I get ya. I was just wondering if there was anything more than speculation at this point to believe it is abuse of process. Sounds like you're banking on information coming out later to back the claim. Maybe that'll happen. I don't pretend to know. I was just wondering what reason there is now to think it. You're right about Democratic Underground. I really didn't think anything would have come from the counterclaim. Boy was I wrong about that.
I just want to add too that I appreciate you making me think about this and challenging me. I know a bunch of what I say is wrong (a bunch is right too) and I'm really trying to figure out how it all works and what the right answer is. I'm not 100% convinced that my view is the right answer, and if it's the wrong answer, I want to understand why.
I suspect that one difference between our positions is a matter of perspective. If you focus narrowly on the statute as being aimed at conduct that is not expressive, then I think Arcara wins the day. That view is that a domain name is just property used to infringe, so it can be forfeited despite the fact that protected speech is affected. The other view is that what's seized is a domain name, which in turn blocks the content on that site, including protected speech. This is a broader view of things, and viewed like this, a prior adversarial hearing is needed since there's presumptively protected speech involved.
The more I think about it, the more confused I get, to tell you the truth. The more I think that both sides have merit. Keep chipping away at me, Karl. It appears to be working. :)
The only copyright cases I know of that have applied intermediate scrutiny (like the test in O'Brien) have been those dealing with the anti-circumvention provisions of the DMCA. Reimerdes and Corley come to mind, but I'd have to read those again to see exactly what was said. There, it was computer code that could be used to infringe. The computer code itself involved a degree of expression, so the DMCA provisions at issue received intermediate scrutiny, which they passed.
O'Brien used intermediate scrutiny for the same reasons. The act of burning a draft card is partly expressive and partly non-expressive. The expressive part was significant enough that intermediate First Amendment scrutiny was warranted, and the statute passed that scrutiny.
I think the issue here though is that copyright infringement is not expressive, at least when it's wholesale copying, so any law that regulates it won't be subjected to heightened scrutiny.
The procedural First Amendment analysis issue is less clear to me. I think that when it's wholesale copying, like we have here, that no prior adversarial hearing is needed. But when it's less clear than wholesale copying, like with a derivitive work, sampling, sequel, parody, fair use, etc., that a prior adversarial hearing is needed. I haven't ironed out that research yet, but there's where I'm at now.
With obscenity there has to be a determination that the activity is indeed obscene. That's not a problem with wholesale copying since if I'm streaming a WWE match on my website, that's going to be infringement most, if not all, of the time. With obscenity things are not as clear, so there are procedural safeguards. It's a subjective determination. Infringement on the other hand doesn't require a subjective determination, at least when it's wholesale copying.
I never said that you have to prove your case before discovery and trial. That wouldn't make any sense. I'm just wondering why you think they knew the agreements were shams. So far it just sounds like conjecture.
I think you're making the logical leap that the lying to the court was because Righthaven knew they didn't have standing and it was a sham. Perhaps they were just lying to keep Stephens Media's share in the profits a secret for some other reason. I think it's a bit of an uphill battle to show that Righthaven knew the assignments were shams. As far as Mangano goes, isn't it possible that he himself had not seen the SAA at that point and that he might really not have known?
I agree that Righthaven instituted the suits for the ulterior purpose of coercing a nuisance settlement, but did Righthaven really have no basis in bringing the suits in the first place? Wouldn't you have to show that Righthaven knew it didn't have standing? It seems to me they really believed they had standing when they brought suit. What's the argument that they didn't?
If I'm reading that right it's kind of crazy. If Mangano thinks Righthaven is committing UPL that the UPL will substantially hurt Righthaven, then Mangano has a duty to try and get the administrators of Righthaven to stop. And if they refuse to stop, then Mangano can (if he wants to; he can also choose not to) reveal information about the company and the crime. So Mangano could be instrumental in bringing down Righthaven.
Honestly though, I don't see how Righthaven can pursue its cases after Judge Hunt said this: "In the court's view, the arrangement between Righthaven and Stephens Media is nothing more, nor less, than a law firm — which incidentally I don't think is licensed to practice law in this state — with a contingent fee agreement masquerading as a company." How in the world can Righthaven pursue their cases with this hanging over them? Gibson's got to be worried. I bet he and Mangano haven't slept well the past couple days.
The part right after the section you quoted is the good part. If Mangano goes to Gibson and tells him it's UPL, and Gibson refuses to stop, then Mangano "may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization." So he can spill the beans publicly, including information that he couldn't otherwise reveal under the duty of confidentiality. The reason he can do this is because he represents Righthaven, not Gibson or anyone in Righthaven. Mangano's duty is to the company.
It is directly relevant, because Arcara itself says it can not apply when the law "has the inevitable effect of singling out those engaged in expressive activity."
The forfeiture statute, on its face and as applied, does not single out those engaged in expressive activity since criminal infringement is not expressive.
Just as it can only apply to laws "directed at unlawful conduct having nothing to do with books or other expressive activity."
Just like the closure statute in Arcara was directed at unlawful conduct that has nothing to do with expressive activity, so too does the forfeiture statute. Criminal infringement is not protected expression.
Just as it can only apply to laws that "would impose no restraint at all on the dissemination of particular materials."
You misunderstand that footnote. The Court is saying that the closure statute in Arcara is unlike the closure statute in Near because the statute in Arcara "would impose no restraint at all on the dissemination of particular materials." And this was despite the fact that it shut down a First Amendment-protected bookstore. The Court says: "the order would impose no restraint at all on the dissemination of particular materials, since respondents are free to carry on their bookselling business at another location, even if such locations are difficult to find." Funny how you left off the next part.
Just as it can not apply to actions "based on an advance determintation that distribution of particular materials is prohibited."
That refers to obscenity and defamation, which were at issue in Near. Obscenity and defamation work differently than copyright in their First Amendment analysis.
Whether "the conduct that drew the remedy in the first place is not protected speech" is only one of the many ways that Arcara can not apply to a specific law or statute. You're focusing on that exemption alone. But by that standard, Arcara would apply to libel, obscenity, or child pornography, since that "conduct that drew the remedy" is also "not protected speech." But it absolutely does not.
Libel, obscenity, and child pornography work differently First Amendment-wise than does copyright. Arcara does not apply to those situations because other Supreme Court cases are explicitly controlling. There is no other case that explicitly controls this case.
There is really no way the courts could possibly be clearer on this. Arcara does not apply to any law, statute, or government action that regulates any form of speech, even unprotected speech, in any way, shape or form.
The Court even says that the closure statute at issue in Arcara could be said to have a burden on protected speech. In fact, they say that, "every civil and criminal remedy imposes some conceivable burden on First Amendment protected activities." That's not the issue. The issue is how substantial that burden is, what governmental interests justify that burden, and the extent to which the burden is incidental. It's all right there in Arcara. Are you reading the same case?
You can't simply route around the First Amendment by shouting "copyright infringement," no matter how hard you try.
It's not routing around the First Amendment. It's applying the proper level of scrutiny to the statute to determine if the First Amendment burden is justified by the governmental interest at stake.
It doesn't matter if websites are a source of free expression. That's irrelevant. What matters is that the conduct that drew the remedy in the first place is not protected speech. That the remedy has an indirectly incidental effect on protected speech doesn't matter, as per Arcara.
It doesn't matter if no court has used Arcara like this. That doesn't mean it's not the right argument. O'Brien only applies if the incidental effect is direct, meaning that the conduct that drew the remedy in the first place was partly expressive. Criminal infringement is not partly expressive, so O'Brien doesn't apply.
It doesn't matter that the statute in Arcara was a health or safety statute. What matters is that it wasn't aimed at protected speech and that it's affect on protected speech was only indirectly incidental. Arcara fits perfectly. That's why the DOJ is using it.
Laws still have to pass rational basis scrutiny, which is the MINIMUM scrutiny. There's no such thing as no scrutiny.
The government is saying that since the seizure statute does not regulate protected speech, and it has only an indirectly incidental effect on protected speech, it's not prior restraint. That's what Arcara says, and that's the situation we have here with the seizure statute. So under Arcara, it's not prior restraint.
I think you're a bit confused about what the level of scrutiny means. It can still not be prior restraint even under heightened scrutiny, which was the case in O'Brien.
The government is not denying that Puerto 80 could have suffered as to their protected speech. The government is merely saying that under Arcara that burden is permissible. That's exactly what Arcara says.
Rights, even free speech, can be burdened so long as the government's interest justifies the burden.
By the way, be careful with that article. Most of it is about Arcara after it was remanded back to the state court. The state court analyzed Arcara under the state constitution, and that constitution gives more speech protection than the federal one. The analysis of Arcara on remand does not apply to the federal Constitution, which is the one at issue in Puerto 80's case.
That article also explains why O'Brien doesn't apply: "The Supreme Court's Arcara holding distinguished between regulations aimed at the source of protected expression, those that directly "incidentally burden" protected speech, as in O'Brien, and regulations not aimed at the source of protected expression, those that indirectly "incidentally burden" protected speech, as in Arcara. Regulations that directly incidentally burden protected expression are subject to intermediate scrutiny, whereas regulations that indirectly "incidentally burden" protected expression need only have a rational basis."
The seizure statute has an incidental affect on protected speech, but it does not have a directly incidental burden on it, as in O'Brien. Instead, the seizure statute has an indirectly incidental burden on protected speech, as in Arcara. What kind of incidental burden it is matters, i.e., directly or indirectly. When it's indirectly incidental, Arcara applies, not O'Brien.
Incidentally - for a good article on Arcara, its history, and how it has been (mis)interpreted, read Freedom of expression in New York State: What remains of People ex rel. Arcara v. Cloud Books Inc.? by Jeremy Bethel.
And right at the beginning it states: "the U.S. Supreme Court, in Arcara v. Cloud Books, Inc., decided that legislation impacting free expression, but not directly aimed at a source of free expression, was generally constitutional. Thus, under the federal Constitution, legislation aimed at quelling activity containing no protected element--or only indirectly incidentally burdening free expression-- is generally acceptable. This is true whether or not that indirect incidental burden also impacts protected speech."