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 @ 9:29pm

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

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

    It wasn't precisely my point. The point was that seizures (even ex parte seizures) must accompany the prompt ability to contest the seizures, which was not granted to any of the sites in this case. "60 days" was the concrete length given, and it seems like the standard limit of what is considered "prompt" (since it is the one explicitly mentioned in seizure laws). My actual point was that six months is not "prompt" by any standard.

    If there is criminal infringement, it is necessarily true that the safe harbors have been lost.

    Again, you're putting the apple before the horse. In order to be criminal infringement, it must first be proven that the sites lost safe harbor provisions.

    Otherwise, a site could be completely innocent of civil infringement, but guilty of criminal infringement. Have you ever heard of a case where that is true?

    The agent had no duty to rebut this potential defense.

    Of course he did. If he didn't, he had no legal justification to claim that a crime occured at all.

    The statute requires no further justification, nor does it require that the seizure be for the purpose of preserving evidence.

    The Heller case certainly does require that (for starters). If it doesn't pass that test, it's prior restraint, and unconstitutional.

    I think it's anything but "clear."

    Read the case again. Heller was only constitutional because they only seized copies of the unprotected speech, for evidence in a trial; and because that seizure did not result in the "suppression of the materials themselves."

    The judge's words couldn't have been clearer. It does not apply to these seizures.

    I think, but don't really know for sure, that since this is a judicial seizure, we're on the judge's time schedule.

    Oh, goody. You "laugh out loud" at my ignorance at the law, say I'm "butchering" it, but when it comes right down to it, you don't know the answers more than I do.

    ...Well, whatever.

    "We're on the judge's timetable" does not seem like a satisfactory answer. If the judge decided to keep the seizures under seal for six years, would that be legal?

    Incidentally, for trademark claims (which cover most counterfeiting operations), Federal Rules of Civil Procedure Rule 65 applies. That order explicitly states that:
    Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk's office and entered in the record. The order expires at the time after entry not to exceed 14 days that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension.

    But as I mentioned, that applies to trademark (counterfeit goods), not copyright. Again, I bring it up only to show what is considered "prompt" in most seizure laws.

    I can not find any rule that states six months is acceptable.

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

    So long as they're notified of the seizures, or offered an opportunity to contest them. They weren't:
    On Thursday, the 25th of November 2010, the Torrent Finder domain ( www.torrent-finder.com ), registered with Godaddy, was seized by the U.S. Immigration and Customs Enforcement (ICE) without any prior takedown notice or specific allegations of infringing activity. The Domain IP was suddenly changed without the registrar's knowledge and the system displayed a "Pending Registry Action" message on the domain's status. No contact was given until Wednesday, the 1st of December, when Godaddy replied to my inquiries, giving a contact for an ICE agent.

    On Thursday, the 2nd of December, David Snead who is representing Torrent Finder contacted the ICE agent in charge who told him that "the orders are under seal, but that the seal will be lifted today or tomorrow". However, we have not heard from them until writing this post.

    - from torrent-finder's site.

    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.

    You're saying that the entirity of Section 512 is only an affirmative defense (like fair use). But that's never actually been decided - even for civil infringement cases.

    Even if that's true, case law has determined that even affirmative First Amendment defenses must be addressed before any forfeiture can occur, or else it's prior restraint. But forgive me, it's late, I'll have to dig up links to case law later.

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