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  • On the post: Congress Begins To Wonder Why ICE & DOJ Censored A Popular Hip Hop Blog For A Year

    Karl ( profile ), 11 May, 2012 @ 12:46pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    What materials have been seized here? None. What injunction prevents protected expression in the future? None.

    You're kidding, right?

    An entire site was blocked from public access. It did not take any infringing materials out of circulation (that was all at other sites - which were not seized). On the other hand, it blocked a huge amount of speech that was not even allegedly infringing.

    You honestly think that's not seizing speech-related materials? That is laughable on its face. The stated intent of the government was to prevent public access to the contents of the website.

    Property that was used in the past to commit crimes is being seized and forfeited.

    The property was not used in the past to commit crimes. There was never a judicial determination that any crime had actually been committed at all. There was (at best) probable cause to believe that a speech-related crime might have been committed. That is not enough to remove speech from circulation, even if that speech is later determined to be infringing.

    If Dajaz1 had been allowed a hearing before the court prior to the seizure, then the seizure (probably) wouldn't run afoul of the First Amendment. But he wasn't, and it does.

  • On the post: Congress Begins To Wonder Why ICE & DOJ Censored A Popular Hip Hop Blog For A Year

    Karl ( profile ), 11 May, 2012 @ 11:26am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    This is a subsequent punishment, not a prior restraint.

    I've never heard the term "subsequent punishment" refer to anything except removing materials from circulation after a judicial finding of guilt. If the "past criminal wrongs" are merely "suspected," it's not a subsequent punishment.

    On the other hand, many many cases (the aforementioned Fort Wayne Books, for example) refer to taking already-published works out of circulation as, literally, prior restraint. The "prior" in "prior restraint" doesn't (just) refer to preventing works from being published in the first place.

    Some quotes:

    The pretrial seizure of petitioner's bookstore and its contents in No. 87-470 was improper. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, books or films may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protection accorded searches for and seizures of First Amendment materials, renders invalid the pretrial seizure here. Even assuming that petitioner's bookstore and its contents are forfeitable when it is proved that they were used in, or derived from, a pattern of violations of the state obscenity laws, the seizure was unconstitutional. Probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films. Here, there was no determination that the seized items were "obscene" or that a RICO violation had occurred. The petition for seizure and the hearing thereon were aimed at establishing no more than probable cause to believe that a RICO violation had occurred, and the seizure order recited no more than probable cause in that respect. Mere probable cause to believe a violation has transpired is not adequate to remove books or film from circulation.
    - Fort Wayne Books v. Indiana

    Thus, the issuance of the injunction was at odds with the shared principles of the First Amendment and the copyright law, acting as a prior restraint on speech because the public had not had access to Randall's ideas or viewpoint in the form of expression that she chose.
    - Suntrust v. Houghton Mifflin

    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."
    - CDT v. Pappert

    Though they didn't use the term "prior restraint," plenty of other cases have found seizures of materials, prior to an adversarial hearing, to be unconstitutional violations of the First Amendment - even if they were later found to be unlawful. See e.g. Quantity of Books v. Kansas and Marcus v. Search Warrant.

  • On the post: It's Amazing The Lengths 'Music Supporters' Will Go To In Trying To Trash Success Stories

    Karl ( profile ), 11 May, 2012 @ 08:02am

    Entertainment lawyer?

    I won't bother to link to one (somewhat well known) individual (a lawyer, of course) within the entertainment industry, who simply doesn't deserve the publicity, but he publicly dismissed Palmer's massively successful Kickstarter campaign by suggesting that it was entirely based on the fact that she was (1) once on a label (2) has a famous husband (who this person believes, incorrectly, is running a copyright reform group) and most ridiculous of all (3) that he "wouldn't be surprised" if it turned out that Google was really behind her success.

    You know, I'd actually like to read that. I need a good laugh today.

  • On the post: Congress Begins To Wonder Why ICE & DOJ Censored A Popular Hip Hop Blog For A Year

    Karl ( profile ), 11 May, 2012 @ 07:54am

    Re: Re: Re: Re: Re: Re: Re: Re:

    How was there not probable cause at the time the warrant was issued?

    First of all, probable cause is not sufficient to block speech. You need (at least) an adversarial hearing to determine whether the speech is, in fact, unlawful - even with preliminary injunctions in copyright cases.

    Second of all, if you actually read the seizure order, most of what was said in it is a) not actually evidence of criminal infringement, and b) factually wrong. Unfortunately, the judges just took ICE at their word and rubber-stamped the orders (sometimes literally).

    Linking to a work can be a crime.

    Linking to copyright infringing material is not, in itself, an infringement of copyright. No court ever held that it was. If someone I don't know posts an infringing video on YouTube, and I merely link to that video, then I have not committed copyright infringement.

    If the links turned out to be authorized via a license

    You do not need a "license" to link to works on the internet. That is absurd. It would mean that search engines are illegal on their face, since their links are not "authorized via a license." In fact, I've never heard of anyone actually getting a license to link to someone else's site.

    If the link to copyrighted material was done in the exercise of contractual rights, then there is no First Amendment element to that action.

    Again, you do not need "contractual rights" to link to content. Furthermore, if the government seizes material that is legally licensed from the copyright holder, you don't think that would be a First Amendment violation?

    The domain name is being seized as a subsequent punishment.

    No, it was not. It was not "subsequent" to anything. It was not a criminal forfeiture, it was an ex parte seizure done prior to any legal determination of guilt.

    And we'll see in the Rojadirecta case.

    Last I heard, the case was about to be dismissed because the government didn't successfully allege criminal infringement. The judge gave ICE some time to ammend the complaint, but I haven't heard anything since. I'm sort of curious about that myself - the 30 days have come and gone, with no news. Could this be ICE stalling again?

  • On the post: Congress Begins To Wonder Why ICE & DOJ Censored A Popular Hip Hop Blog For A Year

    Karl ( profile ), 09 May, 2012 @ 11:44pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    he links to copyrighted material

    One thing I forgot to mention.

    Links to infringing material are not, in themselves, infringing.

    They are certainly not "identical or nearly identical copies of the plaintiff's works," as phrased by Volokh and Lemley. As a matter of fact, they are not "copies of the plaintiff's works" at all.

  • On the post: Congress Begins To Wonder Why ICE & DOJ Censored A Popular Hip Hop Blog For A Year

    Karl ( profile ), 09 May, 2012 @ 06:31pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    No, the links to copyrighted material are not presumptively protected speech.

    They are until there is an adversarial hearing. Even the Lemley article you quoted states that infringement must be determined after a "preliminary injunction hearing".

    No such hearing was allowed, and until it is, the material is presumptively protected.

    This is exactly in line with both the Fort Wayne and CDT decisions, which held that an adversarial hearing must occur before any speech may be blocked, whether it is ultimately unlawful speech or not. Mere probable cause is insufficient. Blocking speech (any speech, lawful or not) prior to an adversarial hearing is unconstitutional.

    Furthermore, that is just dealing with preliminary injunctions against only the infringing speech. If the judge was to issue an injunction against speech that was not even allegedly infringing, that would certainly be unconstitutional - even with an adversarial hearing.

    The fact that the seized property is also used for protected expressive activities is irrelevant.

    Only to you.

  • On the post: Congress Begins To Wonder Why ICE & DOJ Censored A Popular Hip Hop Blog For A Year

    Karl ( profile ), 09 May, 2012 @ 04:18pm

    Re: Re: Re: Re: Re: Re:

    But with a new domain name and a Google search, and you're back up and running in hours.

    In which case the government would seize that domain too.

    Moreover, how likely is it that any website seized by the government would put up the same site at another URL, even if they were doing nothing unlawful? Not very likely, I'd say.

  • On the post: Congress Begins To Wonder Why ICE & DOJ Censored A Popular Hip Hop Blog For A Year

    Karl ( profile ), 09 May, 2012 @ 04:08pm

    Re: Re: Re: Re:

    The fact that the domain names were also used for First Amendment-protected activity is irrelevant. See Arcara v. Cloud Books.

    Arcara v. Cloud Books does not apply to laws against any form of expression whatsoever - even laws against unprotected expression. For any law to be applicable to the Arcara standard, it must be "directed at unlawful conduct having nothing to do with books or other expressive activity."

    There has not been a single court case that has ever held that the harm to protected speech can be disregarded when targeting unprotected speech. The correct cases to look at would be O'Brien, Fort Wayne Books, or CDT v. Pappert.

    And, yes, the government absolutely did censor protected speech. They didn't target infringing speech only, but all the speech on the entire websites. Much of that speech - even most of it - was not even allegedly infringing, meaning it was fully, absolutely, and unquestionably protected speech.

    And that's even assuming that the "infringing speech" actually was infringing... which it was not. Meaning it, too, is wholly protected speech.

    If ICE's actions are consistent with statute, then the statute is unconstitutional. Of course, their actions are probably not consistent with statute; they've just been twisting the law.

  • On the post: Dan Bull, Amanda Palmer & El-P: A Big Week For Artists' Voices On Techdirt

    Karl ( profile ), 07 May, 2012 @ 05:07pm

    Re: Congrats to Dan, Amanda and El-P!

    http://thetrichordist.(etc, I won't repeat it)

    Dude, seriously, take your spamming elsewhere.

  • On the post: Dan Bull, Amanda Palmer & El-P: A Big Week For Artists' Voices On Techdirt

    Karl ( profile ), 07 May, 2012 @ 08:38am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Not sure how I feel

    "Now we need money to promote, mix, manufacture, and distribute it around the world."

    Mixing and mastering are definitely part of the production process. If you've recorded the album, what you have are a bunch of raw tracks.

    You also left out the part where she's doing a companion art book to the record, and the fact that she's doing a worldwide tour. These things cost money too.

    Mixing/Mastering an album doesn't cost much, maybe several hundred dollars to a grand.

    When you get to the level that Amanda is at, mixing and mastering cost much more than a grand.

    Hell, even at the level I'm at (which is way, way down the food chain), I couldn't get a record mixed and mastered for that. Even the mastering alone costs around $600 - and for that, you get an anonymous engineer using digital plug-ins. Or, if you're doing vinyl, a guy twiddling a knob on the Westrex.

    If you want professional mixing and mastering, with skilled engineers and high-end studio equipment, you're going to be paying several thousand dollars at least. The mixing alone can run in the tens of thousands.

    It's similar with promotion. If you want your songs on the radio in multiple countries (for example), it's going to cost you.

    This isn't the only way to do it, of course. Digital production and distribution has made things much cheaper. And that's not just good, it's outstanding. But that doesn't mean there isn't a need for professionals, and Amanda is at the level where those professionals are needed.

  • On the post: Dan Bull, Amanda Palmer & El-P: A Big Week For Artists' Voices On Techdirt

    Karl ( profile ), 07 May, 2012 @ 12:08am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Not sure how I feel

    Let's take this step by step.

    Do let's. I'm always open to ways artists can make money.

    Label artists are fronted money by the labels and then owe the money back, albeit through a completely one-sided contract which favors the labels. Independent artists tend to either fund their own projects or get a small loan from a financial backer who typically wants it back + interest.

    I'm not really sure what you're saying here. Kickstarter is exactly the business model of "get[ting] a small loan from a financial backer who typically wants it back + interest." People contribute to her Kickstarter campaign, fully aware of what money it's already raised, and get certain things back from it depending upon how much they contributed. What's the problem?

    Amanda Palmer already has the means to both create her album and promote it.

    Leaving aside the fact that it's not true, let's assume for the sake of argument that it is. So what? Plenty of rich folks have been artists. You're saying that they shouldn't be artists, that they shouldn't raise money to produce their art. You can belive that all you want, but Amanda's fans won't listen - they actually know better, and realize that every artist needs support from their fans.

    I've never seen an artist ask his/her fanbase for so much money.

    Every time an artists demands that people pay for their work, they're asking their fanbase for so much money. That fanbase can either choose to give it to them (if it's valuable enough to them), or they can not. Amanda is no different than artists who demand that anyone pay for a copy of their work. And she's giving them more value for the money.

    It can only be one of two things: a necessity or a vanity.

    That leaves out all art, since nobody needs art to eat. You're really suggesting that art is worthless? I'm not.

    Indeed, one of the oft-covered topics here on Techdirt is how the internet has changed the face of the free market.

    Indeed, Amanda is a great example of how the internet has changed the face of the free market. Without a middleman, she is going direct to consumers, and actually giving them what they are willing to pay for. That's pretty much free market in a nutshell.

    Sure, if you're working on a big project which necessitates top-tier session musicians, that can cost some serious bread. But from what I understand, her new album is already finished, so your argument doesn't wash.

    Here's where you're confused. Her album is not already finished. She's raising money for its production.

    Even the most ardent "artist-haters" here on Techdirt (and yes, that should be in quotes) would admit that this is exactly what most workers do.

    She's not earning any of that money through hard work; she's having it handed to her.

    This is pre-production, so every dollar she earns will make a better album. The people who contribute are making sure that no expense is spared making an album that will be of the highest quality possible.

    What, exactly, is wrong with that?

    And if you think making a pro-level album does not take hard work (as muh as any ditch-digger or computer programmer), then you don't know jack shit about creating music.

    Seriously, what independent artist goes around asking their fanbase for about a quarter-million just to put themselves over?

    Every single independent artist who thinks they can ask that much. If indie artists believed they could ask for more and get it, then trust me, they would. And nobody would blame them if they did. Certainly not me, or any other artist I know, that's for sure.

    You cannot ignore the fact that she's fully capable of supporting herself.

    So is everyone else who makes music, especially if they have a day job (which Amanda did, for many years). Are you saying that once an artist becomes successful, they should take a day job to pay the bills? That's what you're implying, at least for all those musicians (like myself, and until recently Amanda) should be required to do.

    Or are you saying that anyone who wants to record an album should fill out a form listing all of their family's assets, and be denied unless they're "needy" enough?

    Seriously, who cares? Every single artist I know is "capable of supporting themselves." If they weren't, they'd be dead. So no artists deserve anyone's money, then? Seriously, that seems to be what you're saying, and I just can't get behind that.

  • On the post: Dan Bull, Amanda Palmer & El-P: A Big Week For Artists' Voices On Techdirt

    Karl ( profile ), 06 May, 2012 @ 05:01pm

    Re: Re: Re: Re: Re: Re:

    The cold hard fact is the music software workers don't get paid unless we support them by buying the product.

    Um, just so you know, "music software workers" don't get paid royalties. They earn the same salary whether people buy the software or not.

  • On the post: Dan Bull, Amanda Palmer & El-P: A Big Week For Artists' Voices On Techdirt

    Karl ( profile ), 06 May, 2012 @ 04:54pm

    Re: Re: Re: Re: Re: Re: Re: Not sure how I feel

    This is a vanity project

    How do you differentiate between a "vanity project" and every other artist making an album? I'm really curious. How is this a "vanity project" and, say, a Miles Davis album not? Or are all record albums "vanity projects?"

    Whatever the case, many people want it, enough to voluntarily support her making the album. That suggests that it's not just a "vanity project" to me.

    nobody REQUIRES $200,000 in order to produce and promote an album, yet she's already got around half a million.

    If you're working with some fairly big names, and hiring a lot of studio musicians, then $200K is actually not a lot of money. It's roughly what she spent on her last album (which she paid for herself, incidentally - she never got reimbursed by Roadrunner).

    ...But even if she did get more than she needs, so what? Once she reached her goal, people could have stopped paying on Kickstarter. They didn't. Whatever you may think, nobody who supports her cares that she makes a lot of money. Good for her. She deserves it.

    If "other smaller acts are getting maybe a couple thousand for funding their albums and promotion," then that's their problem, not hers. Besides, it's not like Amanda is taking money away from these smaller acts. It is not a zero-sum game.

    And I have absolutely no idea why you keep harping on her marriage with Gaiman. Artists have married other artists for as long as art has been around. That doesn't mean they don't keep working independently, and it doesn't mean they stop earning money independently. I mean, it's an absurd notion.

    What is with you, anyway? Why are you even upset about any of this? The only thing she's guilty of is being a successful artist. Do you have a problem with successful artists?

  • On the post: Dan Bull, Amanda Palmer & El-P: A Big Week For Artists' Voices On Techdirt

    Karl ( profile ), 06 May, 2012 @ 11:55am

    Re: Not sure how I feel

    I heard that Amanda Palmer is married to a millionaire writer of some sort. If that really is the case then why does she need to lean on her fanbase to fund her project?

    The "millionaire writer of some sort" is Neil Gaiman, author of Sandman, Neverwhere, Coraline, etc. He's not poor by any means, but neither is he the type that has $200K just lying around.

    And, perhaps she needs to lean on her fanbase because she's an independent woman who doesn't mooch off her husband? Just a guess.

  • On the post: Dan Bull, Amanda Palmer & El-P: A Big Week For Artists' Voices On Techdirt

    Karl ( profile ), 05 May, 2012 @ 07:20pm

    Re: Tasty Trio

    Yeah, congratulations on covering all bases.

    Why do you hate artists so much, A.C.? Why are you against them getting paid?

  • On the post: How Amanda Palmer Built An Army Of Supporters: Connecting Each And Every Day, Person By Person

    Karl ( profile ), 05 May, 2012 @ 01:58am

    Re: Re: Re: Cost of hiring a team?

    Did you read the article?

    I have been acquainted with Amanda personally, since well before she was signed to a label. The label is not how she "got her start." It's not really how she got popular, either - she and Brian were selling out major Boston venues well before they signed with Roadrunner.

    Emily White (former Dresden Dolls tour manager) talks about it here:
    http://www.hypebot.com/hypebot/2009/07/an-insiders-view-of-amanda-palmers-success.html

    The gist of it:

    And because of that decision [to sign with Roadrunner], the band did receive pockets of radio success in markets like St. Louis and Arizona. The attendance at those shows spiked in 2006 when a few Dolls songs were receiving airplay. Awesome, right? Well, now it's 2009 and we've returned to some of those markets. Many of those radio fans don't turn up anymore. Yet, the hardcores or "1000 true fans" are still there, just like they have been since they organically founded The Dresden Dolls back in the day. They still line up outside for hours, know every word of every song (whether or not it has been released), and wait around for Amanda's autograph. They don't need a top down marketing plan to tell them what to like. And who are the new hardcore Dolls/ Amanda fans? They are the younger siblings and friends of the original fans, who continue to spread the gospel about an artist who's work they love so much they can't not talk about.

    More details here:
    http://flavorwire.com/22094/exclusive-amanda-palmer-on-why-dresden-dolls-are-over-and-roadrunner-is-out

    I could provide even more links, but I think you can get the point.

  • On the post: Asking Fans For Support Isn't Begging, It's Solidifying Our Relationship

    Karl ( profile ), 04 May, 2012 @ 07:35pm

    Re: Re: Re: Re: Re: Re: Re: Re: Question

    you really are just being argumentative for the sake of it.

    Actually, if the link he posted below is any indication, he's being argumentative because he's a complete loon.

  • On the post: How Amanda Palmer Built An Army Of Supporters: Connecting Each And Every Day, Person By Person

    Karl ( profile ), 04 May, 2012 @ 06:35pm

    Re: Cost of hiring a team?

    Just how many young, independent artists starting on their career path do you think can hire and pay for a team to send hundreds of emails and make hundreds of phone calls? Oh, and while holding down a day job and writing and recording kick ass music.

    How, exactly, do you think Amanda started out?

  • On the post: Nobody Cares About The Fixed Costs Of Your Book, Movie, Whatever

    Karl ( profile ), 04 May, 2012 @ 06:18pm

    Re:

    It doesn't give you the right to pirate it

    You know how many times Mike has said it did?

    Zero.

    You know how many times piracy was mentioned at all in this article?

    Zero.

    You know what has absolutely nothing whatsoever to do with the subject of this article?

    Piracy.

  • On the post: Asking Fans For Support Isn't Begging, It's Solidifying Our Relationship

    Karl ( profile ), 03 May, 2012 @ 09:25am

    Re: Re: Re: Re: Re: Question

    just support the music you like by paying the artist directly for the record.

    One thing to mention: For most people, this is literally impossible. They can't pay the artist directly for the record, they're forced to pay the record label. And, as I'm sure you know, record labels are about as trustworthy as Exxon Mobil in the public's eyes.

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