Why shouldn't the procedures for domain name seizure include an adversarial hearing prior seizing the domain name? A domain name cannot flee or be destroyed. The government informs the operator of the hearing and if the operator really is a bad actor, the chances of them showing up are next to nil and the domain get seized ex parte anyways.
This simple procedure change would alleviate the government from First Amendment scrutiny altogether and the results would most likely be the same, except that the truly innocent would have a chance to defend themselves.
I'll ask once again, since you didn't answer the other time I asked:
If these domain seizures can withstand the First Amendment scrutiny, as you are arguing, then why has the government dropped every single one of these cases involving copyright infringement so far and quietly return the domain names?
Also, why did ICE stop the practice of seizing domain names connected with copyright infringement, but still continued to seize domain names connected to counterfeit goods?
LOL! The standard was "probable cause." I know you can accept reality, but that doesn't change the fact that it's true.
Except that Marcus v. Search Warrant, 367 U.S. 717 (1961) says that the standard for seizing items protected by the First Amendment is higher than just "probable cause" and Quantity of Books v. Kansas, 378 U.S. 205 (1964) says that an adversarial hearing must happen prior to seizing protected speech otherwise the seizure is considered prior restraint and unconstitutional.
Cox as a retail ISP isn't a transitory digital network, that label is generally saved for IP transit companies, who are moving the data such as Level3 or others. They have no end user contact or control over and end user's connection.
This is incorrect. 17 U.S. Code § 512(a) says nothing whatsoever about having "end user contact" or any other such nonsense. It defines a transitory digital network as one where the communication is initiated by someone else, routing is automatic and the content is not modified. This includes Tier 1 companies, local internet providers and possibly operators of open WiFi spots.
Congress specifically carved out liability exceptions for transitory networks on purpose and specifically spelled out that the DMCA notification requirements for a service provider who hosts user content (17 U.S. Code § 512(c)) do not apply to transitory networks with 17 U.S. Code § 512(n) which states:
(n)Construction.— Subsections (a), (b), (c), and (d) describe separate and distinct functions for purposes of applying this section. Whether a service provider qualifies for the limitation on liability in any one of those subsections shall be based solely on the criteria in that subsection, and shall not affect a determination of whether that service provider qualifies for the limitations on liability under any other such subsection.
"“Copyright holders know precisely what materials they own, and are thus better able to efficiently identify infringing copies"
I'm not sure what you are trying to argue here. The full quote is:
Copyright holders know precisely what materials they own, and are thus better able to efficiently identify infringing copies than service providers like Veoh, who cannot readily ascertain what material is copyrighted and what is not.
The court reinforced what most thought was basic common sense: that the copyright holder was better situated than the service provider to determine whether a given use was possibly infringing or not since the copyright holder would have better knowledge of who was authorized to use the work.
That ruling did not, by any means, make a DMCA notice into anything more that what it has always been: a notice that the copyright holder believes an infringement has occurred.
Interestingly, that quote was used to clarify (somewhat) what "red flag" knowledge is. The court basically said that "red flag" knowledge needed to come from the copyright holders in the form of correct DMCA notices because they are the ones with knowledge of who is authorized the use the work or not.
Is there a law that allows you to serve me with a notice of such? Represented as bonafide legal judgement? No?
As explained above, a DMCA notice is not a "bonafide legal judgement" at all.
It's simply a statement of "good faith belief" that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. An actual "legal judgment" can only come from an actual court of law.
Well, then go pound sand, pirate boy.
Instead of inane attempts to insult people, perhaps your time would be better spent on actually learning about the subject you are attempting (badly) to argue. Here is a place to start:
No, it's not. It's a *notice* that the copyright holder believes that a copyright infringement has occured. Hence the word "Notice" in "DMCA Notice".
2. Unless you want to be sued out of existence, yes, it does.
Which is exactly what I said.
3.Yes, it is exactly that: an appeals process.
The word "appeals" in legal jargon implies that there is some judgement to be reversed. That's not the case with a DMCA counter-notice. A counter-notice is simply a declaration from the accused infringer that they do not believe the original notice has any merit.
You pirates are hysterical about this. I don't understand how you thought you'd get away with breaking the law forever.
Yeah, that's not me. I'm just someone who finds copyright law interesting.
No, it's not. It's an accusation of infringement. Just like a "cease and desist" letter. Only a court of law can determine whether infringement has actually occurred or not.
It has to be honored.
No, it actually does not have to be honored. It *can* be ignored. ISP's could face the possibility of losing their Safe Harbor protection and therefore face huge liabilities if they choose to ignore DMCA notices, but there is no law *requiring* them to honor them.
If you disagree, then use the appeals process.
It's not an "appeals process". It's a counter notice from the alleged infringer. When an ISP receives a counter notice, the ISP has to restore the content within 10 to 14 business days, unless the ISP receives notification from the original DMCA sender that they have filed an action, with the courts, seeking a court order against the alleged infringer.
Just to clarify, I don't necessarily disagree that overall our politicians seem to lack technology skills. Politics seems to attract less technological savoy people more than other sectors. (Those who can't become politicians!). I'm just not convinced it's really an age thing. I've seen plenty of young politicians say stupid things concerning technology too.
If you want to take my personal observations of your behavior on this thread and elsewhere as insults, that's cool. I'm not going to lose any sleep over it.
When someone has called me out and proven me wrong on some incorrect fact I stated here on Techdirt, I, more often than not, accept it graciously. You can look through my history and see that it's true. (hint: I usually preface such admissions with "Fair enough"). Unfortunately, not everyone here can admit when they were wrong, even when presented with clear evidence to the contrary. Even less can do it without having to throw a insult in to make themselves feel better.
You seem to be the one sulking about this, not me. I'm at the point where I am laughing at you.