New Filing Explains How Domain Seizures Violate The First Amendment

from the hello-prior-restraint dept

We've already covered how Puerto 80, the company that runs Rojadirecta, has challenged the government's seizure of its domain. The arguments presented by the company focused on a few different aspects of the law, and, obviously, focused mainly on what's most likely to get the domain returned. That meant that, while it mentioned both, it didn't spend too much time on two larger issues associated with the Rojadirecta seizures: (1) that it appears to violate the First Amendment's ban on "prior restraint" of speech and (2) that Rojadirecta was declared legal (twice) in Spain, and ignoring that sets a dangerous precedent.

Thankfully, the EFF, CDT and Public Knowledge have filed amici briefs that dig into both of these issues in great detail. I've embedded the filing below, and it's worth reading, as it does a very detailed and well annotated and cited explanation for why such seizures, prior to any adversarial hearing, violate the First Amendment. The whole thing is worth reading, but here's a snippet:
The impact on speech resulting from domain-name seizure is far beyond what is necessary to further the government interest. The government alleges that links (located on pages accessible through Petitioner’s domain names) to infringing content -- i.e., pointers to content accessible elsewhere on the Internet -- constituted criminal copyright infringement.... By seizing Petitioner’s domain names, however, the government blocked access to all content contained on Petitioner’s site, including obviously non-infringing content, such as user-created forums, discussions, and technical tutorials....

This tactic, as discussed above in Section III, was dramatic and unprecedented. While the government may pursue actions that further important interests, “it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms.” Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 637 (1980) (citing Hynes v. Mayor & Council of Borough of Oradell, 425 U.S. 610, 620 (1976)). “Broad prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone . . . .” NAACP v. Button, 371 U.S. 415, 438 (1963) (citations omitted).
Separately, it digs into the larger issues related to the fact that the site was found to be legal in Spain, something that the challenge from Puerto 80 mentions, but does not spend much time on. Here, however, the amici filing points out that this presents a big legal problem for the US government in supporting these seizures. Again, the entire argument is worth reading, but a quick snippet:
Decisions of foreign courts are not binding on the U.S. judiciary; however, it is a “well-settled rule” that unless the findings offend fundamental standards of procedural fairness or public policy, foreign judgments are generally conclusive. See Telenor Mobile Commc’ns AS v. Storm LLC, 584 F.3d 396, 408 (2d Cir. 2009) (citing Ackermann v. Levine, 788 F.2d 830, 837 (2d Cir. 1986)); Cunard S.S. Co. v. Salen Reefer Servs. AB, 773 F.2d 452, 457 (2d Cir. 1985) (“comity will be granted to the decision or judgment of a foreign court if it is shown that the foreign court is a court of competent jurisdiction, and that the laws and public policy of the forum state and the rights of its residents will not be violated.” (emphasis added)). Cf. Clarkson Co., Ltd. v. Shaheen, 544 F.2d 624, 631 (2d Cir. 1976) (holding that “a foreign judgment may not be collaterally attacked ‘upon the mere assertion of the party that the judgment was erroneous in law or in fact’” and requiring “[c]lear and convincing evidence” to attack a foreign judgment) (internal citations omitted))....

[....]

In the case of Rojadirecta, that standard was not applied, much less met. There is no reason to believe the Spanish rulings were procedurally unsound or offensive to public policy. Indeed, on the limited facts available in the record, U.S. copyright law may have dictated the same outcome, at least in the context of criminal infringement.
Separately, it notes that the consequence of ignoring such foreign judgments may do serious harm to US interests abroad, as it will enable other countries to do the same thing to US citizens and companies.
The effect may be felt well beyond the commercial context. Simply put, if the United States courts allow — with no adversarial hearing and on a low legal standard — the seizure of foreign-based content that is lawful in the home country, then that will set an example for other countries to seek to seize U.S.-based speech that is perfectly lawful in this country. As one example, U.S.-based websites have provided a crucial safe haven for political speech, including speech that is critical of foreign governments, in part because U.S. law offers strong protections for political commentary. If such a website were seized by a foreign government (even though the content is hosted in the U.S.), that action would likely be subject to intense criticism, including disapproval by the U.S. government. Unfortunately, it would be all too easy for the foreign censor to cite to the circumstances of this case as reason to ignore such criticism. Once the United States goes down the path of seizing websites hosted around the world, we will be less able to complain when other countries turn around and do the same thing to speech hosted here.
The filing also notes the oddity of the US government not mentioning the Spanish rulings in its affidavit to seize the sites, which suggests one of two things: that the ICE/DOJ folks hid this rather important fact or that that they didn't bother doing even the most basic investigation to find that information out.


Reader Comments (rss)

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  1.  
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    The eejit (profile), Jun 21st, 2011 @ 2:35pm

    Cue the "It's not violating the First Amendment because I say so" people, the "It won't happen to us because USA! USA! USA!" and massive threadjacking in 5, 4, 3...

     

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  2.  
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    Anonymous Coward, Jun 21st, 2011 @ 3:10pm

    Well, they were going on what the entertainment people told them, and we all know how well they present facts. /sarc

    Due diligence...what is this due diligence you speak of?

     

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  3.  
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    Anonymous Coward, Jun 21st, 2011 @ 3:32pm

    New Rules

    ...
    Hynes v. Mayor & Council of Borough of Oradell, 425 U.S. 610, 620 (1976)
    ...
    NAACP v. Button, 371 U.S. 415, 438 (1963)
    ...


    1976? 1963? Things have changed since then.

     

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  4.  
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    Anonymous Coward, Jun 21st, 2011 @ 3:51pm

    Re: New Rules

    "1976? 1963? Things have changed since then."

    Everything changed on September 11, 2001. The old rules and the Old Constitution no longer apply.

     

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  5.  
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    Anonymous Coward, Jun 21st, 2011 @ 4:01pm

    Re:

    No, impossible. INFIDEL!

     

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  6.  
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    rubberpants (profile), Jun 21st, 2011 @ 4:05pm

    Freeloaders

    The authors of the first amendment just wanted to download free music.

     

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  7.  
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    Anonymous Coward, Jun 21st, 2011 @ 4:25pm

    Re: Freeloaders

    The authors of the first amendment just wanted to download free music.

    Just a bunch of "freetards".

     

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  8.  
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    Anonymous Coward, Jun 21st, 2011 @ 4:32pm

    Re: Freeloaders

    & child porn XD

    cuz, that's the only reason they even added it in the first place lolololol

     

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  9.  
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    Thomas (profile), Jun 21st, 2011 @ 4:37pm

    Re:

    "Well, they were going on what the entertainment people told them, and we all know how well they present facts. /sarc"

    You should have said "what the entertainment people PAID them to do" The entertainment industry owns quite a few members of Congress plus the agencies. Anyone notice how the DOJ is turning into Entertainment Industry Police?

     

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  10.  
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    txpatriot, Jun 21st, 2011 @ 4:47pm

    What relevance does the Spanish decision have in the US? If Spain legalized child porn and child molestation, should that make it OK here? Of course not.

     

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  11.  
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    Anonymous Coward, Jun 21st, 2011 @ 4:47pm

    Re: Re:

    The entertainment industry owns quite a few members of Congress plus the agencies. Anyone notice how the DOJ is turning into Entertainment Industry Police?

    And, yet, America keeps reelecting them.

     

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  12.  
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    Anonymous Coward, Jun 21st, 2011 @ 4:50pm

    Re:

    What relevance does the Spanish decision have in the US? If Spain legalized child porn and child molestation, should that make it OK here? Of course not.

    That question was answered in the article and references. Did you even bother to read it? Of course not.

     

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  13.  
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    Anonymous Coward, Jun 21st, 2011 @ 4:54pm

    http://www.myrojadirecta.com

    There, now you can get all the free stuff that you deserve. You shouldn't have to pay for anything!!

    There not hosting illegal content, there just linking to illegal content. Is aiding and abeting a crime still a crime in this country??

    These seizures were done with a warrant. A warrant issued by a judge. Does that not constitute due process?

     

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  14.  
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    Steven (profile), Jun 21st, 2011 @ 5:03pm

    Re: Re: Re:

    And not just 'most of the time'. It's practically a guarantee. Although I suspect the way districts are 'aligned' has much to do with this.

    http://www.opensecrets.org/bigpicture/reelect.php

     

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  15.  
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    Kingster (profile), Jun 21st, 2011 @ 5:06pm

    Re:

    In that situation it *could* be warranted, as explained. But mebbe them schools down thar in Tejas cain't learn you to reed or wraght too gud.

     

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  16.  
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    Kingster (profile), Jun 21st, 2011 @ 5:08pm

    Re:

    Nope. But we've been over and over that before. I'm curious, though... If these seizures are found to have been done improperly, will you STFU and move on?

    I doubt it.

     

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  17.  
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    anon, Jun 21st, 2011 @ 5:15pm

    Re:

    No, it doesn't. When the first amendment is at stake, a higher standard is required. The government clearly hasn't met that standard. At the very least, it should be an adversarial hearing where the defendant has a chance to challenge the government, before speech is restrained.

     

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    CarlWeathersForPres (profile), Jun 21st, 2011 @ 5:26pm

    Not to be too much of a stickler for nuance, but prior restraint is stopping something before its been published(see pentagon papers). What your citing here is overbreadth, which is a valid argument.

    Also, most judges will laugh at the argument that foreign decisions mean anything on our law, unless it's due to the enforcement of a treaty which both countries have signed onto. Just because the spanish flavor of IP came up with a decision, doesn't mean the US flavor of IP would follow that decision. It's not like we're following French or Italian law when it comes to google searches.

     

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  19.  
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    Anonymous Coward, Jun 21st, 2011 @ 5:42pm

    Just out of curiosity, exactly what type of free speech is alleged to having been unlawfully restrained?

     

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  20.  
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    CarlWeathersForPres (profile), Jun 21st, 2011 @ 5:43pm

    Re: Re:

    But is this really a violation of the first amendment? That's going to be the interesting question with this, and really hope it works its way to the SC(because I think it has some nice facts to these cases).

    I'm not really sure this is prior restraint, because they haven't physically silenced someone on the internet or the publishers of the content, they just forced them to do it someplace else. Is there any injunction in place? I thought they just seized the domain name.

    It might be overbreadth, because this violates some free speech by getting rid of the offending content. But most of the cases dealt with statutes, so not sure how they'd apply it to a warrant for a seizure.

    I'm not really sure there is much of a 4th or 5th amendment claim, since they got a warrant from a judge(unless they lied, which is pretty cut and dry).

    Really, seizing a domain name is like plugging a hole in a sieve, which means 1) that it's dumb to try and do it because you're not stopping anything and 2) it's a tougher case for a first amendment claim because you're really not stopping anyone from doing anything. Either way, this should make for some interesting case law.

     

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  21.  
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    CarlWeathersForPres (profile), Jun 21st, 2011 @ 5:54pm

    Since there is no edit button

    I'm not sure how the interplay with First Amendment and Copyright will work out. I know in prior posts you've cited Fort Wayne(i think) which was the seizure of a bookstore because of lewd and obscene material. The only reason I balk at this is because lewd and obscene are based on a community standard(i.e. juries) where as copyright violations can be a little more cut and dry. Also, westlaw tells me there were some contradictory opinions, but not wanting to do an hour and a half project to read all the cases, I'll just leave it there.

     

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  22.  
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    Parkway Cozy, Jun 21st, 2011 @ 6:05pm

    "which suggests one of two things: that the ICE/DOJ folks hid this rather important fact or that that they didn't bother doing even the most basic investigation to find that information out."

    No, they hid the fact. I understand your position, Techdirt, but exactly what is it going to take to convince you?

     

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  23.  
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    Anonymous Coward, Jun 21st, 2011 @ 6:28pm

    Re: Re:

    I believe that the Attorney General has the power to seize domains if the proper red tape is met. I also believe that congress gave him this right. You know, the people that you voted into office to make laws? In these cases, the procedures were all met so there is no way they will be "found to have been done improperly". This one particular site may be given their domain back but it wont be because of the way it was seized.

     

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  24.  
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    Jay (profile), Jun 21st, 2011 @ 6:37pm

    Re: Re: Re:

    The Attorney General is NOT the law of the internet. And just because Congress, the US Congress, has granted that power means he has any sovereignty over other nations and their rulings on what's legal and illegal.

    Last I checked, NO ONE has been given the power to seize a domain based on any actual laws, which is why this is contested. The AG's power that you're implicating is a part of the PIPA bill currently debated in Congress. If we're to look at the affidavits for the takedowns as well as see what the government has done, then there's a LOT that the government "has done improperly".

    Finally, these seizures have been going on for a year. So where's the government's court cases and calling in of people for their trials to get the domains back?

     

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  25.  
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    DCX2, Jun 21st, 2011 @ 7:05pm

    Re: New Rules

    I know, right? 1791 was when the Bill of Rights came into effect. Things have changed since then.

    btw, try googling "stare decisis".

     

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  26.  
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    Lawrence D'Oliveiro, Jun 21st, 2011 @ 7:10pm

    Re: What relevance does the Spanish decision have in the US?

    Or if the US legalized the owning and distribution of Nazi memorabilia, would that make it OK in France?

     

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  27.  
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    DEANE, Jun 21st, 2011 @ 7:48pm

    I think when people ask,
    "Just out of curiosity, exactly what type of free speech is alleged to having been unlawfully restrained?"

    its more the simple fact that any type of speech (comments and such) are actually protected. its like my video being hosted on Piratebay, if the site was taken down (highly likely) that the government BY DIRECT ACTION will have silenced speech, their by abridging the first amendment.

     

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  28.  
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    Anonymous Coward, Jun 21st, 2011 @ 9:04pm

    It's an incredible reach. What they are suggesting is that the first amendment overwhelms everything including a valid government interest. That pretty much always fails as an argument.

    Further, there is no indication that trading files or violating copyright is protected speech. There are already lower court rulings which accept that a certain amount of protected speech may be harmed when the greater non-protected speech is stopped. So having a file trading chat board and blog full of copyright violating content wouldn't be protected by a small amount of legal free speech buffering between the unprotected speech.

    The are arguments made ignore the huge harm that is done with the unprotected speech.

     

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  29.  
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    deane (profile), Jun 21st, 2011 @ 9:14pm

    Re:

    well whats the threshold for unprotected to protected speech? if as you put it that the courts will allow for some protected speech to be silenced when does it become a civil rights violation? I'd say if I put up a video denouncing the government for taking down website domains and then they take it down then, my own personal civil rights ALONG with the rights of the website owner have been violated since the government have by their own action PREVENTED ME from speeking

     

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  30.  
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    deane (profile), Jun 21st, 2011 @ 9:20pm

    though in this day and age, proving civil rights would be meaningless since the government would just label me a terrorist and lock me up for 100 years after I start complaining about them taking my rights away!

     

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  31.  
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    Anonymous Coward, Jun 21st, 2011 @ 10:14pm

    Re:

    It's kind of funny how obvious your hand-waving is. I suppose the obviousness stems from either your inability to read the article and quoted sections or your inability to actually argue any specific points. Which is it? I'm curious.

     

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  32.  
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    deane (profile), Jun 21st, 2011 @ 10:37pm

    Re: Re:

    It's kind of funny how obvious your hand-waving is. I suppose the obviousness stems from either your inability to read the article and quoted sections or your inability to actually argue any specific points. Which is it? I'm curious.


    more the fact that I'm not a trained lawyer and the simple fact that however its cut, if you post even 1 non infringing content on any site and the government takes that site down they have effectively silenced free speech (least according to me and my own completely untrained legal background)

     

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  33.  
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    deane (profile), Jun 21st, 2011 @ 10:42pm

    something to point out in terms of my views. I have actively seeded a video on Pirate bay denouncing the evils of the PROTECT IP act since Its likely to pass. and at least in my view when they take the pirate bay I believe I will have standing to sue the USA government for censoring political speech!

     

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  34.  
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    Hephaestus (profile), Jun 21st, 2011 @ 11:46pm

    Re:

    Actually 1st,4th, and 14th amendments.

     

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  35.  
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    Hephaestus (profile), Jun 21st, 2011 @ 11:48pm

    Re: Re:

    The DOJ is full of Ex RIAA and MPAA types if memory servers me. They agreed to not do stuff related to their old content jobs for a period of a "FULL" six months.

     

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  36.  
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    G Thompson (profile), Jun 22nd, 2011 @ 12:04am

    Re: Re: What relevance does the Spanish decision have in the US?

    Before you spout of about what you know not, do a quick search of what the reference was talking about.

    Comity! here for your education is both the Wikipedia entry, and the Cornell Law School Entry which calls it its real name in this context Comity of Nations

    Basically it is the reciprocity that is shown between different Jurisdictions and like all diplomatic diplomacy it is either used by all or if one side only used it whenever it wants and not other times, the other country courts will bite back when you least expect it.

     

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  37.  
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    G Thompson (profile), Jun 22nd, 2011 @ 12:06am

    Re: Re: Re: What relevance does the Spanish decision have in the US?

    Damnation.. that was in direct reply to
    txpatriots reply amd not yourself Lawrence :(

     

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  38.  
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    Mike Masnick (profile), Jun 22nd, 2011 @ 12:13am

    Re:

    There, now you can get all the free stuff that you deserve. You shouldn't have to pay for anything!!


    No one's argued that. Why even make a strawman like that?

    There not hosting illegal content, there just linking to illegal content. Is aiding and abeting a crime still a crime in this country??

    Yes, aiding and abetting is, but as we've discussed, at length, aiding and abetting has certain very specific characteristics, most of which don't apply to Rojadirecta. Here the Spanish rulings come into play. The fact that Rojadirecta had been told by courts twice that what it was doing was legal, makes an "aiding and abetting" charge nearly impossible.

    These seizures were done with a warrant. A warrant issued by a judge. Does that not constitute due process?


    No, it doesn't. As is explained quite clearly in the filing (which I'm pretty sure you didn't read), when it comes to speech a prior adversarial hearing is required.

     

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  39.  
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    Mike Masnick (profile), Jun 22nd, 2011 @ 12:22am

    Re: Re: Re:

    I believe that the Attorney General has the power to seize domains if the proper red tape is met.

    What you "believe" and what "is" may be two separate things.

    I also believe that congress gave him this right.

    This is, at best, an exaggeration, and at worst, an intentional misstatement of fact. Under ProIP, Congress did extend federal seizure and forfeiture abilities to property used in criminal copyright infringement. However, as it was put in there, it was designed for things like seizing CD stampers and recorders and such. Claiming that this extends to URLs is not nearly as clear cut, and runs into serious problems with you look at things like the Fort Wayne case cited.

    In these cases, the procedures were all met so there is no way they will be "found to have been done improperly".

    That's very much in question, and the massive number of errors in the filing raises serious questions as to whether or not the procedures were actually all met.

    I recognize that people who support these seizures *want* to believe this is the case, but the facts do not support your position.

     

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  40.  
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    Mike Masnick (profile), Jun 22nd, 2011 @ 12:31am

    Re:

    Just out of curiosity, exactly what type of free speech is alleged to having been unlawfully restrained?


    The forums and discussions on the site is one key part, but basically all of the non-infringing content there.

     

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  41.  
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    AJ, Jun 22nd, 2011 @ 4:07am

    Idea!

    ICE can take a domain, but can they take an ip address if it wasn't issued in the U.S.? If not, why not associate the physical IP address with the domain directly. IE search for TPB and you get results like... "The Pirate Bay 253.26.3698 or whatever.... I'm not an programmer or whatever, but it seems like the domain is just a placeholder on the web, get rid of the need for the placeholder and there is nothing to take?

     

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  42.  
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    CarlWeathersForPres (profile), Jun 22nd, 2011 @ 4:56am

    Re: Re: Re:

    Deane,

    Have they really silenced free speech though? It's not like you can't put your message out there by a different means(a different website). The courts like to make arguments by analogy, and these are the first that came to mind(you can tell me if they're idiotic, I won't mind, I haven't had my coffee yet):

    1) A group likes to demonstrate outside of a particular place, the government forces them across the street for public safety issues.

    2) Government seized a crack den, which also puts political slogans on the front lawn.

    3) Government preemptively seized and shut down a store that sold obscene books.

    1 & 2 would probably be legal restrictions on free speech(the first was based on a few abortion cases, and the second seems utterly ridiculous). The third is Fort Wayne Books v. Indiana, but it's an obscenity case so it's not directly on point here.

     

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  43.  
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    CarlWeathersForPres (profile), Jun 22nd, 2011 @ 5:05am

    Re: Re:

    I forget which Jurist said this, but (paraphrasing) scribbling voltaire on the inside cover of an obscene book does not make it protected speech. If I remember the obscenity cases right, many times entire movies were banned because of an obscene scene. If it's a proper time place and manner restriction, all of the free speech could be restricted if someone didn't follow the rules(albeit narrowly tailored and content neutral rules). It really just depends on the situation.

     

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  44.  
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    Anonymous Coward, Jun 22nd, 2011 @ 6:13am

    Re: Re: Re: Re:

    Actually, Fort Wayne would be a good example. In obscene literature, there is often plenty of non-obscene material. That is to say, the entire work isn't an endless obscenity, but rather portions of the book are obscene, and the rest of it would be acceptable.

    "once upon a time" isn't obscene. Neither is "and they all lived happily ever after once their wounds healed".

    So what if 50% of the book isn't obscene? Should it all be protected because there is some protected speech in there?

    The argument is key here. If the websites are rife with copyright violations, the presence of some protected speech on them shouldn't give them any more coverage than the book that is less than 50% obscene by word count.

    The other examples you cite are similar. You cannot protect criminal actions behind free speech (unless you are in politics). You cannot use the first amendment as some sort of bunker to hide your illegal activities in.

    As a result, the first amendment arguments are nice, but they are relatively meaningless, because they ignore the basic facts about the websites in question.

     

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  45.  
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    deane (profile), Jun 22nd, 2011 @ 6:25am

    Re: Re: Re: Re:

    same as to first coffee right now so patience :-) my thinking is basically even if you can change where you can send the message, hasn't the speech been censored when they took the domain offline? and as for an analogy, consider this, a police officer tells you to move away when you peacefully are waving a sign in front of a court house. you could very well change your location, but in the end the harm has already been done.

     

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    CarlWeathersForPres (profile), Jun 22nd, 2011 @ 6:27am

    Re: Re: Re: Re: Re:

    I don't even think there is a % test. Obscenity is based on community standard, so if you read the book to a jury, it's if they think the book is obscene or not. That's why stopping anything as obscene prior to any trial can be rife with abuse(because, what is obscene to one old guy is not obscene to his 20 year old grandson), while copyright violations are a little more black and white and would probably have a different set of reasoning associated with it.

     

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  47.  
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    deane (profile), Jun 22nd, 2011 @ 6:27am

    Re: Re: Re: Re: Re:

    Actually, Fort Wayne would be a good example. In obscene literature, there is often plenty of non-obscene material. That is to say, the entire work isn't an endless obscenity, but rather portions of the book are obscene, and the rest of it would be acceptable.

    "once upon a time" isn't obscene. Neither is "and they all lived happily ever after once their wounds healed".

    So what if 50% of the book isn't obscene? Should it all be protected because there is some protected speech in there?

    The argument is key here. If the websites are rife with copyright violations, the presence of some protected speech on them shouldn't give them any more coverage than the book that is less than 50% obscene by word count.

    The other examples you cite are similar. You cannot protect criminal actions behind free speech (unless you are in politics). You cannot use the first amendment as some sort of bunker to hide your illegal activities in.

    As a result, the first amendment arguments are nice, but they are relatively meaningless, because they ignore the basic facts about the websites in question.


    but would the author of the non-infringing work have proper standing in terms of court for censorship?

     

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    Anonymous Coward, Jun 22nd, 2011 @ 6:38am

    Re:

    They will have that opportunity very soon. It will be fun to see how many rights holders serve them with civil suits when they come to court to process their free speech complaint.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 7:03am

    Re: Re: Re: Re: Re:

    Exactly. And notice how the EFF et al. conveniently didn't talk about how copyright laws work in the First Amendment analysis. Why the glaring omission? They write a whole brief about the application of the First Amendment to these copyright seizures, but completely leave out two centuries of caselaw dealing with the intersection of the First Amendment and copyright law.

    And really, copyright laws are subject to heightened scrutiny under in First Amendment analysis? That was the premise of the brief, yet not one source was cited as authority stating such. Do they really thing the judge won't notice this?

    It's a really well written and researched brief. Too bad it says nothing about copyright laws.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 7:04am

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

    Well, there are questions here clearly. I tend to think of it as a the bad neighborhood theory: If you live in a building full of drug dealers, don't be shocked when the police burst your door down with a no-knock warrant because someone in the hood tipped them off that you are moving tons of crack, even if you are not.

    If you are an author of a non-obscene book, example, sold at a book store closed because it sells obscene material, you don't have a lot of comeback. You cannot force the courts to re-open the store to sell your non-obscene work. You were in a bad neighborhood, and there isn't much you can do about it.

    It is on par with being in a car with a driver holding a big bag of crack. The car gets stopped, the driver gets arrested, the car gets seized, but you aren't charged. Do you get the car back and a new driver to keep driving? Nope. Your "free speech" rights to travel in a car are curtailed by a bigger issue. Whatever of your rights are lost because the car is seized is not enough to justify the police releasing the car to you.

    You can find good in almost every website, even the very worst. What would you say to a child porn website filled with naked kid pictures and classic fairy tales and maybe some political commentary about safety at school? Would the courts permit the child porn, because there is significant protected speech on the site? The answer is clearly no.

    While commercial copyright infringement isn't on par with child porn (I wouldn't even suggest it), there really is a black and white thing here. Illegal acts are not protected free speech, and on that standard and that standard alone, all of those illegal acts are the same. The courts are not permitted to grey scale on the first amendment, it's either all the way in or all the way out. There isn't any middle ground.

    The only way out of it would be the "oops" factor, as in "oops, I didn't know that single video was infringing". But on sites that had massive amounts of infringing materials as part of the site's basic layout and structure (regardless of the location of the files), it is hard to claim an oops.

    As a result, the first amendment arguments are weak in my opinion.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 7:06am

    Re: Re: Re: Re: Re:

    Well, again, as the courts have ruled, there can be a time where a police officer is moving you for your safety or the safety of others, and whatever free speech may be limits is not unreasonable compared to the greater interest. You didn't lose your right to protest or wave your sign, you only are not able to do it in certain locations because they are not safe.

    Example, if you stand in the middle of a freeway with a sign that says "end gas taxes now!", you are likely to be removed from the freeway because it isn't safe for you and for others. If you did the same thing from the side of the road or an overpass, you might not get the same response.

    Even free speech has it's limits.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 7:07am

    Re: Re:

    Yes, aiding and abetting is, but as we've discussed, at length, aiding and abetting has certain very specific characteristics, most of which don't apply to Rojadirecta. Here the Spanish rulings come into play. The fact that Rojadirecta had been told by courts twice that what it was doing was legal, makes an "aiding and abetting" charge nearly impossible.

    That's quite misleading. Whether it's legal under Spanish law is irrelevant to whether it's legal here. Here, they're looking at accomplice liability for aiding and abetting, inducing, encouraging, or whatever you want to call it. An accomplice is treated as if he had committed the crime himself.

    No, it doesn't. As is explained quite clearly in the filing (which I'm pretty sure you didn't read), when it comes to speech a prior adversarial hearing is required.

    The brief explained how the First Amendment works in the context of libel, defamation, obscenity, etc. But it made absolutely no mention of how it works in the copyright context. None. And why do you think that's so? It's because two centuries of jurisprudence and doctrine is working against their constitutional challenge of 18 U.S.C. 2323. It's more than telling that they never brought up copyright laws.

     

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    CarlWeathersForPres (profile), Jun 22nd, 2011 @ 7:11am

    Re: Re: Re: Re: Re:

    The problems I'm having with this is trying to think of the doctrine that this falls under and how this would be impermissible restriction on free speech(and I really don't feel like reading a 22 page brief). The reason I'm having trouble is because this isn't normal case law, because there are 2 competing constitutional issues(the first amendment and Article 1 section 8(science and the useful arts), which always changes the calculus. That's my big "WHOA" on this one.

    As to your points, which are both valid, and both in the proverbial gray area(or nuance) of the law. The first, as to the censoring, it has been censored, but the first amendment doesn't protect all speech no matter what. There is a weighing aspect to it, or else any government action would somehow touch some component of free speech(I could list strange hypotheticals all day, but a little lazy right now). The case law says that restrictions on free speech must be narrowly tailored and content neutral. The second one is pretty easy, they didn't pick and choose, they just took down content from sites that "violated"(not sure if they did, hence scare quotes) copyright law. The first one might be what the argument hinges on. Is removing an entire website that infringes copyrights, even though it has some worthwhile information on it, overbroad? I don't know, and I look forward to hearing the arguments.

    As to the Police telling you to move away peacefully, the government has the ability to regulate the time, place and manner that you use government property. The government can close parks, or regulate hours of a courthouse or open government property. There are even abortion cases where injunctions and laws are in place which says that you can't picket within x feet of a clinic or place that practices abortions, and they've been upheld by the SC, although this may be an abortion of the first amendment(forgive the bad pun, but most rules that pertain to abortion are very partisan and aren't really applicable to much else because they can do some hand waving around the law).

     

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    Anonymous Coward, Jun 22nd, 2011 @ 7:16am

    Re: Re: Re: Re:

    No, it doesn't. As is explained quite clearly in the filing (which I'm pretty sure you didn't read), when it comes to speech a prior adversarial hearing is required.

    The statute says that "property" used to commit criminal copyright infringement can be seized. It doesn't limit the type of property that may be seized to the types you've listed. When Congress wants to limit a statute's applicability, it knows how to draft it as such.

    Fort Wayne has no application in the copyright context. That is an obscenity case, and obscenity is treated differently in the First Amendment analysis. I know you don't agree, but it is a fact that has been proven many times over in the comments section here.

    Did you notice how the EFF brief couldn't cite to one court saying that heightened scrutiny is used when analyzing a copyright law under the First Amendment. They didn't cite any because none exists. AUSA Frey will most certainly be explaining this to the judge. Of course, you won't have any coverage of his briefings on the matter. We know you don't like to cover both sides of the issue.

    That's very much in question, and the massive number of errors in the filing raises serious questions as to whether or not the procedures were actually all met.

    I recognize that people who support these seizures *want* to believe this is the case, but the facts do not support your position.


    The brief points to errors in other seizures, but none in this seizure. That's very telling as well. The procedure is: someone makes a complaint, the feds investigate, an affidavit is presented to a judge stating probable cause, and the instrument of crime is seized pursuant to a judge-issued warrant. Claiming this violates procedural due process will get them nowhere.

    This brief is a "Hail Mary" pass if there ever was one. 18 U.S.C. 2323 is not unconstitutional. No judge will agree. Guess we'll see soon enough who's right on this.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 7:25am

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

    The reason I'm having trouble is because this isn't normal case law, because there are 2 competing constitutional issues(the first amendment and Article 1 section 8(science and the useful arts), which always changes the calculus. That's my big "WHOA" on this one.

    And it's precisely because the PRO IP Act, which modified 18 U.S.C. 2323 to include seizures of property used to commit criminal copyright infringement, was drafted under Congress's enumerated power in the Copyright Clause of Article I. Courts give such exercises of power deferential review--it passes constitutional muster if it's rationally related to a legitimate governmental interest.

    The brief is trying to cram the issue into the jurisprudence that exists vis-a-vis obscenity, libel, defamation, etc. Those laws are treated differently. Those laws aren't written pursuant to an enumerated power like copyright laws are.

     

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    CarlWeathersForPres (profile), Jun 22nd, 2011 @ 7:31am

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

    I disagree, free speech is slightly more protected than a right to have your friend take you in a car. And police may be sued for an illegal search of a residence(which I don't see how a tip would amount to probable cause, especially if it's an untrustworthy informant).

    The Fort Wayne case was one in which a book store was shut down prior to a trial because it was selling "obscene" literature. I think this falls apart in a few places. First, a book is generally not sold in just one store(so you're not really silencing the writer). Second, if after trial the bookstore was found to be selling obscene material it would be shut down, whether or not all the material was obscene. The issue in Fort Wayne was whether it was constitutional to shut down a store prior to a trial, which in obscenity cases it was not because of the fact specific nature of the abuse and the need for juries. The big difference here is that copyright law is a little more black and white, and can be determined prior with some certainty prior to adjudication.

    Last thoughts, if I were writing the gov't brief I'd make the parallels to the right to first publication, where leaked copyrighted information (for example, Sarah Palin's book) can preclude publication of it by a news organization until after it has become public. I'd also look for case law where they've shutdown book stores for selling licensed and unlicensed materials at the same time.

    Either way, I think this will be interesting to watch.

     

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    CarlWeathersForPres (profile), Jun 22nd, 2011 @ 7:34am

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

    I like when my gut feelings are right and I don't feel like a complete idiot for not seeing a the "obvious" constitutional issue that Mike claims.

     

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    DannyB (profile), Jun 22nd, 2011 @ 7:42am

    Re:

    > There not hosting illegal content,
    > there just linking to illegal content.
    > Is aiding and abeting a crime still a
    > crime in this country??


    You are misrepresenting 'aiding and abetting a crime'.

    Google also links to illegal content. Links are just a tool. A tool you can use to find the illegal content and shut it down. If you stop the actual illegal content, then the links are worthless. But it seems that you'd rather stop the linking and keep the illegal content hosted somewhere.

    If I verbally link to something, (eg "Yeah, that house on the corner is a crack house.") is that aiding and abetting a crime? Maybe resources are better spent shutting down the crack house? Maybe not. Maybe it is better to arrest people who verbally state the fact.


    Replace "abeting" with "abetting"; and "There" with "They're".

     

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    DannyB (profile), Jun 22nd, 2011 @ 7:46am

    Re:

    You think they hid it. I think they hid it.

    Since the complainant cannot prove that they hid it, the best they can do is to state both obvious alternatives. Either (1) they're lying to the court, or (2) they are too stupid to have properly investigated before wasting the court's time. Either way, they should be sanctioned.

     

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    DannyB (profile), Jun 22nd, 2011 @ 7:51am

    Re: Re: Re:

    > If I remember the obscenity cases right, many times
    > entire movies were banned because of an obscene scene.


    Does this still happen in the 21st century, in the US?

    If the Phelps can be allowed to protest military funerals, then I think nothing that is fiction, documentary, or the actions of consenting adults should be able to be banned.

    Regulated, probably; and that should apply to both examples.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 8:07am

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

    Well, I think that what these people are doing is what many do in front of the courts, they try to re-frame the entire situation so that they end up arguing about murky issues.

    In these cases, going to first amendment as the first refuge suggests that all other arguments are already lost. So they are instead attempting to get the courts to ignore the circumstance, the situation,and overt acts that have occurred, and to pay attention only to an extremely narrow interpretation of the first amendment.

    Thankfully, the government lawyers get to play the other side, and can more widely open the discussion. It is in my opinion extremely unlikely that the courts will side with EFF (or anyone else arguing first amendment issues here) because the alternative is tearing down plenty of caselaw and "greater good" judgements that have stood for a very long time.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 8:08am

    Re: Re:

    They didn't hide anything since its legality in a foreign country is irrelevant to whether it's legal here.

    If anyone is hiding anything it's the EFF et al. in submitting this brief. They are hiding everything that has to do with how the First Amendment works in the copyright context. The brief is so misleading that I think it borders on being unethical for the lawyers who worked on it to even submit it. Seriously. If you know of relevant law that hurts your position, you're supposed to be honest about it. This brief is anything but honest.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 8:23am

    Re: Re: Re:

    And don't get me wrong. Should copyright laws be subject to heightened scrutiny? I wouldn't have a problem with it if they were. That's not the issue. How they could/should act has nothing to do with how they are.

    I could never submit a brief to a court saying that copyright laws are content-based restrictions of speech subject to intermediate scrutiny because I know that's not true. They know it too. And that's not right.

    I understand they're just trying to frame it as such, but to do so without even mentioning the fact that they're trying to get the court to do what no other court has done in two centuries is misleading and dishonest.

     

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    CarlWeathersForPres (profile), Jun 22nd, 2011 @ 8:57am

    Re: Re: Re: Re:

    One of the last cases I remember was from the late 70's or early 80's, which is still in this era for first amendment doctrine. Obscenity now is really weird, because is something obscene to the whole world just because it's obscene to podunk Mississippi? Either way, that's probably a different discussion for a different time.

    I think the phelps thing is more "public figure" doctrine. They essentially(although I disagree) said that he's a public figure and people have the right to protest public officials or public policy.

     

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    Mike Masnick (profile), Jun 22nd, 2011 @ 10:18am

    Re: Re: Re: Re:

    Have they really silenced free speech though? It's not like you can't put your message out there by a different means(a different website).

    That's not how the First Amendment works, as is clearly discussed in the filing:

    The fact that some or all of the information available through the targeted domain names may still be available to the public, by (for example) using another domain name or by typing in the site’s numerical IP addresses directly, does not change the analysis. The Supreme Court has repeatedly held that “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised elsewhere.” Schneider v. New Jersey, 308 U.S. 147, 163 (1939); accord Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 757 n.15 (1976) (“We are aware of no general principle that freedom of speech may be abridged when the speaker’s listeners could come by his message by some other means . . . .”).

    The idea that because the speech can still be found via other means does not mean there is no 1st Amendment violation. At all. Not sure why you'd even suggest otherwise.

     

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    Mike Masnick (profile), Jun 22nd, 2011 @ 10:21am

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

    And it's precisely because the PRO IP Act, which modified 18 U.S.C. 2323 to include seizures of property used to commit criminal copyright infringement, was drafted under Congress's enumerated power in the Copyright Clause of Article I. Courts give such exercises of power deferential review--it passes constitutional muster if it's rationally related to a legitimate governmental interest.

    That's incredibly misleading. As you well know, the modifications to 2323 were pitched as being needed to seize things like DVD/CD pressing machines, not SPEECH.

    That's the whole crux of this case and the filing. The DOJ/DHS have pretended that they can ignore the fact that they're cutting off speech due to a very loose interpretation of 2323.

     

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    Mike Masnick (profile), Jun 22nd, 2011 @ 10:24am

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

    The problems I'm having with this is trying to think of the doctrine that this falls under and how this would be impermissible restriction on free speech(and I really don't feel like reading a 22 page brief).

    Really? You don't think that the government coming in and shutting down a ton of perfectly protected speech is a First Amendment issue around prior restraint?!?

    The reason I'm having trouble is because this isn't normal case law, because there are 2 competing constitutional issues(the first amendment and Article 1 section 8(science and the useful arts), which always changes the calculus. That's my big "WHOA" on this one.

    The courts have always tried to balance the two. I don't necessarily think that they do a good job of it, but even so, that's not the actual issue here. Under the copyright clause there is the ability to remove infringing material. The issue is that's not what's happening here. The government is seizing protected speech in a (weak) effort to block access to pointers to potentially infringing material.

    That's a huge First Amendment no-no.

     

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    Kingster (profile), Jun 22nd, 2011 @ 10:24am

    Re: Re: Re: Re: Re:

    The statute says that "property" used to commit criminal copyright infringement can be seized. It doesn't limit the type of property that may be seized to the types you've listed. When Congress wants to limit a statute's applicability, it knows how to draft it as such.

    The problem is, hosting a LINK is NOT committing infringement. If it is... Then where is the seizure of google.com? Seems to me I can find plenty of links to illegally download Lady Gaga from there.

    Oh, I know why. Because if ICE seized that domain, they'd find their ass in a sling so fast it would make their head spin. And ICE knows this. So instead, they go after smaller operators, those that are likely to not have governmental connections, powerful lobbies, big banks, and bigger lawyer teams.

     

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    Mike Masnick (profile), Jun 22nd, 2011 @ 10:28am

    Re: Re: Re:

    They didn't hide anything since its legality in a foreign country is irrelevant to whether it's legal here.

    It may be irrelevant to whether or not its legal here, but as the filing clearly notes (and you totally ignore for whatever reason), the courts should give some deference to those rulings before declaring unilaterally that it's infringing with no prior adversarial hearing.

    Separately, since folks like yourself are so wedded to the aiding and abetting concept, it seems that the fact that it was judged legal in Spain (twice) weakens the whole aiding and abetting claim. The people behind the site had every reason to believe that what they were doing was entirely legal.

     

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    Mike Masnick (profile), Jun 22nd, 2011 @ 10:30am

    Re: Re: Re: Re:

    I could never submit a brief to a court saying that copyright laws are content-based restrictions of speech subject to intermediate scrutiny because I know that's not true. They know it too. And that's not right.

    Um. What?!? If you don't think copyright laws are content-based restrictions of speech, then you have no business being involved in the law.

    That's the entirety of copyright law: it is a content-based restriction of speech. There may be good reasons for it, but that doesn't change what it is.

    Claiming otherwise is ludicrous.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 10:35am

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

    That's incredibly misleading. As you well know, the modifications to 2323 were pitched as being needed to seize things like DVD/CD pressing machines, not SPEECH.

    That's the whole crux of this case and the filing. The DOJ/DHS have pretended that they can ignore the fact that they're cutting off speech due to a very loose interpretation of 2323.


    It's not misleading in the least. The statute was drawn so that property used to commit criminal infringement could be seized. A domain name is such property. The argument you're espousing will go nowhere in the courts. The fact is, the incidental effect on speech is permitted. The target of the seizures is not the protected speech, and you know it.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 10:47am

    Re: Re: Re: Re: Re:

    That's not how the First Amendment works, as is clearly discussed in the filing:

    The fact that some or all of the information available through the targeted domain names may still be available to the public, by (for example) using another domain name or by typing in the site’s numerical IP addresses directly, does not change the analysis. The Supreme Court has repeatedly held that “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised elsewhere.” Schneider v. New Jersey, 308 U.S. 147, 163 (1939); accord Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 757 n.15 (1976) (“We are aware of no general principle that freedom of speech may be abridged when the speaker’s listeners could come by his message by some other means . . . .”).

    The idea that because the speech can still be found via other means does not mean there is no 1st Amendment violation. At all. Not sure why you'd even suggest otherwise.


    You mean as it's discussed in the lopsided, dishonest, and misleading brief? The brief that makes no mention of the fact that this is a copyright case and that the First Amendment analysis under other situations is inapplicable? That brief? Wow, you think maybe they aren't telling the whole story?

     

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    Mike Masnick (profile), Jun 22nd, 2011 @ 11:00am

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

    It's not misleading in the least. The statute was drawn so that property used to commit criminal infringement could be seized. A domain name is such property. The argument you're espousing will go nowhere in the courts. The fact is, the incidental effect on speech is permitted. The target of the seizures is not the protected speech, and you know it

    I don't "know" that at all because it's WRONG. Flat out, totally, and completely wrong.

    First of all, while a domain name may be property, it is NOT the property that is used to infringe. A domain name is a pointer to a server. That server was not property used to infringe here either. Instead, the infringement occurs on a totally different server, and was put there by a totally different user. Claiming that the domain is property used to infringe is wrong.

    And even so, that's not the point. You are pretending -- in an incredibly misleading way -- that 2323 makes it clear that speech may be seized. That's not at all true.

     

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    Mike Masnick (profile), Jun 22nd, 2011 @ 11:02am

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

    ou mean as it's discussed in the lopsided, dishonest, and misleading brief? The brief that makes no mention of the fact that this is a copyright case and that the First Amendment analysis under other situations is inapplicable? That brief? Wow, you think maybe they aren't telling the whole story

    The brief is not lopsided, dishonest or misleading. If anyone is being misleading here it's you.

    But, most telling, you don't actually respond to the point. Hilarious. But telling.

    As for your claims that the First Amendment is inapplicable in copyright cases, you *know* that's false. Separately, you *know* that this isn't even about infringing content at all, but the non-infringing speech that is being stifled here.

    Why do you constantly pretend otherwise?

     

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    Anonymous Coward, Jun 22nd, 2011 @ 11:04am

    Re: Re: Re: Re: Re:

    I said content-based, but meant content-neutral. My bad. Regardless, the EFF is not even claiming that copyright laws are content-based as you are. So apparently they even think it's ridiculous, or else they would have argued it. Answer me this: If copyright laws are content-neutral as the EFF claims, then why didn't they point to any cases that actually say this? I know there are some cases that are the exception and not the rule, but they didn't even point to those. I think in filing an honest brief, you should point it out when the weight of authority is against you and then explain why that authority is wrong. I'd respect that. But pretending that the First Amendment is squarely in your corner when it is not is not honest.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 11:11am

    Re: Re: Re: Re:

    It may be irrelevant to whether or not its legal here, but as the filing clearly notes (and you totally ignore for whatever reason), the courts should give some deference to those rulings before declaring unilaterally that it's infringing with no prior adversarial hearing.

    The court that issued the warrant didn't unilaterally declare that it's infringing. They declared that the government stated probable cause of the property's use in criminal infringement, which is all they had to show. The government had no duty to bring up the fact that a court declared the site legal as to one plaintiff in a foreign country. It's just another line of attack that will get your side nowhere.

    Separately, since folks like yourself are so wedded to the aiding and abetting concept, it seems that the fact that it was judged legal in Spain (twice) weakens the whole aiding and abetting claim. The people behind the site had every reason to believe that what they were doing was entirely legal.

    Only if they believed that what's legal in one country must be legal in the next. That's a silly belief to hold.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 11:15am

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

    LOL! I can't imagine a single court will agree with you on this because it's a ludicrous claim--of course a domain name is property used to infringe. I don't recall the EFF even making the claim that it's not. People use the domain name to get to the site to commit the acts of infringement. To pretend that the domain name is not part of the process is silly.

    2323 makes it clear that property used to infringe may be seized. Whether incidentally speech is affected is not the point of the statute. The statute is not aimed at the protected speech.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 11:17am

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

    I'm not pretending anything. Just like the bookstore in Arcara could relocate, the sites here can relocate. This is precisely about the infringing speech. That's what is being targeted. And you know it. Is protected speech incidentally affected? Sure. Does it matter? Not so much.

     

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    Mike Masnick (profile), Jun 22nd, 2011 @ 11:34am

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

    2323 makes it clear that property used to infringe may be seized. Whether incidentally speech is affected is not the point of the statute. The statute is not aimed at the protected speech

    I find it absolutely disgusting that you consider censorship of free speech to be incidental.

    It's not.

    And, stop with the crap about 2323 making it clear. It does not. 2323 was sold as a tool to seize tangible and physical property. Not a means of speech. Pretending otherwise isn't just dishonest, it's downright sleazy.

    It's sickening that you would pretend such an abuse of the law that stifles free speech is fine and dandy, when you know damn well that this was not the stated intent behind the change in the law.

    It's disgusting to see you trample the Constitution.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 11:34am

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

    As for your claims that the First Amendment is inapplicable in copyright cases, you *know* that's false. Separately, you *know* that this isn't even about infringing content at all, but the non-infringing speech that is being stifled here.

    The Court in Eldred pointed out that it goes to far to say that copyright laws are categorically immune from First Amendment scrutiny, and that's true. I'm not saying that the First Amendment is inapplicable. What I'm saying here is what the Court went on to say in Eldred: They applied rational basis scrutiny to the CTEA. If I've implied that it's categorically immune, I apologize. I don't think I did though.

    I know some courts have applied heightened scrutiny to copyright cases--Golan and Suntrust come to mind as possible examples, but I'd have to reread them to see exactly what was said there--but those are the exception and not the rule. My problem with this brief is that it pretends the issue is settled and the jurisprudence is clearly in their favor. It's not. To pretend otherwise is dishonest.

    From one of my favorite papers on the topic (the Eleventh Circuit reference is to Suntrust):
    The Eleventh Circuit's ruling is extraordinary. It marks the first time an appellate court has applied the First Amendment's Free Speech Clause to constrain the enforcement of a copyright. To be certain, copyright's potential for burdening speech has long been recognized in U.S. case law, legislation, and commentary. Nevertheless, courts have almost never imposed First Amendment limitations on copyright, and most have summarily rejected copyright infringement free speech defenses. In almost every instance, courts have assumed that First Amendment values are fully and adequately protected by limitations on copyright owner rights within copyright doctrine itself.
    Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 Stan. L. Rev. 1, 2-3 (2001) (emphasis added).

    If Netanel is right, and I have no reason to believe he's not, then the EFF is being dishonest about the whole thing.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 11:40am

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

    Your cries of disgust and trampling on the Constitution may work on others, but not on me. I've explained why I think the statute is aimed at unprotected speech and how it's use here was targeting unprotected speech. Calling this "censorship" is just throwing out a buzzword for its intended effect. Personally, I think you misuse the word with alarming regularity. Under your logic, if I have a website devoted to child porn that also includes my doctoral thesis on the history of western civilization, any attempt to take down my website would be "censorship." That's just not what the word means. Those sites are free to say whatever they want. They just can't violate criminal laws while saying it.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 12:35pm

    And, stop with the crap about 2323 making it clear. It does not. 2323 was sold as a tool to seize tangible and physical property. Not a means of speech. Pretending otherwise isn't just dishonest, it's downright sleazy.

    If I'm sleazy, then prove it. I've spent the last hour scouring the congressional record, and I can find no mention that 2323 was "sold as a tool to seize tangible and physical property." Please point me to the source for your claim.

    And while you're there, please explain why they wrote the statute to include "any property" rather than property of the type you insist was what they meant.

    If you're going to call me sleazy for misstating something, I assume you can back it up. And if you can't, I presume an apology is on the way.

     

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    CarlWeathersForPres (profile), Jun 22nd, 2011 @ 1:30pm

    Re: Re: Re: Re:

    Just because someone argues something in a brief does not make it so.

    Mike, You hinge on the foreign jurisdictions, but I'm sure you'd hate for English libel laws, or France and Italies idiotic opinions about Google to take hold in the US. You can't pick and choose which foreign ruling you feel should be controlling. Yes, it should be persuasive, if both countries had the exact same laws, but a Spanish ruling on the legality of the site based on Spanish law doesn't mean a lick when adjudicating US law.

     

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    Mike Masnick (profile), Jun 22nd, 2011 @ 1:46pm

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

    I know some courts have applied heightened scrutiny to copyright cases--Golan and Suntrust come to mind as possible examples, but I'd have to reread them to see exactly what was said there--but those are the exception and not the rule. My problem with this brief is that it pretends the issue is settled and the jurisprudence is clearly in their favor. It's not. To pretend otherwise is dishonest.

    I don't think the brief is dishonest at all. Again, you seem to keep focusing on the copyright part of it, ignoring that we're not talking about infringing speech. Why? I do not know.

     

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    CarlWeathersForPres (profile), Jun 22nd, 2011 @ 1:47pm

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    Mike,

    Prior restraint is stopping speech before it has been said. This includes licensing for movies(which can be legal) or injunctions on individuals(which is not). Seizing of property in no way touches the prior restraint doctrine, so this is a non-starter. For example, if The United States stopped Wikileaks from publishing Bradley Mannings leaked documents, that would be prior restraint.

    The Doctrine you should be screaming about is overbreadth, which tries to limit the effects on free speech that legislation might have. I know this is picking nits, but if you're going to throw a temper tantrum when people disagree with you at least be right. A second point to make about overbreadth is that you don't need a perfectly tailored law(the SC doesn't expect perfection), so the fact that any free speech is curtailed isn't the issue. It has to be a substantial burden to free speech, which I don't think this is(just my opinion here).

    Inherent in copyright law is first amendment doctrine. Any restriction of speech is, by definition, limiting of that speech. The nuance that you seem to miss is that this was foreseen, and can supersede a first amendment right(and I'm sure this sentence will turn into a pissing match). The other thing you're missing is that just because a content neutral(content refers to what is being said, copyright infringement just cares about what is copyrighted) law suppress free speech, it isn't illegal. For example, noise and time restrictions at a public park are legal because there are other ways to participate in free speech besides blaring a boombox with "Jesus' greatest hits" at 3AM. Yes, you've suppressed speech by stopping that person, but it's not a violation of his constitutional right.

    PS I'm really hoping for a personal attack and the claim that I'm purposely misleading the readers in the response. It's what I strive for in life.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 1:48pm

    Re: Re: Re: Re: Re:

    Just because someone argues something in a brief does not make it so.

    I find this to be especially true in briefs from these usual suspects: EFF, CDT, and PK. I admire them for what they do and what they believe in, but I don't agree with their methods. If they think heightened scrutiny should be applied to the forfeiture statute, then that's great. I wouldn't mind if it were. But to pretend that it's only natural to apply such scrutiny without pointing out the long history of courts refusing to do the same is just intellectually dishonest. I think this type of argument on their side--lopsided, dishonest, super-narrow or super-broad, whatever's better for them at the moment--hurts them in the long run. If you know they have a tendency to stretch credulity, then how much weight are you really going to give their arguments?

     

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    Mike Masnick (profile), Jun 22nd, 2011 @ 1:50pm

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

    Your cries of disgust and trampling on the Constitution may work on others, but not on me.

    I'm not trying to make it "work" on you. I'm telling you that it's disgusting in my view.

    I've explained why I think the statute is aimed at unprotected speech and how it's use here was targeting unprotected speech. Calling this "censorship" is just throwing out a buzzword for its intended effect.

    You've explained it, and yet you ignore that we're NOT TALKING ABOUT UNPROTECTED SPEECH.

    Which I told you.

    Kinda scary that you can't even admit the basics here.

    Under your logic, if I have a website devoted to child porn that also includes my doctoral thesis on the history of western civilization, any attempt to take down my website would be "censorship." That's just not what the word means. Those sites are free to say whatever they want. They just can't violate criminal laws while saying it

    That's not what I said at all, and you know it, and are being blatantly and obnoxiously dishonest.

    We're talking about sites with almost entirely non-infringing speech on it, taking down to try to stop infringement, which isn't even occurring on that site. That's ridiculous.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 1:51pm

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

    I don't think the brief is dishonest at all. Again, you seem to keep focusing on the copyright part of it, ignoring that we're not talking about infringing speech. Why? I do not know.

    For the simple reason that this is a copyright case, and they are asking for a statute with a copyright component to be ruled unconstitutional as applied. Why focus on other doctrines? Or more to the immediate point, why ignore the actual doctrine that's at issue here? I think it's dishonest. I respect the fact that you see it differently.

     

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    Mike Masnick (profile), Jun 22nd, 2011 @ 1:54pm

    Re: Re: Re: Re: Re:

    Mike, You hinge on the foreign jurisdictions, but I'm sure you'd hate for English libel laws, or France and Italies idiotic opinions about Google to take hold in the US.

    Indeed. And I've said that. But that's NOT what I said here, nor what the brief says, and it's misleading to suggest otherwise.

    What it said was that given that ruling, under current US law and policy, the courts should at least presume that the site is legal until a full hearing is held on the matter. That didn't happen. That's the problem.

    No one is saying that because it's legal in Spain it's automatically legal here. But what we're saying is that before having the court declare -- sans adversarial trial, no less -- that this is a criminal enterprise, it needs to acknowledge that this is not so under foreign law.

    but a Spanish ruling on the legality of the site based on Spanish law doesn't mean a lick when adjudicating US law

    This is misleading again. We're not saying that it means that the site cannot be found guilty of violating US law. But there hasn't been a trial. There haven't even been any charges filed. They just declared unilaterally that it was used in criminal activity, and *that* goes against US law and policy.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 1:55pm

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

    I'm not trying to make it "work" on you. I'm telling you that it's disgusting in my view.

    And I'm not losing any sleep over it. Agree to disagree.

    You've explained it, and yet you ignore that we're NOT TALKING ABOUT UNPROTECTED SPEECH.

    Which I told you.

    Kinda scary that you can't even admit the basics here.


    I know you're not talking about the unprotected speech. I feel like you're sweeping that whole part under the rug, even though it's really what this case is about. It's also about the protected speech--I agree--but I don't see that the protected speech saves the unprotected speech from government action.

    That's not what I said at all, and you know it, and are being blatantly and obnoxiously dishonest.

    We're talking about sites with almost entirely non-infringing speech on it, taking down to try to stop infringement, which isn't even occurring on that site. That's ridiculous.


    I don't know how much non-infringing speech is on the site. I do know that there was probable cause that the site was being used to commit a crime. If true, that's disgusting to me.

     

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    CarlWeathersForPres (profile), Jun 22nd, 2011 @ 1:57pm

    Re: Re: Re: Re: Re:

    Briefs aren't case law. If you want though, I could reference a blog post, because then you now my point is correct.

    As for taking snippets out of cases, fine, I can do that too if you really want. I'll just tell you that if you picket on I-95 you'll be arrested, same as if you picket inside a courthouse after hours. It's called time, place and manner. The government has a legitimate reason to regulate activity, it the incidental nature of first amendment restrictions does not necessarily make the legislation illegal. One of the caveats is that you need to give people ample place to speak their mind where the message would be heard. In my legal opinion, your argument is going to fall on extremely deaf ears and I look forward to skimming your rant in 6 months.

     

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    Mike Masnick (profile), Jun 22nd, 2011 @ 1:58pm

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

    Prior restraint is stopping speech before it has been said. This includes licensing for movies(which can be legal) or injunctions on individuals(which is not). Seizing of property in no way touches the prior restraint doctrine, so this is a non-starter. For example, if The United States stopped Wikileaks from publishing Bradley Mannings leaked documents, that would be prior restraint.

    Seizing printing press is considered prior restraint. Seizing a domain name is like seizing a printing press. Taxing ink has been considered prior restraint. So, no, you are wrong. Again.

    Inherent in copyright law is first amendment doctrine. Any restriction of speech is, by definition, limiting of that speech. The nuance that you seem to miss is that this was foreseen, and can supersede a first amendment right(and I'm sure this sentence will turn into a pissing match). The other thing you're missing is that just because a content neutral(content refers to what is being said, copyright infringement just cares about what is copyrighted) law suppress free speech, it isn't illegal. For example, noise and time restrictions at a public park are legal because there are other ways to participate in free speech besides blaring a boombox with "Jesus' greatest hits" at 3AM. Yes, you've suppressed speech by stopping that person, but it's not a violation of his constitutional right.

    None of which has anything to do with anything. I'm not sure why you think bringing up irrelevant points matters.

    PS I'm really hoping for a personal attack and the claim that I'm purposely misleading the readers in the response. It's what I strive for in life

    Good for you. You must be so proud of yourself.

     

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    Mike Masnick (profile), Jun 22nd, 2011 @ 2:00pm

    Re:

    If I'm sleazy, then prove it. I've spent the last hour scouring the congressional record, and I can find no mention that 2323 was "sold as a tool to seize tangible and physical property." Please point me to the source for your claim.

    Not everything happens in the Congressional record. For those of us who actually were paying attention when ProIP was being debated, when we raised these issues, we were told directly it was a non-issue and that it was about seizing devices.

    And while you're there, please explain why they wrote the statute to include "any property" rather than property of the type you insist was what they meant.


    Because guess who wrote the actual language?

    If you're going to call me sleazy for misstating something, I assume you can back it up. And if you can't, I presume an apology is on the way.

    I'll happily apologize when I'm wrong. In this case, I'm right.

     

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    Mike Masnick (profile), Jun 22nd, 2011 @ 2:02pm

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

    For the simple reason that this is a copyright case, and they are asking for a statute with a copyright component to be ruled unconstitutional as applied. Why focus on other doctrines? Or more to the immediate point, why ignore the actual doctrine that's at issue here? I think it's dishonest. I respect the fact that you see it differently

    That's like saying that CDT v. Pappert was a child porn case. It was a free speech case because the concern was the other speech. Same here.

     

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    CarlWeathersForPres (profile), Jun 22nd, 2011 @ 2:03pm

    Re: Re:

    So we shouldn't go by the language written in the law?

     

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    Mike Masnick (profile), Jun 22nd, 2011 @ 2:04pm

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

    I know you're not talking about the unprotected speech. I feel like you're sweeping that whole part under the rug, even though it's really what this case is about. It's also about the protected speech--I agree--but I don't see that the protected speech saves the unprotected speech from government action.

    It doesn't. That's the whole point. If they want to go after unprotected speech, go after the unprotected speech. But they can't do it in the way that they've done it if it has such a massive impact on protect speech.

    Want to go after infringing content? Go for it. But focus on that content and not a broad swoop that has no prior adversarial hearing, when there's protected speech involved.

    I don't know how much non-infringing speech is on the site. I do know that there was probable cause that the site was being used to commit a crime. If true, that's disgusting to me

    Interesting. I note that you seem to be equating site with URL. You sure you want to do that?

     

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    Mike Masnick (profile), Jun 22nd, 2011 @ 2:06pm

    Re: Re: Re:

    So we shouldn't go by the language written in the law?


    Did I ever say that? My goodness you're full of it.

     

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    Jay (profile), Jun 22nd, 2011 @ 2:07pm

    Re: Re: Re: Re: Re:

    "The statute says that "property" used to commit criminal copyright infringement can be seized. It doesn't limit the type of property that may be seized to the types you've listed. When Congress wants to limit a statute's applicability, it knows how to draft it as such."

    Alright smart AC, where's the convictions for CCI? Why are there domain seizures, to preserve evidence, and yet no court dates for "offenders"?

     

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    Anonymous Coward, Jun 22nd, 2011 @ 2:15pm

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

    Seizing printing press is considered prior restraint. Seizing a domain name is like seizing a printing press. Taxing ink has been considered prior restraint. So, no, you are wrong. Again.

    If a printing press is used to commit crimes, I see no reason why it couldn't be seized. If you have a particular case in mind, I'd like to see it.

    As far as the tax on ink goes, I believe you are referring to Minneapolis Star. I also believe that case doesn't mean what you think it means.

    The Court there said: "Clearly, the First Amendment does not prohibit all regulation of the press. It is beyond dispute that the States and the Federal Government can subject newspapers to generally applicable economic regulations without creating constitutional problems." Minneapolis Star & Tribune Co. v. Minnesota Com'r of Revenue, 460 U.S. 575, 581 (1983).

    So obviously there can be a tax on ink. This is no surprise, since there in fact is. But why was it prior restraint in that case?

    As the Court explains: "Minnesota, however, has not chosen to apply its general sales and use tax to newspapers. Instead, it has created a special tax that applies only to certain publications protected by the First Amendment." Id.

    That case does no work whatsoever for your argument. If you disagree, I'd love to hear your reasoning. I think you are simply holding out the case to mean something that it doesn't.

     

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    CarlWeathersForPres (profile), Jun 22nd, 2011 @ 2:17pm

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

    Do you have the printing press case name on hand? My first reaction is that a foreclosure or criminal trial wouldn't necessarily be a prior restraint but I'm intrigued, and would like to see the specific fact pattern. I could see how seizing a printing press because someone committed libel would be prior restraint.

    I do vaguely remember the tax on ink case. I think it was more because it disproportionately affected printers, therefore being biased.

    I am proud. Although I still don't think I'm wrong, I just think you simplified the cases and missed the nuance that make the law. It's just a feeling though, so don't be too upset.

     

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    CarlWeathersForPres (profile), Jun 22nd, 2011 @ 2:22pm

    Re: Re: Re: Re:

    My fault, for some reason I thought you were claiming that there was no written law(2323) that said you could seize any property that was used in committing copyright violations.

     

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    Josh in CharlotteNC (profile), Jun 22nd, 2011 @ 2:34pm

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

    As the Court explains: "Minnesota, however, has not chosen to apply its general sales and use tax to newspapers. Instead, it has created a special tax that applies only to certain publications protected by the First Amendment." Id.

    Are you sure that's not applicable? Really, really sure?

    Because the way it seems to me is that ICE has not chosen to seize all domain names that are being used for infringement, but only certain ones.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 2:53pm

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

    That's like saying that CDT v. Pappert was a child porn case. It was a free speech case because the concern was the other speech. Same here.

    Pappert was an child pornography case, and it was analyzed under First Amendment child pornography doctrine (I believe the court applied intermediate scrutiny there). This is a copyright case. Analyzing it under any other doctrine makes no sense. The EFF doesn't want to look at it like a copyright case because the copyright doctrine is not helpful to their position.

     

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    CarlWeathersForPres (profile), Jun 22nd, 2011 @ 2:53pm

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

    Sorry, I'm was just being mislead about what the actual reasoning was(the shorthand has been, it's legal in spain therefore it should be legal here). No offense, but the snippet didn't encompass the entire point, and I don't think it was put into the proper context. I apologize for the misunderstanding, but please use Occam's Razor next time and blame my incompetence instead of the intent to deceive. I'm using my first amendment right to try to get to the bottom of what is actually going on, and hoping that some people come along for the ride, but don't try to portray it as intentionally trying to mislead a community that probably doesn't agree with me anyway.


    I also would have liked to see a Supreme Court opinion, although this being the SDNY the 2nd Circuit is controlling. I would also like to read both opinions before I replace what I was taught in law school with snippet from a brief which is saying that a foreign ruling should be good, and would like to know what facts and for what types of decisions they meant.

     

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    CarlWeathersForPres (profile), Jun 22nd, 2011 @ 3:01pm

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

    So, the facts of the case are this:

    Minnesota had no sales tax on newspapers.

    Minnesota imposed a tax on ink, but only over a certain threshold. Small papers did not need to pay the tax, since they didn't use the required ink.

    The complainant paid 2/3 of all the revenue collected from the tax.

    Therefore, a law that was innacted that burdened one speaker heavier than another was prior restraint or not content neutral.

    http://supreme.justia.com/us/460/575/

     

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    Anonymous Coward, Jun 22nd, 2011 @ 3:24pm

    Re:

    http://www.myrojadirecta.com

    There, now you can get all the free stuff that you deserve. You shouldn't have to pay for anything!!

    There [sic] not hosting illegal content, there just linking to illegal content.


    I've got an even better link for you: http://www.google.com

    They're not hosting illegal content either, they're just linking to illegal content.

    These seizures were done with a warrant. A warrant issued by a judge. Does that not constitute due process?

    Because, my little apologist friend, a judge (or any authority in general, probably) can do no wrong, huh?

    No.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 4:48pm

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

    I can't crank my bullhorn and espouse my views anywhere I want. I'm sickened that my free speech is being stifled.

    It's disgusting to see the Constitution trampled like that.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 4:56pm

    This just in: The judge in the Rojadirecta case has granted the government an extension until July 11 to file its opposition papers. One of the reasons cited for the requested delay is more time to respond to the issues brought up by the EFF. That strikes me as somewhat amusing.

     

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    Anonymous Coward, Jun 22nd, 2011 @ 4:58pm

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

    I can't crank my bullhorn and espouse my views anywhere I want. I'm sickened that my free speech is being stifled.

    It's disgusting to see the Constitution trampled like that.


    Censorship! Prior restraint! Procedural due process! The Constitution isn't toilet paper, you know. ;)

     

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    Mike Masnick (profile), Jun 22nd, 2011 @ 5:14pm

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

    I can't crank my bullhorn and espouse my views anywhere I want. I'm sickened that my free speech is being stifled.


    No one said that at all. Why lie? No one said that people have to be allowed to speak everywhere.

    What we are saying, and there is support for this whether you a agree or not, is that seizing protected speech is a violation of the First Amendment. Now, you can -- as some here do -- say that this is not about that. But to argue that anyone is saying that everyone must be allowed to broadcast their feelings anywhere is clearly a strawman.

    But, you know what I do find amusing. Based on your tone, I'm pretty damn sure that you're the guy who pretty vehemently insisted that none of the domains would challenge these seizures. In fact, you claimed that I had to pay up on a bet we made because of that.

    Funny that you got silent on that point as soon as the challenge happened. I wonder why.

    Can you at least admit that you were totally and completely wrong that no one would challenge?

     

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  111.  
    identicon
    Anonymous Coward, Jun 22nd, 2011 @ 7:26pm

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

    No, I'M THE GUY; and you made the bet in November about *those* seizures.

    And you've LOST THE BET.

    When are you going to pay MusiCares the $500 you owe them?

     

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  112.  
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    Mike Masnick (profile), Jun 22nd, 2011 @ 7:55pm

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

    No, I'M THE GUY; and you made the bet in November about *those* seizures.

    And you've LOST THE BET.


    Uh, slow down their kiddo. The bet was after the lawsuits are exhausted. And, how could you possibly think I'd lost the bet this early in the game?

    I find it funny that you can't even live up to the terms of the bet. Which is why I know you'll never pay up when I win.

     

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  113.  
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    Anonymous Coward, Jun 22nd, 2011 @ 8:32pm

    Re: Re: Re:

    They didn't hide anything since its legality in a foreign country is irrelevant to whether it's legal here.

    It's very relevant since it isn't located here but in that foreign country.

    People like you are a good example of why copyright should be abolished.

     

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  114.  
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    Anonymous Coward, Jun 22nd, 2011 @ 8:36pm

    Re: Re: Re: Re:

    Separately, since folks like yourself are so wedded to the aiding and abetting concept, it seems that the fact that it was judged legal in Spain (twice) weakens the whole aiding and abetting claim.

    No, no, you see, Mike, that just means that *Spain* itself was also "aiding and abetting". Today the site gets taken down, tomorrow: the country. Spain hasn't heard the last of this!

     

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  115.  
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    Anonymous Coward, Jun 22nd, 2011 @ 8:37pm

    Re: Re: Re: Re: Re:

    a Spanish ruling on the legality of the site based on Spanish law doesn't mean a lick when adjudicating US law.

    It does when that site is located in Spain.

     

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  116.  
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    Anonymous Coward, Jun 22nd, 2011 @ 8:44pm

    Re: Re: Re:

    If I remember the obscenity cases right, many times entire movies were banned because of an obscene scene.

    I would like very much for you to cite a movie that was found to still be obscene after the removal of all obscene scenes. Go ahead, we're waiting...

     

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  117.  
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    Jay (profile), Jun 22nd, 2011 @ 9:18pm

    Re:

    ... How in the world could they be blindsided by the EFF? They've had at least a year (since the domain seizures started) to get their act together. You would think SOMEONE would have discussed this with the AG to get everyone (namely Victoria) on the same page with these seizures...

     

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  118.  
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    Anonymous Coward, Jun 22nd, 2011 @ 10:16pm

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

    Masnick has been told this for months, but he chooses to willfully ignore it, as it destroys his delusional opinions on this subject.

     

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  119.  
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    Gleep, Jun 22nd, 2011 @ 10:31pm

    I'm no lawyer so I won't debate the details of the laws involved here but I have to say, unilaterally seizing a domain for a website located in a foreign country and has been declared legal by the country they're in doesn't seem right. We even passed a law making it illegal for foreign courts to pursue american citizens for doing legal actions on american soil and now we're turning around and saying that our laws apply to them but their laws do not apply to us. Lawyers can argue about the details but this kind of arrogant and hypocritical behavior by my own country just doesn't sit right with me.

     

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  120.  
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    Anonymous Coward, Jun 22nd, 2011 @ 10:48pm

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

    I'm not pretending anything. Just like the bookstore in Arcara could relocate, the sites here can relocate.

    Yeah, like to another country. Oh, wait...

     

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  121.  
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    Mike Masnick (profile), Jun 22nd, 2011 @ 11:38pm

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

    I'm not pretending anything. Just like the bookstore in Arcara could relocate, the sites here can relocate. This is precisely about the infringing speech. That's what is being targeted. And you know it. Is protected speech incidentally affected? Sure. Does it matter? Not so much

    You know Arcara is totally different. You know Arcara *explicitly* notes that it does not apply in cases like this.

    Why even bring it up?

     

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  122.  
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    Anonymous Coward, Jun 23rd, 2011 @ 5:35am

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

    You know Arcara is totally different. You know Arcara *explicitly* notes that it does not apply in cases like this.

    Why even bring it up?


    I simply disagree with you on Arcara. I don't think it explicitly says what you think it says, and it's applicable here. We'll see if AUSA Frey uses Arcara in his opposition papers. Bet he does.

     

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  123.  
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    Anonymous Coward, Jun 23rd, 2011 @ 9:20am

    Mike, I found a case that is analogous to what's happening and what's going to happen here. It explains how you just can't look at this as a free speech issue. You have to look at it in context. The First Amendment analysis changes depending on what context you're in. You mentioned Pappert, and I explained that since that was a child pornography statute, the court analyzed it under child pornography First Amendment doctrine.

    I'm not posting this to rub your face in how you're wrong. I'm trying to get you to understand how these things really work. Since the Rojadirecta case is a copyright case, the proper way to look at it is under copyright First Amendment doctrine.

    Anyway, here's the opinion from the D.C. Circuit Court of Appeals. I'm using this case because the procedural posture is similar to that of Rojadirecta. In this case, Boggs had his artwork seized. The artwork happened to look just like real dollar bills. He wanted to get it back, and he argued that under free speech precedent, it was a violation of his First Amendment rights to seize the artwork without a prior adversary hearing. The court didn't buy it:
    B. First Amendment Considerations

    The main thrust of Boggs's argument is not that the district court erred in its determination that the Boggs Bills violate the statutory requirements, but rather that the district court erred in looking at the bills at all. Boggs argues that special procedures established by the Supreme Court under the First Amendment protecting books and films in obscenity cases apply with equal force to his artwork. The Supreme Court has indeed held law enforcement officers to a higher standard when presumptively expressive materials are involved because of the risk of prior restraint and censorship. See, e.g., Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63, 109 S.Ct. 916, 103 L.Ed.2d 34 (1989) (recognizing the risk of prior restraint); see also Roaden v. Kentucky, 413 U.S. 496, 501, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973) (holding *41 **142 that seizure of expressive materials in some instances requires additional safeguards); Heller v. New York, 413 U.S. 483, 491-92, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Huffman v. United States, 470 F.2d 386, 392 (D.C.Cir.1971). Boggs suggests that the Secret Service should have met more stringent warrant requirements and that he should have been granted a prior adversarial hearing before an independent judicial officer. We disagree.

    The cases Boggs cites are all obscenity cases, where significant judgment was needed to determine if the seized materials violated community standards. We need not determine the range of cases to which additional protection would apply. We simply hold that on the facts before us, they do not. The important First Amendment concerns advanced by the Supreme Court in the obscenity cases are not present to the same extent here. Boggs's artwork is designed to look like money. While some judgment is needed on the part of the officers charged with enforcing the counterfeiting statutes, the inquiry is not inherently content-based and thus poses little risk of acting as a prior restraint on expressive materials.
    Boggs v. Rubin, 161 F.3d 37, 40-41 (D.C. Cir. 1998).

    Do you see what they did there? Boggs can't just say it's the First Amendment, so there must be a pre-seizure hearing. It's not that simple. The court looks at in context. In this context it was counterfeiting. The court doesn't think that a pre-seizure hearing is needed because the inquiry into whether it's counterfeiting "is not inherently content-based." This means that it's quite simple to tell if something is a counterfeit or not.

    Courts apply the same reasoning in copyright cases, and this is why ex parte seizures in copyright cases are commonplace. Now, I know what you're thinking. You think that it's not so simple to tell if something is infringing, and you can point to examples of where others got it wrong. That may be so, but that's not how it works when it's copyright. For the most part, with some exceptions that don't negate the rule, it's very easy to objectively tell if something is infringing. This is why the courts don't require a pre-seizure hearing when it's copyright.

    I know you don't agree with this logic, and that's fine. I'm simply explaining how it actually works in the real world of the judicial system. Hope this helps.

     

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  124.  
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    Anonymous Coward, Jun 23rd, 2011 @ 11:19am

    Re:

    Good stuff, thanks

     

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  125.  
    icon
    Mike Masnick (profile), Jun 23rd, 2011 @ 11:56am

    Re:

    First off, thanks for the tone of this comment. I appreciate it, and the information presented. You're right that I disagree on the analysis, but on two points. The first is the one you mentioned: claiming that it's relatively easy to tell what's infringing. That's false. In fact, I think it's so false that in at least some of the cases here, ICE made a clear mistake and claimed that non-infringing works were infringing. Tellingly, they never even asked the actual copyright holder, but instead a lawyer for the RIAA.

    Second, and more importantly, the Boggs case is distinguished by the fact that they were seizing the actual work itself, which may have violated the law. That's entirely different than the situation that we're describing here, where in an effort to stop violations, *non-infringing* content was seized.

    That's the key issue. That's why a higher standard is required. If the seizures solely seized content that was deemed infringing, I would agree that this case would be important. But in a case where we're talking about significant protected speech being harmed in the process, I just don't see how this applies.

    In other words, if the Boggs case involved the Secret Service seizing an entire gallery of perfectly legal artwork, in order to get that one painting, do you still believe the court would have ruled the same way?

     

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  126.  
    identicon
    Anonymous Coward, Jun 23rd, 2011 @ 1:02pm

    Re: Re:

    I think the problem is that AUSA Frey will simply say that this is a copyright case, and when it's copyright there's no need for a prior adversarial hearing. Then he'll point to evidence that courts generally don't require such a hearing. In fact, I don't think they ever do when it's copyright. I've never found a single case that said they do.

    As far as your museum example goes, I don't think that sort of logic will work either. The nexus between one piece of art and the whole museum is too attenuated. I think the argument will be more along the lines that the site and the domain name are being used to commit crimes, and so the domain name is being seized to prevent its further use to commit crimes. The thing being seized is directly related to the crime, and the nexus between the domain name and the crime is strong.

    I really don't think there's any chance that Rojadirecta gets its domain name back with this petition, which is only for its temporary return anyway. The real show comes later when the government files for permanent forfeiture. The judge will not be impressed by the protected speech on the site because that speech doesn't save the site from being a criminal asset. It's like if I have a car that I use to run over my ex-girlfriend. It doesn't matter if the other 99.9% of the time I use that car to drive little old ladies to church and orphans to the zoo. The judge won't take his eyes of the ball like that. As long as the protected speech wasn't the target of the seizure, and it's not, then the incidental burdens are an unfortunate casualty.

    I'm kind of bummed the judge granted an extension until mid-July. I was looking forward to seeing what Frey comes up with sooner than that. I do want you to know that I would have no problem with there being a pre-seizure hearing before these sites get taken down--and PROTECT IP at least provides for that--but I just don't see how the judge will agree that one should have been granted here. I wouldn't care either if copyright laws were subjected to heightened scrutiny. Perhaps they should be. But as I understand it, with a few exceptions, they just aren't.

     

    reply to this | link to this | view in thread ]


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