Cooley is a diploma mill that robs students by promising them "the life" of a high priced attorney using misleading employment statistics and inflated median salaries. Thomas Jefferson School of Law has also been sued under this theory (although, they pointed out that their bar passage rate was far below their employment numbers, so obviously they couldn't be turning out lawyers). The thing that is even worse is that this isn't just 4th tier schools that are doing this, many of the top 100 are using tricks such as hiring graduates to do admissions work, just so they can boost the 9 month employment numbers.
I thought it was groups of 5 or 6, but I'm not sure the analysis changes much just based on number. I've inserted the for the definition of public below, and what it takes to be performed publicly. The question to me is the availability and what "substantial" is. If this is something which they limit to your friends on facebook, I'd say that they've kept it within "a normal circle of a family and its social acquaintances." The other question is, what defines social acquantances? I'd think someone you meet and become friends with because of their musical interests would count, even if it is only through the interwebs. I just think the copyright problem would come from the completely open network(which it seems is contrary to the social aspect).
The other thing that after re-reading I might have some doubts with is the streaming aspect, but if they feel that it's within the license I'll trust them on that.
To perform or display a work “publicly” means—
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
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.
I'd guess it's the limits of fair use(at least as best the lawyers could guess based on case law) or maybe just an internal method of not upsetting the copyright holders too much(although this seems unlikely).
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.