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
    average_joe (profile), 23 Jan 2011 @ 12:35pm

    Re: Re: Re: Re:

    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.

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