Karl's Favorite Techdirt Posts Of The Week

from the good-news-bad-news dept

Handling the "favorites of the week" post this week is Karl, one of our prolific commenter's who's known for calmly responding to questionable claims from other commenters with thorough, detailed insights and a firm grasp of the law and case law.

When Mike asked me to do a "Favorites of the Week" post, I joked that hopefully I'll be able to do "favorite posts" and not "bad news." A lot of the breaking news this week amounted to more of the same, and all bad: more third-party liability, the government lying about Wikileaks, ICE ramping up their seizures, even libraries teaching kids to hate a free press. Stuff like this is always going on, and it can't last forever, but after a while you get too saddened to think about it.

So, in 2011's spirit of optimism, I'd like start off with artists who are doing something right.

The obvious winner is Paulo Coelho, who heard that his books were banned in Iran, so he immediately offered them as a free download. This shows us that free public use of your art does not just make your work more valuable, it is also a tool to fight censorship and is a fundamental part of free expression. It's not about creating art for free; it's about keeping it from being imprisoned.

Honorable mention goes to Jono Bacon from the band Severed Fifth, who is using an open source model to "reinvent the music business." Now, the "reinventing" claim is a steaming pile of hyperbole, but it's awesome to see more artists realize that "open culture" is not their enemy. And this band is actually practicing what they preach: their album will be released under a CC-BY-SA license, which means that anyone can make money off of it... even you, faithful reader.

And I have to mention Deadmau5, who realized that a connection with his fans is more important than management relations. But it should be noted that Deadmau5 is not any sort of copyright abolitionist. In 2008, he took legal action against a Fruity Loops user called DirtyCircuit, who (unintentionally?) used uncleared Deadmau5 samples that were bundled with the software. As a result, Fruity Loops removed all melodic samples. I mostly like the Techdirt story because it led me to YouTube videos of Deadmau5 pranking his fans on Minecraft.

Of course, for every person who is doing something right, there are two who are downright clueless. They're not bad people, mind you; they just don't know what's going on.

Such was the case when Jim D'Addario defended his support of seizing music blogs. Mike responded by focusing on counterfeit goods, but, as I pointed out in the comments, that's the least worrisome thing about the seizures. Many of the seized domains had absolutely nothing whatsoever to do with counterfeit products. This shows another bad result when you conflate counterfeiting with file sharing: companies can't object to horrible file sharing laws without undercutting their support for anti-counterfeiting efforts. Assuming they're even aware of it at all, of course. I genuinely think Jim D'Addario has no idea music blogs were seized and I'm guessing a lot of the companies on the list didn't either.

As a side note: One of the "counterfeiting sites" that Jim D'Addario mentioned is Alibaba.com. When I went to that site, I found a ton of cheap, shoddy merchandise -- most of it is crap, some of it is probably "grey market," and a couple of things might be counterfeit. But ironically, the one thing I did not find is counterfeit D'Addario guitar strings.

Of course, Jim D'Addario is far from the most clueless man in the industry. As usual, that honor goes to the heads of the RIAA, who this week claimed that a .music gTLD would "enable wide scale copyright and trademark infringement." As Marcus Carab pointed out, their attitude seems to be "ALL MUSIC = crime unless it is explicitly and completely controlled by us."

But it's even more ridiculous than that. The ability to get a .music gTLD would be available only to official members of the music community, deliberately to ward off pirates and cybersquatters. Constantine Roussos, the man behind the dotMusic campaign, is also the man behind FightPiracy.org. He's certainly no friend of piracy or enemy of the recording industry, despite the RIAA's assumptions. When it took aim at Roussos, the RIAA set its phasers to "stupid."

There's one final story that I'd like to mention, to complete this compliment sandwich. That is how ACS:Law is continuing to screw the pooch in court. There's nothing particularly surprising about this, but it makes me smile. It's like a cross between Boston Legal and the Keystone Cops. Hopefully the USCG suits in Minnesota will crash and burn too.

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  1. icon
    Karl (profile), 24 Jan 2011 @ 6:52am

    Re: Re: Re: Re: Re: Re: Re:

    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.

    "Butcher" is a strong word. I read whatever you (or anyone else) sends my way and try to see if it's correct. That's why I like these discussions: I learn more.

    And I've learned enough to see through these seizures. If even a lowly noob like me can do it, then there's a serious problem with these seizures.

    That section deals with impounding articles such as phonorecords or master tapes, or the records documenting the manufacture or sale of such.

    18 U.S.C. Chapter 46 - exactly like 15 U.S.C. 1116 - was also intended to be used for impounding articles such as phonorecords or master tapes. You can't have it both ways: either the laws against seizing counterfeits apply (in which case the seizures are unwarranted), or else they do not (in which case the seizures are unwarranted).

    The necessary implication is the sites have lost their safe harbor under section 512 since that section does not protect criminal infringement.

    If the sites actually complied with the law under Section 512, then yes, they are protected against charges of criminal infringement as well. Indeed, how can you be guilty of criminal infringement if you can't even be guilty of civil infringement?

    So, in order to be criminally liable, the sites must first lose their "safe harbor" protections. That's the entire point: ICE never determined that they lost them in the first place.

    The domain names are evidence, and by the fact of their seizure, they cannot be transferred out of the U.S.'s jurisdiction.

    Except that those gTLD's are only administered by companies within the U.S.'s jurisdiction. You can't move a ".com" domain overseas; they still have to go through Verisign.

    If ICE intended to keep the sites themselves within the U.S.'s jurisdiction, they utterly failed - since the seizures caused those sites (and others) to deliberately set up domain names overseas.

    The agent's affidavit argued direct infringement and conspiracy to infringe.

    And the actual activities that these sites engaged in have never been shown to be either direct infringement, or "aiding and abetting" infringement. They've only been considered secondary infringement in tort cases. If they are convicted of direct infringement or "aiding and abetting," they will be the first in history to be so.

    The blogs and forums were not seized.

    I don't know why you keep going on about this. The intended effect was to shut down the sites entirely. That is very, very clear from the affidavit, and from the video that some A.C. posted above. Morton actually gloats that most sites did not set up shop somewhere else; and he said he was very prepared to do "a Wac-a-mole operation" if they did.

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

    And case law is very clear: When a First Amendment can even possibly be used as a defense against that crime, then "the effect on speech" is of primary importance. It is not "incidental and irrelevant." It is prior restraint.

    The part of section 983 you're quoting says that it specifically applies to "nonjudicial" forfeitures.

    The only other relevant section is Sec. 985, Civil forfeiture of real property. (And again, this section is obviously intended for "impounding articles such as phonorecords or master tapes, or the records documenting the manufacture or sale of such." The fact that it mentions lis pendens and restraining orders, but not injunctions, should be a clue.)

    That section does not give actual time frames (e.g. "30 days,"), so I assumed the lengths in 983 also applied.

    But even if not, those seizure laws were not followed. 985(b)(1)(B) says under normal circumstances, "the owners or occupants of the real property shall not be evicted from, or otherwise deprived of the use and enjoyment of, real property that is the subject of a pending forfeiture action." 985(c)(1)(C) requires "serving notice on the property owner, along with a copy of the complaint." And 985(d)(1)(B)(i) states:
    Real property may be seized prior to the entry of an order of forfeiture if [...] the court issues a notice of application for warrant, causes the notice to be served on the property owner and posted on the property, and conducts a hearing in which the property owner has a meaningful opportunity to be heard;

    Ex parte seizures are covered in 985(d)(1)(B)(ii), and are to be used only when "less restrictive measures such as a lis pendens, restraining order, or bond would not suffice." It is the "nuclear option" of seizures, used only in the face of impending destruction of evidence.

    And even with an ex parte seizure, you must still grant an adversarial hearing:
    If the court authorizes a seizure of real property under subsection (d)(1)(B)(ii), it shall conduct a prompt post-seizure hearing during which the property owner shall have an opportunity to contest the basis for the seizure.

    I don't know about you, but six months does not seem "prompt" to me.

    So, to sum up:

    Congress passed laws specifically dealing with online infringement. ICE completely ignored those laws, and instead used laws designed for seizing physical property - laws which are prior restraint if they silence protected speech. They didn't even use the default seizure rules, but used a flimsy pretext to get the "nuclear option" of ex parte seizure. Then kept the seizure orders under seal from the defendants for months on end before giving the sites any opportunity to contest them. All to combat infringement that has never been considered criminal.

    These were not federal agents making a good faith attempt to stop crime. This was a deliberate and egregious attempt to route around safe harbors and the First Amendment. It was censorship, plain and simple.

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