Karl 's Techdirt Comments
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On the post: Hollywood Talent Turns To Kickstarter To Escape 'Institutional Censorship'
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On the post: Hollywood Talent Turns To Kickstarter To Escape 'Institutional Censorship'
Karl ( profile ), 20 May, 2012 @ 03:06pmRe: Surprised they haven't raised more money so far
Maybe it hasn't gotten enough publicity yet. Or maybe their fans are either broke or reluctant to spend.
See, Suzanne, this is why people aren't as interested in discussing these things with you as you'd like.
There are tons of reasons that the Kickstarter campaign isn't as well-funded as Amanda's, but you actually give only three: that the campaign isn't publicized, that their fans are broke, or that their fans are reluctant to spend.
It ignores all the other reasons why they haven't attained the same stratospheric success as Amanda. And it gives no reasons for why those three reasons you gave might be true - though it focuses on "their fans," as if they're the ones who are at fault.
It's similar to that unfortunate piece you did on changing IP laws. You had the same problem there: you simply presented what you thought people said, and were not really listening to what anyone was actually saying. As a result, you completely missed the big picture - if you look at why people were against SOPA and PROTECT IP, none of the reasons you gave were accurate. It's the same here, I think.
The proper question is: "What did Amanda offer to get fans over their reluctance to spend? How are the filmmakers not offering the same things? And most importantly - if the filmmakers met their funding goals, how much does it matter?"
If your interest is in getting filmmakers like these to be better-funded, then the focus should be on the first two questions.
This is my answer. They didn't reach the levels that Amanda did, because they just don't have the same connection with fans. As an example, look at what you get with the top tiers: a chance to cast a vote in the casting process (American Idol-style), tickets to private screening, the chance to come to the shoot, the chance to meet with (and have your script critiqued by) the artists.
These are things that Amanda routinely "gives away" for free. In fact, it's how Amanda gets most of her videos done: she says where she's going to be, tells people (generally) what to wear, and asks them to show up to be extras. You send her fan art, and if she likes it, she'll put it up on her site with full credit. (For a while, she even partnered with her more "etsy-like" fans to sell stuff - don't know what happened with that.) She interacts with fans, directly, in the comments on her site, in Twitter, etc.
People are willing to pay more, I think, because in their eyes, she's already given to them the kind of access they would have to pay Schrader and Ellis hundreds of dollars to get.
Of course, there are good reasons that all works for Amanda, but wouldn't work for someone like Schrader or Ellis. But then we get to the last question: Why does it matter? It's not a zero-sum game, and every Kickstarter campaign whose goals are being met should be counted as a success story.
There's a notion that's implied by commenters here (not you) that if a Kickstarter campaign can't entirely fund a movie like Transformers, then it's a failure. Stories like this show that it's not true. Ellis and Schrader may not be crossing the million-dollar mark, but the fact that they're doing it at all - and that it is as successful as they intended - is a win for everyone. -
On the post: Hollywood Talent Turns To Kickstarter To Escape 'Institutional Censorship'
Karl ( profile ), 20 May, 2012 @ 02:08pmRe:
basically nobodies who want to tell another crappy story without the backers demanding they make the film actually make money
they werent anyone 20 years ago, they are still no one today
Why was this flagged? Lack of a /sarc mark?
I mean, this guy can't possibly be serious. -
On the post: Feds Tie Themselves In Legal Knots Arguing For Domain Forfeiture In Rojadirecta Case
Karl ( profile ), 17 May, 2012 @ 08:08pmRe: Re: Re:
I said it above: But "[c]opyright laws are not restrictions on freedom of speech . . . ." Harper & Row Publishers, Inc. v. Nation Enterprises
The court in Harper & Row was not saying that copyright laws were not restrictions on expression. They were saying that they were restrictions on expression that nonetheless do not run afoul of the First Amendment. And they were dealing specifically with the idea/expression dichotomy:
The Second Circuit noted, correctly, that copyright's idea/ expression dichotomy
- Harper & Row v. Nation Enterprises
"strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression."
723 F.2d at 203. No author may copyright his ideas or the facts he narrates. 17 U.S.C. ? 102(b). See, e.g., New York Times Co. v. United States, 403 U. S. 713, 403 U. S. 726, n. (1971) (BRENNAN, J., concurring) (Copyright laws are not restrictions on freedom of speech, as copyright protects only form of expression, and not the ideas expressed); 1 Nimmer ? 1.10[B][2]. As this Court long ago observed:
"[T]he news element -- the information respecting current events contained in the literary production -- is not the creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day."
The mere fact that, as the court acknowledged, there must be "a definitional balance between the First Amendment and the Copyright Act," shows that it is a restriction on expression. That restriction is not unconstitutional - in fact, it is necessary - but it is a restriction on speech nonetheless, and must be viewed as such.
As per Eldred and Golan, substantive copyright laws get no First Amendment scrutiny.
That is a complete misreading of both Eldred and Golan. Neither case was dealing with "substantive copyright laws." The only question before the courts was whether Congress had the right to extend already-existing laws, making no other changes to them. That is not even remotely saying that copyright laws do not get any First Amendment scrutiny at all, and claiming that's what they said is disingenuous at best.
An analogy. Let's say that Congress increased the maximum damage awards that can be recovered in libel cases. Or that they extended the maximum jail sentence for those convicted of obscenity. In neither case would these statutes require First Amendment scrutiny, either. But that doesn't mean that libel and obscenity "get no First Amendment scrutiny" in general.
And you can't find a single copyright case where the court applied the extraordinary procedural safeguards from Fort Wayne.
First of all: the procedural safeguards from Fort Wayne Books weren't "extraordinary." They are standard procedural safeguards when any type of expressive work is seized.
Second of all: we can't find a seizure case like this because the government wasn't allowed to do it by statute, so the subject never came up. Take a look the text of 17 USC 509:
All copies or phonorecords manufactured, reproduced, distributed, sold, or otherwise used, intended for use, or possessed with intent to use in violation of section 506(a) [17 USCS Sect. 506(a)], and all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced, and all electronic, mechanical, or other devices for manufacturing, reproducing, or assembling such copies or phonorecords may be seized and forfeited to the United States.
Under that law, the government certainly wouldn't be allowed to seize a domain name. It just doesn't meet the criteria.
And while it's true that this law is no longer in effect, it was only superseded in 2008. Simply put, these seizures are unique; nothing like them has ever happened before.
For a "real-world" analogy, this is like the government seizing the building that houses a record store, merely on the basis of probable cause that the record store was being used to "facilitate" the selling of bootlegs. As far as I know, the government never even attempted such a thing in the past.
And, of course, criminal infringement cases were always extraordinarily rare. Almost all copyright cases were considered civil in nature. As New York Times v. United States put it: "when the press is enjoined under the copyright laws, the complainant is a private copyright holder enforcing a private right." That is not the case here. The plaintiff is not "a private copyright holder," but the U.S. government; and the government has far more restrictions under the First Amendment than private parties do.
Generally in copyright cases, an adversarial hearing is always required prior to impoundment. That cannot be done ex parte. Some exceptions may be made, but they are rare and actively discouraged under the law:
(a) Preliminary Injunction.
- Rule 65 of the Federal Rules of Civil Procedure
(1) Notice. The court may issue a preliminary injunction only on notice to the adverse party. [...]
(b) Temporary Restraining Order.
(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.
(2) Contents; Expiration. Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk's office and entered in the record. The order expires at the time after entry?not to exceed 14 days?that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record.
(3) Expediting the Preliminary-Injunction Hearing. If the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character. At the hearing, the party who obtained the order must proceed with the motion; if the party does not, the court must dissolve the order.
(4) Motion to Dissolve. On 2 days? notice to the party who obtained the order without notice?or on shorter notice set by the court?the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires.
(c) Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security. [...]
(f) Copyright Impoundment. This rule applies to copyright-impoundment proceedings.
The fact is, an objective determination can be made that infringement is occurring
First: Obviously, it cannot, or else Dajaz1's domain would never have been seized in the first place.
Second: Criminal infringement requires much more than the fact that "infringement is occurring." That's even explicitly stated in 17 USC 506(a)(2). The infringement must meet the standard of criminal willfulness; prosecution has the burden of showing that an individual has the mens rea warranting criminal punishment. See e.g. United States v. Moran: "[U]nder 17 U.S.C. ? 506(a) 'willfully' means that in order to be criminal the infringement must have been a 'voluntary, intentional violation of a known legal duty.'" This cannot be determined ex parte.
It must also meet certain economic requirements: it must be either "for purposes of commercial advantage or private financial gain;" or be distributing works "which have a total retail value of more than $1,000;" or be distributing a "leaked" copy of a work. The government did not even try to show that the direct infringement met this standard.
Websites aren't being blocked. There's no filter. No injunction.
This is clearly nonsense. The government's own argument was that the domain was seized to block the website from being accessed.
The government made exactly the same argument in Fort Wayne Books:
In its decision below, the Indiana Supreme Court did not challenge our precedents or the limitations on seizures that our decisions in this area have established. Rather, the court found those rules largely inapplicable in this case. The court noted that the alleged predicate offenses included 39 convictions for violating the State's obscenity laws, and observed that the pretrial seizures (which were made in strict accordance with Indiana law) were not based on the nature or suspected obscenity of the contents of the items seized, but upon the neutral ground that the sequestered property represented assets used and acquired in the course of racketeering activity.
"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."
The court also specifically rejected petitioner's claim that the legislative inclusion of violations of obscenity laws as a form of racketeering activity was "merely a semantic device intended to circumvent well-established First Amendment doctrine."
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. It is incontestable that these proceedings were begun to put an end to the sale of obscenity at the three bookstores named in the complaint, and hence we are quite sure that the special rules applicable to removing First Amendment materials from circulation are relevant here. This includes specifically the admonition that probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films.
Whether you believe Fort Wayne Books is ultimately applicable to copyright seizures or not, it is very clear that you can't just claim a seizure was for some generally-applicable statute, when it was clearly being used to block speech. The courts will see right through that bullshit, which they should, because it is bullshit, and obviously so. -
On the post: Feds Tie Themselves In Legal Knots Arguing For Domain Forfeiture In Rojadirecta Case
Karl ( profile ), 16 May, 2012 @ 07:33pmRe:
Your argument makes little sense: You are arguing that even though infringement is not protected expression, it's expression nonetheless, so it should be protected. How is "copyright infringement ... often absolutely expressive"? I don't understand what you mean.
It is not just his argument, it is the one that Mark Lemley is making in this case.
Copyright is a restriction on expression. That much is inarguable. That it does not run afoul of the First Amendment does not change that fact. If there is any government action directed at unlawful speech activities, then certain restrictions must be obeyed for that action to be lawful under the First Amendment.
And one of those restrictions is that speech cannot be taken out of circulation without an adversarial hearing. It may not be a full trial, but there needs to be at least an adversarial hearing (such as a preliminary injunction hearing) where both the plaintiff and the defendant have a chance to present their case to the court. Until such a hearing occurs, all expression is presumptively protected by the First Amendment. It cannot be done ex parte, as the seizure was. See Fort Wayne Books v. Indiana: "Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved. [...] As noted above, our cases firmly hold that mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation."
And that applies if the government is only blocking the unlawful speech itself. But that is not what the government is doing. It is not just blocking infringement; it is blocking the entire website, which includes plenty of speech that is not even allegedly infringing. This is unacceptable in any case. Simply put, no court has ever concluded that it is acceptable that lawful speech be blocked while blocking unlawful speech. If it does, it is "overbroad," thus unconstitutional. Instead, the government action must be narrowly tailored to block only the unlawful speech; and it must be the least restrictive means of doing so.
The government tries to get around this by using Arcara as a shield against any First Amendment scrutiny whatsoever. But in order for Arcara to be relevant, the conduct that "drew the legal remedy in the first place" must be "nonexpressive activity." It is only relevant if the government is regulating "neither speech nor an incidental, nonexpressive effect of speech." In fact, "if a city were to use a nuisance statute as a pretext for closing down a bookstore because it sold indecent books [...], the case would clearly implicate First Amendment concerns." It specifically cannot apply if the action is "imposed on the basis of an advance determination that the distribution of particular materials is prohibited."
Incidentally, it is very likely that the "actions" of the Rojadirecta website weren't even infringing at all. The Rojadirecta site did not host any content, nor provide any of the streams itself. It merely provided links to content. And links to infringing content are not, in themselves, infringing: "Because the actual transfer of a file between computers must occur, merely providing a 'link' to a site containing copyrighted material does not constitute direct infringement of a holder?s distribution right." MyPlayCity v. Conduit Ltd.
I honestly don't see how the government is going to get out of this one. Especially after they've changed their story so much from filing to filing. -
On the post: Feds Tie Themselves In Legal Knots Arguing For Domain Forfeiture In Rojadirecta Case
Karl ( profile ), 16 May, 2012 @ 06:19pmRe:
There is reasonable proof that criminal copyright infringement took place. Material was published and distributed without the copyright holder's permission.
There's only one problem with that: even if this was copyright infringement, that doesn't mean it meets the higher bar of criminal copyright infringement.
The statute itself makes this very clear:
Evidence. ? For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.
- 17 USC 506(a)(2) -
On the post: Counting Crows Distributes Songs And More Via BitTorrent
Karl ( profile ), 15 May, 2012 @ 09:37pmRe: Re: Re: Re:
I'm thinking, and this is pure speculation based on his writing style and what he's said so far, that he's the same AC who hijacked the El-P article awhile back.
Bingo.
This guy is nothing but a troll, who is trying to post links to "thetrichordist" (which I think is his own personal blog, though I can't be sure). He also posts links to popuppirates.
Both these sites are nothing more than anti-tech, and specifically anti-Google, rant sites. The first is from someone who is like (and I suspect, is) our illustrious guest here. The second is from someone who made a terrible rip-off of another movie, that hasn't actually been pirated very much, who is screaming that piracy killed their one-star film and that Google is stealing money from everyone.
Make no mistake about it: "hurricane head" is an ideologue. He does not care one whit about artists; witness the fact that every single thread about a successful artist is dragged into the mire by this fucktard and his spamming. He represents artists exactly as much as George Lincoln Rockwell represented white people.
And his comments should be treated as such. Don't reply to him; you're arguing with a complete loon - so even if you win, you lose.
He has nothing to add; he is making no arguments at all. If people try to actually debate him, he insults them, and doesn't respond to any of the points raised. He is nothing but a troll. I'm not usually one for advocating the reporting of posts, but this guy deserves it. In spades.
Don't interact with him; report his posts. That's the only way we'll ever be able to hold a conversation in this thread. -
On the post: Harvard And MIT Back Open Education With $60 Million Online Learning Project
Karl ( profile ), 15 May, 2012 @ 06:45amGreat idea
This is a fantastic idea. It could be especially useful to community colleges, which don't have the budget for their own platforms, yet are also under pressure to incorporate computer-aided learning into the classroom.
-
On the post: Musicians Realizing They Don't Need Major Labels Anymore
Karl ( profile ), 15 May, 2012 @ 03:21amRe: Re: Re: Re: Re: Re: Re: Re: The Celebrity Mentality
People who have only known the music business since the Internet days are assuming that the Internet has transformed life for DIY artists.
Sorry to keep harping on you like this, it's nothing personal obviously. But here, again, I just don't see that. In fact, I see the opposite.
It's the bands that weren't DIY'ing it before the internet that think it's harder nowadays. This is especially true of musicians on a label today. They say stuff like: "I've heard selling 100,000 records today is like selling a platinum album in the 1990's." Of course it's not true at all. And that's not experience talking; that's what they heard from someone at their label.
It's the ones (like me) who have been doing it on their own for 20 years that see how things are better. It certainly hasn't "transformed life," but it's made things a tiny bit better, one small increment at a time. -
On the post: Musicians Realizing They Don't Need Major Labels Anymore
Karl ( profile ), 15 May, 2012 @ 03:09amRe: Re: Re: Re: Re: Re: Re: Re: The Celebrity Mentality
The ones selling their own cassettes and CDs at shows were "making it" as much (or even more) than those who are "making it" now without a label.
Suzanne, I've been making music since the 1980's, and I was doing exactly the type of things that you are talking about. I've also known many musicians over the years who have done the same.
And at least as far as me and the musicians I know are concerned, you are mistaken. It is far easier to make money now than it was in the 1980's or 1990's.
Certainly the process hasn't changed: get the word out, tour as much as possible, sell directly to fans, etc. And most musicians (myself included) never even broke even, and probably never will.
But there is no way that someone like Amanda Palmer would have been able to get $200K for making an album without a label. Even I, who make almost nothing, have been able to get more gigs, with more people in them, than I ever could in even the early 2000's. And it's largely due to the internet.
The internet doesn't just allow bands to connect with fans; it also allows fans to connect with each other - which is just as important. Especially with underground music, the ability for fans to connect with each other directly (and I include file sharing here) allows people from around the world to unite tiny local "scenes." This makes it easier for musicians to connect with those worldwide fans. But more importantly, that worldwide connection causes those local scenes to actually grow.
I've personally seen this happen: bands that were drawing a handful of people in the 1980's-1990's retired, but are now coming out of retirement to play shows for hundreds or even thousands of people.
I remember the shows in the 1980's. They were much smaller than they are now. For example, have you seen the crowds at the early shows of the classic punk bands, like the Misfits or the Dead Kennedys? They were tiny. Even I pull in more people than that at my own shows nowadays, and I'm nobody. -
On the post: Musicians Realizing They Don't Need Major Labels Anymore
Karl ( profile ), 14 May, 2012 @ 10:37pmRe: Re: Re: Re: Re: Re: The Celebrity Mentality
The majority of musicians have never been signed to a label nor were they going to be signed to a label.
True, but they've never "made it" before. Largely because they couldn't - the avenues of expression were monopolized by a cabal of multinationals.
It is now possible to "make it" - or at least make a living - without having to deal with that cabal. And that deserves to be trumpeted.
Of course, the vast majority of those who try to make a living off of art will fail. That has always been true, and always will be true. I don't think anyone here has ever pretended it wasn't. But it's still better for musicians now than it ever was before.
I'm unqualified to talk about actors and actresses, but from what little I know, they earned the majority of their money on a "per-gig" basis anyway. -
On the post: Musicians Realizing They Don't Need Major Labels Anymore
Karl ( profile ), 14 May, 2012 @ 02:07pmRe:
Yes! Screw the RIAA!
19 Group is not a member of the RIAA, so far as I know. Not surprising: they're not a record label. They're a combination management, marketing, promotions, and merchandising company.
And, amazingly, the contracts you get from them appear to be even worse than the label contracts.
It's not just the RIAA that is evil. There's plenty of that to go around. -
On the post: Musicians Realizing They Don't Need Major Labels Anymore
Karl ( profile ), 14 May, 2012 @ 01:58pmRe: Re: Re: Re: Re:
Again, it isn't really up to the musician to determine whether or not to accept a label contract. It's up to the show producers.
Or, more precisely, the multimedia enterprise run by Simon Fuller.
There's a good (though older) article about the contracts on Salon:
http://www.salon.com/2002/09/18/idol_contract/singleton/ -
On the post: Congress Begins To Wonder Why ICE & DOJ Censored A Popular Hip Hop Blog For A Year
Karl ( profile ), 13 May, 2012 @ 09:07pmRe: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
You just said a lot of wrong. First, the Arcara stuff:
The test isn't whether it restricts expression. The test is whether it restricts protected expression.
You are absolutely, 100% wrong:
United States v. O'Brien, supra, has no relevance to a statute directed at imposing sanctions on nonexpressive activity [...] The closure statute is directed at unlawful conduct having nothing to do with books or other expressive activity. [...]
- Arcara v. Cloud Books
[W]e have subjected such restrictions to scrutiny only where it was conduct with a significant expressive element that drew the legal remedy in the first place, as in O'Brien, or where a statute based on a nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity[...] The New York Court of Appeals thus misread O'Brien, which has no relevance to a statute directed at imposing sanctions on nonexpressive activity. The legislation providing the closure sanction was directed at unlawful conduct having nothing to do with books or other expressive activity.
[O'Connor, concurring:] I agree that the Court of Appeals erred in applying a First Amendment standard of review where, as here, the government is regulating neither speech nor an incidental, nonexpressive effect of speech. [...] If, however, a city were to use a nuisance statute as a pretext for closing down a bookstore because it sold indecent books or because of the perceived secondary effects of having a purveyor of such books in the neighborhood, the case would clearly implicate First Amendment concerns and require analysis under the appropriate First Amendment standard of review.
[Response to dissent:] [T]he closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited - indeed, the imposition of the closure order has nothing to do with any expressive conduct at all.
As it is clear, for Arcara to apply, the conduct that drew the legal remedy must be absolutely "nonexpressive." If it deals with any sort of "expressive activity," Arcara is not relevant.
Not only that, but if it any statute is used as a pretext for shutting down unprotected speech (like selling indecent books), Arcara does not apply. If it is even regulating a "nonexpressive effect of speech," Arcara does not apply.
The forfeiture statute doesn't single out protected expression.
It doesn't matter if the forfeiture statute singles out protected expression. Arcara only applies if the conduct "that drew the legal remedy in the first place" is "nonexpressive." If that conduct "has anything to do with books or other expressive activity," then Arcara does not apply.
That sentence is referring to injunctions against particular works.
No, it wasn't. It was referring to government actions in general, and "the closure order" in particular. The idea that it was referring to an injunction is nonsensical, because no injunction was even mentioned in this case. If any government action requires "an advance determination that the distribution of particular materials is prohibited," Arcara does not apply to that action.
Your interpretation would have the Court saying that nonprotected expressive activity must be protected, which is a non sequitur.
The court is not saying that nonprotected expressive activity "must be protected." It is saying that under extremely limited circumstances, the O'Brien standard (or some other appropriate First Amendment standard) does not need to be used. That's literally the only thing the court is saying: not that "it must be protected," but that other standards must be used. The statute, of course, may survive that standard (as the draft card burning did in O'Brien), thus the activity may be unprotected; but it is that standard that must be used, and not the one in Arcara.
Since no copyright enforcement statute is eligible for the relaxed standards of Arcara, other standards must be used. And the correct standard, here, is the one in Fort Wayne Books. Unlike Arcara, which has never been used in any expression-related statute ("protected" or not), the situation in Fort Wayne is exactly analogous to the one here:
Respondents also moved, in a separate "Verified Petition for Seizure of Property Subject to Forfeiture," for the particular judicial order that is the subject of our consideration here. Specifically, respondents asked the Allen County Circuit Court "to immediately seize ... all property subject to forfeiture' as set forth in [the CRRA] complaint." Such pretrial seizures are authorized under Ind.Code ? 34-4-30.5-3(b) (1988), which empowers prosecutors bringing CRRA actions to move for immediate seizure of the property subject to forfeiture, and permits courts to issue seizure orders "upon a showing of probable cause to believe that a violation of [the State's RICO law] involving the property in question has occurred." The seizure petition was supported by an affidavit executed by a local police officer, recounting the 39 criminal convictions involving the defendants, further describing various other books and films available for sale at petitioner's bookstores and believed by affiant to be obscene, and alleging a conspiracy among several of petitioner's employees and officers who had previous convictions for obscenity offenses.
The seizure statute did not single out expression; it was predicated on aviolation of a law (RICO) that is not targeted at speech in particular.
And even the Fort Wayne Books case acknowledged that "any form of criminal obscenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene."
They even quoted Arcara v. Cloud Books multiple times in the ruling.
And despite all of that, the seizure was declared unconstitutional. No matter what the statute, no matter what the crime, it is unconstitutional to remove any presumptively protected speech from circulation without an adversarial hearing:
Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved.
In fact, the very arguments that you and the government are making were determined to be wrong:
In its decision below, the Indiana Supreme Court did not challenge our precedents or the limitations on seizures that our decisions in this area have established. Rather, the court found those rules largely inapplicable in this case. The court noted that the alleged predicate offenses included 39 convictions for violating the State's obscenity laws, and observed that the pretrial seizures (which were made in strict accordance with Indiana law) were not based on the nature or suspected obscenity of the contents of the items seized, but upon the neutral ground that the sequestered property represented assets used and acquired in the course of racketeering activity.
"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." [...]
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. It is incontestable that these proceedings were begun to put an end to the sale of obscenity at the three bookstores named in the complaint, and hence we are quite sure that the special rules applicable to removing First Amendment materials from circulation are relevant here. This includes specifically the admonition that probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films.
The Supreme Court, fully cognizant of Arcara, was presented with exactly the arguments you are making, and decided in no uncertain terms that you are wrong.
as Professors Lemley and Volokh explain, use of a copyright work is either infringement or licensed. Neither situation invokes the First Amendment.
It does not lose its First Amendment protection until it is determined to be infringing, and that cannot be done ex parte. That was the entire point of the Lemley/Volokh article.
It really amazes me how you are so completely misreading everything they are saying. The section that you quoted is not talking about ex parte seizures of allegedly-infringing and not-even-allegedly-infringing speech. They are discussing preliminary injunctions, done at the time of a preliminary injunction hearing, where both parties are present and have a chance to present their case.
This is the time when licensing issues become an "easy case:" the plaintiffs present evidence of infringement, and the defendants produce a license (if they have one), or raise some sort of affirmative defence (such as fair use). At this point, the judge may make a preliminary ruling that the use is unlicensed; and if no affirmative defense is raised, the defendants lose First Amendment protection for that speech only, and the use is no longer presumptively protected speech. In the end, it may ultimately turn out to be protected speech; but it does not run afoul of the First Amendment because after an adversarial hearing, the presumption of protection was lost.
This is a far cry from anything you are saying, and it is not even remotely like what happened with these seizures.
It is also the height of cherry-picking - and completely disingenuous - to ask me to ignore some of what Lemley and Volokh said (that copyright is a content-based restriction on speech - something courts have neither affirmed nor denied), which is part of their discussion on existing case law. And yet you base an entirely batshit insane theory on a misreading of a part of their paper that they present as a "proposal," and not an explanation of law.
A person engaging in distributing copyrighted works is not engaging in First Amendment protected expression unless their use is protected by the First Amendment safety valves of fair use and idea/expression dichotomy.
Again, you are absolutely wrong. A person who is engaging in distributing copyrighted works is absolutely engaging in First Amendment protection. The only time they lose that protection is if it determined to be infringing (not merely "unlicensed").
If what you're saying is true, then there is no First Amendment protection for "licensed use." The government could put any sorts of restrictions on it that it likes; time-and-place restrictions, government ratings boards, even outright banning of expression it didn't like. And as long as this is not directly contradicted in the license, it would not raise any First Amendment concerns whatsoever.
This is completely ridiculous. And it stems from a complete lack of understanding of what the First Amendment is.
The First Amendment is not a grant to the government to "authorize" speech. It is an absolute restriction on what the government is allowed to do. It is not allowed to "authorize" speech - such authorization is beyond the government's rights. Speech doesn't need to be "authorized" in order to be protected by the First Amendment. It is always protected from government interference; and if Congress believes it has the right to "authorize" speech, the First Amendment says that Congress can go fuck itself.
Now, like everything in the Bill of Rights, certain exceptions must be made for the government to serve the public welfare. But these are narrow exceptions, and there must be an overwhelming public good that is at stake in order to overcome the explicit limits on the government's power that the Constitution imposes.
The ability to regulate licensed content is certainly not one of those exceptions. And, frankly, nobody has ever said it was. The claim is just bizarre. You don't lose your inalienable free speech rights by obeying copyright law. The idea is utterly demented. -
On the post: Congress Begins To Wonder Why ICE & DOJ Censored A Popular Hip Hop Blog For A Year
Karl ( profile ), 13 May, 2012 @ 10:19amLatest in Rojadirecta case
There's been a lot of discussion here about the Rojadirecta case as well. The last time Mike wrote about the case, the judge had dismissed the case, but had not ordered the domain name returned, and given ICE time to re-file their complaint.
Well, ICE did so (months after the 30-day deadline, I might add), and Rojadirecta/Puerto 80 filed their counterclaim. They are available here (PDF's):
US Memorandum of Law in Opposition to Motion
Puerto 80 Reply Memorandum of Law in Support of Motion
The legal details should be familiar to anyone who read the comments here. Not surprisingly, I think Puerto 80 has a slam-dunk case.
The government's brief is bizarre - they've changed their tune yet again, and are now claiming that Rojadirecta itself did not commit copyright infringement directly, nor did anyone at Rojadirecta engage in a "conspiracy" or "aid and abbet" criminal copyright infringement. They now say that they have no intentions whatsoever to charge anyone at Rojadirecta with any crime.
Instead, the domain name itself was used to "facilitate" criminal copyright infringement - but they don't say by who, nor do they present any evidence that the direct infringement by these unnamed users was committed "willfully" or for any sort of "commercial advantage or private financial gain."
Nor do they show the necessary degree of connection between the infringement and the domain name itself, to support an accusation of criminal facilitation. It's hard to see how they could - since the seizing of the domain name did not stop any infringement, all of which was done off-site and continues to operate unhindered to this day.
I'm betting that ICE loses this one, and badly. If the case was dismissed in the last round, it should be in this round - since the evidence presented here is even weaker. -
On the post: Congress Begins To Wonder Why ICE & DOJ Censored A Popular Hip Hop Blog For A Year
Karl ( profile ), 12 May, 2012 @ 11:29pmRe: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
The statute in Arcara was a law of general applicability. So is the forfeiture statute being used in Operation in Our Sites.
No, it is not. The forfeiture statute is in regards to copyright infringement. Copyright infringement is not "a law of general applicability." It is a speech restriction, plain and simple. Not an unlawful speech restriction, but a speech restriction nonetheless.
Even if it were a law of general applicability, Arcara wouldn't apply. Laws of general applicability that "inevitably single out bookstores or others engaged in First Amendment protected activities for the imposition of its burden" are inapplicable under Arcara. Here, they are not concerned with whether the individual bookstore is engaging in protected expression, but whether bookstores in general bear the burden of the law.
It is simply not possible for someone to commit copyright infringement without engaging in activity that is, at least potentially, protected by the First Amendment. Copyrighted works are expression, and that expression is protected in full by the First Amendment. Anyone who distributes copyrighted works - infringing or not - is engaging in expressive activity (whether lawful or not). Websites, in general, are engaging in First Amendment protected activities; and any law of general applicability becomes inapplicable under Arcara the moment they are directed specifically at websites, just as it would be when directed specifically at bookstores, theaters, or radio stations.
And are you honestly saying that the seizures weren't "imposed on the basis of an advance determination that the distribution of particular materials is prohibited?" Because that makes it inapplicable under Arcara, too.
If what you're saying is true, then Arcara would overturn both O'Brien and the Fort Wayne Books decision (the seizure there was for a RICO violation, also a "law of general applicability"). It did not, and there is nothing in the ruling to even suggest that was the court's intent.
The unlawful conduct here, criminal copyright infringement, has nothing to do with books or other expressive activity.
This claim is laughable on its face. It simply is not possible to commit copyright infringement, criminal or not, without engaging in expressive activity.
When the Court says "other expressive activity," they mean protected expressive activity.
No, they absolutely do not. If they would have meant that, they would have said it. And it is clear from every single sentence in that ruling that they mean any expressive activity, whether protected or not. Arcara does not apply to copyright infringement just as it does not apply to libel, obscenity, state secrets, etc.
The fact that Arcara hasn't been used in a copyright case, if true, is totally irrelevant.
It shows that no court of law has ever agreed with your interpretation of Arcara.
Um, the court there is interpreting the state constitution, not the federal one.
Hence the "by the way" bit. But it shows, again, how nobody in any court has interpreted Arcara the way you do.
If you're going to justify these seizures, then you're going to have to do it without reference to Arcara, because Arcara absolutely, positively, without a doubt, by the law's own words, does not apply to these seizures.
If you have permission to speak a copyrighted work, then that speech is not authorized by the First Amendment.
Indeed, it is not - because the First Amendment does not authorize speech. Instead, it makes it explicitly clear that the government does not have the right to authorize speech. You don't need government authorization to speak, and any attempt by the government to create any sort of authorization scheme is unconstitutional. "Congress shall make no law..."
The idea that authorized works are not protected by the First Amendment is seriously insane. That would mean that nobody who publishes or distributes the works of others is protected by the First Amendment. No bookstores, no record labels, no films, no newspapers - nobody. I've never heard anyone claim this, frankly (including Lemley and Volokh, who are not actually claiming what you say they are). If what you're saying is true, then there's really no such thing as the First Amendment at all. -
On the post: Congress Begins To Wonder Why ICE & DOJ Censored A Popular Hip Hop Blog For A Year
Karl ( profile ), 12 May, 2012 @ 07:16pmRe: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I think you should read the first four paragraphs of this:
I have read it, in its entirety, many times. And you are completely misreading it. Here are the reasons why:
1. The part you're linking to talks about TRO's after an adversarial hearing. In fact, they explicitly say that ex parte injunctions should be allowed only in extreme circumstances, if at all:
The Court's skepticism towards content-based preliminary injunctions extends in spades to ex parte temporary restraining orders (TROs). Ex parte restraints on speech are generally forbidden, at least unless one can show that it's impossible to give the target notice and an opportunity to participate. [...]
It might conceivably be desirable to permit a narrow exception to the general ban on TROs if giving notice would pose unusual dangers--for instance if it would create a risk that an infringer would escape and take the infringing goods with him to be distributed elsewhere. Nonetheless, even if such an exception were to be recognized, it could only be applied in extreme cases. It can't be enough to show that a speaker will, before the injunction is entered, continue engaging in his allegedly harmful speech: this argument could be made for most attempts to enjoin supposedly unprotected speech, and would justify ex parte orders delaying the publication of supposedly libelous books or newspaper articles, ex parte prohibitions of news coverage that supposedly interferes with a fair trial, and so on. Certainly lower courts have interpreted Carroll as prohibiting such ex parte speech restrictions. [...]
Nonetheless, we think the ban on prior restraints, including preliminary injunctions, makes practical as well as doctrinal sense. The free speech costs of preliminary injunctions generally do exceed the benefits--especially in copyright cases. [...]
Ex parte TROs should almost always be forbidden.
That's why the mechanism for impounding cited by the Copyright Act - Rule 65 of the Federal Rules of Civil Procedure - forbids ex parte injunctions, discourages ex parte TRO's except in emergent circumstances, and limits their length to a maximum 14 days.
2. They are talking about TRO's against only the infringing speech. Nowhere in the article do Lemley and Volokh even suggest that speech which is not even allegedly infringing can be blocked in the process without raising First Amendment scrutiny.
3. They do not even suggest that it is the license that grants speech rights to non-infringing content. Nor do they say that authorized works are not constitutionally protected. In fact, throughout the article, they refer to the risk of suppressing "speech that will ultimately be found constitutionally protected."
4. They are refering only to civil cases - where the burden of proof is far, far lower than in criminal cases. And in civil cases the government's role is adjucating between private parties - not acting on its own behalf to block speech.
5. Last but not least, you're quoting from a section called "Modifying Intellectual Property Remedies In Light Of Free Speech Doctrine." They are not describing how the law works, but how they believe the law should work. Their motive for writing those paragraphs is overt: "[T]the fact that many of the most obvious cases of copyright infringement won't implicate the prior restraint rule at all should make our proposal less worrisome to copyright owners."
It's also a bit ironic that you're quoting Lemley. He's very vocally opposed to the seizures, and makes it clear that he believes they violate the First Amendment. Even before the Rojadirecta seizure, he was very clear that he believed such actions were unconstitutional:The Supreme Court has made it abundantly clear that governmental action to suppress speech taken prior to "a prompt final judicial decision ... in an adversary proceeding" that the speech is unlawful is a presumptively unconstitutional "prior restraint," the "most serious and the least tolerable infringement on First Amendment rights," permissible only in the narrowest range of circumstances. The Constitution "require[s] a court, before material is completely removed from circulation, . . . to make a final determination that material is [unlawful] after an adversary hearing."
- from Professors? Letter in Opposition to PROTECT-IP
I don't know if Volokh himself has written about the seizures, but his compatriot David Post over at The Volokh Conspiracy certainly has. -
On the post: Congress Begins To Wonder Why ICE & DOJ Censored A Popular Hip Hop Blog For A Year
Karl ( profile ), 12 May, 2012 @ 11:23amRe: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
But an infringer is not protected by the First Amendment at all.
Until a work is determined to be infringing, it is absolutely protected by the First Amendment.
An author can speak his own work by the copyright right that is created by operation of law when the author creates the work. Anyone else speaking the work doesn't sit in the same position as the copyright author.
Authors are not allowed to "speak his own work" because of copyright. They are allowed to do that because the government does not have the right to take that ability away from him. And it is completely false to say that others who use that work "don't sit in the same position as the copyright author."
The First Amendment protects all expression. Every word, every image, every fart or burp or sneeze is protected expression. It is not something that the government has the right to "create."
There are exceptions to the First Amendment, but they must be narrowly tailored to serve a legitimate government interest, and come to courts "bearing a heavy presumption against its constitutional validity."
Legally, copyright is a legitimate government interest. But there is no question whatsoever that copyright law conflicts with the First Amendment. That conflict is resolved with such things as the idea/expression dichotomy, fair use, etc. If those did not exist, copyright certainly would violate the First Amendment. And since this was an ex parte proceeding, none of those defenses were even allowed to be raised.
I'd also like to point out what tremendous bullshit this is:
even if dajazq1's use turns out to be authorized via a license, the First Amendment is still not in issue since licensed use is protected by the license not the First Amendment. [...] Expressing other people's copyrighted works based on a license doesn't invoke First Amendment protection. [...] The license gives the site the authority to post the links, not the First Amendment. [...] If you are posting a link by permission, then you are not exercising your First Amendment rights.
The idea that authorized works are not protected by the First Amendment is just batshit insane. By default, the First Amendment protects all speech. It is only the well-defined exceptions to the First Amendment that are not. The exception, in this case, would be that the speech is infringing. If the expression is not infringing, it is fully protected by the First Amendment. It is not the license that protects it.
Nor is it "permission" that gives you the right to speak. There are tons of copyright statutes that detail when you don't need permission to use the work. Not just fair use, but the restrictions on copyrights for libraries and educational institutions, rebroadcasting, or statutory rates.
Not only is authorized use fully protected, it is the goal of copyright. Copyright is supposed to exist because it is "the engine of free expression." If authorized use is not "free expression," fully covered by the First Amendment, then copyright is the engine of nothing at all.
By posting links to authorized content, Dajaz1 was engaging in protected expression. Full stop, end of story. Censoring that expression - even for a short time, even in one particular place - was blatantly unconstitutional. -
On the post: Congress Begins To Wonder Why ICE & DOJ Censored A Popular Hip Hop Blog For A Year
Karl ( profile ), 12 May, 2012 @ 10:12amRe: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
If Arcara forcing Cloud Books to relocate is not a restraint
The statutes in Arcara were directed at any real property that was used for prostitution, whether it was a bookstore or not. If the Arcara statute only applied to bookstores, then it would require First Amendment scrutiny, and probably wouldn't pass.
Operation In Our Sites targets entities - websites - that are primarily used for expressive activity. There may be some unlawful expression on them, but that doesn't mean it doesn't target entities engaged primarily in expression.
That is why the Arcara standard does not apply to this operation. It is also why Arcara cannot apply to any copyright case, "easy" or not. Arcara only applies to statutes "directed at unlawful conduct having nothing to do with books or other expressive activity." Copyright infringement - even "easy piracy" cases - are expressive activity, protected or not.
This case makes that absolutely clear. This was supposed to be an "easy piracy" case. But, in fact, the materials were authorized. That means that they enjoyed the full protection of the First Amendment.
Arcara absolutely, positively, without a doubt cannot apply to these seizures, nor to any copyright laws in general. That is why it has never, ever, ever been used as a standard in any copyright case.
In fact, since the Arcara ruling, the state of New York has actually interpreted it as something closer to the O'Brien standard. And it has mostly been used for laws dealing with real property, in the context of adult bookstores.
Oh, and by the way. Did Arcara end up closing the adult bookstore? No, it did not:
Finally, we note that not every government regulation of general application, having some impact on free expression, implicates constitutional guarantees. Arresting a newspaper reporter for a traffic violation is one example where the impact would not be constitutionally cognizable, as Justice O'Connor noted in her concurring opinion at the Supreme Court. But closing a bookstore for a year, as is required by this statute, cannot be said to have such a slight and indirect impact on free expression as to have no significance constitutionally.
- Arcara v. Cloud Books, 68 NY 2d 553 - NY: Court of Appeals 1986
Accordingly, on reargument following remand from the United States Supreme Court, the order of the Appellate Division should be modified to grant defendant partial summary judgment dismissing those portions of the second cause of action seeking an order directing the closing of the premises in question.
On reargument following remand from the United States Supreme Court, order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed. Questions certified answered in the affirmative. -
On the post: Congress Begins To Wonder Why ICE & DOJ Censored A Popular Hip Hop Blog For A Year
Karl ( profile ), 12 May, 2012 @ 09:39amRe: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
the conduct that drew the remedy in the first place, copyright infringement, is nonexpressive conduct.
This is a totally bogus statement. Of course infringing materials are expressive, and distributing them is expressive conduct. It may not be protected expression under the First Amendment, but that determination cannot be made without at least an adversarial hearing.
Re: Re: Surprised they haven't raised more money so far
It's similar to that unfortunate piece you did on changing IP laws.
On the other hand, your article on The Death of Pop Music is spot-on.