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Who Needs SOPA? US Court Wipes Sites From The Internet For 'Infringement' Without Even Alerting Sites In Question

from the that's-not-how-the-law-works dept

TorrentFreak has the exceptionally troubling story of a federal district court in Oregon issuing an incredibly broad and questionable order, effectively wiping a bunch of websites out, without ever letting the websites in question know that they were being "tried" in court. The request came from ABS-CBN, a giant Filipino entertainment company arguing infringement, of course. But the argument against these sites is somewhat questionable already, made worse by the demand that the whole thing be done under seal (without alerting the site operators). Then Judge Anna Brown granted the temporary restraining order, basically deleting these sites from the internet, without even a sniff of an adversarial hearing.

You may recall that the entertainment industry insisted that SOPA was needed for exactly these cases -- overseas sites they claimed were "rogue" sites dealing in infringement. They claimed there was no way to take them down. And, even SOPA had more limitations than what Judge Brown allowed here. If you have rogue judges like Brown issuing orders like this, who needs SOPA. It's already in place in her view of the world.

The complaint itself is raising some questions, as it makes long-debunked claims such as saying that the sites use of "meta tags" boost how the sites show up in search engines. That may have been true in the 90s, but it hasn't been true for over a decade, at least. Further, the complaint argues that the site operators have some sort of proactive requirement to "implement means to prevent infringement," but the law requires no such tools or filters -- only that the sites properly respond to takedown notices for copyright infringement (trademark is a bit different, but the trademark claims here are also quite weak).

The filing was done under seal based on the bogus excuse that if the sites operators were alerted they might be "tipped off" that something was happening and make an effort to prevent the sites from being shut down. We'll get into why that goes against Supreme Court precedent and the First Amendment in a moment, but first let's look at how broad and ridiculous the actual restraining order is. The judge grants the restraining order against the defendants ordering them to stop making use of ABS-CBN trademarks and copyrights, which isn't too surprising. But then stretches the order to include tons of non-parties to the lawsuit:
Upon Plaintiffs' request, those with actual notice of the injunction, including any Internet search engines, Web hosts, domain-name registrars, and domain name registreies or their administrators, shall cease facilitating access to any or all domain names and websites through which Defendants engage in the (i) copying, distribution, performance, and promotion of Plaintiffs' copyrighted works and\or broadcast content or (ii) use of the ABS-CBN Marks
It also orders domain registrars to hand over the domains to ABS-CBN and to block further transfers. Again, all of this is done without ever notifying the defendants, who are named as Jeffrey Ashby, Lenie Ashby and a bunch of Does operating a variety of domain names.

The ruling is extremely questionable. The whole reason why the entertainment industry pushed so hard for SOPA was because they knew you couldn't pull a stunt like this. It seems that Judge Brown doesn't know about this or doesn't care. That's what happens when you only hear one side of an argument in a case. However, as we've discussed in the past, such one sided rulings that shut down entire websites with no notice to the operators of those websites, are illegal under the Supreme Court's ruling in Fort Wayne Books v. Indiana. When it comes to any sort of expressive content, the court held that seizing the content prior to an adversarial hearing violates the First Amendment:
In a line of cases dating back to Marcus v. Search Warrant, 367 U. S. 717 (1961), this Court has repeatedly held that rigorous procedural safeguards must be employed before expressive materials can be seized as "obscene." In Marcus, and again in A Quantity of Copies of Books v. Kansas, 378 U. S. 205 (1964), the Court invalidated large-scale confiscations of books and films, where numerous copies of selected books were seized without a prior adversarial hearing on their obscenity. In those cases, and the ones that immediately came after them, the Court established that pretrial seizures of expressive materials could only be undertaken pursuant to a "procedure `designed to focus searchingly on the question of obscenity.' " Id., at 210 (quoting Marcus, supra, at 732). See also, e. g., Lee Art Theatre, Inc. v. Virginia, 392 U. S. 636 (1968).

We refined that approach further in our subsequent decisions. Most importantly, in Heller v. New York, 413 U. S. 483, 492 (1973), the Court noted that "seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding." As a result, we concluded that until there was a "judicial determination of the obscenity issue in an adversary proceeding," exhibition of a film could not be restrained by seizing all the available copies of it. Id., at 492-493. The same is obviously true for books or any other expressive materials. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. Ibid.; see New York v. P. J. Video, Inc., 475 U. S. 868, 874-876 (1986).

Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved. Lo-Ji Sales, Inc. v. New York, 442 U. S. 319, 326, n. 5 (1979). It is "[t]he risk of prior restraint, which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizure of First Amendment materials" that motivates this rule. Maryland v. Macon, supra, at 470. These same concerns render invalid the pretrial seizure at issue here.
And yet... the judge appears to ignore that entirely. That's incredibly troubling for the precedent it sets. It may very well be true that the sites in question were engaged in infringing activity and deserve to lose any lawsuit filed against them. But it's also possible that they were not engaged in such activities -- and yet their sites are preemptively shut down and destroyed, without them even knowing there was a legal proceeding under way. That's prior restraint.

I actually spoke to Rob Holmes, an "intellectual property cybercrime consultant" who is working with ABS-CBN in this case. Holmes is a Techdirt reader and someone whom I've had good discussions with on related subjects in the past -- but he's obviously defending this ruling. As he told me:
The subjects will have plenty of opportunity in the near future to defend their actions. We proved beyond a shadow of a doubt that they were bad actors and, rightfully, the judge made us work hard to prove it.

The reason a case is filed under seal is so that the criminals do not have time to put a contingency plan into action. Otherwise our efforts would not be effective. It's no different than conducting a raid on a crackhouse. This operation is not only making financial profit from their piracy, but their ads contained malware that infected the computers of all of their users. They are also employing other black-hat techniques in attempts to make money.

You know my case history. The whack-a-mole game is a scam for all involved. From an IP enforcement standpoint, when someone messes with your company's livelihood, you stop them. And you make sure that all watching are discouraged. Period.
I have to take issue with nearly everything that Rob says here. The fact that they'll have plenty of opportunity after the fact to dispute the charges against them is besides the point. Who knows if this is a legitimate operation or not, but if it is, and this action totally destroys it, then it's a bit late to go and complain to the courts after it happened. The whole point of the Supreme Court ruling discussed above is that you have to have an adversarial hearing first. The whole "contingency plan" argument is bogus as well. Any action required in the restraining order could easily be issued at a later date against any other sites that these individuals happen to set up as well.

Rob's comparison of this to a "crackhouse" and calling them criminals is also dangerously misleading. First, this a civil, not criminal case. Second, as the Supreme Court noted, when you're dealing with things like drugs, it's reasonable to seize it. When it's expressive material, you can take or copy a single example for the purpose of evidence, but you cannot shut the speech down. But that's what the judge did here. The claim that the case "proved beyond a shadow of a doubt" that they were bad actors is simply laughable as well. Again, only one side of the story has been told here, and already in the complaint itself there are highly questionable arguments (such as arguing that the sites had a requirement to take proactive action against possible infringement).

Whether or not you have to "play whack-a-mole" (and as a trademark expert, Rob should know that it's actually whac-a-mole) to stop scammers that does not remove the rights of those who operate the sites. And those rights include the First Amendment and the right to an adversarial hearing before expressive content -- websites -- are taken out of commission.

Who knows if the site operators will really fight back here. They may not. They may, in fact, be engaged in infringement and not wish to challenge any of this in court. But, even so, that doesn't change the massively problematic nature of this move by ABS-CBN, and the denial of basic due process and the First Amendment to the operators of those sites. People have rights for a reason. We don't just stomp them out without due process just because one party has told a court that they're "bad actors."





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  1.  
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    Ninja (profile), Aug 19th, 2014 @ 5:28am

    No worries, there are international registrars and domains that will actually respect such right to due process. All this is doing is sending a message to people to avoid doing business with the US.

    But in all seriousness I wonder how Rob would react if the same logic was applied to his sites...

     

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  2.  
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    That One Guy (profile), Aug 19th, 2014 @ 6:38am

    Re:

    'Well you see it's obvious that your site is hosting infringing materials, and needs to be immediately de-listed. Show you the evidence? Surely you jest, the evidence, and the case itself, is and will remain under seal, as to do otherwise would have tipped you off that your infringement had been discovered. Don't worry, you can challenge it in court, it'll just cost you a bunch of time and money, and until you win, your site will remain blocked.'

    Yeah, anyone who supports people having their sites taken down and/or blocked on the say-so of a judge and another party, without even receiving the chance to defend themselves beforehand, really deserves to experience what it's like themselves a few times. And if they're going to argue that it's really not that hard or difficult for people to defend themselves in court after they've been found guilty and punished as such, they'd have nothing to complain about, unless they were either lying or lazy.

     

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  3. This comment has been flagged by the community. Click here to show it
     
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    Anonymous Coward, Aug 19th, 2014 @ 7:05am

    Mike Masnick just hates it when copyright law is enforced.

     

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  4. This comment has been flagged by the community. Click here to show it
     
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    Anonymous Coward, Aug 19th, 2014 @ 7:07am

    Mike Masnick just hates it when Google's ad-sponsored piracy site business model is threatened.

     

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  5.  
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    Ninja (profile), Aug 19th, 2014 @ 7:08am

    Re: Re:

    The problem is those people will rarely be the target of some "Dajaz1" debacle and most will consider that case an exception (you see, 1 or 10 in a few hundred is statistically moot). But any exception is bad. If you impose a death penalty by exception it cannot be reverted afterwards. The damage to a site targeted wrongly may also be permanent. Dajaz1 was blocked for a goddamn year.

    People can't put themselves in the receiving end of an injustice so they'll just do what Rob did. Support it because it seems right.

     

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    Anonymous Coward, Aug 19th, 2014 @ 7:08am

    Re:

    Whined the cocksucking spambot.

     

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    Michael, Aug 19th, 2014 @ 7:13am

    Re:

    I'm pretty sure that is AOL's business model - Google just stole it from them.

     

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    Designerfx (profile), Aug 19th, 2014 @ 7:14am

    Re:

    the fact that they're implying it's a criminal enterprise is pretty much showing that the whole thing is overblown from the start.

    The chances of any part of this entire process being legitimate are absolutely zero.

     

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    Anonymous Coward, Aug 19th, 2014 @ 7:17am

    Does anybody see the similarities with drone-killings without adversarial hearings? *hears drone humming above*

     

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    Hans, Aug 19th, 2014 @ 7:20am

    Sorry

    I'm sorry. I've apparently been on the wrong side of this all along. I didn't realize that my rights were making Rob Holmes work harder, that he would be forced to play whack-a-mole [sic]. I'm ashamed. Yes, Mr. Holmes, please take my rights. I'm glad there's people like you in the world doing such good.

     

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  11.  
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    Anonymous Coward, Aug 19th, 2014 @ 7:20am

    Next the SWAT team will be sent in ala Megaupload style raid and look what the key stone cops did to that.

     

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  12.  
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    PaulT (profile), Aug 19th, 2014 @ 7:41am

    Re: Re:

    Hey now, at least he's altered the wording a little bit in his tired message. It's still far from true and will never be heeded by anyone, but it's *slightly* different...

    No wonder that industry's in difficulty if this is the level of imaginative writing they have to fall back on, though.

     

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    Anonymous Coward, Aug 19th, 2014 @ 7:42am

    Who Needs SOPA?

    I've been saying that for years. I'll bet this turns into a criminal case the minute these grifters set foot on US soil.

     

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    Anonymous Coward, Aug 19th, 2014 @ 7:56am

    I don't think the City of London will like this.

    After all, they practically invented this model.

     

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    Bengie, Aug 19th, 2014 @ 7:59am

    Still confused

    How does a civil issue turn into a criminal issue? All IP issues are civil in nature.

     

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    Whatever (profile), Aug 19th, 2014 @ 8:02am

    Oops

    Little problem here... citing Fort Wayne Books v. Indiana doesn't work here because the material isn't being seized, ie the creator doesn't lose control of the material. Further, since much of the material is not actually owned by the sites in question, it's hard to point to something being seized, right?

    You are also pointing to case where there is a judgement required (obscenity) rather than copyright (where it's pretty clear who owns the rights). Yes, I know... fair use lalala but that doesn't cover pure piracy, does it?

    So that case is clearly NOT on point.

    So if that is the best argument you have handy, then it's pretty clear that the court got it right.

     

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    John Fenderson (profile), Aug 19th, 2014 @ 8:08am

    This makes no sense

    Rob Holmes said:

    The reason a case is filed under seal is so that the criminals do not have time to put a contingency plan into action. Otherwise our efforts would not be effective.


    This makes no sense to me. All that happened was that the domain name was taken, not the actual site (the data on the servers). The decision being under seal would have exactly zero effect on the site's ability to come back up under a different domain name (or, indeed, simply being accessed by IP address directly). The existence or lack thereof of a contingency plan would only affect how quickly the site would reappear -- from instantly to about 24 hours at the most.

     

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  18.  
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    John Fenderson (profile), Aug 19th, 2014 @ 8:10am

    Re: Still confused

    Not actually true. Criminal copyright infringement is a thing -- this just wasn't a case of that.

     

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    Anonymous Coward, Aug 19th, 2014 @ 8:14am

    the extremely worrying thing here is not ABS-CBN trying to protect themselves and their business or that they did everything without alerting the accused, giving them a chance to defend themselves, is that this judge pulled out such an idiotic verdict in the first place! she needs replacing immediately and never allowed to try a case again! as for the security consultant, he should concentrate on security, not on trying to get laws broken just to please his client! he needs to be severely reprimanded as well, before he thinks stomping all over the Constitution, pushing peoples rights into oblivion is perfectly ok, just to save an industry that exists solely for the purpose of spreading make believe! what a plum!!

     

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  20.  
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    Anonymous Coward, Aug 19th, 2014 @ 8:16am

    Re:

    AC just loves it when copyright is abused with lies to justify evil.

     

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  21.  
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    Anonymous Coward, Aug 19th, 2014 @ 8:17am

    Re: Oops

    Big problem here. Without an adversarial hearing, the site operators, if they actually host content themselves, have been deprived of the opportunity to explain to the court why they may be authorized to do so. Your "it's pretty clear" handwaving is the kind of argument that gets people lynched in other circumstances. If you can't support another individuals right to due process, you deserve no such right yourself. I'll be over to execute you for that crime I think you committed. We don't need a trial, after all, it's pretty clear you're guilty. If I told you what the charges were, you might actually defend yourself and escape justice. Judge Kafka will support my finding under seal, I'm sure.

     

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    Anonymous Coward, Aug 19th, 2014 @ 8:22am

    another judge selling their judgements to the highest bidder

     

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    Seedee Vee, Aug 19th, 2014 @ 8:29am

    When the eff did private citizens (Rob Holmes) or international corps (wtf pilipino channel) get the rights to raid "crack houses"?

     

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    ArkieGuy (profile), Aug 19th, 2014 @ 8:34am

    A little problem with your assessment....

    They didn't seize the content ABS claims copyright to, they seized the domain names that the site ABSOLUTELY "owns". As such the "owner" does loose control of their property.

    Also, your use of "much of the material" implies that you aren't sure that the site is 100% infringing... Yet, 100% of the site is supposed to be blocked. So your implication that "it's clear who owns the rights" is questionable.

    Seems like your response is "clearly NOT on point".

     

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  25.  
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    Anonymous Coward, Aug 19th, 2014 @ 8:46am

    Re: Oops

    Still, I may point out that pirated material is still property. The copies are on their own hard drives with their own host. The material is not owned, but the copies are. And so are the hard drives.

    You can't seize hard drives just because you feel entitled to.

     

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  26.  
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    Trevor, Aug 19th, 2014 @ 8:54am

    Well...

    "Whether or not you have to "play whack-a-mole" (and as a trademark expert, Rob should know that it's actually whac-a-mole)..."

    Considering which side of the argument he supports, he was probably being careful so he didn't get sued by one of his colleagues for copyright or trademark infringement.

    Because apparently that's what they do.

     

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  27.  
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    Michael, Aug 19th, 2014 @ 9:09am

    Re: Still confused

    I think we have seen plenty of IP trolls out there who's actions could not remotely be described as "civil".

     

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  28.  
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    Anonymous Coward, Aug 19th, 2014 @ 9:13am

    It is important to note that in this case the Philippine plaintiff filed a lawsuit in a US court against a US defendant.

    As for the secrecy, under circumstances such as presented here where prior notice could provide a defendant with the opportunity to render any court order moot by simply moving elsewhere the "goods" so they are beyond the court's reach, ex parte orders are not at all uncommon.

     

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  29.  
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    Adrian Lopez, Aug 19th, 2014 @ 9:24am

    The subjects will have plenty of opportunity in the near future to defend their actions. We proved beyond a shadow of a doubt that they were bad actors and, rightfully, the judge made us work hard to prove it.

    Imagine if such a statement were made about a person accused of murder: "Sure, the defendant wasn't allowed to mount a defense, but we proved him guilty beyond a shadow of a doubt and the judge, rightfully, made us work hard to prove it!"

    I think I would find it difficult to come up with more disingenuous hubris than this.

     

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  30.  
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    Bengie, Aug 19th, 2014 @ 9:40am

    Re: Re: Still confused

    I guess I was arguing theory vs practice.

    As how IP is defined, it's a civil issue, as how laws are written, it can be made criminal if the right company complains.

    All use of IP is handled by civil contracts. Violating those contracts is supposed to require the copyright holder to prove damages. Instead, they convinced the courts to turn it into a criminal issue so they could get immediate results.

    Kind of perverted how accusation of violating a civil contract can be treated not only as criminal, but also treated as guilty until proven innocent.

     

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  31.  
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    Anonymous Coward, Aug 19th, 2014 @ 9:43am

    The reason a case is filed under seal is so that the criminals do not have time to put a contingency plan into action. Otherwise our efforts would not be effective.

    So they bypass the issuing of dmca requests and just steal the entire site , what If the site(s) In question file a notice of Infringement of their website design. actually would this be considered theft of the original works .

     

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  32.  
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    Anonymous Coward, Aug 19th, 2014 @ 9:44am

    So much for due process - American Exceptionalism at its best.

     

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  33.  
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    Adrian Lopez, Aug 19th, 2014 @ 9:53am

    Re: Oops

    Full of shit, as usual.

    First of all, the claim that "the creator doesn't lose control of the material" has no bearing in either case. Fort Wayne Books was a book store, not a publisher. They were selling content to which others held the copyright.

    More significantly, the idea that copyright infringement requires no judgment is absolutely false. For a person to be found liable for copyright infringement in civil court, the plaintiff has to show that the preponderance of the evidence is indicative of guilt. This is done in adversarial fashion, where the person accused but not yet guilty is given the chance to mount a defense.

     

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  34.  
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    John Fenderson (profile), Aug 19th, 2014 @ 10:03am

    Re: Re: Re: Still confused

    No, you misunderstand. The have existed laws that make certain type of copyright infringement a criminal case for a very long time. This is nothing new. Specifically, Title 17, paragraph 506:

    (a) Criminal Infringement. —

    (1) In general. — Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed —

    (A) for purposes of commercial advantage or private financial gain;

    (B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

    (C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.


    VERY generally speaking, copyright infringement for commercial purposes is a criminal (and civil) offense, copyright infringement as a "hobby" is a civil offense.

     

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    Mason Wheeler (profile), Aug 19th, 2014 @ 10:36am

    And yet... the judge appears to ignore that entirely. That's incredibly troubling for the precedent it sets.

    Is there any chance that this could be used to set a good precedent, such as: "if a judge lays down a ruling that blatantly violates the constitution, she can be held personally liable on charges of corruption and/or abuse of power"?

     

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  36.  
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    Anonymous Coward, Aug 19th, 2014 @ 10:41am

    Re: Oops

    citing Fort Wayne Books v. Indiana doesn't work here because the material isn't being seized, ie the creator doesn't lose control of the material.


    Your point doesn't apply unless you think Fort Wayne Books was the "creator". In either case, they might be able to get more copies somehow - but in the meantime, speech is potentially being restricted.

    And I doubt that in the bookstore case, there was a court order to not only shut down the bookstore but also for the landlord to hand over the storefront AND an order for ALL landlords to not let them reopen.

    You are also pointing to case where there is a judgement required (obscenity) rather than copyright (where it's pretty clear who owns the rights).


    IS it? These shows were not produced in the US; they might be able to make some sort of weird international law argument. They might make an argument that they're only hosting someone else's content and they are therefore immune. They might argue fair use. They may claim that they are set up in a way somewhat similar to, yet in a way that makes the setup legal, Aereo. They might show that the plaintiff is simply lying and no such content is actually on their site (if the plaintiffs pulled out a laptop, opened a browser, typed in the URL, and infringing content was shown, that would be rather convincing to a judge; but it could be a "special" laptop pulling up a "website" that only existed on the laptop itself.) They might show that the real site owner is someone who in fact has permission to display the content. They might argue that the case is invalid because the opposing attorney doesn't have a license to practice law. They might argue that the venue is improper because the defendants don't live in the state, like the complaint alleges. They might even make some argument that has never before been made (after all, every legal argument was once made for the first time.) Granted, it probably WAS infringement. It's probably as clear as you say it is. But without an adversarial hearing, we can't KNOW that.

    The whac-a-mole argument cannot be sincerely be made if this is the first actual lawsuit against the defendants. DMCA notices do not count - those only limit liability and there is no legal requirement to comply with them. Notice to the registrar that their terms of service are being violated do not count - the registrar does not have a duty to third parties to enforce their terms of service. So go through the normal procedure. Schedule a hearing. Wait for the other side to not show up. THEN issue the sweeping injunction against them. If they reopen a site after that, you've got them for contempt of court.

     

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  37.  
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    Gwiz (profile), Aug 19th, 2014 @ 10:47am

    Re: Oops

    Little problem here... citing Fort Wayne Books v. Indiana doesn't work here because the material isn't being seized, ie the creator doesn't lose control of the material. Further, since much of the material is not actually owned by the sites in question, it's hard to point to something being seized, right?


    Does something even have to be "seized" in order for it to be prior restraint on speech and therefore a First Amendment violation?

    In MINNEAPOLIS STAR v. MINNESOTA COMM'R OF REV., 460 U.S. 575 (1983) nothing was seized. It was a tax on printing press ink that was found to be prior restraint by SCOTUS.

    If a tax on printing press ink can be found to be prior restraint, why wouldn't it follow that restricting a domain name that points to a website is also prior restraint? Both are just pieces of the overall publishing process aren't they?

     

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  38.  
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    Anonymous Coward, Aug 19th, 2014 @ 10:48am

    Re: Sorry

    Mr. Holmes can't define infringanography, but he knows it when he sees it.

     

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    Anonymous Coward, Aug 19th, 2014 @ 10:50am

    Sealing the case

    "This case should be filed under seal to prevent Defendants from receiving notice of Plaintiffs’ investigation regarding Defendants’ domain names and associated websites and assets in connection with the operation of their illegal businesses." I can't believe a judge bought this. The plaintiffs could easily have waited a couple of days to file the order if they expected something critical to come up in their "investigation" in those few days. The defendants are getting notice of the order ANYWAY just a few days later. Are they seriously scared that somehow the websites will be transferred to a different registrar? The CURRENT order applies to the freaking TLD. If there WAS a registrar which they could use to escape court orders, wouldn't they already be using it?

    Also, those DMCA notices that were given to the registrars of many of the sites? They means that the sites have already been alerted to some degree. That really makes the whole under-seal argument fall flat. Contingency plans (if any) have ALREADY been developed. They might transfer funds? They might destroy evidence? What's to prevent them from doing that after they get served?

    And due to the seal, the timeline of who gets notified when is so screwed up that, by the text of the order, the defendants might not get served before they must respond. Registrar has 1 business day to transfer the domain, if they don't the TLD has 5 business days to transfer the domain, and the plaintiffs must serve the defendant within 48 hours of the transfer. The order issued on the 8th (a Friday), with the defendant's response due on the 13th (Wednesday) and the hearing itself on the 15th (Friday.) Do the math.

    Now keep in mind that the point of the exercise was to make sure the defendants had no notice while the transfers were going on. The defendants would, even without the order being sealed, have only a few days to find a lawyer and make a coherent argument at the preliminary hearing (versus the other side, who filed the case and took as much time as they needed to prepare.) The seal makes sure that they have even FEWER days to do so. They could probably argue for a postponement if they ended up with a day or less to prepare, and the judge would likely grant it in that case, but the preliminary order shutting down the sites remains in effect until then, so any postponement only makes the death of the websites more inevitable even if the court eventually rules in their favor.

     

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  40.  
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 10:58am

    High Court, Low Court

    If wonder if this same judge would be willing to issue a similar order against ABS-CBN if someone made made a complaint against them? Or would she suddenly decide that due process matters after all when a huge company is involved?

     

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  41.  
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    Gwiz (profile), Aug 19th, 2014 @ 11:03am

    Re: Re: Oops

    Furthermore, I'd argue that restricting a domain name is actually worse than a tax on printing press ink.

    Restricting a domain name is akin to the government swooping in and impounding all of a newspaper's delivery trucks while not actually impeding the publication of the newspaper itself.

    Do you seriously believe that such an action wouldn't be found to be prior restraint and how does that differ from restricting a domain name?

     

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  42.  
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    John Fenderson (profile), Aug 19th, 2014 @ 11:31am

    Re: Re: Re: Oops

    I disagree. Getting rid of the domain name is more like removing an address from the phone book. You can still get to the site, after all, if you already know (or have been informed through other channels) the IP address.

     

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  43.  
    identicon
    DogBreath, Aug 19th, 2014 @ 11:40am

    Re:

    The Cardassian Justice System begs to differ, but not by much.

     

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  44.  
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    nasch (profile), Aug 19th, 2014 @ 11:43am

    Re: Re: Oops

    If you can't support another individuals right to due process, you deserve no such right yourself. I'll be over to execute you for that crime I think you committed.

    No, due process rights don't depend on the opinions of the individual.

     

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  45.  
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    nasch (profile), Aug 19th, 2014 @ 11:45am

    Re: Oops

    it's pretty clear who owns the rights

    Amusing. Haven't been paying attention to TechDirt for very long I guess?

     

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  46.  
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    nasch (profile), Aug 19th, 2014 @ 11:47am

    Re:

    As for the secrecy, under circumstances such as presented here where prior notice could provide a defendant with the opportunity to render any court order moot by simply moving elsewhere the "goods" so they are beyond the court's reach, ex parte orders are not at all uncommon.

    This order doesn't prevent that, secret or no. The subjects of the order can still move everything to a different domain. So what is the point again?

     

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  47.  
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    nasch (profile), Aug 19th, 2014 @ 11:49am

    Re:

    So they bypass the issuing of dmca requests and just steal the entire site , what If the site(s) In question file a notice of Infringement of their website design. actually would this be considered theft of the original works .

    They took domain names, not web servers. ABS-whoever could put up web sites on those domains, but they would be unrelated to the originals.

     

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  48.  
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    Gwiz (profile), Aug 19th, 2014 @ 11:51am

    Re: Re: Re: Re: Oops

    Perhaps.

    Still doesn't matter. Prior restraint can still exist even if there are other avenues for dissemination.

    My point was that restricting the domain is like disrupting a newspaper's distribution chain, which I believe would constitute prior restraint.

     

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  49.  
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    John Fenderson (profile), Aug 19th, 2014 @ 12:17pm

    Re: Re: Re: Re: Re: Oops

    I agree that this is prior restraint. I just think that it's important that we remember what the effect of the decision actually is and is not.

    What it is not is blocking access to the website. What it is is eliminating the convenience of using a domain name to access the website.

    What I wonder is this... I have a domain name to reach my private servers from the internet. Actually, I have several that all resolve to the same IP address (a .org, a .net, a totally different one, etc.) This is pretty common practice. Did this site not have that going on for them? Why not? Domain registration is dirt cheap, and it seems like pretty basic protection against all sorts of failures. Redundancy is a good thing.

     

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  50.  
    identicon
    Adrian Lopez, Aug 19th, 2014 @ 12:25pm

    Re: Re: Re: Re: Oops

    "You can still get to the site, after all, if you already know (or have been informed through other channels) the IP address."


    I don't think this reflects how the vast majority of people use the web. How would you say Google would be affected if they lost google.com as part of a preliminary injunction owing to a lawsuit over links to infringing content?

     

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  51.  
    identicon
    Adrian Lopez, Aug 19th, 2014 @ 12:31pm

    Re: Re: Re: Re: Re: Re: Oops

    What about virtual hosts on shared servers? Lots of servers are configured to look at the domain name to decide which site to present.

     

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  52.  
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    nasch (profile), Aug 19th, 2014 @ 12:42pm

    Re: Re: Re: Re: Re: Re: Oops

    Did this site not have that going on for them? Why not? Domain registration is dirt cheap, and it seems like pretty basic protection against all sorts of failures. Redundancy is a good thing.

    What if the order seized all of them?

     

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  53.  
    identicon
    ack..., Aug 19th, 2014 @ 12:44pm

    Scared

    So...is there anything to worry about concerning this case?

     

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  54. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 12:44pm

    Re:

    Censored comment quoted below:

    Mike Masnick just hates it when Google's ad-sponsored piracy site business model is threatened.

     

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  55.  
    identicon
    ack..., Aug 19th, 2014 @ 1:10pm

    Re: Scared

    Going to rephrase that.
    As someone who watches stuff on these types of sites should I worry about this becoming a common thing, sites for content being taken down by this method?

     

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  56.  
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    John Fenderson (profile), Aug 19th, 2014 @ 1:14pm

    Re: Re: Re: Re: Re: Re: Re: Oops

    I'm aware of this, although I consider this really bad practice (for what I hope are obvious reasons). There are better ways of accomplishing the same thing.

     

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  57.  
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    John Fenderson (profile), Aug 19th, 2014 @ 1:15pm

    Re: Re: Re: Re: Re: Oops

    Of course it doesn't. I never said it did. But that's not related to my point.

     

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  58.  
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 1:22pm

    Re: This makes no sense

    Yes; a good point to make here is that this "pre-emptive strike" gives the alleged criminals all the heads-up that they need. If you own a website, and are knowingly a bad actor, the moment your website goes from being owned by you to being owned by the US government (or even some neutral entity), you know something's up and take appropriate action. The only people this would affect would be people who consider themselves innocent of wrongdoing -- in which case, they wouldn't likely have a contingency plan, and so such a step would not be needed in the first place.


    All that said, I have my suspicions that this case is actually linked to some other items that are provably criminal and SHOULD get such an injunction, for the purpose of temporarily protecting unsuspecting victims, not for the purpose of not alerting the site operators. Since it's all under seal, they're unlikely to speak much to this side of things until the appropriate international action has completed, and so anything that IS made available is going to look like abuse of due process.

    Won't know for sure until things are unsealed.

     

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  59.  
    identicon
    Whoever, Aug 19th, 2014 @ 1:41pm

    Lack of notice and possible anti-takedown method.

    The purpose of taking the site offline without notice is simple: deny the owners of their income. Without funds to challenge the takedown in court, it will become permanent. Other claims about the reasons are just dissembling.

    What if the owners of such sites ensured that every page contained a political statement? It could be as simple as "Make filesharing legal!". Would this make a takedown without notice a first amendment violation?

     

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  60.  
    identicon
    Ruben, Aug 19th, 2014 @ 1:42pm

    Re:

    Dear Mr. Lowery,

    Please keep your tripe on your site.

    Signed,

    The entirety of humanity.

     

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  61. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 1:52pm

    Re: Re: Re:

    Masnick censors "Mike Masnick just hates it when copyright law is enforced", despite everyone knowing it's true. He's actually ashamed of himself, so he censors.

     

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  62. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 2:07pm

    Re: Re:

    I'm not David Lowery. Masnick knows this, but he sure as hell would never tell you that.

     

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  63.  
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 2:18pm

    Re: Re: Re: Re:

    1) Mike doesn't report posts, readers do. Posts are hidden only when several users click the report button.
    2) Hovering the cursor over the report button shows "report this comment as abusive, spam, trollish, or otherwise inappropriate".
    3) Posts such as "Mike Masnick just hates it when copyright law is enforced" fulfill at least two of the above criteria (see bold).

     

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  64.  
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 2:26pm

    Re: Re: Re: Re: Re: Re: Re: Oops

    What if the order seized all of them?


    While it doesn't actually "seize" sites not explicitly listed, the order does provide that the ISPs and registrars and anyone else "shall cease facilitating access to any or all domain names and websites through which Defendants engage in the copying, distribution, performance, and promotion of Plaintiffs' copyrighted works and\or broadcast content or use of the ABS-CBN Marks". So any alternate domains would be shut down.

    Not to mention that it's kind of a bad thing to be ignoring a court order, even one that should never have been issued.

     

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  65.  
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    connermac725 (profile), Aug 19th, 2014 @ 2:50pm

    Bad Judge

    makes me ashamed to live in Oregon I guess judge Brown is king only in her mind anyhow

     

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  66.  
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    John85851 (profile), Aug 19th, 2014 @ 2:53pm

    Judge shopping?

    Can we say "judge shopping"? Most reasonable lawyers would know judges wouldn't hear a case like this because of the Supreme Court decision. But like shopping around for doctors who give the best pills, the lawyers must have shopped around for a judge who would hear the case AND rule in their favor.

    Or maybe the judge wants to make a name for herself... though in a bad way. Now she'll forever be remembered as the judge who let people shut down a website without due process.

    And a quick note for anyone who says this is the right thing to do- suppose you have a legal business selling DVD's (suppose you're Blockbuster, Suncoast Video, whatever). Now suppose a copyright-bot flags your site as infringing because obviously you're advertising content created by the MPAA.
    Boom- your site is taken down and your income is shot because of the precedent this case had set. Sure, you can appeal, but that costs time and money.

     

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  67.  
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    That Anonymous Coward (profile), Aug 19th, 2014 @ 3:26pm

    IP is our most valuable asset.

    The rule of law can not apply to IP, the rights of corporations outweigh any concerns and trump any legal doctrine that might impede their tilting at windmills.

    We must support them and accept, without critical thought (or laughter) any claims that make. So what if it was debunked and proven to be false... we've got to save the IP.

    We have destroyed several generations expectations that there would be a public domain to draw from, allowing for new tales to be told.

    We have stifled innovation to protect the corporations from boogeymen of their own making.

    The well is dry, there are no new stories, but they can (and do) blame piracy for all of their ills - not a dinosaur viewpoint that had crippled entire industries.

    We hand them monopolies, and they can not make any money from them. They refuse to let go of anything, instead opting to keep it locked up while they ponder how to make a buck from it with the system that will work this time. (It;s okay we've given them 2 human lifetimes to figure this out (barring another extention.))

    The courts roll over and accept ludicrous claims that anyone with a modicum of sense would dismiss as the ravings of someone with mental illness.

    Society as a whole, globally, suffers because leaders are to busy suckling the tit of these global cartels.

    We have abandoned the rule of law, we have slanted the playfield towards one side. They can not understand how people who face things well in excess of any ACTUAL damage might take umbrage to that behavior and fight back the only way they can because their leaders are to bribed to listen.

     

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  68.  
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 3:51pm

    Re:

    You mean the activity that could render the court order moot that they can still do anyway?

     

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  69.  
    identicon
    trinsic, Aug 19th, 2014 @ 4:07pm

    The author is living in a dream world where civil rights are held up a sign posts that point to the ideal of a free society. When you look at this in practice you will find that this country is based on having no rights, just the illusion of them.

     

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  70.  
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 5:44pm

    I don't get it

    The thing I don't get - if you have enough evidence of infringement that leads to something of this magnitude, why wouldn't you sue the named individuals for damages? Unless...

     

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  71.  
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 5:49pm

    Re: Re: Re:

    And when he's finally fed up with your constant spamming he'll break the silence on your anonymity, and the Schadenfreude from you crying for the anonymity you insist others cannot have will be delicious.

     

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  72. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 7:21pm

    Re: Re: Re: Re: Re:

    I understand that the truth is considered spam and trolling on this site, but it's still hilarious to see you pirates get so butthurt about it.

     

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  73. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 7:23pm

    Re: Re:

    Censored comment quoted below:

    Censored comment quoted below:

    Mike Masnick just hates it when Google's ad-sponsored piracy site business model is threatened.

     

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  74.  
    icon
    Whatever (profile), Aug 19th, 2014 @ 8:17pm

    Re: Re: Oops

    Prior restraint and other first amendment clauses apply only to legal free speech. IE, you cannot claim prior restraint if your obscene material is blocked, as it is not legal free speech.

    In this case, the copyright material distributed for profit without licenses is not protected free speech, so prior restraint (and all the other first amendment stuff) just doesn't apply.

    You keep looking in the wrong places for answers. This isn't about printing ink, it's about what is being "printed". Taking whatever action is needed to stop the illegal act from continuing to occur is well within the courts rights, and does not violate anyone's first amendment rights.

     

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  75.  
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    nasch (profile), Aug 19th, 2014 @ 8:34pm

    Re: Re: Re: Oops

    In this case, the copyright material distributed for profit without licenses is not protected free speech, so prior restraint (and all the other first amendment stuff) just doesn't apply.

    What court has determined that all of the speech being restrained is copyright violation?

     

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  76.  
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    orbitalinsertion (profile), Aug 19th, 2014 @ 9:52pm

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

    repeating a claim doesn't make it true. and that isn't enforcement of copyright law, it's far overstepping any law.

    "I asked the judge for a warrant to shoot him in the street because I swear he's a trespasser and she said yes."

    This isn't law enforcement.

     

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  77.  
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    Karl (profile), Aug 19th, 2014 @ 10:24pm

    Re: Re: Scared

    As someone who watches stuff on these types of sites should I worry about this becoming a common thing, sites for content being taken down by this method?

    As someone who watches stuff on any type of site, we should all be absolutely terrified about this becoming a common thing.

    If all it takes are allegations of infringement to shut a site down, then people are going to allege infringement all the time, simply to take down sites they don't like.

    And (the censors will argue) if this is allowed for copyright infringement, why not libel? And if they can do that for libel, why not for sites that threaten the government? ...And so on.

     

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  78.  
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    Karl (profile), Aug 19th, 2014 @ 10:32pm

    Re: Re: Re: Oops

    Prior restraint and other first amendment clauses apply only to legal free speech.

    Uh, no, it doesn't.

    It applies to all speech that has not been found to be unlawful. If it has already been found to be unlawful in some way, then it wouldn't be "prior" restraint.

    And what the Ft. Wayne ruling (and many others, e.g. CDT v. Pappert) makes absolutely clear is that a court cannot find speech to be unlawful until an adversarial hearing has occurred.

    Moreover, taking down an entire website does not just take down infringing material. It takes down all of the speech on that site - including speech that is not even allegedly unlawful.

    So, the ruling is an unlawful prior restraint for at least two reasons.

    Until that happens, the speech is 100% protected.

     

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  79.  
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    Whatever (profile), Aug 19th, 2014 @ 11:23pm

    Re: Re: Re: Re: Oops

    No court has to, because it's long since been established that some protected speech may be harmed or blocked when a court order is served. As an example, shutting down a store which is selling drugs may harm the rights of the landlord or others, or may as an example kill the free speech rights of those who posted ads on the cork board inside the shop. The courts have long since found that you cannot hide illegal speech behind a thin veil of protected speech. Otherwise, the most hateful speech could be protected by merely reciting the first few words of the constitution first.

    Prior restraint (in that judgement) is in regards to how taxation may have harmed PROTECTED speech. it has nothing to do with illegal, unprotected speech. First amendment does not apply here.

    Oh yeah, all the "first amendment over copyright" arguments in the courts have pretty much flamed out and died. Just doesn't play very well.

     

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  80.  
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    Whatever (profile), Aug 19th, 2014 @ 11:27pm

    Re: A little problem with your assessment....

    They didn't seize the content ABS claims copyright to, they seized the domain names that the site ABSOLUTELY "owns". As such the "owner" does loose control of their property.

    There is still much legal debate about the concept of "owning" a domain name, similar to "owning" a phone number. Since you can never purchase a domain outright (only the rights to it for the given contract period), the question of ownership generally isn't the issue - at best it's a question of perhaps occupation like a rental house, and in those cases generally the property is returned to it's owner over time.

    you aren't sure that the site is 100% infringing

    it doesn't have to be. Using legal speech as a cover for illegal speech or acts doesn't impress the courts, please go look, there is caselaw on this already discussed endlessly here on Techdirt.

     

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  81.  
    identicon
    Anonymous Coward, Aug 20th, 2014 @ 12:29am

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

    It's still hilarious to see you butthurt about pushing SOPA into place while you're here, ranting, that it wasn't even needed.

    Millions of dollars well spent.

     

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  82.  
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    Whatever (profile), Aug 20th, 2014 @ 1:45am

    Re:

    I clicked funny, your post is classic!

     

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  83.  
    identicon
    Anonymous Coward, Aug 20th, 2014 @ 2:13am

    Re: Re: Re: Re: Re: Re: Re: Re: Oops

    It is an even worse thing when a court order is a carte blanche for ordering web sites to be shut down, as the order does not identify specific material, or specific defendants.

     

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  84.  
    identicon
    Anonymous Coward, Aug 20th, 2014 @ 2:31am

    Re: Re:

    What a surprise, you contribute absolutely nothing.

    Or did you fail to find anything wrong?

     

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  85.  
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    That Anonymous Coward (profile), Aug 20th, 2014 @ 3:34am

    Re: Re:

    mom never hugged you much did she?

     

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  86.  
    identicon
    Anonymous Coward, Aug 20th, 2014 @ 4:46am

    Re: Re: A little problem with your assessment....

    "There is still much legal debate about the concept of "owning" a domain name"

    Personally I believe the same can said about owning a copyright. Just look at the 'Happy Birthday' shenanigans.

     

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  87.  
    identicon
    Anonymous Coward, Aug 20th, 2014 @ 4:49am

    Re: Re: Re: Re: Re: Re: Re: Re: Oops

    With the limited IPv4 space virtual hosts are actually a good solution until v6 is properly supported by all.

     

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  88.  
    identicon
    Anonymous Coward, Aug 20th, 2014 @ 4:51am

    Re: Re: Re: Re: Re: Oops

    Selling drugs is a breach of criminal law.

    Hosting video files may be a breach of civil law or criminal law. Please stop confusing the two.

     

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  89.  
    identicon
    Anonymous Coward, Aug 20th, 2014 @ 4:52am

    Re: Re: Oops

    If it doesn't fit her agenda she doesn't even pretend to read it.

     

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  90.  
    identicon
    Anonymous Coward, Aug 20th, 2014 @ 6:33am

    Re: Re: Oops

    Let's not forget, this is the same chucklefuck Whatever who can look at a policeman gunning down an unarmed citizen and still say it's not clear enough who's at fault.

     

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  91.  
    identicon
    Anonymous Coward, Aug 20th, 2014 @ 6:50am

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

    What is apparently not recalled when referring to SOPA is that it was intended for application in association with US Directed Foreign Internet Sites. This case involves domestic (US) sites. To talk about SOPA in relation to this case is inapt, but consistent in the sense that during the SOPA debate many outlandish claims were made about the legislation that were plainly wrong...but served the useful purpose of whipping up the internet crowd into a frenzy of misinformation.

     

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  92.  
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    Gwiz (profile), Aug 20th, 2014 @ 7:06am

    Re: Re: Re: Oops

    Prior restraint and other first amendment clauses apply only to legal free speech. IE, you cannot claim prior restraint if your obscene material is blocked, as it is not legal free speech.

    But we are not talking about "I know it when I see it" obscene material are we? This is about copyright where the legality cannot be determined with a cursory glance or even a ex parte hearing (ham sandwich indictments anyone?).



    In this case, the copyright material distributed for profit without licenses is not protected free speech, so prior restraint (and all the other first amendment stuff) just doesn't apply.

    You are probably right in this case, but answer me one question: Why do you defend ex parte seizures in copyright cases? It seems that we should always err on the side of Free Speech. Explain how it is such a hardship to notify the parties of an adversarial hearing. In cases where it's an obvious copyright violation, it's most likely the defendants wouldn't show up anyways.

    Wouldn't making sure that all the T's are crossed and all the I's are dotted prior to the seizure be the prudent course of action?

     

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  93.  
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    Anonymous Coward, Aug 20th, 2014 @ 7:12am

    We need a new Internet.

     

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  94.  
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    Gwiz (profile), Aug 20th, 2014 @ 7:23am

    Re: Re: Re: Re: Re: Oops

    Oh yeah, all the "first amendment over copyright" arguments in the courts have pretty much flamed out and died. Just doesn't play very well.

    That is sad. I'm ashamed to live in a time where you and people like you don't have the testicular fortitude to stand up against the erosion of our Constitution. I guess profits really do outweigh scruples these days. I am sad for my grandchildren and the world we have bequeathed them.

     

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

  95.  
    icon
    John Fenderson (profile), Aug 20th, 2014 @ 8:04am

    Re: Re: Re: Oops

    " you cannot claim prior restraint if your obscene material is blocked, as it is not legal free speech. "

    But blocking such speech before it's been ruled to be disallowed is absolutely prior restraint.

     

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

  96.  
    identicon
    Anonymous Coward, Aug 20th, 2014 @ 9:54am

    Re: Re: A little problem with your assessment....

    South Park do it all the time, but since that's Old Media, they get away with it.

     

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

  97.  
    icon
    John Fenderson (profile), Aug 20th, 2014 @ 11:38am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Oops

    I disagree. Doing that is the most convenient solution, but isn't the best one. There are others available that don't abuse domain names by turning them into critical infrastructure. True, sometimes abusing domain names is the best solution available, but those situations are edge cases, not the general rule.

     

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

  98.  
    icon
    Sheogorath (profile), Aug 23rd, 2014 @ 1:36pm

    Re: Re: Re: Re: Re:

    I'm sorry to say, AC, but your third point is inaccurate. Posts such as "Mike Masnick just hates it when copyright law is enforced" meet the definition of "abusive, trollish, and otherwise inappropriate", thus fulfilling three of the reporting criteria, not two. Just sayin'.

     

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

  99.  
    icon
    Sheogorath (profile), Aug 23rd, 2014 @ 2:23pm

    Re: Re:

    Whatever AKA out_of_the_blue just loves it when copyright is abused with lies to justify evil.

    TTBFY, AC.

     

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

  100.  
    icon
    Sheogorath (profile), Aug 23rd, 2014 @ 2:27pm

    Re: Oops

    Sealed case, dipwad. That means you're correct in saying we have no evidence that there was no infringement, but on the flip side of that token, you have no evidence that there was. Simples!

     

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


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