Karl 's Techdirt Comments
Latest Comments (4260)
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On the post: David Lowery Wants A Pony
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On the post: David Lowery Wants A Pony
Karl ( profile ), 19 Jun, 2012 @ 09:05pmRe: Albini weighs in
I have no idea why this is a double post. Sorry!
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On the post: David Lowery Wants A Pony
Karl ( profile ), 19 Jun, 2012 @ 08:44pmAlbini weighs in
Steve Albini (a man who knows more about the music industry than ten David Lowerys [Loweries?]) responds:
http://www.electricalaudio.com/phpBB3/viewtopic.php?f=4&t=59318&p=1511218#p1511218 -
On the post: David Lowery Wants A Pony
Karl ( profile ), 19 Jun, 2012 @ 08:44pmAlbini weighs in
Steve Albini (a man who knows more about the music industry than ten David Lowerys [Loweries?]) responds:
http://www.electricalaudio.com/phpBB3/viewtopic.php?f=4&t=59318&p=1511218#p1511218 -
On the post: Holder In The Hot Seat, Still Can't Explain Why DOJ Censored Hip Hop Blog
Karl ( profile ), 13 Jun, 2012 @ 05:42pmRe: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Shut it down
The magistrate judge made a determination that there was probable cause that the domain name was forfeitable as instrumentality of crime, and thus the seizure warrant was issued.
Which is exactly what the judge did in Fort Wayne. According to the Indiana Supreme Court:
The remedy of forfeiture is intended not to restrain the future distribution of presumptively protected speech, but rather to disgorge assets acquired through racketeering activity. Stated simply, it is irrelevant whether assets derived from an alleged violation of the RICO statute are or are not obscene.
Obviously, the U.S. Supreme Court disagreed. In other words, even if the bookstore was an asset "acquired through racketeering activity," it could not be seized ex parte:
We do not question the holding of the court below that adding obscenity law violations to the list of RICO predicate crimes was not a mere ruse to sidestep the First Amendment. And, for the purpose of disposing of this case, we assume without deciding that bookstores and their contents are forfeitable (like other property such as a bank account or a yacht) when it is proved that these items are property actually used in, or derived from, a pattern of violations of the State's obscenity laws. Even with these assumptions, though, we find the seizure at issue here unconstitutional.
In this case, just as in Fort Wayne, the seizure blocked "a large quantity of presumptively-protected materials based on merely probable cause." In fact, the materials weren't presumptively protected, but not even allegedly unprotected.
Bosley v. Wildwett.com
That case was primarily dealing with commercial speech and publicity rights, not copyright. That aside, the quote you're referring to is talking about preliminary injunctions not being unconstitutional. And, I agree, they're not. They happen after an adversarial hearing, and are limited to only the infringing material.
The two issues which make these seizures unconstitutional - that they were done ex parte, and that they shut down undeniably protected speech - were simply not present in that case. Nor were they present in the other cases that Bosley cites: Dallas Cowboys Cheerleaders v. Scoreboard Posters and Zacchini v. Scripps-Howard. Both dealt with preliminary injunctions after adversarial hearings.
In fact, preliminary injunctions under those circumstances are also constitutional regarding obscenity. See Kingsley Books v. Brown.
Since you brought it up, keep in mind that "commercial speech is such a sturdy brand of expression that traditional prior restraint doctrine may not apply to it." Yet, even here, there are Constitutional limits to what the government can do:
First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.
- Central Hudson Gas & Electric Corp. v. Public Service Commission of New York
If you use a printing press to print and publish protected works, but you also use the press for criminal copyright infringement, then that press can be seized upon a showing of probable cause that it can be forfeited.
It most certainly cannot.
Even in the 80's anti-bootlegging operations, record presses were not seized. The bootleg recordings themselves? Sure. The masters and plates? Absolutely. The goverment did occasionally seize things like photocopiers, if they were directly owned by the bootleggers themselves. But not once, in that long and contentious history, did the government seize a pressing plant that pressed both bootlegs and legitimate records.
If the FBI seized United Record Pressing because bootleggers used their services, you bet your ass that would be unconstitutional. If the DOJ seized a record store that sold bootlegs alongside legitimate recordings, that would also be unconstitutional. That's why it never happened.
I pointed out already how the footnote dismisses the prior restraint argument. That part certainly applies since the domain name forfeitures aren't prior restraints for the same reasons. It's not a licensing scheme, and it's not an injunction.
Um, no. The only reason the First Amendment complaint was dismissed is because the offending activity was completely nonexpressive. It had absolutely nothing to do with "licensing schemes" or "injunctions" or any of the other things you're claiming it said but didn't.
A statute does not have to "enjoin" speech for Arcara to be inapplicable. It doesn't have to be a "licensing scheme" for Arcara to be inapplicable. It only needs to deal with an offense that has "the semblance of expressive activity." If the offending activity is any more expressive than prostitution, fire code violations, or health hazards from inadequate sewage treatment, then Arcara simply does not apply. If the statute singles out entities that primarily engage in any kind of expressive activity - protected or not - then Arcara doesn't apply. Arcara is much, much, much more narrow than you claim.
Also, I'm not the one who brought it up. You're the one who is claiming Arcara overrides Fort Wayne Books. It doesn't. And without Arcara to use as a shield against the First Amendment, your argument doesn't hold water.
Seizing and forfeiting the property prevents others from using the property. That's part of the point. But no speech is being blocked
Seriously, this is laughable on its face. The stated purpose was to block the website, and the government is threatening those who direct users to the same speech happening on different "property."
You are mixing up different First Amendment doctrines, including overbreadth, prior restraint, O'Brien, etc.
They're all related. But if it makes you feel better, I'll just use "unconstitutional" from now on. -
On the post: Holder In The Hot Seat, Still Can't Explain Why DOJ Censored Hip Hop Blog
Karl ( profile ), 12 Jun, 2012 @ 07:58pmRe: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Shut it down
You seem to be forgetting that it was judges who ordered these seizures in the first place, obviously believing them to be lawful.
No judge "ordered" the seizures. They didn't make a judicial determination of infringement, they merely rubber-stamped the seizures (literally, in Dajaz1's case). Just like the judges did in Fort Wayne.
And given the fact that there's no special Fourth Amendment exception for when the seizure is for the purpose of forfeiting a tainted instrumentality
There is when the "instrumentality" is an avenue of expression, as domain names are.
Just like closing the bookstore in Arcara was no restraint at all
Arcara does not apply. It says so right in the language of the ruling. Additionally, the closure order in Arcara was not done ex parte.
All that is needed to seize it is probable cause, just like other instrumentalities of crime.
Avenues of expression are absolutely not "just like other instrumentalities of crime." If that were true, the adult bookstore in Fort Wayne could be shut down on probable cause of RICO violations.
I know one DOJ press release said that many had been not only seized but forfeited.
I was talking about the ones that were guilty of copyright infringement (and not e.g. trademark infringement). Also, since ICE and the DOJ outright lied before (claiming no sites were contesting the seizures), they're not a trustworthy source as far as I'm concerned.
You're mixing up the doctrines a bit. The bit about "the conduct which drew the legal remedy" refers to the O'Brien line of cases, and the bit about "was not directed primarily at entities that engaged in expression" refers to the Minneapolis Star line of cases. Neither of those lines of cases are used for prior restraint analysis. Prior restraint is a separate doctrine; it's a separate argument.
"Administrative prior restraint" was what the CDT court called it, so I'm pretty comfortable using the phrase. In essence, "prior restraint" now means "prior to a judicial determination," and probable cause is simply not enough for a judicial determination.
The bit about "did not require any advance determination that materials were unprotected" is from the footnote in Arcara, and as I mentioned above, refers to the two quintessential types of prior restraints--injunctions and licensing schemes. Advance determination refers to an advance determination by the censor in a licensing scheme.
If they would have meant that, they would have said it. And it's clear from the context - the end of that passage was "the imposition of the closure order has nothing to do with any expressive conduct at all" - that it's not what they meant.
Additionally, if they would have meant that they were talking about the O'Brien or Minneapolis Star standards, then they would have used those standards to determine the closure order's constitutionality. They did not.
Arcara stands for the proposition that if forfeiting a bookstore is not a prior restraint, then forfeiting a domain name isn't either.
Arcara does not say that "forfeiting a bookstore is not a prior restraint." It says that closing a building as part of "the enforcement of a public health regulation of general application" is not a prior restraint, even if that building happens to be a bookstore. Other examples the ruling gave were "Fire Code violations or health hazards from inadequate sewage treatment." On the other hand, according to Arcara, if any statute "single[s] out bookstores," it would require heightened First Amendment analysis.
Sure, it's a burden on speech--by design, no less. But it's not a burden in the sense that it limits what people can say.
Okay, so you're talking not about seizures in general, but these seizures in particular, or copyright infringement seizures at least. Fair enough.
Copyright doesn't have to be a "content-based" restriction to get heightened First Amendment scrutiny. It only has to be a speech restriction. These seizures may not get strict scrutiny, but they do require some scrutiny, because not even allegedly unprotected speech was shut down. Even statutes unrelated to the suppression of speech must pass the O'Brien standard if they burden protected speech in the process.
At the very least, the mere fact that they are a burden on speech makes Arcara inapplicable. Arcara applies to neither content-based restrictions, nor content-neutral restrictions. It does not even apply to conduct with both "speech" and "nonspeech" elements. It explicitly, in no uncertain terms, applies only to utterly nonexpressive conduct.
It's pretty clear that you don't like what the case actually says, so you're trying to reinterpret it so that it says what you'd like it to say. But the language in the case is explicit.
But no speech is being blocked.
This is ridiculous, as the seizure affidavit explicitly says that the seizure was to "prevent third parties from continuing to access" the site. Additionally, if this were true, ICE would not have told Mozilla to block the MafiaaFire add-on, claiming it "circumvented a seizure order."
I gave you a cite above of a court saying that prior restraint doesn't apply when it's copyright.
I must have missed it, then. The closest case you cited was Eldred, which did not say that "prior restraint doesn't apply when it's copyright." If the government lengthened the statute of limitations for obscenity charges, that probably wouldn't be unconstitutional either, but that wouldn't mean "prior restraint doesn't apply to obscenity."
Didn't mean to ruffle your feathers. It's clear though that you're confused about a lot of this. I'm sure if you heard someone talk that knew only some programming theory, but not a lot, that you would cringe a little too when they tried to explain the theory.
Though I admit I'm not a lawyer, I'm in no way confused. I've been following free speech cases for about twenty-five years (I lived two counties over from Fort Wayne when that case was going on). Everyone was claiming "this time it's different" back then, too. -
On the post: The Oatmeal v. Funnyjunk: How The Court Of Public Opinion Beats The Court Of Baseless Legal Threats
Karl ( profile ), 12 Jun, 2012 @ 04:33pmRe: Re: Re:
in what sense are you outside of the law if you don't register with the copyright office, exactly? Does that mean your website is automatically illegal and should be taken down? Does it mean you just lose all protections against copyright claims (i.e. no fair use defense, etc.)?
It means that you do not have automatic immunity from copyright infringement charges. It does not mean that you are guilty of infringement.
You can still raise any and all other defenses to copyright infringement (fair use, etc). In fact, if the only thing you did was not register a DMCA agent, but followed the law in every other way, the judge will probably find you innocent anyway. (See the Rapidshare case.) I don't know why anyone would risk it, however, especially if they're a U.S. company. -
On the post: The Oatmeal v. Funnyjunk: How The Court Of Public Opinion Beats The Court Of Baseless Legal Threats
Karl ( profile ), 12 Jun, 2012 @ 02:44pmRe: Funnyjunk isn't entirely wrong
So in that sense, the Oatmeal did commit defamation.
Um, no. What the Oatmeal said may not have been entirely, 100% accurate (it doesn't "find" images but lets users post them). And, Funnyjunk may be lawful.
But that doesn't mean The Oatmeal rose to the level of defamation. For example, The Oatmeal never claimed that what they were doing was "willful criminal infringement." (In fact, it wouldn't be, even if that's what they did.) And, other than the word "find," what The Oatmeal said was accurate (though obviously snarky).
If anything, Funnyjunk claiming that The Oatmeal wanted to "sue" and "shut down" their site is more defamatory than anything The Oatmeal said, since it was completely false.
Of course, that doesn't rise to the level of defamation either. But, if the lawsuit actually goes forward (which I'm sure it won't), Funnyjunk would absolutely lose, big time, for all of the other idiotic things they claimed.
This whole thing just proves Mike's point. In fact, it's likely that neither side is legally guilty of anything, and even attempting to duke it out it in court would be a complete waste of the court's time, and both parties' money. -
On the post: Tell The White House To Stop Illegally Seizing & Shutting Down Websites
Karl ( profile ), 11 Jun, 2012 @ 07:56pmRe:
When the Senate bill was being discussed, people certainly seemed to be aware it could be used to go after web/net sites.
Here's a site that has the legislative history of the bill:
http://thomas.loc.gov/cgi-bin/bdquery/z?d110:S3325:
I've searched through there, and try as I might, I could not ever find one reference to the ex parte seizing of domain names. -
On the post: Holder In The Hot Seat, Still Can't Explain Why DOJ Censored Hip Hop Blog
Karl ( profile ), 10 Jun, 2012 @ 07:18pmRe: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Shut it down
It's not at all apropos.
Well, considering how much the seizure apologists here claim copyright is immune to First Amendment challenges, I thought so.
Though, no, not so much to the comment I was replying to. You're right about that.
And yet the domain names are being seized and forfeited because they're pieces of property used to infringe.
Which is unlawful prior restraint, in my opinion. No judge has declared these seizures lawful, so I guess we'll find out, assuming it ever gets that far.
And none of that applies when it's a piece of tainted property being forfeited.
It does, however, show that domain names are not simply "pieces of property." Both cases say pretty explicitly that they are avenues of expression.
Nor are they "tainted," since there was never anything other than probable cause (at best) that the websites were criminally infringing.
Incidentally, none of the copyright-infringing domain names have been forfeited, that I know of. Dajaz1 was returned, Rojadirecta is ongoing (and the judge dismissed the original complaint), and I don't believe forfeiture proceedings for any of the others have been started. I could be wrong.
Just like the bookstore in Arcara could be shut down
The bookstore in Arcara could be shut down because the conduct which drew the legal remedy was not any form of expression (protected or otherwise); was not directed primarily at entities that engaged in expression (like websites); and did not require any advance determination that materials were unprotected. If any of those things are true, Arcara is inapplicable, and an appropriate First Amendment standard (e.g. O'Brien) must be used instead. In this case, all three conditions are not met.
You guys really need to stop with the Arcara bullshit. It unequivocably does not apply to these seizures, just as it would not apply to child pornography, libel, obscenity, trade secrets, national security, hate speech, or any other form of unprotected speech. No judge has ever ruled that it has.
(As an aside: the bookstore in Arcara was not, in fact, shut down. The statute was found to be prior restraint under the New York State constitution.)
And a forfeiture statute that has nothing to do with content-based restrictions being unconstitutional.
That sentence didn't parse. You're talking about forfeiture statutes in general, or this particular case?
Regardless - in general, when a seizure is based on a content-based restriction, it must past heightened First Amendment scrutiny. (Forfeiture happens after an adversarial hearing, so usually it does not.)
The reason this seizure wasn't constitutional does not have to do with the difference between content-based and content-neutral speech restrictions. It has to do with the fact that it was done ex parte, and the owners were denied any access to the court for over a year, before the domain was returned (without telling the owner or their lawyers). It has to do with the fact that none of the material on the site was criminally infringing (and there is no evidence that it was civilly infringing either). And regarding these seizures in general, it has to do with the fact that they are overbroad, blocking speech that is not even allegedly infringing.
Instrumentalities of crime can be seized and forfeited. You haven't--and can't--deny that.
No, I haven't denied it, nor did I suggest that they couldn't. I only pointed out - correctly - that when those "instrumantalities" are vehicles for protected speech, additional First Amendment safeguards are required, including a pre-seizure adversarial hearing.
I understand your confusion, given the fact that you've no formal training in law, and the fact that you haven't studied these issues in depth.
I don't understand your egotism, given that you're anonymous, and I have no reason to suspect either that you studied law, or studied these issues in depth. At the very least, I have done the second; and when I am confused, I ask one of my many lawyer or law student friends. So thanks for being patronizing, but I don't need your help. -
On the post: Holder In The Hot Seat, Still Can't Explain Why DOJ Censored Hip Hop Blog
Karl ( profile ), 10 Jun, 2012 @ 05:28pmRe: Re: Re: Re: Re: Re: Re: Re: Re: Re: Shut it down
hat case concerns the situation where someone uses someone else's mark in their domain name.
So, an IP (though not copyright) case that was determined to conflict with the First Amendment. Seems apropos.
Also, I'm not the one making the ludicrous claim that domain names are "simply pieces of property."
You can't just cherry-pick lines out of context.
Pot, I'd like you to meet my friend kettle.
In any case, I'm not the only one doing that bit of "cherry-picking:"
Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. [...]
- Reno v. ACLU
The Government first contends that, even though the CDA effectively censors discourse on many of the Internet's modalities - such as chat groups, newsgroups, and mail exploders - it is nonetheless constitutional because it provides a "reasonable opportunity" for speakers to engage in the restricted speech on the World Wide Web. [...] In invalidating a number of laws that banned leafletting on the streets regardless of their content - we explained that "one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Schneider v. State (Town of Irvington), 308 U.S. 147, 163 (1939).
(To be clear: The CDA was unconstitutional because it was "content-based." But here the court is saying that it would be unconstitutional even if it wasn't - for exactly the reason Purple A.C. said.) -
On the post: Holder In The Hot Seat, Still Can't Explain Why DOJ Censored Hip Hop Blog
Karl ( profile ), 10 Jun, 2012 @ 04:42pmRe: Re: Re: Re: Re: Re: Re: Re: Shut it down
Domain names aren't public places, which is what the Court is referring to there. Domain names are simply pieces of property.
Nope:
The rooftops of our past have evolved into the internet domain names of our present. We find that the domain name is a type of public expression, no different in scope than a billboard or a pulpit [...]
- Taubman Co. v. Webfeats -
On the post: Holder In The Hot Seat, Still Can't Explain Why DOJ Censored Hip Hop Blog
Karl ( profile ), 10 Jun, 2012 @ 04:12pmRe: Re: Re: Re: Re: Re: Shut it down
I can tell that this is going to get tiring real fast. You've already made all of these arguments before. They weren't convincing then, and they're not convincing now.
So, I'll keep it brief:
When it's simple piracy, there is no free speech concern.
Until the defendants have a chance to present a defense (or at least be contacted!) then there is no such thing as "simple piracy."
Yes, when there is a fair use argument, then the First Amendment is involved.
Many of those cases did not involve a fair use argument.
Arcara
...was not a copyright case. And it has never been used as a precedent in any copyright case. That's because it unequivocably does not apply to any form of speech restriction (including copyright).
You can quote Arcara until you're blue in the face. You will still be wrong.
That footnote you're looking at is exactly about the two quintessential types of prior restraints.
At least one of which is happening right now. Besides, Arcara explicitly mentioned "the closure order," which is neither a licensing scheme, nor an injunction. If they meant injunctions or licensing schemes, they would have said so. They didn't. You're putting words in the judges' mouths.
The seizure is how the court exercises dominion over the property so that it may be forfeited.
The difference is that forfeiture happens after an adversarial hearing, and seizures do not. That is a big difference. If Fort Wayne was about the former, the case would have swung the other way.
Pappert was an administrative prior restraint. The domain name seizures, done by court order, are not.
Funny how that distinction is not mentioned at all in the case. You know what is? "A judicial determination in an adversary proceeding."
With the domain names, a piece of property tainted by past criminal acts is being seized and forfeited.
There were no "past criminal acts." There was (at best) probable cause to believe there were ongoing criminal acts. And in this case, even the "probable cause" was a joke. No criminal acts occurred at all.
As the court in Pappert makes clear, since determination of child pornography is tricky just like determination of obscenity is, the extraordinary procedures are required. Such is not the case with simple piracy where the determination is simple and objective.
Apparently it's not "simple and objective," since the court got it absolutely wrong in this case. That's what happens when the government doesn't even bother to find out if the materials are authorized or not.
You have identified no subject matter and no viewpoint that is being singled out.
Perhaps not a specific viewpoint, though that could probably be argued. The "subject matter" is the "social aspect" of the site, which is constitutionally protected speech. It probably wouldn't get the website off the hook, but it does point to selective enforcement. That's a problem, and it stems from the fact that ICE simply took the MPAA/RIAA at face value, without considering the other side at all. (If they had, Dajaz1 wouldn't have been seized at all, much less for a year because law enforcement couldn't be bothered to do its own police work.) -
On the post: Holder In The Hot Seat, Still Can't Explain Why DOJ Censored Hip Hop Blog
Karl ( profile ), 10 Jun, 2012 @ 03:33pmRe: Re: Re: Re: Re: Re: Re: Shut it down
Heya, Joe. Welcome back?
That line about being "categorically immune" was referring to substantive copyright laws.
Not really. The court just said that copyright was not categorically immune from the First Amendment. The decision itself could be said to be based on substantive copyright law; that is, the court determined that since there were defenses to be raised under copyright law, those defenses (fair use, idea/expression) removed the conflict between copyright and the First Amendment.
But we are talking about a situation in which the government blocks both allegedly infringing and protected speech without the opportunity for those defenses to be raised at all. If the idea/expression dichotomy and fair use didn't exist, do you actually believe copyright would be lawful under the First Amendment? If not, then a procedural law which doesn't allow those defenses to be raised automatically comes in conflict with the First Amendment.
I'm saying that when it's simple piracy, there is no prior restraint issue.
If the defendant is never contacted in any way, there is no such thing as "simple piracy." This case proves it. It appeared to be a "simple piracy" case, but in fact, every single one of the songs was authorized. Every single one was protected expression. There is no evidence that there was any "piracy" on the site at all.
Arcara establishes that
Joe, we've been over this many times before. Arcara only applies when the conduct that drew the legal remedy is "nonexpressive." It does not apply to any kind of speech regulation. It very explicitly does not apply if there is "an advance determination that the distribution of particular materials is prohibited."
The case was even quoted in Fort Wayne v. Indiana. Not because the court contemplated for a moment that it was applicable, but because Arcara explicitly held that using criminal statutes "as a pretext for closing down a bookstore because it sold indecent books" demanded heightened First Amendment scrutiny. And we both know what the court held in Fort Wayne.
The idea that Arcara applies here is simply and objectively wrong. I honestly have no idea why you keep bringing it up.
I've already cited a bunch of cases that held that preliminary injunctions cannot be overbroad, and where they were denied on First Amendment grounds. On the other hand, neither you nor anyone else has ever cited a case that said it was acceptable to block protected speech along with infringing speech.
And you don't get the extraordinary procedures when it's copyright like you do when it's child pornography or obscenity. The reason is because it's simple to establish infringement
Are you actually saying that it's easier to establish infringement than it is to establish child pornography? That is the most ridiculous thing I've ever heard in my entire life.
Those additional safeguards were intentionally left out of Section 2323.
Section 2323 was created a year before PRO-IP - that is, a year before it applied to copyright infringement. It wasn't "intentionally left out" of the statute, it wasn't put in.
The reason I am quoting the record is because it shows what Congress intended. Whatever reasons they had for leaving 2323 alone (I'm guessing statutory simplification), it wasn't so the government could shut down websites without notice.
Section 2323 says that "any property" can be forfeited if it's used to commit or facilitate criminal infringement.
Not exactly. It's "any property used" to "commit or facilitate" the "making or trafficking" of any infringing "article."
It's twisting the law to block a website full of non-infringing speech, especially when the website owners are not the primary infringers.
I understand your disagreement with the soundness of the policy, but that doesn't mean it's unconstitutional.
If the yearlong blocking of a website full of authorized content is not unconstitutional, then the First Amendment is in big trouble. So is copyright itself, since the government is suppressing exactly the behavior that copyright is supposed to promote. -
On the post: Holder In The Hot Seat, Still Can't Explain Why DOJ Censored Hip Hop Blog
Karl ( profile ), 09 Jun, 2012 @ 09:24pmRe: Re: Re: Re: Re: Re: Shut it down
It's not bullshit to explain the truth.
True, but what you said was not the truth. The domain name was not "tainted by past criminal copyright acts." There were no past criminal copyright acts.
At best, there was probable cause to believe that there were current criminal copyright acts being committed. And as it turns out, those beliefs were wholly without merit.
Dajaz1 is not, and was not ever, engaging in criminal copyright infringement. In fact, so far there's been no evidence that he is involved in any form of copyright infringement at all. -
On the post: Silverscarcat's Favorite Techdirt Posts Of The Week
Karl ( profile ), 09 Jun, 2012 @ 08:47pmMr. Rogers
In case anyone missed the Mister Rogers reference:
How Mister Rogers Saved the VCR
As a defender of technology, perhaps it's fitting that he got an Autotune remix:
http://youtu.be/OFzXaFbxDcM -
On the post: Holder In The Hot Seat, Still Can't Explain Why DOJ Censored Hip Hop Blog
Karl ( profile ), 09 Jun, 2012 @ 07:20pmRe: Re: Re: Re: Re: Shut it down
Sorry, more evidence.
As further evidence that the cases do not constitute "obscenity doctrine," consider that they are also applicable to hate speech (R. A. V. v. St. Paul, Corry v. Stanford, etc) or defamation (Near v. Minnesota, etc). Essentially, for these cases to not apply to copyright, you are arguing far more than that deal with obscenity. You are arguing that copyright is categorically immune from First Amendment scrutiny. This is something that the Supreme Court explicitly said is false (Eldred v. Ashcroft).
One other thing. The "harmonization" of seizure laws took place in the PRO-IP Act of 2008. Nobody - not even PRO-IP's harshest critics - thought the new seizure laws could be used to sieze domain names or shut down websites. The general consensus was that the new seizure laws allowed seizing computers that were owned and operated by the primary infringers.
Thanks to the Internet, we can now look at the entire Congressional record online. And it is clear that the consensus is correct:
Sec. 202. Harmonization of Forfeiture Procedures for Intellectual Property Offenses. Section 202 harmonizes all forfeiture and restitution laws for intellectual property offenses by amending 18 U.S.C. Sec. 2318, 2319, 2319A, 2319B to bring these provisions substantially in line with 18 U.S.C. 2320, which was enacted into law last year. The new provisions contain additional safeguards, such as the requirement that property involved in the commission of an offense be owned or predominantly controlled by the violator, a co- conspirator, or an aider and abettor of the violation in order to be seized under the civil forfeiture provisions. The definition of aiding and abetting is taken from Central Bank of Denver, NA. v. First Interstate Bank of Denver, N.A. 29
[Footnote] Furthermore, such property is not subject to seizure unless a substantial connection between the property and the offense is proven. Use by a violator (or co-conspirator or aider or abetter) of commercially valuable digital communications or e-commerce services for, e.g., electronic mail or data storage, absent extraordinary circumstances, would not constitute predominant control of the servers and similar facilities used to provide the services. If, however, a computer were used by a violator (or co-conspirator or aider or abetter) primarily to store data used to further the infringement, the violator could be held to have substantially controlled the property and the computer would be subject to forfeiture. Another safeguard contained in this Act is the requirement that, for seizure under a criminal facilitation theory, the property be used to substantially facilitate the crime.
ICE is clearly going beyond the bounds of what Congress intended. And they are violating the First Amendment in order to do it. All at the behest of the major media industries.
It is very clear that this needs to stop, and right now. -
On the post: Holder In The Hot Seat, Still Can't Explain Why DOJ Censored Hip Hop Blog
Karl ( profile ), 09 Jun, 2012 @ 06:46pmRe: Re: Re: Re: Shut it down
Fort Wayne applied to seizures of allegedly obscene materials. That line of cases is inapplicable when it's copyright infringement.
This is a common refrain, except it's simply not true. Not all of the cases were obscenity cases, for one thing. For another, none of the rulings limited themselves to obscenity (or child pornography), but used the general term "speech."
And it's also not true that it is "inapplicable" to copyright infringement. Plenty of copyright cases have denied preliminary injunctions because they conflicted with the First Amendment, or were overbroad (Suntrust v. Houghton Mifflin, OPG v. Diebold, New Era v. Henry Holt, Abend v. MCA, Silverstein v. Penguin Putnam, etc). Because of this, an injunction is a "harsh and drastic" discretionary remedy (Kass v. Arden-Mayfair, quoted in Universal v. Sony).
And I dare you to find even one copyright case that held that blocking speech which was not even allegedly infringing was acceptable.
The Court is saying that the forfeiture in Arcara is not a prior restraint because it's not (1) a licensing scheme, or (2) an injunction.
Nowhere in Arcara was this even hinted at. That passage was explicitly talking about "the closure order," not licensing or injunctions.
Civil in rem forfeitures are by definition subsequent sanctions, not prior restraints.
We're talking about ex parte seizures, not forfeitures.
A sanction can only be "subsequent" if it follows after an adversarial process. I'll let CDT v. Pappert explain it to you:
The Act and Informal Notice process are not prior restraints in the traditional sense. They do not prevent speech from reaching the market place but remove material already available on the Internet from circulation. Alexander v. United States, 509 U.S. 544 (1993) ("The term 'prior restraint' describes orders forbidding certain communications that are issued before the communications occur.") However, they are administrative prior restraints as that term has been interpreted by the Supreme Court. According to the Court, "only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." Freedman v. Maryland, 380 U.S. 51, 58 (U.S. 1965). Thus, if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint.
Hard to get much clearer than that.
Nice try, but what viewpoint is being suppressed exactly? You haven't identified it.
The website was singled out for "a strong social element." That social element is fully, 100% protected expression. It is selective enforcement penalizing protected speech. Whatever you want to call it, at the very least it raises significant First Amendment questions. -
On the post: Holder In The Hot Seat, Still Can't Explain Why DOJ Censored Hip Hop Blog
Karl ( profile ), 09 Jun, 2012 @ 07:57amRe: Re: Re:
My comment addressed a specific situation, namely, the association of the seizure of Dajaz1, the subject of this article, with censorship.
Um...
https://www.eff.org/cases/matter-seizure-internet-domain-name-dajaz1com -
On the post: Holder In The Hot Seat, Still Can't Explain Why DOJ Censored Hip Hop Blog
Karl ( profile ), 09 Jun, 2012 @ 07:49amRe: Re: Shut it down
Dammit, Techdirt ate my last comment, for some reason.
Anyway. In addition to Green A.C.'s cases (Alexander, etc), you should also read Fort Wayne Books v. Indiana, which ruled that probable cause is insufficient to take any speech out of circulation. An even better explanation is found in CDT v. Pappert (PDF), which held that a scheme remarkably similar to Operation In Our Sites was unconstitutionally overbroad (and that one dealt with child pornography).
Additionally, if seizures are done in advance of a final determination, there are strict limits on the process. It must be done to preserve evidence; it must preserve the status quo; and the final judicial determination must be as prompt as possible to minimize the impact of possibly erroneous administrative action. See Heller v. New York and U.S. v. Thirty-Seven Photographs.
Even the IP maximalists' favorite court case, Arcara v. Cloud Books, states outright that additional scrutiny is required if there is "an advance determination that the distribution of particular materials is prohibited."
There's also some evidence that rights holders, at least, chose its targets not for the infringing content, but for the viewpoint of the sites:
"One of the reasons we targeted Ninja Video was because it had such a strong social element," says Kevin Suh, senior vice president of Internet content protection at the Motion Picture Association of America (MPAA). "We wanted to send waves through this community."
- A Ninja In Our Sites
Considering that ICE relied almost entirely on rights holders to target the sites, this amounts to selective enforcement, a classic example of a content-based speech restriction.
Of course, the First Amendment claims are just the tip of the iceberg in the government's list of legal wrongs. ICE is making legal claims that no courts have ever found to be valid, and often have outright contradicted. It considers "linking sites" to be criminally infringing, despite multiple circuit court rulings which found that linking is not infringement at all. It claims that a site can be fully compliant with the DMCA, yet still be criminally infringing. It uses Grokster's civil "inducement" standard, which is not part of any criminal statute. (A bill before Congress - the Induce Act - would have made it so; and that bill was defeated.) It presents no evidence that the direct infringement was in any way criminal. It claims revenues from content-agnostic services can be directly attributable to infringing activity, despite multiple court rulings that found otherwise. It claims that foreign sites found completely legal under their own countries' courts of law, were nonetheless "willfully" infringing. And so on.
I would have gone into more depth in the petition itself, but unfortunately they only allow 800 characters.
Re: Albini weighs in
By the way. I'm in NYC right now. I just got back from a concert put on by eMusic here. They featured a band that is Iranian, but had to flee the country because they weren't allowed to perform rock music there. (Yellow Dogs is their name, and they're pretty good, sort of Gang of Four mixed with early-80's goth/alternative influences.)
This is a lot more than any major label has done for any band, whether on their roster or not. I personally witnessed the band talk to the eMusic people (one of whom I am staying with right now). A quote, as near as I can remember: "I don't think you even realize how important it is that you are doing this. It is really saving us."
These are Lowery's targets. Not pirates, not even Google (though he is an unapologetic Google-slanderer). His targets, ultimately, are businesses like eMusic, Tunecore, or CD Baby. His entire purpose is to tell up-and-coming bands that everything sucks, you won't make money, and every "new music" model that comes along is doing nothing but ripping you off.
It is both factually wrong, and morally sickening. He is doing nothing but telling artists how to fail. If I were him, I would be ashamed of myself.