So, persons such as Mr. D’Addario are “clueless”.

Does this mean that those who disagree with his comments are “cluemore”, or merely presumptuous?

BTW, 82 domain names, and only domain names, were seized, with (IIRC) five of them being associated with allegedly copyright infringing content. The remainder were associated with the sale of counterfeit goods.

You are assuming that the 5 are innocent.

Yes, they do enjoy a presumption of innocence under law; however, the seizures were not actions against them personally, but against “instruments” allegedly being used for the perpetration of criminal acts.

You really look foolish when you continue to be willfully blind to the facts.

How ironic. I suppose next you’ll be lecturing us about making logical, well-reasoned arguments instead of merely spewing emotionally-charged rhetoric?

how is the seizure of US domains the province of Customs

First of all, if ICE has been designated to help with an aspect of law enforcement by gov, then they will do that. After 9/11, all law enforcement agencies are mandated to work in concert with each other.

But to more specifically answer your question, when American IP is being infringed upon, unless you can show that all instances of production and consumption are only happening within US borders, then ICE has every right to be involved.

I agree!

Now go make me a sandwich. Right now. Free of charge. Bring it to me and be quick about it.

With a little luck, junior, in 10 years time you might become a fully functioning adult and no longer sound like a 10 year old little twat.

I made no argument that things were OK because most sites were devoted to fake goods. I merely pointed out that most sites dealt with fakes, and five dealt with copyrighted matter.

It has not been established that “all” of the copyrighted matter was legit, nor has it been established that the copyrighted matter that may have been legit was fair game for unrestricted distribution.

“You are assuming that the 5 are innocent. “

People are innocent until proven guilty (by a court of law), not the other way around.

(what you are asking is that innocence be proven. The law doesn’t require that the innocent prove their innocence, the law requires that the prosecutor prove guilt).

My goodness. I could go all tl;dr on you, but that was quite a missive.

At any rate, the judge disagrees with you.

This is why I told you guys to watch that video. So that you would realize that outside of Masnick’s Fantasy FUDworld, an actual investigation and due process occurred.

It’s been 2 months since these seizures took place and none of the owners have challenged them.

And they’re not going to. Most just ran and hid the sites in a foreign country.

Bring on COICA.

“Masnick’s Fantasy FUDworld”

Because if copy protection laws didn’t last 95+ years, artists would starve, no art or music would ever be produced, and the world would come to an end.

No offense, but Mike’s claim that you have a “firm grasp of the law and case law” made me laugh out loud.

There are very specific rules regarding injuctions for online entities, which are ennumerated in 17 U.S.C. 512(j). Those rules were specifically set up by Congress to limit the liability of exactly the kind of sites that were seized, and limit injunctions to be available only for the infringing material itself, and not the site as a whole. Why were those rules not sufficient?

The rules regarding injunctions under section 512 are irrelevant to whether or not a hearing is needed before the seizure of a domain name may take place.

Furthermore, 17 U.S.C. 512(a) through (e) removes any liability (civil or criminal) for these websites, provided they comply with certain conditions (e.g. notice-and-takedown). In some of those cases, it seems that the sites did, in fact, comply – and in at least one (dajaz1.com), the material was explicitly authorized. Why was no thorough attempt made to determine if that was the case?

Absolute nonsense. Complying with notice-and-takedown is necessary, but not sufficient, to escape liability. How thorough the investigations were or were not is pure conjecture. You simply cannot know the details of the investigation unless you were a part of it.

If these sites were guilty of infringment, it would have to be for contributory or vicarious infringement. But these types of infringements have never been found to be criminal infringement. Additionally, 17 U.S.C. 506(a)(2) specifically says that “evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.” Why is the ICE taking criminal measures against non-criminal activity?

The implication of these domain name seizures is that the underlying sites were being used for criminal infringement, plain and simple. Bringing up secondary liability under civil infringement is misdirection. It’s irrelevant. Section 506 does require more than just reproduction or distribution to prove willfulness. So what? That just means the mens rea of willfulness will have to be proved.

For the government to take potentially protected expression (e.g. fair use or authorized expression) out of circulation, as was the attempt here according to the affidavits, an adversarial hearing must be held prior to seizures or preliminary injunctions. If this is not done, it is prior restraint, and unconstitutional. Why was this issue not even addressed in the seizure affidavits?

The property being seized is a domain name. It is not potentially protected speech that can’t be taken out of circulation without an adversarial hearing, it is presumptively protected speech that enjoys that exception. You’re misstating the test and then saying the seizures fail the test. Classic strawman.

In general, for civil forfeiture in criminal cases, 18 U.S.C Part I, Chapter 46, Sec. 983 states that the government must send a written notice to the property owners “as soon as practicable, and in no case more than 60 days after the date of the seizure.” Failure to do so means the government must return the property, and moreover that it cannot seize the same property in the future. In the case of the first eight domain names seized in June, forfeiture proceedings were not commenced until six months after the seizures; prior to that, the domain owners were not even notified of the siezures, nor given any opportunity to contest them. Forfeiture proceedings have not started against the domains seized in December, and like the first eight, they have not been given any opportunity to contest the seizures. Why have the domain name owners been denied their day in court?

Another strawman. That rule applies to “nonjudicial” forfeitures. This is a judicial forfeiture.

On a different note: In the video, Morton claimed that the seized domains were getting more traffic than the original sites were. Does it not occur to him that people are going to those sites because they are outraged at what ICE did? Isn’t it possible that the seizures resulted in more public sympathy for the sites in question, and for file sharing in general?

That’s possible, but it’s not relevant to the legality of the seizures.

Sorry Karl, but you’re delusional if you think you know the law better than a Federal judge.

And it appears Joe has demonstrated exactly why, below here.

Please stop believing everything Masnick says. Your life will be a lot less complicated.

The underlying acts that gave rise to the seizures were deemed acts under the criminal provisions of the Copyright Act and/or the Lanham Act (for trademarks), and not acts under their civil provisions.

If the judge or ICE know better, they should be able to quickly and simply provide satisfactory answers to these questions and concerns about the affidavit that have been raised by multiple parties. Instead, ICE has evaded the questions and provided nothing.

It’s not up to the agent in an affidavit to explain away possible constitutional arguments that the defendant might raise down the road. Those arguments can be raised by the defendant later. If the seizure warrant is unconstitutional, it should be a simple matter to get the warrant quashed. I just checked the docket in the tvshack.net et al. case (those domain names were seized this past summer), and no such motions have been filed yet.

Here’s a little caselaw for you, Karl. Plaintiffs raised a First Amendment challenge to the seizure of their servers with a warrant that was issued without an adversarial pretrial hearing. The materials in this case were presumptively protected by the First Amendment, by the way. This case supports the argument that not only is the seizure of domain names permissible, the servers themselves can even be seized without violating the First Amendment. I included in brackets the footnotes where the court dismisses arguments from the Fort Wayne Books line of cases and the Pappert case (arguments that you and Mike have been making). Enjoy!

[T]he plaintiffs’ only remaining claim under the First Amendment is that the defendants violated their First Amendment rights by failing to hold a prior adversary hearing to determine whether the materials seized were constitutionally-protected speech. In support of this argument, the plaintiffs cite a line of Supreme Court precedent that requires a magistrate to hold a hearing to determine whether magazines, books or films are obscene and should be removed from circulation before the magistrate issues a warrant allowing for the seizure of such materials. [See, e.g., Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S.Ct. 916, 103 L.Ed.2d 34 (1989); A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Marcus v. Search Warrants of Property, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961).] The plaintiffs argue that such a hearing was required before the magistrate issued the warrant in this case.

The defendants, however, point to another line of precedent, beginning with Heller v. New York, 413 U.S. 483 (1973), to support the proposition that the seizure of obscene material for evidentiary purposes only requires a valid search warrant, issued by a neutral magistrate after a finding of probable cause. Heller involved the question of whether a judicial officer could issue a valid warrant authorizing the seizure of an obscene film as evidence in a prosecution against the exhibitor without first conducting an adversary hearing on the issue of obscenity.

***

Distinguishing the case from the line of cases cited by the plaintiffs, the Supreme Court stated in Heller that it ?has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized.? Heller, 413 U.S. at 488. The Supreme Court further distinguished Heller by explaining that the cases requiring a hearing all involved the seizure of large quantities of materials, such as books, for the sole purpose of their destruction or the absolute suppression of the materials themselves. In Heller, only a single copy of the film was seized for the purpose of preserving it as evidence in a criminal proceeding. The Supreme Court held that ?[i]f such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible.? Id. at 492.

The standard articulated by the Supreme Court in Heller applies to the defendants’ actions in this case. The purpose of the seizure was not the destruction or suppression of the Quikvue materials themselves. Instead, the materials were seized for the purpose of preserving evidence of child pornography for a possible criminal proceeding.

***

The affidavit of probable cause provided detailed descriptions of the child pornography found under Agent Deery’s searches. The plaintiffs do not contest that such images of child pornography are not constitutionally protected material or that the probable cause affidavit established a fair probability that such images could be found on their servers. Nor do the defendants dispute that constitutionally protected materials also existed on the plaintiffs’ servers at the time of the seizure. No further determination by the magistrate was necessary in this case, and the plaintiffs have been unable to articulate what further purpose would have been served by any such determination. [The plaintiffs argue that an opinion from a District Court the Eastern District of Pennsylvania urges a different result. See Ctr. for Democracy & Technology v. Pappert, 337 F.Supp.2d 606 (E.D.Pa.2004) ( ?CDT? ). CDT, however, dealt with a Pennsylvania statute that required Internet Service Providers to block access to images of child pornography. It did not address the issue of a search and seizure of evidence of child pornography and is inapplicable here.]

The seizure in this case was constitutionally permissible under the Heller standard. As already established, the warrant was issued after a determination of probable cause by a neutral magistrate. No further determination or procedure was required.

Voicenet Communications, Inc. v. Corbett, CIV.A. 04-1318, 2010 WL 3657840 (E.D. Pa. Sept. 13, 2010).

Whatever. I never claimed to be a lawyer, but even I can read the law and see why these seizures are wrong. If that makes you laugh, then have at it.

It was Mike that said it, not you. It just makes me laugh because, IMO, you butcher the law with your strained interpretations of it. If Mike considers you to have a “firm grasp,” I’m very skeptical of his so-called expert lawyer friends that he claims exist and back up his side of the argument. Funny how his expert friends don’t just come on techdirt and post themselves.

That would be relevant if that question was regarding pre-seizure hearings. It was not. Let’s hear more from Title 17, this time specifically about impounding infringing articles. That is dealt with in 17 U.S.C 503, which in turn references 15 U.S.C. 1116 (d)(2) through (11). That section specifically states that ex parte seizures are not allowed unless “an order other than an ex parte seizure order is not adequate.” In other words, ex parte seizures can only be granted if “safe harbors” are insufficient. So, the question was why ICE can totally disregard that entire section of the law. If they’re allowed to do that, why have those laws in the first place? Why did Congress create Section 512 if law enforcement can just ignore it?

Did you notice that Section 503 is titled “Impounding and disposition of infringing articles”? That section deals with impounding articles such as phonorecords or master tapes, or the records documenting the manufacture or sale of such. Such articles or documents are not what is being seized by ICE, so that section does not apply.

Well, when the law says “A service provider shall not be liable,” I tend to think of that as “escaping liability.” Complying with notice-and-takedown is the most common requirement, but the others (mostly having to do with disabling infringing users’ accounts) are all there in 17 U.S.C. 512. Section (j)(3) of that law even makes it clear that ex parte injunctions are not allowed: Injunctive relief under this subsection shall be available only after notice to the service provider and an opportunity for the service provider to appear are provided, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the service provider?s communications network. You could possibly argue that the domain names were seized for the “preservation of evidence,” but that’s a huge stretch. A domain name is not evidence of anything except having a domain name. A simple record of the website it pointed to would suffice as evidence (it is in fact used as evidence in the affidavit), and if not, then that evidence is actually destroyed by the seizure itself. It would be even more of a stretch to suggest that taking away a domain name has “no material adverse effect” on a website. Having a “material adverse effect” is the entire point, in fact.

The accusation here is criminal infringement. The necessary implication is the sites have lost their safe harbor under section 512 since that section does not protect criminal infringement. Injunctions under section 512(j) only apply in civil cases, not criminal cases. Regardless, the rules you cite for injunctions only apply to sites that haven’t lost their safe harbor. The domain names are evidence, and by the fact of their seizure, they cannot be transferred out of the U.S.’s jurisdiction. Thus, the evidence has been preserved.

Secondary liability is the only possible thing some of these sites could be guilty of. Which would mean that vicarious or contributory infringement is “criminal infringement” in the eyes of ICE. That is a problem. ICE couldn’t just seize Napster’s domain, why should they be able to seize these?

The is no secondary criminal infringement. The sites can be guilty of direct infringement, of aiding or abetting infringement, or of conspiracy to infringe. The agent’s affidavit argued direct infringement and conspiracy to infringe. ICE could have seized Napster’s domain if there was probable cause to do so.

Authorized content and fair use are presumptively protected expression. More importantly, so is expression that is not even accused of being infringing – such as the majority of the expression on the blogs and forums.

The blogs and forums were not seized. Fair use and authorization are defenses and therefore not the presumption.

One intent of the seizures, as the affidavit clearly states, was to prevent access to the websites themselves. I don’t know why you aren’t willing to admit this. I mean, right in the video Morton brags about other sites “voluntarily” shutting down – clearly the intent was to chill speech.

The intent was to seize an instrumentality of crime. The effect on the speech on the server is incidental and irrelevant.

From 17 U.S.C. 506(b), Criminal Offenses: Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323 of title 18 From 18 U.S.C. 2323, Forfeiture, destruction, and restitution: The provisions of chapter 46 relating to civil forfeitures shall extend to any seizure or civil forfeiture under this section. …which brings us back to 18 U.S.C. Chapter 46, of which I quoted Sec. 983: General rules for civil forfeiture proceedings. I don’t see how I’m creating a “strawman.”

The part of section 983 you’re quoting says that it specifically applies to “nonjudicial” forfeitures. These are not nonjudicial forfeitures, so it doesn’t apply here.

Thus, “on a separate note.” That wasn’t a question about legality, but about the wisdom of such seizures. Morton brings that up as if it’s some kind of victory, as if it’s evidence that ICE is “winning the hearts and minds” of the public. I think he’s got his head up his ass. All this is doing is making people angry at the government, and more willing to break the law.

Perhaps.

So the mailman is just as guilty as the person who put explosives in the package.

The law makes a distinction, just like it makes a distinction between service providers who don’t break the law and users who do.

Did the mailman aid, abet, counsel, command, induce or procure the person who put the explosives in the package? If not, then they are not just as guilty as the person who did.

The purpose of allowing these seizures was so that the evidence can be used in court. There are many conditions that the above seizure had to meet to be legal, many of which aren’t met by the actions of the department of homeland security. For example, the department of homeland security intended to stop the material from being distributed not to facilitate its presentation in court, but only for the sake of preventing others from seeing it.

That does not negate the fact that there was probable cause that the domain name was property used to commit or facilitate criminal infringement. It is subject to forfeiture and seizure on that fact alone. The effect on the underlying site, and the agent’s statement about this effect, are irrelevant.

Also, of course, probable cause itself is determined by a judge (and not the department of homeland security).

(and I quoted * Sorry, I think my keyboard battery is dying).

Probable cause is to justify further inspection into the matter, not to justify taking action against the party involved. The findings of that further inspection can then be presented to the court so that the judge can determine if action needs to be taken. Probable cause itself doesn’t warrant action against someone (ie: taking their car just for the sake of taking it), it just warrants further inspection into the issue.

For example, probable cause can justify wire taping someones phone. Saying that there is probable cause to justify wiretapping someone’s phone is different from saying that taking their phone, or taking action against them, is acceptable. Only if evidence from the phone taps justify action against the person under surveillance can further action be taken.

That’s just not true. Probable cause can and is the basis for seizing suspected instrumentalities of crime. A car or a phone (or a person for that matter) can be seized by a warrant supported by probable cause.

As your very post noted (and quoted), there were conditions that must be meet for this to be the case. Many of these conditions weren’t met.

What conditions weren’t met? I don’t follow you.

I know.

AJ- I think this is one of Mike’s “lawyers”…. LOL

Heh. They do. Pay attention.

Good deal. The more lawyers arguing the law, the better. 🙂

Huh? Can you explain how this evidence has been “preserved” in a manner that couldn’t have been preserved without seizing the domains?

The domain name now safely resides in the control of the district court. Before it was seized, it could have been transferred to someone else by the alleged criminal. Now it can’t.

Yes, well, that’s a pretty big problem, isn’t it? Given that the folks who operated these sites did not directly infringe on anyone’s copyright, nor did were they involved in a conspiracy to infringe.

That’s sort of a problem for your argument.

I agree that in the torrent-finder.com case, the site’s operators probably were not direct infringers. I’m not sure you could say the same of the other seven dozen or so sites that had their domain names seized. I suspect that if torrent-finder.com fights this, the feds will be happy to change their theory of liability to one that fits the facts–accomplice liability. As far as conspiracy goes, the agent threw that out, but he never really explained it. The agent did say that he was only releasing the information he thought necessary to get the warrant, so until the rest of the investigation comes to light, we don’t know what the feds have.

How? Seriously. How are they guilty of *direct* infringement?

As I indicated in the previous response, I agree that torrent-finder.com is probably not actually liable for direct infringement and the agent got that wrong. That doesn’t mean that warrant is fatally flawed though. More importantly, that one case does in no way affect the legality of the seizures in general.

Why do you keep making this false claim? The affidavit itself indicated the intent was to shut down the site. Why do you always ignore this?

The statute says that any property used to commit criminal infringement can be seized. The domain name fits this definition, and that’s what was seized. The effect on the site was incidental. I’m not ignoring it. I admit that the site was affected. I just don’t see how that negates the authority to seize the domain name under 18 U.S.C. 2323. Besides, I think the servers themselves could also be seized.

AJ, you seem to be bending over backwards here to defend the indefensible. Can I at least ask a simple question: whether or not these seizures were legal, do you feel they were right? Think carefully.

I disagree that it’s indefensible for the simple reason that it’s not conclusive whether or not these seizures are unconstitutional under the 1st or 5th Amendments. You keep talking like that’s a foregone conclusion, but it’s not. I’m keeping an open mind. You’re locked in to your position and you’ve got a closed mind.

To answer your question, I don’t have a problem with the seizures, as long as they are legal.

Taking the train in from Hong Kong airport to downtown recently (Oct 2010), almost every ad on the train was for AliBaba.com; their stuff is pure schlock, and they were advertising it as incredible low prices for lots of 1000 or more… Yet wandering the markets of Hong Kong, I did not find (like Beijing) open sales of copyright software. I assume the powers in Hong Kong are being sufficiently respectful of IP that they drive such traffic well underground. So, AliBaba may sell crap, but it does not seem to be copyright crap.

Who has a copyright on owl-shaped salt and pepper shakers anyway? heir web site seems to show what they are – an aggregator and shipper for all the little Asian manufacturers (copany size, not personal stature) looking to ship to the dollar-stores on North America.

If the agents can’t show that the act is even criminal, then I’d say it’s hardly irrelevant.

I may not be a big-shot legal student like yourself, but I’d say that if a cop arrested someone for “conspiracy to commit emotional distress,” that would be a problem.

Who says they can’t show an underlying criminal act? The implication for each and every domain name that was seized is that the feds have evidence of a criminal act.

When you’re alleging acts that have never been considered criminal before, and ignoring a whole section of law that states they might be innocent of any wrongdoing whatsoever, it seems to me that more than an “implication” is necessary.

Criminal infringement has been on the books for a long, long time. They are not ignoring any section of law that says they might be innocent–if you’re committing criminal infringement, you necessarily have lost any safe harbor under section 512. The reason I used “implication” is because no criminal charges have been filed that I know of. The seizures necessarily imply that there is an underlying crime alleged. If anyone challenges these seizures, the government will have to prove the underlying crime by a preponderance of the evidence, I believe.

The property being seized is a domain name.

“Wholly neutral futilities . . . come under the protection of free speech as fully as do Keats’ poems or Donne’s sermons.” ??United States v Stevens (2010) (quoting Cohen v California (1971), in turn quoting Winters v New York (1948))

?The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.? ??Elrod v Burns (1976)

As ?irreparable injury is suffered where monetary damages are difficult to ascertain or are inadequate,? Hohe, 868 F.2d at 73, preliminary equitable relief is unnecessary. Moreover, Voicenet/OTI do not show a chill on free expression caused by ?direct penalization, as opposed to incidental inhibition, of First Amendment rights….? Id. at 72-73. The officials’ refusal to return the arrays does not render Quikvue inoperative; that deprivation may be remedied with money damages. As such, Voicenet/OTI’s First Amendment rights may be incidentally inhibited, but they are not at risk of irreparable injury.

Voicenet Communications, Inc. v. Pappert, 126 F. App’x. 55, 58 (3d Cir. 2005)

…render… inoperative….

The domain name has been rendered inoperative.

In United States v Stevens (2010), the court declined to add a new category of speech unprotected by the First Amendment, rejecting the government’s proposed ad hoc balancing. I cannot see adding domain names as a category of speech invisible to the Constitution.

No.

Generally I agree with those guys, but ?on occasion? I have had some memorable arguments with the EFF’ers.

Sounds like fun to me. 🙂

Well, thanks for the insults. Let’s just stick to debating the actual law, and not sling idiotic personal attacks, shall we?

Personally, I like you. I just don’t think you have a grasp of the law. I barely have a grasp myself.

Granted, I may have quoted the wrong section. But regarding infringement, the whole of Chapter 46 is targeted towards seizing the same types of goods as is 15 U.S.C. 1116. That was my point.

I thought your point was that there is a 60 day limit to give notice.

As far as I can tell, they did not. Perhaps I missed it – wouldn’t be the first time. Can you point me to any part of the affidavit that shows evidence that the sites did not obey DMCA takedown notices (or other safe harbor requirements)? If not, they haven’t met their burden showing the sites were guilty of any infringement.

The agent recited facts to sustain probable cause under section 506. If there is criminal infringement, it is necessarily true that the safe harbors have been lost. The defendant can raise the safe harbors later as a defense. The agent had no duty to rebut this potential defense. It just doesn’t work the way you think.

So, you admit that the point wasn’t to “preserve jurisdiction.” It was to remove it as “an instrumentality of crime” – i.e. prevent the public from accessing it.

In any case, I don’t buy it.

The property can be seized because the it fits the definition of section 2323 as property used to facilitate criminal infringement. The statute requires no further justification, nor does it require that the seizure be for the purpose of preserving evidence.

I responded to Heller elsewhere. I think it’s clear that it doesn’t apply to these seizures.

Perhaps so, perhaps not. I think it’s anything but “clear.”

If the civil seizure laws in 983 don’t apply, and the civil seizure laws in 985 don’t apply, what civil seizure rules do apply?

I was wondering if you were going to ask that. Chapter 46 is the right place to be, it’s just that the 60-day notice rule you were quoting doesn’t apply to these seizures since these seizures are not nonjudicial. I think, but don’t really know for sure, that since this is a judicial seizure, we’re on the judge’s time schedule. I see nothing in Chapter 46 that puts a deadline on the judge.

You know, the owners of the domain names can file to have them returned: http://www.law.cornell.edu/rules/frcrmp/Rule41.htm#Rule41_g

All censorship was “law enforcement exercising their mandate” at one point or another. That doesn’t mean it’s not censorship.

And you still haven’t answered my question. If law enforcement isn’t required to obey Section 512, why are those laws still on the books?

The question just doesn’t make sense. If the site is criminal, it necessarily doesn’t have safe harbor. Safe harbor is a defense to be raised by a defendant later. The government doesn’t have to rebut a defense that hasn’t been raised in an application for a seizure warrant. That makes no sense.

You’re playing games. One minute you claim that this was necessary to keep it as evidence, and then you claim that it’s not necessary. You do this a lot. One minute domain names can be seized because they’re not blocking content, and the next the content on the site needs to be blocking. It’s tough to take you seriously when you change your argument any time people pin you down.

I never said that it was necessary to seize the domain name to preserve as evidence. I said that seizing it does in fact preserve it as evidence. You are trying to put words in my mouth in order to discredit me. Show me exact quotes where I have contradicted myself. Otherwise, your claim is conclusory and unsupported.

Um. Wow. Ok. So why did you claim they could be direct infringers? Again, it’s difficult to take you seriously when you make claims and when confronted say you haven’t actually looked at the case. Shocking.

Here’s what I said, “I agree that in the torrent-finder.com case, the site’s operators probably were not direct infringers. I’m not sure you could say the same of the other seven dozen or so sites that had their domain names seized.” As my quote indicates, maybe they can, maybe they can’t. I don’t know.

You don’t find this troubling? You don’t find it sickening that one would use a certain misinterpretation of the law to stifle speech, and then when later confronted on it, say he actually meant some other law that has a higher standard? Really?

The other crime doesn’t have a “higher standard.” You’re making that part up. Sure, it is troubling that the agent thinks in-line linking and framing are the same as hosting the content itself. I never said it wasn’t. I’m only pointing out the fact that it doesn’t matter–not at this point of the proceedings. I’m sure agents make technical mistakes all the time.

The point was not how the First Amendment works, it’s that you seem to think taking someone’s domain is “incidental.” Scary. And wrong.

The domain name is incidental to the speech on the server, legally speaking. I’m not sure how it could be anything but otherwise.

I have done no such thing.

If the only way a court could agree that it’s not unconstitutional is by twisting principles and by taking indefensible positions, then how is it you think your mind is open on the subject? That makes no sense to me.

AJ, don’t make statements that are obviously untrue. It looks bad on you.

How is what I said not true? Please explain. Without more, I have no idea what you mean.

Again, the fact that you are focused on the game of this rather than what’s actually going on is, to me, sickening.

I’m aware of “what’s actually going on,” Mike. Don’t be silly. Unlike you, I don’t have a problem with the laws being enforced, even the ones I don’t agree with.

You know, the owners of the domain names can file to have them returned

Indeed; But as I pointed out above, they haven’t.

And they won’t.

At one point Joe I thought TF was only guilty of contributory infringement, but I came to realize that they are actually guilty of direct infringement.

The question seemed to rest on whether or not a site had the infringing material on their server. I don’t think that matters.

Maybe so. It’s certainly debatable. The caselaw I’ve read suggests that in-line linking and framing may give the appearance that the infringing content is being presented by the linking or framing site, but the underlying HTML tells the true tale of where the content is coming from. I believe the Ninth Circuit refers to it as the “server test.” It doesn’t matter where the content appears to come from, it matters where the content actually comes from. The case I’m thinking of was Perfect 10 v. Google/Amazon. I think the other argument is that if I’m going out of my to in-line link or frame the infringing content, it reaches a point where I may as well be hosting the material myself. The agent’s theory isn’t frivolous, IMO. Good point.

Average Joe didn’t use the word ‘knowingly’. By his logic, the mailman did aid the bomber, and that someone can be liable for something that they didn’t do is the entire point of this sub-thread.

Good point, Rose. Of course the accomplice has to be aware that he is being an accomplice. That’s the mens rea part of it–the “criminal mind.” I don’t know if it’s specifically “knowingly,” as that’s a term of art, but it’s something along those lines.

I’m not going to bother cutting and pasting at this point, so I’ll address your points in order…

You say 60 days is not prompt by any standard. That’s your opinion, and it’s not based on legal standard that I can tell. If “prompt” is the requirement, you’d have to look up the caselaw that’s controlling on the court that’s being “prompt” to see what that actually means.

Nothing gets proven in an affidavit. Regardless, find me one place where it says the agent has to demonstrate that the defendant doesn’t have safe harbor under 512. I think you just made that up.

Heller does not say “unless it’s seized for evidence purposes, it’s prior restraint.” If that was the case, wouldn’t agents just tell the judge “it’s for evidence”?

That’s right, I don’t know what the time frame is for giving notice. That’s a minor procedural point, and if I wanted to know, I’d look it up.

Torrent-finder will get their day in court, I have no concern that it will be otherwise.

LOL

you are truly a ridiculous person, Masnick.

I bet there’s a pirate flag in every room of your home…

And that, right there, is what I find sickening.

I’m sorry. I’m truly sorry. I really hope that one day you will find some basic moral courage. Until then, I’m somewhat disgusted that you seem to feel that way. I honestly don’t feel comfortable speaking to you any more.

LOL! I don’t know who you are trying to sway with your rhetoric, but it just makes me laugh.

Looking at Rule G, it says: “When Publication Is Required. A judgment of forfeiture may be entered only if the government has published notice of the action within a reasonable time after filing the complaint or at a time the court orders.” In other words, we’re on the judge’s timetable, exactly as I indicated above. Since the notice only has to be posted for short while, whether on the internet or in a newspaper, it’s very likely that you will miss the notice unless you vigilantly look out for it.

average_joe just hates, hates, hates it when due process is enforced.