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), 26 Jan 2011 @ 6:36pm

    Re:

    Hey, Joe.

    One last round, then I have to quit. I'm in college full-time now, and don't have the time.

    You say 60 days is not prompt by any standard.

    Not 60 days. SIX MONTHS. That's how long it took for ICE to begin the forfeiture process against the first round of seized domains. As far as I know, the seizure orders were under seal until then. And as far as I know, not a single owner of the seized websites was ever contacted by ICE in any way.

    Regardless, find me one place where it says the agent has to demonstrate that the defendant doesn't have safe harbor under 512.

    Nobody with a potential safe harbors defense has ever had their domains seized ex parte. However, 512 says explicitly they're exempt from "all liability," so it makes sense for the government to have to demonstrate any liability, as part of its requirement to demonstrate that any crime has occurred at all.

    And I will not have a chance to dig up the cases that say agents have to overcome affirmative First Amendment defenses before seizure, sorry. (Keep in mind, though, that most First Amendment defenses are affirmative defenses, for example in libel or obscenity.)

    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 is exactly what happened. Of course, that's not the only thing Heller says: it also says that the seizures must not have the effect of removing the allegedly infringing materials from circulation.

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

    They've been chomping at the bit to be able to contest the seizure orders. It's been, what, two months, and they haven't been allowed to do so. I don't share your lack of concern.

    I found some info for you about the notice issue that you're interested in.

    Thanks. I had seen that, as I went to forfeiture.gov to search for the seizure notices for those sites (I did not find them). I had assumed the rules only changed the means of publication from "newspapers" to "websites." I guess not. I still don't know if that's the correct rule to cite regarding seizures, since it's not mentioned in Title 17 (or the sections that Title 17 links to).

    But if it is, pay attention to Rule G(4)(b)(i):
    Direct Notice Required. The government must send notice of the action and a copy of the complaint to any person who reasonably appears to be a potential claimant on the facts known to the government before the end of the time for filing a claim under Rule G(5)(a)(ii)(B).

    They have not done this for any of the seized domains.

    By the way - though I would never call you "depraved," I too share Mike's concern about your attitude. We've been arguing about the letter of the law, and not about whether it is just.

    Frankly, some of these sites were intentionally used by the copyright holders themselves. They were growing musical culture, and fostering communities. They honored DMCA takedown notices, and believed they were following the law (and were possibly right). They do not deserve to be treated the same as organized criminals and entities that fund terrorists.

    These seizures damage society far more than infringement ever could. Even if the sites are 100% guilty, the seizures are worse than the criminal activity itself. If the letter of the law allows this, then we need to change the law.

    ...Anyway, have a nice winter.

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