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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    average_joe (profile), 23 Jan 2011 @ 7:44pm

    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).

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