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), 23 Jan 2011 @ 7:57pm

    Re: 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.

    Whatever. I never claimed to be a lawyer, but even I can read the law and see why these seizures are wrong. If that makes you laugh, then have at it.

    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.

    That would be relevant if that question was regarding pre-seizure hearings. It was not.

    Let's hear more from Title 17, this time specifically about impounding infringing articles. That is dealt with in 17 U.S.C 503, which in turn references 15 U.S.C. 1116 (d)(2) through (11). That section specifically states that ex parte seizures are not allowed unless "an order other than an ex parte seizure order is not adequate."

    In other words, ex parte seizures can only be granted if "safe harbors" are insufficient.

    So, the question was why ICE can totally disregard that entire section of the law. If they're allowed to do that, why have those laws in the first place? Why did Congress create Section 512 if law enforcement can just ignore it?

    Complying with notice-and-takedown is necessary, but not sufficient, to escape liability.

    Well, when the law says "A service provider shall not be liable," I tend to think of that as "escaping liability." Complying with notice-and-takedown is the most common requirement, but the others (mostly having to do with disabling infringing users' accounts) are all there in 17 U.S.C. 512.

    Section (j)(3) of that law even makes it clear that ex parte injunctions are not allowed:
    Injunctive relief under this subsection shall be available only after notice to the service provider and an opportunity for the service provider to appear are provided, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the service providerís communications network.

    You could possibly argue that the domain names were seized for the "preservation of evidence," but that's a huge stretch. A domain name is not evidence of anything except having a domain name. A simple record of the website it pointed to would suffice as evidence (it is in fact used as evidence in the affidavit), and if not, then that evidence is actually destroyed by the seizure itself.

    It would be even more of a stretch to suggest that taking away a domain name has "no material adverse effect" on a website. Having a "material adverse effect" is the entire point, in fact.

    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.

    Secondary liability is the only possible thing some of these sites could be guilty of. Which would mean that vicarious or contributory infringement is "criminal infringement" in the eyes of ICE. That is a problem. ICE couldn't just seize Napster's domain, why should they be able to seize these?

    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.

    Authorized content and fair use are presumptively protected expression. More importantly, so is expression that is not even accused of being infringing - such as the majority of the expression on the blogs and forums.

    The property being seized is a domain name.

    One intent of the seizures, as the affidavit clearly states, was to prevent access to the websites themselves. I don't know why you aren't willing to admit this. I mean, right in the video Morton brags about other sites "voluntarily" shutting down - clearly the intent was to chill speech.

    Another strawman. That rule applies to "nonjudicial" forfeitures. This is a judicial forfeiture.

    From 17 U.S.C. 506(b), Criminal Offenses:
    Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323 of title 18

    From 18 U.S.C. 2323, Forfeiture, destruction, and restitution:
    The provisions of chapter 46 relating to civil forfeitures shall extend to any seizure or civil forfeiture under this section.

    ...which brings us back to 18 U.S.C. Chapter 46, of which I quoted Sec. 983: General rules for civil forfeiture proceedings.

    I don't see how I'm creating a "strawman."

    That's possible, but it's not relevant to the legality of the seizures.

    Thus, "on a separate note." That wasn't a question about legality, but about the wisdom of such seizures. Morton brings that up as if it's some kind of victory, as if it's evidence that ICE is "winning the hearts and minds" of the public. I think he's got his head up his ass. All this is doing is making people angry at the government, and more willing to break the law.

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