasn’t filed for the actual forfeiture yet. That will be the big show. This is only the preview.

Anonymous Coward says:

Re:

If that’s the case then why haven’t charges been filed on the “obvious” criminal infringement.

Due process does require a certain amount of punctuality which seems to be completely ignored in this case.

Please explain…

[grabs the bowl of popcorn]

It’s not necessary to ever file any criminal charges. Considering that these are foreigners, I doubt that charges will be filed. Keep in mind that the domain was seized because it is property used to commit crimes. That’s the government’s theory. Such property can still be seized and forfeited regardless of whether any person is charged.

Due process is being met here. The government posted notice of the seizures. Says so right in the petition embedded above. Apparently, Rojadirecta didn’t see this notice. That’s their fault.

Paul keating (profile) says:

Response to: Anonymous Coward on Jun 14th, 2011 @ 7:39am

Annon Coward,

Notice? I would be happy to post the “notice”. It was tacked on the wall of the Custom House at a port of entry. In fact i posted it before.

The seizures have been undertaken pursuant to laws clearly written to preclude importation of infringing goods. Since this historically occurred at ports of entry the notice was deemed sufficient if tacked on the wall at the CH of entry (i suppose assuming the importer would see it). Domains are not imported.

Read the Motion. LOOK at the description of interaction between counsel for the respondent and YOUR government. If this were you would you think it fair?

It is clear that no one there wanted to take charge of the problem – they all point to each other and poor Mr. Frey who appears to have been the last man without a chair when the (public domain) music ended, told the registrant he could not comment. It reminds me of “who’s on first”.

Anonymous Coward says:

Response to: Anonymous Coward on Jun 14th, 2011 @ 7:39am

The seizure was January 31st. Notice was posted on February 10th and 15th. The petition doesn’t argue that the notice given didn’t comport with the legal requirements for such notice, so I assume it means that notice was properly given.

As far as Frey goes, the petition says that Frey was called on February 4th. Frey’s voicemail indicated that he was out of town. Frey called back on February 11th. That doesn’t sound unreasonable to me.

Frey wasn’t the “last man without a chair.” Frey was the person that Rojadirecta’s counsel was told from the start was the person they needed to talk to. Considering that he’s the AUSA for the district, that makes sense. I’m sure he’s looking forward to arguing this case.

The Infamous Joe (profile) says:

Re:

Apparently, Rojadirecta didn’t see this notice. That’s their fault.

This applies to you.

Assuming you’re of the latter, I’m interested in what you have to gain from this, because no intelligent citizen of *any* country would want their government to have this type of power, yet you seem more than just apathetic about it, you seem *pleased*. How does this not set off alarms in your head? I can’t understand how you reconcile the two statements: “Keep in mind that the domain was seized because it is property used to commit crimes.” and “It’s not necessary to ever file any criminal charges.”. How can they say a crime has been committed without accusing someone of a crime? Isn’t it innocent unless proven guilty in a court of law?

Anonymous Coward says:

Re:

I like to think I’m neither stupid nor a troll. In fact, you seem to be the one trolling here by suggesting I must be one or the other. I’d address the rest of your post, but I don’t like to chat with people who insult me personally because I have a point of view that differs from theirs. I thought you guys would be more open to dissent. I mean, you believe in free speech and all, right?

RD says:

Re:

“It’s not necessary to ever file any criminal charges. Considering that these are foreigners, I doubt that charges will be filed. Keep in mind that the domain was seized because it is property used to commit crimes. That’s the government’s theory. Such property can still be seized and forfeited regardless of whether any person is charged.”

Awesome. So, the govt can come and take your (and I mean YOU, not a metaphorical person) home on any pretext, and never have to answer for it in court or otherwise. They can just take it and keep it, with ZERO accountability to ANYONE. And you SUPPORT this. THEN you blame the victim for the illegal actions of the perpetrator. Amazing. You live in an interesting world, one so divorced from reality its scary.

RD says:

Re:

“I thought you guys would be more open to dissent. I mean, you believe in free speech and all, right?”

Free speech goes both ways, a fact I know you are willfully ignorant about, and keep the blinders on so you can continue to spread as much FUD as possible and still sleep at night.

Dissent all you want. We will ALSO dissent your dissent. But that doesnt mean that we have to EMBRACE your dissent like the loving arms of the Big Brother Government you so cherish.

Anonymous Coward says:

Re:

Um, no. I support the seizure of the instruments of crime upon a showing of probable cause to a neutral magistrate who issues a seizure warrant. It’s not on “any pretext.” It’s on the pretext that it’s an instrument of crime. It’s not that they “never have to answer for it in court.” There are procedures in place where the government has to justify the seizure. The burden is on the government. It’s not that there is “ZERO accountability.” The government is accountable for their actions in court. It’s not that I “blame the victim.” If the domain name is an instrument of crime, then the owner of the domain name is not the victim.

You seem to be very confused about all of this.

Anonymous Coward says:

Re:

How am I “willfully ignorant” about the fact that “free speech goes both ways”? Calling me names isn’t helping anything.

That’s fine. Disagree with me. But let’s focus on the arguments and the facts.

Good grief. You guys really can’t stand it when someone has a different point of view. It’s kind of sad.

RD says:

Re:

“Um, no. I support the seizure of the instruments of crime upon a showing of probable cause to a neutral magistrate who issues a seizure warrant. It’s not on “any pretext.” It’s on the pretext that it’s an instrument of crime. “

ALLEGED crime. Due process means nothing to you, nor does the idea of the ACCUSED (not guilty) being given a chance to dispute or defend themselves against the charges filed. (oh yeah, whatever happened to those charges? thats right, none were EVER filed. guess the ACCUSED dont deserve that part of due process either, right?)

“It’s not that they “never have to answer for it in court.” There are procedures in place where the government has to justify the seizure. The burden is on the government. It’s not that there is “ZERO accountability.” The government is accountable for their actions in court. “

How is this functionally different, if the govt never files charges, the accused is never given a chance to defend themselves, and the entire process occurs ONLY between a judge and the accuser?

“It’s not that I “blame the victim.” If the domain name is an instrument of crime, then the owner of the domain name is not the victim.”

ALLEGED crime. Innocent unless proven guilty, remember? So this all occurs with no due process or adversarial hearing in court necessary, according to you.

“You seem to be very confused about all of this.”

Not at all, its very clear where you stand on this.

The Infamous Joe (profile) says:

Re:

I like to think I’m neither stupid nor a troll.

I’d like to think that, too, but your (perfectly allowed) different point of view doesn’t leave you with many other options.

I’d address the rest of your post, but I don’t like to chat with people who insult me personally because I have a point of view that differs from theirs.

You’re awfully thin skinned, aren’t you, guy? If only you had the cojones to claim your comments with an account so we could see just how many times you’ve lobbed insults around, too. Alas, you’re so ashamed of your dissenting opinion that you refuse to claim it as your own. I can’t say I blame you; Your dissenting opinion is flawed in such a way that I can’t believe you’re that stupid, and instead I believe you’re simply a troll. Hence the snarky picture. (oh em gee, copyright infringement– sorry Mike!)

I mean, you believe in free speech and all, right?

I do, in fact, believe in free speech– so much so that I took the time to learn what free speech actually is. It’s clear you haven’t, since you seem to be under the impression that my not wanting to listen to your poorly thought through ramblings somehow isn’t in line with free speech.

Thanks for playing, Richard.

The Infamous Joe (profile) says:

Re:

If you wish to address the merits of my posts, feel free.

I did, Richard.

*snip snip*

I can’t understand how you reconcile the two statements: “Keep in mind that the domain was seized because it is property used to commit crimes.” and “It’s not necessary to ever file any criminal charges.”. How can they say a crime has been committed without accusing someone of a crime? Isn’t it innocent unless proven guilty in a court of law?

*snip snip*

PRK (profile) says:

PACER

AC

Sorry but I am trying to figure out if you are obtuse or merely engaging in mind games. I hope it is only the fact that we are reading words on a screen and not actually speaking.

1. The case is too new to be in PACER. The motion is the only thing I have seen (though I continue to check).

2. notice. Can we admit they are trying to fit a square peg in a round hole here? Notice (to be constitutionally sufficient) must be reasonably calculated to provide the defendant with actual knowledge that a legal action has been commenced. While it is at least arguable that tacking the notice on the Custom House bulletin board MAY be sufficient if I am an importer (or have a custom’s agent) of physical goods that arrive via that port of entry, it is dubious at best to apply that notice provision to a domain name which is not imported at all but merely appears on your screen at the behest of the browser?

If your only “notice” of the government action is after-the-fact (as in WTF happened to my website), you well know that is not notice in a constitutional sense so don’t go there.

3. And, one point you keep missing (or ignoring). The point is not about the seizure. The point is about DUE PROCESS – the right to know the charge and have the matter heard by a judge (you know the ole separation of powers bit).

4. I am sure you know about due process. It appears everywhere. Have you never received a speeding ticket and been asked to sign the ticket to confirm you have been “notified”? The message above your signature confirms that the signature is merely notice and not an indication of guilt. Of course the government still has to go to the trouble and expense of mailing you a notice but what the hell.

Or, have you ever challenged a charge on your credit card? That is possible because federal laws, preserving the concept of due process, require that the processor (VISA, MASTERCARD) assume the role of processor and remove themselves from the underlying dispute leaving it as between you and the merchant. Neither VISA nor MC say to you “well you have a credit card with this number and the merchant tells us they were presented with the card so it must be you and you must pay…..”.

Or, how about your right to receive a copy of your credit report and to submit a challenge to a data entry?

Or, taking on something closer to home, you were notified of the purpose of the “report” button but saw fit to object to its use in the comments above. The flagger did not have to tell you that they had used the button (but they did). You went on, however, to try to argue your point. That, is due process in action my friend – the opportunity to make your argument known to a disinterested (not that Mike is necessarily disinterested) third party for resolution BEFORE action is taken based on the flagging. Whether anyone agreed with either side is not the issue – the issue is you were informed in an open manner calculated to achieve actual notice on your part.

You too quickly push these things aside arguing that a site that the government has the right to shut down and/or seize a site that violates the copyright laws. You argue that notice is sufficient if the notice is written in some statute as if Congress were comprised of constitutional magicians. I do not care if the law provides notice one way or another, the government may not seize property in the absence of due process. Due Process is NOT compliance with the laws. Due Process is compliance with the CONSTITUTION. And the Constitution is itself beholding to the people. We should all read that document at least once and a bit of the history of those who wrote it.

You forget that no one argues with your conclusion. EVERYONE argues with your premise. Your arguments all assume that your premise is correct (e.g. that the sites are actually criminally infringing). No one has made any determination as to your premise – that is the point. The manner and method of protecting constitutional rights is the proper issue – the rest we will get to in good time.

Sure due process costs more but AC, YOU ALL are worth it – notwithstanding your often collective desire to engage in grammatical surgery to make an irrelevant point.

Personally, I don’t like the degree of animosity in the comments being bantered about in the comments. They seem petty and trite. There is a difference between having he right to say something and whether you should say it. “Hands off the keyboard” should be a mantra practiced more often by all (myself included).

I look forward to reading this blog every day and try not to get sucked into the site and the comments (although I really did like the comments about flagging – THEY were funny).

Anonymous Coward says:

PACER

If it was filed with the court and given a case number, I expect it would be on PACER. I see things on PACER all the time the day they are filed.

I have no idea what you’re talking about with tacking notice on the Custom House. Did they not post notice on the government’s forfeiture website? There are court-tested methods of providing notice that satisfy the due process requirements. Have they not followed those procedures here?

I know about procedural due process. What you haven’t demonstrated is how anything the government has done here hasn’t followed procedures that the Supreme Court has said satisfy the Fifth Amendment Due Process Clause.

RD says:

Re:

“The owner of the domain name is given a chance to have his side heard after the seizure. This very story is proof of that. The Court has said that such seizures comport with the Due Process Clause. Sorry if you don’t like reality, but that is the reality here.”

Listen, skippy. Filing a lawsuit in the ABSENCE of any other recourse or communication by the court and/or the accuser is not being “given a chance to have his side heard after the seizure.” In your world, if you were ever accused of anything, you’d be hauled off to jail indefinitely and given no contact with anyone because, after all, you committed a crime, right? And you would be OK with this treatment, right?

PRK (profile) says:

PACER

As to PACER, having been an attorney during its entire existence, I know of a great many instances in which documents are not posted automatically upon filing. It is a court-by-court system.

As to the notice, I am almost ready to take back my comments about possibly being obtuse. Due Process must occur BEFORE the government action. There are very few exceptions and this is not one of them. Again, your comments indicate you have not actually read the motion or the laws upon which ICE based its seizures. Go back and read them and then I am happy to have this debate. Otherwise I have things to do.

As to “procedures that the Supreme Court has said satisfy the Fifth Amendment Due Process Clause” do tell, what are these procedures and how do they apply to this case?

Anonymous Coward says:

Waste of time..

Because I know about the Internet?

I’m not sure what makes one a “troll” in your view.

I’ve always thought that a troll is someone who deliberately posts inflammatory things to get a reaction, not because he actually believes such things.

I guess others think anyone that disagrees with the dominant groupthink of a particular forum is a troll. I have little respect for such people.

Anonymous Coward says:

Re:

“Filing a lawsuit in the ABSENCE of any other recourse or communication by the court and/or the accuser is not being “given a chance to have his side heard after the seizure.”

What? That’s exactly what it is. The court is hearing their protest about the seizure after the seizure has ocurred. Maybe that’s not a great process, but that’s exactly what the other AC said it is.

You seem to be conflating personal punishment for an alleged crime (i.e., being thrown in jail) with seizure of property alleged to have been used in a crime. They are two different things, with two different punishments/results, and two different procedures.

Let’s try to stick to the facts and reality, even if it gets in the way of a great insult.

PRK (profile) says:

PACER

not under the banner DUE PROCESS but it is there. How about this? Section 3(b), page 10. Title: “Seizure of the subjmect domain names constitutes an unlawful prior restraint on Puerto 80’s users’ protected speech.” The entire argument is about prior restraint.

Really, I am beginning to think you just like to argue regardless of the subject matter.

Get a life.

Jay (profile) says:

Re:

Work with me here…

You have Rojadirecta that did *nothing* but link. Congress wants to felonize “illegal streaming”, whatever that means if it’s a work (paraphrase):

A) worth more than $5,000
B) done for content over 10 public performances

If Rojadirecta gets their domain back, PLUS you have a precedent set that streaming isn’t illegal, do you honestly think that S.978 will work over judicial precedence? Both COICA and 978 in tandem come to a strong pre-censorship law. It’ll be very hard to felonize a website domain seizure if Rojadirecta breaks that door down.

The eejit (profile) says:

Re:

You seem to stick to facts like stains to Teflon.

There was no evidence of tampering before ICE sezed the domain. There was no flight risk, and there was no destruction of ‘evidence of criminal intent’ before ICE seized the domain.

That fact that ICE curbstomped a Spanish business like Ed Norton in American History X without having jurisprudence is telling.

It’s amall wonder that America is facing a guerrilla war over economics.

Jay (profile) says:

Re:

“1. Notice of the seizures was published timely.”

Six months later is NOT timely.

“2. Rojadirecta did have a significant loss of traffic after the seizures, even though they set up new domain names.”

On ONE domain that was seized while negotiations occurred.

“Might as well report the whole story, and not just the parts you like.”

So when are you going to report about torrentfinder.info renewing its web traffic, while you’re at it? Same process occurred, and it’s now back to the same levels as before.

The eejit (profile) says:

Re:

Then Hart is either paid-for or an idiot. I see literally no reason why:

a) the seizures of another nation’s imaginary property could possibly NOT be prior restraint (Hint: it’s an idea, not tangible); and
b) why youi appear to worship Government, even when it’s pretty clearly in the wrong – you seem like the polar opposite of an American Libertarian. I mean, Seriously, why bother with PIPA if you can just ignore your nation-defining documents anyway?

Anonymous Coward says:

Re:

Six months later is NOT timely.

The dates are given in the petition. The seizure was January 31st. Notice was posted February 10th and 15th. Stick with the facts, please.

On ONE domain that was seized while negotiations occurred.

Traffic did decrease significantly. Kind of blows the whole “the seizures don’t have an effect” argument away. Even Rojadirecta admits they had an effect.

So when are you going to report about torrentfinder.info renewing its web traffic, while you’re at it? Same process occurred, and it’s now back to the same levels as before.

I have no information about that, so I won’t report about it.

Anonymous Coward says:

Re:

As a side note, does this filing suggest that the site owners will present themselves in court in the US? Want to bet they will get served with enough paper from various copyright owners to make them have to pay extra luggage fees to get home?

I’m sure they intend to pursue this matter from the safety of the other side of the ocean. ๐Ÿ˜‰

Anonymous Coward says:

PACER

Who cares? I was simply asking if the petition had been filed yet, and I noted that I couldn’t find it on PACER. Sometimes things show up there right away, sometimes they don’t.

As to due process, the procedure of seizing instruments of crime pursuant to a warrant and then posting notice have been deemed compliant with procedural due process by the Supreme Court. You’re a lawyer. You should know this.

I have read the petition above. And I’m familiar with due process. Not sure why you think otherwise.

I don’t have the Supreme Court case off the top of my head, and I’m busy getting work done. You’re a lawyer. You should be able to find it. I know Terry Hart explored this issue on Copyhype. You could also look there.

And again, you haven’t shown what the procedures are that satisfy due process and how the procedures here don’t meet the mark. You keep insisting that they don’t, but you haven’t given any sort of substantive argument as to exactly why.

Jay (profile) says:

Waste of time..

“dominant groupthink”

I’m not sure that I would say TD has a “dominant groupthink”.

People are free to come to their own conclusions here with the info given. Same as with Copyhype or the MPAA website. It’s just that those of like minded opinions tend to congregate with others of a similar mindset.

When you say groupthink, I suddenly get a vision of someone who’s trying to give a sermon in the middle of Waco.

Anonymous Coward says:

Waste of time..

Really, Jay? The regular posters on techdirt strike me as one of the most closed-minded bunch I’ve ever seen on the ‘net. It’s quite remarkable how much anger and venom is spouted at anyone with a contrary view. Say one thing that the masses don’t agree with and you’re labeled a troll and an idiot. It’s quite sad, truth be told.

Anonymous Coward says:

Waste of time..

“I’m not sure that I would say TD has a “dominant groupthink”.”

We can agree to disagree on that, I suppose.

As far as being free to come to one’s own conclusion, that’s true everywhere. But if you express a conclusion that differs from the TD majority, you will be labeled a troll (unless you’ve ingratiated yourself as one of the “good guys” on most issues).

I agree that like-minded people tend to find each other on the Internet. One of the results is the echo-chamber effect, where everyone hears the same type of opinion over and over again, to the point that legitimately debatable viewpoints are taken as gospel truth that only unreasonable trolls would challenge.

Jason says:

Re:

And no I wasn’t oblivious to the fact that you have been spouting his “Magic Words” article verbatim here all the while suggesting that Techdirters can only mimic Masnick. I was going to give you the benefit of the doubt but it’s becoming clear that you’ve got no further to go on this.

Hart’s citation of Alexander and OF Arcara both gloss over the fact that the closure in Alexander occurred AFTER criminal trial and the closure in Arcara came AFTER the court heard a civil complaint and the answers thereto.

Anonymous Coward says:

Re:

“This Court has held that when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.”
US v. O’Brien

“It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.”
Branzburg v. Hayes

“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.”
Arcara v. Cloud Books

Anonymous Coward says:

Waste of time..

Amen. It’s a shame that “those in charge” of techdirt don’t work to create a better environment in the comments. I like the articles here. I disagree with much that is said, and I would enjoy a productive conversation on the issues. I’d like to be challenged in my beliefs while I challenge others in theirs. It could be so productive. But sadly, it’s a bunch of people calling you names if you have a view that differs from the hive. I’m sure this environment has driven away many a good poster. I mean, just look at all the names that have been thrown out in this very thread. A few rotten apples spoils the whole bunch. I’m sure Mike probably thinks that the collective will fix itself. It doesn’t. Not here. Sometimes a good leader is needed.

LadyMacbeth (profile) says:

LOL the more irritated someone makes you, the more eloquent you become.

AC tends to bring out the worst in me, I’ll admit. I’ve always felt that ideally, closed minds should be accompanied by closed mouths, but sadly, that’s not typically the case.

Anonymouse-simply because one argument takes precedence in the case, does not mean that another cannot also fit the situation as well. I believe that may be what Pacer is attempting to point out.

It’s interesting that you point out the flaws and faults of others in their pointed and personal insults to you, yet you engage in that same behavior, simply couch it in underhanded commentary designed to be insulting and taunting, while not appearing so.

“Can you not take the heat, counselor? “

The reality is that your cries of protecting the children are not falling on deaf ears, they are simply not relevant here.

I am NOT an attorney, I’m a writer.. Berne Treaty and international copyright law is a hobby, not a profession, so I won’t proclaim myself an expert in any of the legalities of the argument, but this much I do know.

What we are seeing is a situation that could become untenable in a very short time if challenges like this are not made.

The 84,000 websites that were shut down “accidentally”, were those of law abiding citizens. While the government applauded themselves for their takedown, patted themselves on the back, and promoted their vigilance.. not a word was mentioned not apologies given for those who lost their sites and their revenue… and all were well within the law..Yet with their sites tagged with the fear inducing commentary, businesses AND people, were labeled as criminals for a time…

Which in combination with the other happenings here, is frightening on may levels. It means that casualties of this.. war on piracy.. funded by an already rich and hyper greedy media, are rampant–will only get worse– and are deserving of no consideration at all…and it seems to me that your argument is accepting of that.. if ONE child pornography site is taken down and fifty people who are innocent are injured.. that’s fine with you, the ends justify the means.

You’d make a hell of a Republican.

Anonymous Coward says:

Re:

“If Rojadirecta gets their domain back, PLUS you have a precedent set that streaming isn’t illegal, do you honestly think that S.978 will work over judicial precedence? “

Ok, where does the “PLUS you have a precedent set that streaming isn’t illegal” come in? How does that have any relation to the domain matter?

Moreover, yes, laws passed by Congress take precedence over a judge’s previous interpretation of a previous law passed by Congress.

“It’ll be very hard to felonize a website domain seizure if Rojadirecta breaks that door down.”

I have no idea what you are trying to say.

The eejit says:

Re:

The fact is that Rojadirecta should not have had to file a lawsuit against the US Government, pursuant to the seizure of the “.com” domain, becuase they feel that they were not properly notified.

Posting on a random noticeboard ina harbour does NOT constitute required notice for seizure in this case, being that Rojadirecta officially operates out of Spain.

Consider this: if I posted on a court noticeboard in, say, Santa Monica, CA about a seizure to take place in Montr?al of a White Label record store without being in direct contact with the person in Montr?al, then got stonewalled about why, I’d be preety sure that was theft of my property, and would take actions accordingly.

RikuoAmero says:

PACER

“You’re a lawyer. You should be able to find it.”

This is one thing I’m having a problem with when reading your comments here. You’re having a discussion with someone, but telling them to do YOUR work and find the data to back up YOUR side. Why should they? Seems you have a piss-poor concept of what debate actually is.

LadyMacbeth (profile) says:

I would tend to agree with that statement about the intellectual theft eejit.. Realistically, there should be consequences for misbehavior and mistakes for our government as well as for private citizens.

It was in early February that the United States Department of Homeland Security took over ten websites accused of selling counterfeit goods or trafficking in child pornography. During that process they also took down a very large DNS provider, FreeDNS.

More than 84,000 sites came offline and in their place came a really intimidating sign that pretty much declared them criminals and bad people. At no time did they admit the error and make amends, but those people deserved to have a press release put out, or an apology, or at the very least, a DHS posting on their site admitting the mistake..

They lost face, they lost credibility and they lost their sites for a time. That can’t happen. 84 THOUSAND victims in order to take down ten.. is not an acceptable amount of erroneous casualties.

Without due process, without real and viable evidence that you ARE violating the law, without notification, your site, my site. ANY site can be on that takedown list and then some reason for it manufactured after the fact to justify it..and if ANY property can be seized without due process and hard facts, then ALL property becomes target.

NEVER before in our history have we lost so many freedoms in so short a time, and most of them have been taken–NOT in the name of national security, in the name of safety for the Homeland.. but in the name of big business or corporate America who are funding the fight..

These are NOT pirates, they are NOT out to create a community of pirated software and sharing a link should NOT be a crime. Do you know, what users may put on your site? Do you know whether there may be a link to some software that you’ve not yet read or edited? A link to an online textbook, or a piece of writing that is copyrighted? I don’t and my site sees only 600 a day visitors.. How much more difficult would it be to keep track of every link from every user on a site of that size.. Let’s not be so quick to brand them pirates..and approve a take down without any notice.

Anonymous Coward says:

Waste of time..

I don’t know about any sort of control from “the powers that be” is necessary.

I just think setting a good example from a few TD regulars (or Masnick) would help reign in some of the more reactionary elements/behavior.

Unfortunately, it is rare to find someone who sides with the TD majority on most ultimate issues criticize any other TD person “on the same side” for poor logic, nasty behavior, or distortion of the truth.

That said, there are exceptions.

Anonymous Coward says:

Re:

None of that is relevant to what I said.

Did you read what I said? Or do you just conglomerate all things that you disagree with into one big ball “said by bad people” and assume that all “bad people” say all those things everytime they open their mouth (or type on a keyboard)?

Seriously, you can view this forum in threaded format and follow one comment to another. It’s not that hard.

I never said anything about whether Rojadirecta should or should not have to do anything pre or post seizure.

I said the owner is being “given a chance to have his side heard after the seizure.”

Can you admit that that is exactly what’s happening? Do you have reason at all to say that that is not happening?

Jason says:

Waste of time..

“You are confusing me with another AC.”

Well, that clears it up. That’s what made me think you were a troll in the first place. It’s got nothing to do with groupthink. You didn’t differentiate yourself and I thought the two were one and the combination thereof was starting to get pretty daggum trollish.

Help us out and differentiate yourself.

Anonymous Coward says:

PACER

To be fair, that’s sort of what both are doing in the discussion immediately above, and that is common for this forum.

People make pronouncements about what the law is or does, and people accept it or don’t depending on whether they like that result or not, and only ask for support when disagree with another’s conclusory opinion.

I’m not saying that’s good, but it’s common on both sides immediately above and in general here.

Anonymous Coward says:

Waste of time..

My conclusions about TD groupthink (or conventional wisdom, or dominant opinion, or whatever you want to call it) are not based on this post alone, or any confusion between me and another AC.

Also, if you’re regular enough to be a regular, you should know that there are multiple ACs.

If you need help, my recommendation would be to evaluate each comment on its own merits, no matter who it comes from.

Jason says:

Waste of time..

As a matter of fact there are multiple ACs, and being an off-and-on regular I’ve learned it’s usually easy enough to distinguish them by the different avatars randomly assigned to them by the server.

By some lovely stroke of luck today, you and another AC have a nearly identical pink quilt. So close that I didn’t notice right away even after you said something.

If you read through, you’ll find that a few others made the exact same error as well. For my part, I thought I’d just own up to it and try and clear the air and withdraw the troll appellation. After all, it didn’t really seem fair anymore.

However, I’m now in an awkward situation because just as I’m trying to make nice and recant, you get all pissy on me with some crap about evaluating your post on its own merits in the same breath that you snarkily point out that your own comment was so obviously in response to the overarching context of the larger conversation (well la dee dah).

Well, fine then…let’s sum up your post: utterly self-contradicting, needlessly confrontational, relentlessly inflammatory even when offered an olive branch, and all out just plain bitchy. Well, I guess you’re right. I find I truly cannot call you a troll. I believe there is a far more fitting term.

spherical asshole (n.): that which presents the same aspect regardless of the angle of approach.

Jay (profile) says:

Re:

Sorry, wasn’t as clear as I intended.

The main thing about S978, which may be clarified with the Rojadirecta ruling (yay or nay), is if hosting or linking can be clarified as legal or not. Some of the questions seem very likely to overlap:

If you can link, why criminalize it?
If embedding on a site is legal by judicial precedent for a website, why is there a need to criminalize?

Those are parts of the bill that will possibly be clarified by the Rojadirecta ruling.

Anonymous Coward says:

The case is on PACER now:

1:11-cv-03983-PAC
Puerto 80 Projects, S.L.U. v. United States of America et al
Paul A. Crotty, presiding
Date filed: 06/12/2011
Date of last filing: 06/15/2011

I just paid for all the documents and downloaded them, then I uploaded them all to the archive at RECAP. I’ll post the link once RECAP makes them public.

John Doe says:

Re:

Actually, what CDT did is make it harder for the government to unilaterally allege that something is child pornography and force a service provider to remove it from public view without giving the content producer an opportunity to object. Good intents aside, CDT challenged a bad law that would have given the government a dangerous power. Look at what they’re doing now WITHOUT a power like that! Note that most of the politically-motivated censorship orders in China and other places don’t come with a paper saying “This is something that threatens our power or makes us look bad so we don’t want this idea to spread.” It says “This is dangerous to national security.” You’d be amazed at the perfectly legitimate photos and videos the government has tried to say are child pornography.

Rekrul says:

ICE, Child Porn, Ludicrous arguments and other such trivia

You can not seize a property without due process. With no advance notice, no commentary at all, it sets a very dangerous precedent. Your website IS personal property or business property. It should be subject to the same protections under the law that your home is. Once we allow ANY property to be seized without notice, we open a door that should not be opened.

Actually the asset seizure & forfeiture laws do allow them to seize property without any notice. Innocent people have had cash seized from them on the pretense that it must be drug money, cars seized if the cops find any evidence of drugs, homes seized if there are any marijuana plants growing on the property, etc. All without a trial, and in most cases, without the people ever being charged with a crime. The property itself is charged and if the owners want it back, they have to go to court and prove that it was obtained by 100% legal means and wasn’t used in the commission of any crime. Which, by all accounts, is an almost impossible task. Police departments all over the US look at asset seizure as a normal component of their yearly budget. Seize a bunch of stuff, auction it off, keep the profits.

This has been happening for years in the “war on drugs” and unfortunately the feds have been looking to expand the seizure laws to other crimes as well.

snowburnt (profile) says:

3:1 odds

I have a problem with Terry Hart’s analysis. He claims that the only thing being confiscated is a Domain Name and that the content is not being restricted. As technically true as it is that all you’re doing is changing the IP address a single record in a single database the actual effect of such a change on a site like rojadirecta is tantamount to putting police tape around a kid’s toys store and posting a sign saying we suspect the owners are pedophiles because a pedophile lives within 50 miles and children frequent the store.

I think this is the huge problem with the SOPA/PIPA laws and the people enforcing online IP laws. They don’t truely understand what is involved with the technology and it’s effect on people’s lives. For every piracy site that will be taken down there will be dozens of skin-of-their-teeth small businesses that will be devastated by overly strict review of facts.

Sheogorath says:

Talking of Rojadirecta...

it’s still down, but you can Google the name to find alternatives. Also, and this might sound cruel, but I sent emails to the DOJ and Theresa May thanking them for the extradition of Richard O’Dwyer because it sets the precedent that US copyright law takes precedence over the UK’s. They now have two options; either admit that Mr. O’Dwyer committed no crime under UK law to keep copyright intact, or carry on and have point out in court that they set the precedent that we’re acting under as they try and sue us for infringement. That’s right, in the UK, copyright infringement is a civil offense.

Robert Scott Lawrence (profile) says:

Rojadirecta

Terrible argument by the government when it can’t show any criminal copyright infringement (because, inter alia, linking does not constitute copying), there is no statute criminalizing inducing (or secondary) copyright infringement (which is a civil violation), and the aiding and abetting laws do not allow for forfeiture.

Justice’s decision to move forward in spite of being wrong on the facts and the law is underscored by the Spanish court’s finding that what Rojadirecta was doing was perfectly legal in Spain, so the net result was that the U.S. government improperly seized the “.org” domain (because it was administered by a U.S. company) and Rojadirecta just moved all its operations to an “.es” extension.

Add Your Comment

Your email address will not be published.

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop ยป

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...