You have no idea what the FBI is or is not doing in regards to being effective. Your comment is based on prejudice and assumption.
While not thoroughly informed, I have been present at a two conferences attended by a mix of industry, academia and law enforcement.
You sarcasm is misplaced.
The issues are *extremely* tangled, involving international law and countries openly hostile to the US. Countries who feel that there is absolutely nothing wrong with defrauding little old ladies out of their life's savings... as long as they are *American* little old ladies.
LE is not like in the movies where they go gun down the bad guys. They operate under rules that are very restrictive (unlike ICE which I will point out is not a traditional law enforcement agency) and it takes a long time to collect proper evidence and then in many cases it takes even longer for the Attorney General to act on that evidence.
This is just me, but I try not to say disparaging things when I do not know what I am talking about.
For once ICE is doing something remotely related to their mandate.
Online poker really *is* used extensively for money laundering by organized crime.
The boss sits down at a virtual table with several of their underlings, and they "just happen" to lose every hand. The boss's online account is - of course - under a false name with winnings transferred to an offshore account in some corrupt Baltic country.
The Online site are complicit. They accept the flimsiest and most obviously forged "identification" and allow people to set up these obviously fraudulent accounts. They do no monitoring of statistically impossible wins and losses (lose *every* hand?).
And money laundering is in fact traditionally the domain of US Customs.
So... I am shocked! Shocked I tell you! To learn that gambling has been going on here!
>So, if copyright was created in 1709, around 80 years
>prior to the Constitution in 1787, it couldn't exactly
>have been designed in 1790 to 'promote the progress' given
>the US Copyright act of 1790 was a 'copyright infringing'
>rip off of the 1709 Statute of Anne, now could it?
Where to start (sigh)?
a) Personally I would not call it a "rip off". The adoption and evolution of Common Law has never been considered a "rip off" by anyone of any seriousness that I have ever heard of. The whole US Constitution is based on previous philosophy and law.
b) You seem stuck on the idea that copyright was "invented" for the first time in 1709. Sure whatever, have it your way, it does not really affect the substance of what Mike (or I) have to say.
>The Constitution doesn't mention copyright...not to grant
>the author a transferable monopoly.
Dude, you're preaching to the converted. No argument from me here.
>If you believe in copyright as devoutly as a religion then
Have you even read what I wrote? I think, that you think, that I am in a very different place then I actually am.
No. With the costs of creating copies and distributing them down to almost zero, I believe that the financial risk involved in publishing has been diminished to the point where it is no longer necessary to create a monopoly to ensure that the initial investment get recouped. The amount of risk involved with being a publisher is now low enough for it to be economically viable without copyright.
>How long should copyright last?
Obviously I feel not even a day, but if copyright was unavoidable and it was up to me to set a term I would say 18 months is long enough for anyone with a blockbuster hit to get rich off of it, and that is what the copyright maximalists are all about after all - the dream of striking it rich - doing a finite amount of work and getting rewarded for it infinitely.
>What exceptions should be permitted?
Again, if copyright was a given that I could not debate, and all I could debate was what exception should be permitted, I would say that all non-commercial use of the Work should be permitted, and only copies of the Work sold for a price should be considered infringing.
>Who should decide whether something falls under the exceptions or not?
A federal judge.
>What should the remedies be for infringement?
The original constitutional remedies. Injunction and double actual damages as calculated by the number of copies sold by the infringer.
>What should the limits be on those remedies, if any?
I should never be investigated, prosecuted or in any way paid for by the public. All investigation, filing, and prosecution should be assumed entirely by the plaintiff. Just like with any other tort.
Ah. I have been waiting for someone to ask this question.
I believe that I understand why the federal government has been going the way it has regarding "intellectual property"(independent of political party in power). Also the Internet.
I believe that the Washington think tanks have been searching for a way to preserve American world dominance in a post industrial society where the US no longer has any hope of preserving manufacturing dominance.
The US used to be the only place in the world that really knew how to do cool stuff like design microprocessors or airplane wings. Now of course that simply isn't true.
So I think that Washington (think tanks and government alike) became fixated on "intellectual property" and Internet as America's only hope of being dominant in the 21st century. This is why the administration considers ACTA to be a question of national security. I believe that they really believe that.
So this is what I believe is influencing policy makers the most: the desire to see the US remain the dominant player on the global scene.
>The fact for me is that copyright was created for one
>purpose and then over the next 300 years has developed an
>entirely new purpose
I agree and I think that this is self-evident. Lettres Patente were a boon. A gift from the King. Copyright as included in the American Constitution had a very different purpose, one that is clearly established in the correspondence between Jefferson and Madison.
I also am happy to discuss "what is the justification for copyright in todays world" independently of what the Constitution says - as if we were Jefferson and Madison and were deciding whether or not to include it or not.
I am like Jefferson, against it because I believe that monopolies are a blight on a free society, and that there are other and better ways to ensure that "every man is entitled to the fruits of his own labour" than creating a monopoly.
I'll be happy to discuss with you on the grounds you propose.
I'll start by saying I think you are too quick to dismiss the "legalistic lens". A great deal of philosophical thought and debate underpins Common Law. It represents centuries of vigorous and active exploration of morality by some of the greatest minds that have ever lived.
Two of the most important areas of that centuries-long discussion are "natural rights" and "property". These concepts represent humanity's (at least a significant percentage of humanity) collective best effort at defining and describing what laws should be based on, how far they should go, and what punishments are just.
Natural rights are also known as "inalienable rights", and when discussed by Locke property was included (life, liberty, and estate). It is therefore significant to note that when the US Constitution was drafted after a hundred years of further debate and consideration, property (of any kind) was no longer on the list of inalienable rights which now consisted of life, liberty, and the pursuit of happiness. By then it had been agreed upon that property was in fact an "alienable right" which is why for example the government can expropriate your house to build a freeway. Your personal good may be found to be secondary to the greater good.
Nobody of any serious standing that I know of has ever suggested that exclusive claim to ideas - a monopoly on thoughts - is an inalienable right. What ever property rights may exist in ideas - and I will not debate that in this discussion - they are not recognized as inalienable. (If any reader has evidence of the contrary please let me know.)
Because "intellectual property" is alienable, that means that just as with expropriation, any personal good that a creator may be entitled to enjoy, may at any time be deemed to be secondary to the greater good for a greater number of people to enjoy. It is not inalienable in the way that freedom from slavery is.
>Copyright is designed to allow creators rights to their
>work because whether a product is tangible or not, if it
>is your unique creation, it is natural to feel like it is
This is incorrect.
As I post below in this thread there exist a substantial body of correspondance between Thomas Jefferson and James Madison on exactly why it was included in the Constitution and exactly what it is designed to do.
Ownership of ideas is specifically NOT what it was designed for. Jefferson who was very much against copyright (because he found the benefit of any form of monopoly - his word not mine - "too doubtful")
Regarding what is now called "intellectual property" Jefferson famously says "since there is no natural right to property in land, how much less is there a natural right to a property in ideas"
It is also the case with Canada's Anti-Spam Law (which actually covers a whole lot more than just spam).
In this law, any brand owner that benefits directly or indirectly from the any violation of law is vicariously liable. The only exceptions are if they can prove a complete absence of any business relationship, or if they prove that they exercised due diligence in preventing their brand name from being used unlawfully.
Since this law applies to commercial electronic messages either sent or received in Canada, American companies may find themselves being sued for email that was sent from the US to Canada.
I have a feeling that may work out to be be similar to getting sued for patent infringement in East Texas.
Like you, I make no claims of absolute certainty, I'm just here to try and keep the debate factual and accurate.
"You haven't shown me any reason to think that the government's general immunity to defamation liability will give way in the mooo.com case. What does it take to pierce that immunity? I'm really not familiar with the FTCA"
I don't know that it will. I am far from competent enough to have a definite opinion.
The one thing I am mindful of though, is that we need to make a distinction between the government and its agents. I can't remember the exact citation, but I know that there is case law that establishes that in some cases agents may be held liable in cases where the governments would not be.
"The idea behind seizing the domain name is that control of that property is placed with the court."
A domain name is not property any more than a phone number or a street address is property. Furthermore I get the feeling that you do not have a clear picture of how Freedns works and what their relationship is with the sites who use their sub-domains.
So I will make it clear:
Freedns runs a service that is like the phone book. Users sitting in front of a web browser type in a URL or click on a link and Windows (or whatever other OS you are using) send a special kind of request in the background that ends up at the Freedns server, which then tells your computer how to get to the actual web site by providing an IP address. That IP address is where the content of that site is located. Freedns does not host the content.
So the 84,000 sites using the Freedns second level domain of mooo.com were all located at different IP addresses, most of them on totally separate machines physically located all over the country - heck all over the word - and only a few of this machines had any connection to child porn other than the fact that were using the same "phone book" and were within the same "area code" (actually "municipal exchange" to be precise).
"If we're going to say that when a subdomain is unseizable"
I do not say this. In fact I say the opposite: that ICE should have only cut off access to sub-domain, not the second level domain which is what they did.
If you believe that either of the two scenarios I outlined above ("Imagine if your telephone was cut off..." or "...if in order to arrest 5 people working in one office of a 20 story...") are constitutional than you will believe that mooo.com also was.
If you believe that either of my examples demonstrated unconstitutional behavior, than you would also feel that the mooo.com seizure was improperly conducted - if you had a comprehensive understanding of how domain names work and what business Freedns was in.
The bottom line is this: agents of the US government may do what they will within the constraints of their best judgment.
And if in the course of exercising their best judgment they violate anyone's constitutional rights, they will be held liable and accountable, for as I have pointed out in another thread: both the 7th Circuit Court and the Supreme Court have both clearly articulated that there is no such thing as guaranteed immunity for agents and officers of the US government.
A URL is exactly analogous to a telephone number. The tld part of the domain is analogous to the area code, the second level domain corresponds to the prefix (or exchange) code, and any subdomain or pathname is equal to the line number (the last four digits of your phone number).
The domain mooo.com was registered by freedns. Freedns did not publish any sites on mooo.com and is not accused of hosting child porn.
What Freedns did is make subdomains of mooo.com available to people operating content sites... 84,000 of them. Less then ten (I believe) of these sites are accused of having child pornography on them. Instead of cutting off the subdomain (Very - in fact trivially - easy to do) which would be like cutting off the individual telephone, the cut off the entire second level domain which is equivalent to cutting of the telephone of everyone in the same municipal exchange.
Imagine if your telephone was cut off and replaced with a recorded message saying you had been arrested for child pornography - all because someone who lived five blacks away, and was on the same municipal exchange) had been arrested.
Or imagine if in order to arrest 5 people working in one office of a 20 story multi-tenant office building *everybody* who worked in that building - all 5,000 of them - was handcuffed and perp-walked out of the building while police officers told the waiting press that they were all arrested for child pornography.
Because that is what happened.
The Nimmer article recounts a case where one alleged perpetrator had three interconnected businesses, and the "innocent" business suffered along with the "guilty" ones because the seizure of *physical* material evidence overrode any other rights the "innocent" businesses might have had.
I feel that this case is inapplicable because in the mooo.com case, the businesses were not interconnected, the alleged perp had no interest in any of the 84,000 other sites, there was no physical seizure of evidence, and and and.