Congress Begins To Wonder Why ICE & DOJ Censored A Popular Hip Hop Blog For A Year

from the asking-good-questions dept

We already discussed the RIAA’s attempt to downplay its role in helping the feds seize and censor the popular hiphop blog Dajaz1.com. It seems the feds are also trying to brush this off as if it’s nothing important. According to a comment they gave Ben Sistario at the NY Times:


Ross Feinstein, a spokesman for Immigration and Customs Enforcement said Sunday that government officials had followed all proper procedures in the case of Dajaz1, which was one of more than 760 sites seized.

That really makes you wonder. How is it possible that they could have followed “all proper procedures” when the end result is that they stopped a popular blog from publishing for well over a year, without ever actually filing a lawsuit? If that’s the “proper procedure” then the procedure is what most people call “unconstitutional.”

Thankfully, it appears some are noticing this. Senator Ron Wyden clearly understood what’s going on and told Techdirt:


“The domain name seizures show that some agencies in the Obama administration care more about the interests of Hollywood studios and the big record labels than due process, transparency, and accountability. It is hard to believe that ICE and DOJ had Dajaz1’s Fifth amendment rights in mind when they seized their property and held it for more than a year without ever being able to build a case.”

Rep. Zoe Lofgren spoke out about the case to Politico, pointing out that the seizure appears to break the law:


“A blog has the same protections as a newspaper or magazine, and yet ICE saw fit to seize this site for over a year for dubious reasons,” Lofgren told MT. “It’s an outrageous abuse of First Amendment and due process rights, raising serious questions about why the Department of Justice allowed this seizure to continue when the government clearly did not have probable cause.”

Indeed. With Wyden concerned about the Fifth Amendment and Lofgren concerned about the First… I’m guessing that this isn’t the end of the discussion around this particular seizure.

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Comments on “Congress Begins To Wonder Why ICE & DOJ Censored A Popular Hip Hop Blog For A Year”

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354 Comments
Anonymoussays:

Re: Re:

In striking turn of events….

Questions about why due process was ignored at the RIAA’s request were ignored….

Update at 11:00 on CNN(where we will ignore the issue and pretend that our masters, the entertainment industry, know what they are doing)….

No this isn’t some sick twisted reality like TV show, why do you ask?

John Doesays:

This is the end of the discussion

I’m guessing that this isn’t the end of the discussion around this particular seizure.

At the risk of being a pessimist, this discussion will go no where. At most, it will make the ICE and DOJ think a little harder before doing it again, which would be a good result, but nothing will come of this particular seizure.

What I want to know is, when the government violates our constitutional rights, what is our recourse? We can go to jail and/or pay huge fines for copying, not taking but copying, a song. Yet the government violates the very foundation of our country and all they get is a little discussion in congress? Why isn’t someone in jail for this stuff? The judge? The DOJ & ICE department heads? The president? Someone!!!!!!!!!

Rapnelsays:

Re: Re: This is the end of the discussion

Word.

If you’re above it then, fuck you, so am I. You’ve proven its worth now why should I listen?

The DOJ is a fucking tool. ICE is, clearly, a fucking a tool.

I want to know who’s doing the swinging. I want to know why and then I’m want them to eat cat poopies.

Just why does our money get used against us is so many different ways? Continental protection is cool but protection from myself? Fascist tendencies? What gives?

Control me.. please. I fucking love it. Cunts.

Andrew Fsays:

Re: Re: This is the end of the discussion

Well, you could always try suing the government. If it’s an ongoing violation, or if you’re likely to have your rights violated in the near future, then you can sue the government to make it stop.

But if it’s a one-and-done deal, then it’s a lot harder. In the past, courts have awarded monetary damages to people who’ve had their 4th Amendment rights violated (see Bivens v. Six Unknown Federal Agents), but AFAIK, they’ve never done that for 1st and 5th Amendment claims. I suppose you could also argue that the website seizure was a “taking” without compensation and demand payment for the one year it was seized, although I’m not really up to snuff on takings law.

btr1701says:

Re: Re: This is the end of the discussion

What I want to know is, when the government
violates our constitutional rights, what is
our recourse?

A Section 1983 civil suit for deprivation of civil rights under color of authority. You can not only hold the government liable, but you can sue the individual agents personally as well.

It’s actually the one thing federal agents are terrified of. They can lose their house, car, retirement, etc. in a successful 1983 suit.

Anonymous Cowardsays:

I like that second quote. Now if only we could get a response from the AC who kept saying blogs don’t get the same protections as newspapers/magazines.

Then again, I’m sure he’ll say that just because a Senator is saying that DOES NOT make it so, especially since the AC seems to be an expert on everything (per his own words). Music, economics, law, technology, etc.

Well, I’ll expect a response shortly. These ACs only tend to avoid articles where there is clear wrongdoing by the studios/labels (as in an artists or director is suing them for whatever reason and actually has proof to substantiate their claims, thus the suit). Otherwise, everyone is wrong and how dare we question the studios/labels and what the heck do we know.

Anonymoussays:

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

But the domain name was seized because there was probable cause to believe that it was property used to commit criminal infringement. The fact that the domain names were also used for First Amendment-protected activity is irrelevant. See Arcara v. Cloud Books. The government did not censor the protected speech–the protected speech was not the reason the domain name was seized in the first place. Everyone is still able to carry on their protected speech elsewhere. There is no licensing scheme, no need to get a censor’s prior approval, no injunction, no prior restraint. The conduct that brought the remedy here was wholesale copyright infringement, which does not contain an expressive element and gets no First Amendment protections. The fact that the seizure and forfeiture have an incidental effect on protected speech is irrelevant.

Rikuosays:

Re: Re: Re:2 Re: Re: Re: Re:

Read this article
http://www.techdirt.com/articles/20120502/16575418746/judge-lets-feds-censor-blog-over-year-so-riaa-could-take-its-sweet-time.shtml

COURT DOCUMENTS basically said that there couldn’t have been “probable cause to believe” that the property was used to commit criminal infringement, because the labels never provided any evidence. ICE asked the labels for the evidence but it was never provided.

John Fendersonsays:

Re: Re: Re:2 Re: Re: Re: Re:

But the domain name was seized because there was probable cause to believe that it was property used to commit criminal infringement.

Well, since there is apparent no such substantial infringement, perhaps the “probable cause” part is far too low of a bar. When we’re talking about actions that will violate innocent other’s constitutional rights it seems that the bar should be something like “conviction”.

Everyone is still able to carry on their protected speech elsewhere.

That’s misleading and not entirely relevant. If a newspaper is shut down because of a dispute over a single article, free speech has been infringed. That the authors in the paper could publish their words elsewhere doesn’t enter into it and, as a practical matter, how would the paper’s audience know where to go to find them?

There is no licensing scheme, no need to get a censor’s prior approval, no injunction, no prior restraint.

So? Although censorship often contains those elements, it doesn’t need to. Simple fear of capricious prosecution can do the job quite nicely.

The fact that the seizure and forfeiture have an incidental effect on protected speech is irrelevant.

I think I know what you’re trying to say, but that phrasing is, quite frankly, very frightening. The implication of it is that we have no real constitutional rights because they can be overridden, even as a side-effect, when it’s convenient pursuant to criminal investigation.

If that’s true, then what’s the point of the constitution at all? Rights don’t mean squat if they can be set aside so easily.

Anonymoussays:

Re: Re: Re:3 Re: Re: Re: Re: Re:

I think I know what you’re trying to say, but that phrasing is, quite frankly, very frightening. The implication of it is that we have no real constitutional rights because they can be overridden, even as a side-effect, when it’s convenient pursuant to criminal investigation.

It’s not that frightening at all. If property is used to commit crimes, that property gets seized and forfeited. That the property was also used for good is irrelevant. As long as the seizures are not pretextual, and as long as the underlying crimes are nonexpressive, the First Amendment just isn’t even implicated. I know this is a hard sell to the Techdirt crowd, but that’s the law.

John Fendersonsays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re:

If property is used to commit crimes, that property gets seized and forfeited.

I’m not arguing against that, actually (although I think there are relevant nuances that can be made). In the case at hand, though, it’s not been established that crimes were committed. There’s not even any probable cause. There’s just accusations.

Anonymoussays:

Re: Re: Re:5 Re: Re: Re: Re: Re: Re: Re:

I’m not arguing against that, actually (although I think there are relevant nuances that can be made). In the case at hand, though, it’s not been established that crimes were committed. There’s not even any probable cause. There’s just accusations.

Oh, you mean like an arrest?

Rikuosays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

Who said anything about arrests? This case is basically the government going up to your web site, saying “Yoink!” all on the accusation of a third party. Why is it that you can’t understand that? You yourself have said multiple times “preponderance of evidence” and “probable cause”, but for that to be true, there has to be evidence! Which never existed!

John Fendersonsays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re:

It’s not that frightening at all.

How is it not that frightening that I, as an innocent citizen, can have my constitutional rights violated without even having a day in court?

I know this is a hard sell to the Techdirt crowd, but that’s the law.

It may be the law, but firstly, just because it’s the law doesn’t mean it’s correct or ethical and secondly, the law is malleable. it can be fixed.

If we just threw up our hands and said “oh well, that’s the law, let’s move on” then there are myriad horrible historical injustices perpetrated by the law that would never have been corrected.

Anonymoussays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re:

Except as it applies to the First Amendment this would fall under Prior Restraint. In order to proceed with that sort of action, the government must: clearly define what’s illegal, cover the minimum speech necessary, make a quick decision, be backed up by a court, bear the burden of suing and proving the speech is illegal, and show that allowing the speech would “surely result in direct, immediate and irreparable damage to our Nation and its people”

Under those guidelines, I fail to see how the DOJ and ICE complied with the law as currently interpreted.

Anonymoussays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

” since the conduct that drew the remedy in the first place is nonexpressive.”

You assume there was illegal content which is the problem because ICE assumed it to after the RIAA said there was but did not supply any evidence of it. A company and/or its trade organization accusing you of a crime without any evidence should not qualify as illegal conduct or probable cause of illegal conduct.

Anonymoussays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

Show us the conduct that was nonexpressive? Because the DOJ clearly couldn’t, thus your argument is nonsensical. That is why the tests the AC before you listed are so important. I also do not see how you can claim that ‘no presumptively protected expression are being restrained’ on a blog. Everything posted is presumptively protected expression, and shutting it down is restraining it!

Anonymoussays:

Re: Re: Re:7 Re: Re: Re: Re: Re: Re: Re: Re: Re:

No, the links to copyrighted material are not presumptively protected speech. The Lemley article I linked to above explains this. The rest of the speech on the websites isn’t just presumptively protected speech–it is actually protected speech. Just like the bookstore in Arcara, it’s no restraint to force someone to give up property that’s tainted by a nonexpressive crime. There’s no injunction in place–the proprietors of the seized domain name are free to carry on their protected activities with the property they have left. They aren’t looking at any contempt order if they do. They don’t have to get anyone’s permission. There is no restraint. They just lose the domain name, though, because there’s probable cause to believe it’s facilitating crime. Instruments of crime get seized and forfeited. It’s as simple as that. The fact that the seized property is also used for protected expressive activities is irrelevant.

Karlsays:

Re: Re: Re:8 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.

Re: Re: Re:9 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.

Mike Masnicksays:

Re: Re: Re:10 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

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.

This is actually a key point which the AC law student still doesn’t seem to get. He keeps calling it “wholesale” when it was not.

Anonymoussays:

Re: Re: Re:11 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

This is actually a key point which the AC law student still doesn’t seem to get. He keeps calling it “wholesale” when it was not.

I get that you think in this particular case, with Dajaz1, that there’s more going on than just wholesale infringement. I think if true, that makes this case the exception and not the rule. I think in the run of the mill cases, though, it will be simple piracy. Nonexpressive, vanilla, wholesale piracy.

As far as links go, I don’t see much difference between giving someone a link and giving them the file. I think it puts form over substance to pretend that one is so completely different than the other.

Gwizsays:

Re: Re: Re:12 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

As far as links go, I don’t see much difference between giving someone a link and giving them the file. I think it puts form over substance to pretend that one is so completely different than the other.

I know real world anologies don’t always translate into the digital realm, but let me give this a try:

Xeroxing a book off of the shelf of the local library would be copyright infringement. Xeroxing the public card catalog (do libraries have these any more?) that describes on which shelf that book is located would not be infringement. Holding the library and the librarian liable for pointing to a book that someone else Xeroxed would be insane.

The book equals a file of copyrighted content. The card catalog index card equals the link to said content.

Anonymoussays:

Re: Re: Re:10 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

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.

I don’t see the difference between giving someone a link to a work, and giving someone the work itself. I know the Ninth Circuit has adopted the server test, but no other circuit has, and I think that test misreads the Copyright Act. That’s a whole different topic though. Suffice it to say that a link points to an identical copy (that’s the whole point of a link), so I think it’s incorrect to pretend like linking to something is far different than just distributing the linked-to file.

The Infamous Joesays:

Re: Re: Re:11 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Allow me to help you.

If I have an ebook on my computer and I copy it to paper, I have infringed on the copyrights of someone.

If I have a link to an ebook and I copy it to paper, I have not infringed on the copyrights of someone.

That concludes today’s lesson.

Checkersays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

There is no evidence discussed in the filing to the magistrate, only representations by a third party without evidence provided. The allowance under Arcara was made due to the amount of evidence and and investigation by the law enforcement authorities prior to the seizure – what we have here is a case that lays out a clear counterpoint to Arcara – where the seizure is more likely to be pretextual than evidence based given the factual situation. That outcome will be far more harmful to the labels long term interests than this negative PR, the LEAs will have a new leash on them when it comes to seizing assets whose primary purpose is communication of (unpopular) ideas.

btr1701says:

Re: Re: Re:7 Re: Re: Re: Re: Re: Re: Re: Re: Re:

There is no evidence
discussed in the
filing to the magistrate,
only representations
by a third party
without evidence
provided.

First, let me start by saying I think the government’s actions in this case were a severe overreach and should not have happened.

Having said that, however, I have to point out the error in everyone saying ‘there was no evidence presented, just an accusationby the RIAA’. The accusation is evidence. It’s testimonial evidence and such evidence forms the basis for search warrants and seizures all the time.

When I apply for warrants, many times the only evidence I have to make my probable cause is some snitch or neighbor or other informant’s testimony. Basically, nothing but an accusation. And it’s the judge’s job to decide if the person making the accusation is credible enough to base a warrant on their testimony.

In this case, I think the judge is the one that failed by not recognizing the historical bias of the RIAA and realizing how little credibility their accusations have. But to say it’s not evidence is incorrect.

Anonymoussays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

First, IIRC, as pointed out elsewhere in posts and comments on this site, dajaz1 had permission to use those tracks. If this is true, then there was no infringement.

Second, this was overkill no matter how you look at it. If the tracks were infringing, all they had to do was send a DMCA notice and take down the blog posts in question – problem solved. There was no need to shut down the entire blog because of a tiny subset of its data.

I don’t know about you, but I’m more inclined to believe those who can actually provide facts over those who won’t.

John Fendersonsays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

Didn’t they have evidence of infringing tracks? You think the agents were just pretending to have evidence so they could shut down the blog? I don’t see it.

If they had evidence, they didn’t mention it in the court filings.

What they had were the presence of copyrighted tracks. By itself, that’s not evidence of anything and, in fact, those tracks turned out to be authorized.

They also had the accusation (unsupported by evidence) of copyright infringement. This also, by itself, does not constitute evidence of wrongdoing.

What I think happened here is that RIAA cried copyright infringement and the feds took them at their word and proceeded as if they were a trustworthy source. As the feds found out, they are not.

Anonymoussays:

Re: Re: Re:7 Re: Re: Re: Re: Re: Re: Re: Re: Re:

They had the presence of copyright tracks plus specific accusations, right? Isn’t that enough for probable cause? I realize the accusations may have turned out to be unfounded, but there was technically still probable cause as far as I can tell.

Anonymoussays:

Re: Re: Re:8 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

How do you show probable cause in this case? An accusation and the presence of something? Really?

So if I buy a drill from a store, and someone else from the store accusing me of stealing it in the parking lot, that’s probable cause?

An accusation and coincidental possession? So, if I accuse you of beating your wife, and she has bruises, thats probable cause, right?

I mean the accusation is coming from me, a private citizen, much like the RIAA gave accusations to the DOJ, you know, a private company doing the same thing.

Somehow, I doubt the police would listen to me, but I’m guessing they will listen long and hard to anything the RIAA makes up. Even if its a fabrication every single fucking time. And even if my accusations are correct 100% of the time.

So, is it really that simple?

G Thompsonsays:

Re: Re: Re:8 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

No way, especially since the specific allegations were based on biased witness testimony.

Also did they actually recover evidence? recover digital data? No, they just used basic testimony and some log files they themselves created which could at the minimum form the foundation to initiate an investigation. But Do not give cause especially in a criminal investigation.

This is NOt a civil discovery thing where onus is on both sides. the ONUS is on prosecution to show cause no one else, and especially not witness’s which is what the RIAA is. Witness’s need to stay in a corner and shut the fuck up until called for examination not carry out their own investigation and taint the evidence (what there is of it) pool.

John Fendersonsays:

Re: Re: Re:8 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

They had the presence of copyright tracks plus specific accusations, right? Isn’t that enough for probable cause?

I sure hope not, since it’s extremely thin gruel. If it were my call, that would be enough to begin an investigation but not even close to “probable cause”.

Watchitsays:

Re: Re: Re:8 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

As the above commenters stated, this wasn’t enough for “probable cause”, but even if there were then it still doesn’t excuse holding onto the site for a year and then doing nothing with it, not to mention all the “secret extensions” that were filed late anyway.

Watchitsays:

Re: Re: Re:8 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

As the above commenters stated, this wasn’t enough for “probable cause”, but even if there were then it still doesn’t excuse holding onto the site for a year and then doing nothing with it, not to mention all the “secret extensions” that were filed late anyway.

G Thompsonsays:

Re: Re: Re:7 Re: Re: Re: Re: Re: Re: Re: Re: Re:

Exactly

Basic rule of any criminal investigation.

Human witnesses are unreliable and mean squat unless you have hard physical evidence. If all you have are witnesses that have their memory (and their notes are not relevant) as their only record of true and correct matters (or so they think) then your case is blown before you even start it.

Witness’s are a great source for timelines, and ideas to allow you to search and find facts, but that’s basically about it until you get to court. But even then putting someone from RIAA on the stand in a crim trial as a witness?? Bwahahahahahahaha

G Thompsonsays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re:

Your confusing intentional usage with innocent usage or usage by mistake.

Since it as a criminal situation the bar is a LOT higher, also if the property is seized and there is no charges and never will be that property can be recovered, especially if it can be proven that the forfeiture was done with malice, nonfeasance or even knowingly illegally.

Remember there is a reasonable clause in your forfeiture and eminent domain laws – which is what forfeiture actually is for the purpose to stop/mitigate/remove harm to community at large [criminality].

The breach of the 1st Amendment (if it is) is a tiny footnote compared to the other wrongs that have occurred here.

Gwizsays:

Re: Re: Re:2 Re: Re: Re: Re:

But the domain name was seized because there was probable cause to believe that it was property used to commit criminal infringement.

Ummm. No. The domain was seized and it’s become very apparent that there wasn’t probable cause in this case at all.

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

Wrong. Arcara is quite explicit: IT DOES NOT APPLY TO cases involving expression. Websites are expression.

The government did not censor the protected speech–the protected speech was not the reason the domain name was seized in the first place. Everyone is still able to carry on their protected speech elsewhere. There is no licensing scheme, no need to get a censor’s prior approval, no injunction, no prior restraint.

Yes they did censor protected speech. The protected speech may have not been the reason for the seizure, but it was surly censored. Whether there is another avenue for the speech is immaterial, it is prior restraint.

The government did not censor the protected speech–the protected speech was not the reason the domain name was seized in the first place. Everyone is still able to carry on their protected speech elsewhere.

Wrong again, existing case law and the Constitution demand that the scope be limited to the unprotected, unlawful speech only. That clearly didn’t happen here.

Gwizsays:

Re: Re: Re:3 Re: Re: Re: Re: Re:

Ooops.

My last sentences were directed at this part:

There is no licensing scheme, no need to get a censor’s prior approval, no injunction, no prior restraint. The conduct that brought the remedy here was wholesale copyright infringement, which does not contain an expressive element and gets no First Amendment protections. The fact that the seizure and forfeiture have an incidental effect on protected speech is irrelevant.

Anonymoussays:

Re: Re: Re:3 Re: Re: Re: Re: Re:

Wrong. Arcara is quite explicit: IT DOES NOT APPLY TO cases involving expression. Websites are expression.

Nope. The bookstore in Arcara was very much involved in protected expression, yet the order to close the bookstore based on nonexpressive crimes was “no restraint at all” to the protected expression that took place in the bookstore.

The fact that the domain names are used for protected expression is completely irrelevant because the crime that brought about the seizures is not expressive.

E. Zachary Knightsays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re:

Wrong. The book store lost the order because of two factors that do not exist in the Dajaz1 case:

1) The crime behind the closure of the book store was not a crime of expression. Meaning the crime was not protected by the First Amendment.

2) Closing the bookstore was the least restrictive means of ending the criminal activity.

The Dajaz1 case does not meet either of those criteria. The “crime” that Djaz1 was accused of was expressive and falls under the First Amendment. Additionally, seizing the domain was not the least restrictive means of endin the “crime”. The least restrictive means would have been sending DMCA takedown notices.

Arcara does not allow for the closure of a book store because one or more books it sells is illegal. It does not allow the closure of a movie store because one or more movies are illegal. It does not allow for the closure of a website because one or more entries are illegal.

Anonymoussays:

Re: Re: Re:5 Re: Re: Re: Re: Re: Re: Re:

The crime behind the seizures here is not a “crime of expression” either. Wholesale copyright infringement contains no First Amendment-protected element.

There is no need for least restrictive means with these seizures. You don’t get heightened scrutiny, much less strict scrutiny with the forfeiture statute. It’s a generally applicable regulation = no heightened scrutiny. The fact that protected speech is incidentally affected is irrelevant.

Arcara teaches that when the crime that brought the remedy in the first place is not expressive–as wholesale copyright infringement is not–then the First Amendment is not even implicated. The whole First Amendment argument is a total red herring.

E. Zachary Knightsays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

Wholesale copyright infringement contains no First Amendment-protected element.

Where is the evidence of such “wholesale copyright infringement”? The DOJ was unable to find any evidence of it, hence the return of the domain. The RIAA was unable to find any evidence of it, hence the ignoring the DOJ’s questions.

As for your claim that copyright infringement is not expressive, I would suggest you do a little more study on fair use and its implications here. The work that Dajaz1 could very well be protected under a fair use defense. To completely blow off that as you are is ignorant at best.

Anonymoussays:

Re: Re: Re:7 Re: Re: Re: Re: Re: Re: Re: Re: Re:

As for your claim that copyright infringement is not expressive, I would suggest you do a little more study on fair use and its implications here. The work that Dajaz1 could very well be protected under a fair use defense. To completely blow off that as you are is ignorant at best.

I’m glad you brought this up. Some use of copyrighted works would be protected use, such as fair use or using facts or ideas (instead of expression). Those types of uses would involve the First Amendment. But wholesale copyright infringement, on the other hand, is not expressive. And that’s the type of infringement at issue here. Moreover, 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. This is a fairly nuanced, subtle point.

Rikuosays:

Re: Re: Re:8 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

“Moreover, even if dajazq1’s use turns out to be authorized via a license,”

Why are you saying IF? IF? You’re sounding like there were charges made and the trial hasn’t happened.
Except there have been no charges and there will be no trial. Just ICE taking the domain then quietly giving it back a year later.

Anonymoussays:

Re: Re: Re:9 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

The point is that if a site like dajaz1 has a good defense, like a license, that doesn’t involve the First Amendment (in other words, their defense doesn’t turn on the First Amendment, like a defense claiming fair use or facts/ideas would), then there is no prior restraint issue. Even if the use turns out to be licensed or otherwise authorized, there was no chance the links were First Amendment-protected speech. It’s subtle.

Lowestofthekeyssays:

Re: Re: Re:12 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

According to the Fourth Amendment – “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” – a oath of affirmation is needed to support use of probable cause.

This is also what the other AC referred to as a “Affidavit” or a “solemn and formal declaration of the truth of a statement.”

The RIAA made no attempt to back up their assertions. They essentially assumed something was amiss and told the government to shutdown a legitimate blog for a year without any evidence for that assumption.

E. Zachary Knightsays:

Re: Re: Re:8 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

You have still not provided one key fact to support your argument. Where is the evidence of “wholesale copyright infringement”? Like I said already, the DOJ was not able to provide such evidence. Neither was the RIAA. If your whole argument is going to hinge on something like that, you might want to provide supporting evidence.

Moreover, 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

If the music was licensed, then there was no crime committed. If no crime was committed, then Dajaz1 had its whole blog censored for no reason at all. How in the world does that make it NOT a First Amendment issue?

Anonymoussays:

Re: Re: Re:9 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

You have still not provided one key fact to support your argument. Where is the evidence of “wholesale copyright infringement”? Like I said already, the DOJ was not able to provide such evidence. Neither was the RIAA. If your whole argument is going to hinge on something like that, you might want to provide supporting evidence.

Wasn’t there an affidavit and a warrant. Look there. I really don’t have the facts on this particular case, I’m afraid. I’m just talking about the seizures generally, in which case an agent conducts an investigation, presents things to a court, and gets a warrant.

If the music was licensed, then there was no crime committed. If no crime was committed, then Dajaz1 had its whole blog censored for no reason at all. How in the world does that make it NOT a First Amendment issue?

All that matters is the speech that brought the remedy in the first place. If the music turns out to be licensed, and not infringing, then the reason it’s not infringement has nothing to do with the First Amendment. The license gives the site the authority to post the links, not the First Amendment. As such, when the links are seized, there’s no chance that First Amendment-protected speech is being seized. At best, the links are authorized by license.

I know what you’re thinking–“What about the fact that the site is seized?” Again, that’s not relevant. What’s relevant is the conduct that brought the seizures and forfeitures in the first place. As long as that speech is not presumptively protected, which it’s not here, there is no chance that protected speech will be seized. The incidental effect the seizure has on protected speech is irrelevant, and like the bookstore in Arcara, the fact that it will have to more elsewhere–even if difficult to do–is irrelevant to the seizure.

Lowestofthekeyssays:

Re: Re: Re:10 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

“Wasn’t there an affidavit and a warrant. Look there. I really don’t have the facts on this particular case, I’m afraid. I’m just talking about the seizures generally, in which case an agent conducts an investigation, presents things to a court, and gets a warrant.”

I quoted to you an article stating the seizure was based on “assertions” by the RIAA.

http://www.ballerstatus.com/2012/05/09/dajaz1-com-returned-owner-seized-ice-owner-lashes-riaa/

Leigh Beadonsays:

Re: Re: Re:10 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Your interpretation of the first amendment is insane.

You’re saying that blocking infringing content is not a first amendment violation – but blocking licensed content is also not a first amendment violation? You are crazy.

Anonymoussays:

Re: Re: Re:11 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Your interpretation of the first amendment is insane.

You’re saying that blocking infringing content is not a first amendment violation – but blocking licensed content is also not a first amendment violation? You are crazy.

When a website gets taken down because its domain name is seized, then yes, the protected speech on that site is no longer accessible using the seized domain name. But it’s not as simple as “protected speech no longer accessible = First Amendment!” You have to look at why the speech was blocked.

With the seizures generally, there is probable cause to believe that the domain names were used to facilitate crime. As a subsequent punishment, the domain names are then seized and forfeited. The fact that the domain names are also used for protected expression is irrelevant to the reason why they’re being seized and forfeited.

E.g., If you use a warehouse to print and distribute the most beautiful poetry in the world, and you also use that warehouse to run a human trafficking operation, then the warehouse can be seized and forfeited. The fact that poetry was created there is irrelevant.

Anonymoussays:

Re: Re: Re:12 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Again you are making arguments that do not apply to this case. Nothing is black and white in copyright cases so you cannot apply general principles to domain seizures as a whole since each site has their own circumstances. The fact that you think you can is disturbing.

Gwizsays:

Re: Re: Re:10 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Again, that’s not relevant. What’s relevant is the conduct that brought the seizures and forfeitures in the first place. As long as that speech is not presumptively protected, which it’s not here, there is no chance that protected speech will be seized.

Perhaps you not being familiar with this case is causing you to jump to some incorrect conclusions. From what I saw of Dajaz1 they are primarily a blog site, full of reviews and opinions. The links are are a very small percentage of the speech. You claiming that it’s not protected speech is wrong. Perhaps the links are not protected, but they are a very small percentage. Most of the speech that was censored is completely and totally protected. The scope was not limited as required per existing case law.

Lowestofthekeyssays:

Re: Re: Re:12 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

To be fair…the ICE is not exactly known for determining what constitutes something criminal

http://decryptedmatrix.com/live/5-reasons-why-the-us-domain-seizures-are-unconstitutional-2/

“ICE also unwittingly made its critics? point last month when it mistakenly seized the domain names of 84,000 websites. The Government had falsely accused the sites of child pornography. This type of large-scale, disastrous mistake illustrates the constitutional deficiencies of the seizures.”

That’s a pretty big mistake and when the important point is whether or not the website is committing some criminal activity, the ICE has shown itself to be unreliable already.

Anonymoussays:

Re: Re: Re:13 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

There’s a couple cases you can focus on that makes ICE/DOJ look bad, but I think for the most part the seizures and forfeitures have gone off without a hitch. Most cases are just simple piracy. Outliers that have a viable fair use defense raise some interesting issues, though. Food for thought.

Lowestofthekeyssays:

Re: Re: Re:14 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

True, though they set the example for being thorough when they make the judgement call to shutdown a website. If a website acts as someones livelihood and it’s taken away on an assumption…that’s kind of scary.

Eponymous Cowardsays:

Re: Re: Re:14 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

When contemplated what you just said is outright idiotic; you’re essentially arguing that the government violating the constitutional rights of innocent civilians isn’t a big deal! Why? Because they are trying to prevent crime? Being no legal scholar myself, still, I assume that our constitutional rights are more important then crime prevention. I’ll illustrate how dumb your sentence is by replacing a few key words: “There’s a couple cases you can focus on that makes the DEATH PENALTY look bad, but I think for the most part the GOVERNMENT SANCTIONED MURDERS have gone off without a hitch. Outliers that have a viable FALSELY CONVICTED defense raise some interesting issues, though. Food for thought.” Are you so blas? about innocent people murdered by the state in its effort to fight crime? Also, as an aside, I don’t think this is hyperbole on my part either for IMO our constitutional rights are as important as our lives. Digging further into the logic of your point; the very fact that innocent citizens are being harmed in these enforcement efforts do present a major hitch that can’t be dismissed by cheap ploys like calling them “outliers”. If ICE/DOJ were doing their job right then Dajaz1 should never have been an “outlier”.

Gwizsays:

Re: Re: Re:12 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

What matters is whether the site the domain names pointed to were used to commit criminal infringement.

That’s another issue here too. Criminal copyright infringement has a “willful” component. If three of ICE’s examples were used with permission (I believe Dajaz1 has claimed they have email proof this) then the willful component is extremely suspect. Not sure the government should have seized this domain name at all.

Almost Anonymoussays:

Re: Re: Re:12 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

What percentage of the site that criminal infringement constituted is irrelevant.

And according to you, that still applies even if the percentage is zero. “Zero percent of the site was used for wholesale copyright infringement so the seizure was A-OK!”

You know, I try to be above the ad-homs, but you are so STUPID that just reading what you write is making me feel stupid, so please, for the sake of us all, just stop.

John Fendersonsays:

Re: Re: Re:10 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

. As such, when the links are seized, there’s no chance that First Amendment-protected speech is being seized.

Well, except for all the other protected speech on the site that went along with the tracks in question.

So, the feds seized a site that, as far as anyone can tell, was not engaging in copyright violations. You argue there’s no first-amendment issue because the tracks were licensed, so the seizure is OK. Earlier you argued that the other protected speech being censored by accident is, in effect, an acceptable breach of first amendment rights.

So, by your logic, the government can pretty much seize any website they want and there won’t ever be a first-amendment problem with it. I have a hard time believing this to be true.

G Thompsonsays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

Your DMCA Statute begs to differ.

It could be shown that Congress enacted that statute as a means to give a least restrictive measure and in that way allow a graduated response of restrictive measures that at the most remove all items that are being used INTENTIONALLY in commission of a crime, and at the least use DMCA, and all ways in between.

Arcara is also irrelevant in that the fundamental elements of the crime do not match either

Gwizsays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re:

The fact that the domain names are used for protected expression is completely irrelevant because the crime that brought about the seizures is not expressive.

Heh. What crime? Apparently there wasn’t even enough probable cause to continue the forfeiture proceedings in this case.

Should have never been seized in the first place and most certainly shouldn’t have been secretly extended. Those extensions, by themselves, are classic prior restraint, even if the initial seizure procedures are found to be lawful (which is doubtful in my mind).

E. Zachary Knightsays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re:

Depends on how the “infringing” content is used. If it is posted in order to write a review on the content, then it could very well be considered a fair use. Fair use constitutes a wide area of protected uses of copyrighted works. There is no black and white here. There is a lot of grey.

E. Zachary Knightsays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

Websites can be expression but it is the particular circumstances that determine it.

While that is in itself a true statement, there is nothing in the Arcara case that specifically allows the seizure of a domain name or website. As I said before, there are two factors that were key to the Arcara case that are completely absent from the Dajaz1 case:

1) The crime behind the closure of the book store was not a crime of expression. Meaning the crime was not protected by the First Amendment.

2) Closing the bookstore was the least restrictive means of ending the criminal activity.

John Fendersonsays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re:

You are saying that posting infringing content constitutes “expression” by a website?

It’s not clear that this site was doing that. But it is clear that there was a lot of expression on that site that was noninfringing protected expression. It’s this expression that Gwiz (and myself) are concerned with.

DannyBsays:

Re: Re: Re:2 Re: Re: Re: Re:

The conduct that brought the remedy here was wholesale
copyright infringement, which does not contain an
expressive element and gets no First Amendment
protections. The fact that the seizure and forfeiture
have an incidental effect on protected speech is irrelevant.

Very well then. Hollywood should be held to that argument.

One infringement, seize their domain name.

Other incidental effects on protected speech is irrelevant.

What’s good for the goose is good for the gander. The 14th amendment guarantees us equal injustice under the law, or something like that.

Mike Masnicksays:

Re: Re: Re:2 Re: Re: Re: Re:

But the domain name was seized because there was probable cause to believe that it was property used to commit criminal infringement.

First, the evidence shows that DOJ did not, in fact, have probable cause.

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

Have you read Arcara? It doesn’t apply. It only applies to breaking non-expressive laws. That’s not the case with copyright.

Fort Wayne Books v. Indiana applies here, and was not followed.

The government did not censor the protected speech–the protected speech was not the reason the domain name was seized in the first place.

Um, no, that’s a complete misreading of the situation. The accusations of infringement represented a small portion of the site’s content — all of which was shut down due to the seizure of the domain, which is the equivalent of the printing press.

Everyone is still able to carry on their protected speech elsewhere.

That is not the standard here.

There is no licensing scheme, no need to get a censor’s prior approval, no injunction, no prior restraint

Bullshit. Tell that to Dajaz1. They had no site for a year. That you would defend that as not being censorship is CRAZY.

The conduct that brought the remedy here was wholesale copyright infringement, which does not contain an expressive element and gets no First Amendment protections.

Um, no. That’s so wrong it’s not even funny. Claiming that infringement has no expressive element is clearly incorrect.

The fact that the seizure and forfeiture have an incidental effect on protected speech is irrelevant.

You call shutting down an entire popular blog with tons of non-infringing speech (in fact, it’s questionable if there was ANY infringing speech at all) “incidental”? Wow. You’re really pushing the boundaries of ridiculousness.

Sick.

Anonymoussays:

Re: Re: Re:3 Re: Re: Re: Re: Re:

First, the evidence shows that DOJ did not, in fact, have probable cause.

I think they did have probable cause at the time. The neutral magistrate agreed.

Have you read Arcara? It doesn’t apply. It only applies to breaking non-expressive laws. That’s not the case with copyright.

Fort Wayne Books v. Indiana applies here, and was not followed.

I have read Arcara. In fact, last night and again this morning. Wholesale copyright infringement contains no First Amendment-protected expression. Mark Lemley’s own paper with Eugene Volokh makes this point. See here: http://www2.law.ucla.edu/volokh/copyinj.htm#IVC

The preseizure hearings called for in the obscenity cases turn on the fact that whether something is obscene is a subjective analysis, and because the speech at issue may turn out to be protected by the First Amendment, more process is necessary.

With wholesale copyright infringement, as Puerto 80’s own lawyer Professor Lemley explains, there is no chance that presumptively protected speech will later turn out to be actually protected. This is the case with “piracy and other ‘easy’ cases,” as the professor explains.

Um, no, that’s a complete misreading of the situation. The accusations of infringement represented a small portion of the site’s content — all of which was shut down due to the seizure of the domain, which is the equivalent of the printing press.

There are lots of differences between printing presses and domain names, but still, I don’t see your point. Could a printing press not be seized and forfeited?

That is not the standard here.

Of course it is. That’s what Arcara explains. The problem is you don’t understand that the conduct that drew the remedy in the first place, wholesale copyright infringement (aka “piracy and other ‘easy’ cases”) is not expressive.

Bullshit. Tell that to Dajaz1. They had no site for a year. That you would defend that as not being censorship is CRAZY.

Of course it’s censorship, broadly defined. But it’s not a First Amendment issue. All law enforcement efforts are censorship on some level. So what?

Um, no. That’s so wrong it’s not even funny. Claiming that infringement has no expressive element is clearly incorrect.

Read the Lemley/Volokh article. Wholesale copyright infringement such as “piracy and other ‘easy’ cases” is not expressive. First Amendment-protected uses like fair use and use of ideas/facts would be expressive. Expressing other people’s copyrighted works based on a license doesn’t invoke First Amendment protection.

You call shutting down an entire popular blog with tons of non-infringing speech (in fact, it’s questionable if there was ANY infringing speech at all) “incidental”? Wow. You’re really pushing the boundaries of ridiculousness.

Sick.

I’m simply explaining the actual law to you. Sure, the incidental effect is even significant, but that doesn’t mean it’s prior restraint or otherwise violative of the First Amendment. It’s not.

John Fendersonsays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re:

Wholesale copyright infringement contains no First Amendment-protected expression.

And nobody is saying it is.

Also, nobody (not even RIAA or the feds) is claiming that this site was engaging in “wholesale copyright infringement”, so I’m not sure how this applies.

Mike Masnicksays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re:

I think they did have probable cause at the time. The neutral magistrate agreed.

As the evidence shows, they did not.

I have read Arcara. In fact, last night and again this morning. Wholesale copyright infringement contains no First Amendment-protected expression. Mark Lemley’s own paper with Eugene Volokh makes this point. See here: http://www2.law.ucla.edu/volokh/copyinj.htm#IVC

But we’re talking about a blog posting links to other sites, which is (a) expressive and (b) not wholesale copyright infringement.

The preseizure hearings called for in the obscenity cases turn on the fact that whether something is obscene is a subjective analysis, and because the speech at issue may turn out to be protected by the First Amendment, more process is necessary.

Whether or not this was infringing required subjective analysis and the speech at issue may (and in this case did) turn out to be protected, so more process is necessary by your own standard.

So why are you fighting it?

With wholesale copyright infringement, as Puerto 80’s own lawyer Professor Lemley explains, there is no chance that presumptively protected speech will later turn out to be actually protected. This is the case with “piracy and other ‘easy’ cases,” as the professor explains.

Except that we’re not talking about wholesale copyright infringement, and the content in discussion did turn out to be protected.

So you’re wrong. Again.

There are lots of differences between printing presses and domain names, but still, I don’t see your point. Could a printing press not be seized and forfeited?

There are not significant differences under the law. And a printing press can be seized and forfeited, but only after a higher bar that involves First Amendment scrutiny.

That did not happen.

Of course it is. That’s what Arcara explains. The problem is you don’t understand that the conduct that drew the remedy in the first place, wholesale copyright infringement (aka “piracy and other ‘easy’ cases”) is not expressive.

This was expressive. It was not wholesale copyright infringement. It wasn’t piracy and it wasn’t “easy.” So, no, Arcara does not apply. It’s pretty clear — despite your continued misreading of Arcara — that the case is simply inapplicable here since we’re dealing with expression. The fact that you insist that posting a link in a blog post is not expressive is just bizarre. I can’t imagine any reasonable judge ever agreeing.

Of course it’s censorship, broadly defined. But it’s not a First Amendment issue. All law enforcement efforts are censorship on some level. So what?

How can I possibly respond to a claim as ridiculous as this? If you don’t understand how taking down someone’s blog is a First Amendment issue, well… I hope whatever third tier law school you go to doesn’t charge too much.

Read the Lemley/Volokh article. Wholesale copyright infringement such as “piracy and other ‘easy’ cases” is not expressive. First Amendment-protected uses like fair use and use of ideas/facts would be expressive. Expressing other people’s copyrighted works based on a license doesn’t invoke First Amendment protection.

This wasn’t wholesale. It wasn’t piracy. It wasn’t “an easy case” under your definition. It was expressive.

And claiming that having a license takes away the First Amendment issue is ridiculous. And wrong. You aren’t giving up the First Amendment issues by invoking a license.

I’m simply explaining the actual law to you. Sure, the incidental effect is even significant, but that doesn’t mean it’s prior restraint or otherwise violative of the First Amendment. It’s not.

You are misinterpreting the law. I’ve been discussing this case with an awful lot of lawyers with a lot more experience than you. No one thinks your interpretation makes sense, let alone is an accurate explanation of the law.

Gwizsays:

Re: Re: Re:5 Re: Re: Re: Re: Re: Re: Re:

The fact that you insist that posting a link in a blog post is not expressive is just bizarre. I can’t imagine any reasonable judge ever agreeing.

What’s kind of funny here is that this was a response to a comment with a link in it.

If we go by AC’s logic, that entire comment the AC wrote is not expressive. That has a Twilight Zone feel to it.

Anonymoussays:

Re: Re: Re:5 Re: Re: Re: Re: Re: Re: Re:

As the evidence shows, they did not.

You’re going to have to spell that out for me. How was there not probable cause at the time the warrant was issued?

But we’re talking about a blog posting links to other sites, which is (a) expressive and (b) not wholesale copyright infringement.

Linking to a work can be a crime. I think in the run of the mill case, a link to a copyrighted work is completely nonexpressive. Don’t forget what Prof. Lemley says: “piracy and other ‘easy’ cases” present no spark of First Amendment-protected activity. Infringing on a work is not First Amendment-protected expression. Sure, with an outlier story like Dajaz1.com you can make other arguments, but with garden variety infringement such arguments are meritless.

Whether or not this was infringing required subjective analysis and the speech at issue may (and in this case did) turn out to be protected, so more process is necessary by your own standard.

If the links turned out to be authorized via a license, then that licensed speech is not also First Amendment-protected speech. See Lemley. Again, in the run of the mill, simple piracy cases, illicit links to copyright works are not going to be expressive enough to warrant any First Amendment protection. You’re really stretching the First Amendment with this argument. (As an aside: I think it’s funny that you frequently talk about how bloated copyright has become but you don’t ever seem to acknowledge the incredible expansion of the First Amendment at the same time.)

Except that we’re not talking about wholesale copyright infringement, and the content in discussion did turn out to be protected.

So you’re wrong. Again.

You say it was all protected, the RIAA says there was lots of infringement. I don’t know who’s right. In run of the mill cases, though, there’s not going to be an argument that the infringement is expressive. In “piracy and other ‘easy’ cases, as the professor explains, it’s a no-brainer.

There are not significant differences under the law. And a printing press can be seized and forfeited, but only after a higher bar that involves First Amendment scrutiny.

That did not happen.

I honestly don’t know what you’re referring to. I’ve actually read every single case that involves the First Amendment and a printing press that I could find in Westlaw (since I’ve been curious about this domain name = printing press argument), so I’m sure I would have seen this. Can you explain to me what this “higher bar” is?

This was expressive. It was not wholesale copyright infringement. It wasn’t piracy and it wasn’t “easy.” So, no, Arcara does not apply. It’s pretty clear — despite your continued misreading of Arcara — that the case is simply inapplicable here since we’re dealing with expression. The fact that you insist that posting a link in a blog post is not expressive is just bizarre. I can’t imagine any reasonable judge ever agreeing.

If the link to copyrighted material was done in the exercise of contractual rights, then there is no First Amendment element to that action. The First Amendment does not permit someone to make a link to copyrighted materials–the contract does. Without the contract, the link would be infringing.

How can I possibly respond to a claim as ridiculous as this? If you don’t understand how taking down someone’s blog is a First Amendment issue, well… I hope whatever third tier law school you go to doesn’t charge too much.

The reason is simple. The domain name is being seized as a subsequent punishment. The fact that this punishment indirectly affects the exercise of First Amendment rights is irrelevant. I came to this understanding after researching the issues diligently. I’m happy to back up my points with authority. The fact that you’re getting personal only tells me you don’t really have an argument.

This wasn’t wholesale. It wasn’t piracy. It wasn’t “an easy case” under your definition. It was expressive.

And claiming that having a license takes away the First Amendment issue is ridiculous. And wrong. You aren’t giving up the First Amendment issues by invoking a license.

You misconstrue what I said. If the work you’re linking to is under copyright, you don’t have any right to link to it. The First Amendment doesn’t protect linking that is infringement or facilitates infringement. When there is a license, then the person does have a contractual right to link to the copyrighted work. Absent the license, it’s infringement. The First Amendment is not in issue.

You are misinterpreting the law. I’ve been discussing this case with an awful lot of lawyers with a lot more experience than you. No one thinks your interpretation makes sense, let alone is an accurate explanation of the law.

I’ve done my homework, and I’ll debate your cadre of lawyers any place, any time. Funny how they’re never here, though. And we’ll see in the Rojadirecta case. I think you are about to be disappointed there.

Gwizsays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

You misconstrue what I said. If the work you’re linking to is under copyright, you don’t have any right to link to it. The First Amendment doesn’t protect linking that is infringement or facilitates infringement.

You completely leave out fair use in your arguments. If I link to copyrighted material to do a review of it, critique it or write a blog post about it, no permission is needed, period, under copyright law. That most certainly would be protected speech. How does that play into your black & white scenario?

Anonymoussays:

Re: Re: Re:8 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

” I think the vast majority of infringement is just plain vanilla infringement, though.”

And this is where you become a scary person who doesn’t get it and unfortunately for you, and for us should you ever manage to pass the bar, common sense can’t be taught in a book.

There is no such thing as vanilla infringement, the law is far too complicated for such a thing to exist. Entire law firms exist just based on twisting the confusion that is copyright law. The fact you don’t seem to get that is really unsettling. Don’t take this the wrong way when I say I hope you fail law school.

Gwizsays:

Re: Re: Re:12 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Even a child knows that getting the latest music and movies from torrent sites is illegal. Give me a break.

Heh. Apparently you don’t even know. If that latest tune or movie was put out as a torrent by the copyright holder, then it is perfectly legal. There is no way to tell simply by looking at a file.

And that’s not even considering that such sharing of copyrighted material for personal use is legal in some countries – like Spain, who’s courts found that Rojadirecta operated legally not just once, but twice.

Melsays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

“You’re going to have to spell that out for me. How was there not probable cause at the time the warrant was issued?”

It’s not our job to educate you on what is now public record and been widely reported on this site as well as many others. Google is your friend. If you’ve got so much time to research, perhaps you can do some on this case. Just a thought.

“I’ve done my homework, and I’ll debate your cadre of lawyers any place, any time. Funny how they’re never here “

You’re awfully confident/arrogant for a law student, I’m not sure I’m buying that. The fact that you think copyright infringement can ever be black and white shows the fallacy of your entire argument. There are many factors in play including fair use.

Anonymoussays:

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Arrogant? I don’t see the point in saying that there’s a group of lawyers who all say I’m wrong. If he has an argument, he should make it. If he has friends that disagree with me, I’d love to actually hear their arguments (as opposed to someone’s nonspecific claims). If I have the law wrong, I want to know.

As far as copyright infringement being black and white, I think the vast majority of times it easy. So does Professor Lemley, who happens to be Rojadirecta’s lawyer. He refers to it as “piracy and other ‘easy’ cases.” I think it’s disingenuous to pretend like it’s always a gray area whether someone’s infringing or not. Most of the time, it’s an easy case.

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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?

Anonymoussays:

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This is a subsequent punishment, not a prior restraint. That’s a critical point to understand, that you, Mike, and others aren’t picking up on. The seizure was subsequent to the investigation, affidavit, and warrant. The forfeiture comes after the seizure, and that’s when the final punishment is completed. The seizure just initiates the forfeiture process. But make no mistake, the seizure and forfeiture are subsequent punishment for suspected past criminal wrongs.

Karlsays:

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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.

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.

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.

Anonymoussays:

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What materials have been seized here? None. What injunction prevents protected expression in the future? None. The court in Pappert found that suspected child pornography, like suspected obscenity, could turn out to be protected expression. As I’ve explained several times already, in general, when one “speaks” a copyrighted work, that speech is not protected by the First Amendment. It’s either done by a right that’s been granted, or it’s infringement. Property that was used in the past to commit crimes is being seized and forfeited. The seizure and forfeiture are as punishment for the crimes the property already facilitated.

Anonymoussays:

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“in general, when one “speaks” a copyrighted work, that speech is not protected by the First Amendment. It’s either done by a right that’s been granted, or it’s infringement. “

If true, that would be very problematic. All “speech” is a copyrighted work as soon as it is fixed. This statement would invalidate the First Amendment entirely.

It seems like you are trying to form a distinction between someone who has been granted the right to use a work, and the creator/copyright owner of the work. There is no distinction. Both people have a granted right to use the work.

Without that distinction, there would be no First Amendment protection on any work created by anyone that is granted a copyright, based on your quote.

Anonymoussays:

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I’m not sure I follow you. The copyright author has the exclusive rights to the work when it’s fixed in a tangible medium. That’s the bundle of copyright rights that automatically inure to the author.

If others want to speak that copyrighted work, then either they do so by permission (like an implied license), by exercising their First Amendment rights (like with fair use), or it’s infringement (which is no permission, no First Amendment protection).

None of this invalidates the First Amendment.

Anonymoussays:

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Your statement was that its not protected by the First Amendment, when someone “speaks” a copyrighted work. I was just following you down that hole. When someone speaks a work with permission, it is the same as when an author speaks that work. Both have permission to speak that work. Both are protected by the Fist Amendment equally.

Anonymoussays:

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But an infringer is not protected by the First Amendment at all. 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.

Anonymoussays:

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You can’t determine if a person is an infringer until it goes to trial.

There is no way to know if the author of a work has the right to speak it. They may have already sold it. They are in the exact same situation as anyone else who wants to speak that work.

Anonymoussays:

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You can certainly collect evidence and present probable cause to a magistrate who issues a warrant. You prove the property’s role in the infringement at trial, but you still can seize the property ahead of that. This is just like any of piece of property.

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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.

Anonymoussays:

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Until a work is determined to be infringing, it is absolutely protected by the First Amendment.

And that determination is objective, and it can be made ex parte. You don’t get a prior adversarial hearing when it’s copyright infringement. This is why the Copyright Act even has a mechanism for seizing. I think it’s Section 503.

We’ll see soon enough. In the Rojadirecta case, the Second Circuit should have an opinion soon, and the district court should decide the Roja’s motion to dismiss soon as well.

The idea that authorized works are not protected by the First Amendment is just batshit insane.

Without that authorization, the First Amendment would not give you the right to “speak” the work (unless it was fair use, or something). If someone gives you a license to perform a copyrighted work, then it’s the license that gives you the right, not the First Amendment.

I think you should read the first four paragraphs of this: http://www2.law.ucla.edu/volokh/copyinj.htm#IVC

Professor Lemley explains it quite well. When there’s a license, “defendant’s conduct is not constitutionally protected speech, even if the defendant ultimately proves that it’s not a copyright infringement.”

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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 Procedureforbids 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.”

Anonymoussays:

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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.

I understand why that’d confuse you. The Lemley/Volokh article is making the argument that copyright laws are content-based restrictions on speech. That is not the law. First Amendment doctrine–the actual law–does not consider copyright laws to be content-based regulations of speech. Don’t misconstrue their arguments for what the law should be with what the law actually is. And you should notice too that even with their overly protective approach, they still admit that in piracy and other easy cases there’s no First Amendment issue. That should tell you something.

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.

And nowhere do they say that property can’t be seized and forfeited for its past use in crime because it’s also used for protected expression. Besides, there is no TRO here. There is no injunction. A piece of property was seized via warrant. The court is not prohibiting anyone from speaking. Property that was used in the past to facilitate crime is being forfeited–that’s all.

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.”

But that is exactly what they say: “Most cases alleging outright piracy, as well as most claims that the defendant has exceeded the boundaries of its license, would fall within this category. In this situation, the defendant’s conduct is not constitutionally protected speech, even if the defendant ultimately proves that it’s not a copyright infringement.” And I know the article is confusing, because they’re arguing about what the law should be, but the fact that they consider piracy and other easy cases to present no First Amendment issue should really tell you something %2

Anonymoussays:

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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.

Um, this is a civil case. It’s a civil forfeiture. The property is forfeitable if the government meets it burden of showing it was used to facilitate criminal copyright infringement. The underlying wrong is criminal, but the forfeiture action is itself civil. The burden of proof is the same.

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.”

Um, they’re saying that since in piracy cases since it’s so simple and there’s no First Amendment issue, copyright owners shouldn’t be worried about their proposal to change existing doctrine. Even in their extreme views, when it’s simple piracy, they don’t believe in anything that would upset copyright owners. It’s less worrisome because there’s no First Amendment issues when it’s simple piracy.

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

And that text they’re pointing to refers to obscenity case, where more process is needed than when it’s piracy and other easy cases. Don’t confuse Lemley the academic with Lemley the advocate.

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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.

Anonymoussays:

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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.

You misunderstand the test. The test isn’t whether it restricts expression. The test is whether it restricts protected expression. Copyright infringement is not protected expression, so a statute that allows for forfeiture of property used to commit copyright infringement is not a law that regulates protected speech. And since protected speech is not being regulated, there is no First Amendment review. It’s neither a content-based nor content-neutral statute, just like the law at issue in Arcara. It’s a law of general applicability.

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.

The forfeiture statute doesn’t single out protected expression. It singles out unprotected piracy. That exception from Arcara you’re trying to invoke doesn’t apply here.

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.

Again you don’t seem to understand that infringement is not protected expression. And if it’s not protected expression, then it, by definition, is expression that’s not protected by the First Amendment. This is the point of the Lemley/Volokh article. 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. You keep saying that someone who is infringing is engaging in protected expression. But that’s a non sequitur. If it’s infringement, then, by definition, it’s not protected expression. The test isn’t whether it’s expression, the test is whether it’s protected expression. To understand why, you need to understand prior restraint. The danger of prior restraint is that presumptively protected materials will be erroneously suppressed. When it’s piracy and other easy cases, there is no danger of erroneously suppressing protected speech–since the work is copyrighted and no First Amendment defenses (fair use or idea/expression dichotomy) are being raised, then the use is either infringing (which is not First Amendment protected expression) or it’s licensed (which is not First Amendment protected expression). It’s all right there in the Lemley/Volokh article.

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.

No “particular materials” have been enjoined. That sentence is referring to injunctions against particular works. Such injunctions have not issued here.

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.

You are mistaken. O’Brien applies when the same course of conduct has both protected and nonprotected expressiveness, e.g., burning a draft card. The seizure in Fort Wayne ultimately turned on obscenity, though it was couched in terms of RICO, and with obscenity doctrine there are more procedural safeguards. Those safeguards exist to make sure that speech thought to be obscene doesn’t get restrained since it might turn out to be protected expression after all. The same problems are not present in piracy and other easy cases since, as Professors Lemley and Volokh explain, use of a copyright work is either infringement or licensed. Neither situation invokes the First Amendment. The key to understanding prior restraint doctrine is to focus on why prior restraints are bad in the first place. You seem to think it turns on when the decision is made, e.g., ex parte, or after an adversarial hearing. That’s incorrect. Prior restraint turns on when a determination can be made that something is unprotected speech versus that something might be unprotected speech. In obscenity cases, that determination must be made after an adversarial hearing. In piracy and other easy cases, though, that determination can be made ex parte.

This claim is laughable on its face. It simply is not possible to commit copyright infringement, criminal or not, without engaging in expressive activity.

But it’s not protected expressive activity, which is what matters. It makes no sense to argue that unprotected expression is somehow protected.

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.

Obviously the Court means protected expressive activity. Your interpretation would have the Court saying that nonprotected expressive activity must be protected, which is a non sequitur. Besides, the Court in Arcara acknowledged that prostitution is on some level expressive, but that level of expressiveness doesn’t reach the threshold level needed to invoke First Amendment protection. The same holds true for copyright infringement.

Hence the “by the way” bit. But it shows, again, how nobody in any court has interpreted Arcara the way you do.

Um, you missed the point. The Court of Appeals of New York was applying the state’s own version of freedom of speech, which provides more protection than the federal First Amendment. You were pointing to the analysis there and trying to apply it here, but that analysis is completely inapplicable here.

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.

Arcara says that when property is used to commit crimes that don’t involve protected expression, then there is no First Amendment problem–even if a bookstore gets closed down and has to relocate. You are misreading Arcara, and you seem to not understand the fact that infringement is not protected expression, and therefore there is no invocation of the First Amendment on prior restraint grounds.

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 First Amendment is what authorizes fair use and the idea/expression dichotomy defenses in copyright infringement, as per Harper & Row, Eldred, and Golan. The First Amendment is what authorizes those types of uses of copyrighted works. Having the right to be from restraint in speaking is qualitatively the same thing as having the affirmative right to speak. It’s very strange that you’d argue the First Amendment doesn’t authorize speech.

Authorized works are protected by the authorization, not the First Amendment. The First Amendment doesn’t authorize you to speak a copyrighted work, unless, of course, it’s fair use or idea/expression dichotomy. And you’re confusing what I mean. I’m talking about third parties making use of a copyrighted work, not use by the copyright owner or his assignees. With all due respect, I don’t think you fully understand the Lemley/Volokh article. They explicitly say, as I quoted for you once already, that authorized use is not constitutionally protected use: “Most cases alleging outright piracy, as well as most claims that the defendant has exceeded the boundaries of its license, would fall within this category. In this situation, the defendant’s conduct is not constitutionally protected speech, even if the defendant ultimately proves that it’s not a copyright infringement.”

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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. […]

[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.

  • Arcara v. Cloud Books

    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.

Karlsays:

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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.

Anonymoussays:

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If Arcara forcing Cloud Books to relocate is not a restraint, I don’t see how forcing someone to get a new domain name is either. The intent of the government is to seize and forfeit property that was used to facilitate crime. No future speech has been enjoined, and they are free from legal impediment to speak as they like.

There was probable cause to believe the property was used to facilitate crime. That makes it seizable. And if they can meet the burden of persuasion that it was used to facilitate crime by a preponderance of the evidence, then they’ll forfeit it as well.

The crime the property is suspected of facilitating is not speech-related crime. As I’ve explained, piracy and easy cases aren’t expressive. It’s infringement or it’s by permission, it’s not done via First Amendment rights. Piracy is not expressive. The fact that the property was used also for protected expression is irrelevant.

People have their property and selves seized without an adversarial hearing everyday. I’m a little surprised that this is so surprising here.

Gwizsays:

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…piracy and easy cases aren’t expressive.

This might be hanging you up. This isn’t a “easy piracy” case. (I don’t really believe such a thing exists, regardless of what Lemly thinks – all copyright cases are full of nuances)

But we aren’t talking about torrent search site here – this was a blog site that linked to the material they were writing about.

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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.

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.

Anonymoussays:

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Copyright infringement – even “easy piracy” cases – are expressive activity, protected or not.

Nope. Copyright infringement is not protected by the First Amendment. And if someone turns out to have a license, then their use is licensed, not protected by the First Amendment.

Anonymoussays:

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I have a little more time now to address your points.

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.

The statute in Arcara was a law of general applicability. So is the forfeiture statute being used in Operation in Our Sites. The statute here allows for the forfeiture of property used to facilitate criminal infringement. The domain names are suspected to be such property. So, on a showing of probable cause to a neutral magistrate, a seizure warrant was issued. The target of the forfeiture is property tainted by past crime–it’s not protected expression. That the property has also been used for protected expression is irrelevant. That’s what Arcara teaches.

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.

Arcara applies perfectly. The forfeiture statute is a law of generally applicability. The unlawful conduct here, criminal copyright infringement, has nothing to do with books or other expressive activity. Copyright infringement is not expressive. When the Court says “other expressive activity,” they mean protected expressive activity. Unprotected expression would be constitutionally irrelevant anyway. Wholesale copyright infringement is not protected expression, which is what matters here.

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.

If you have permission to speak a copyrighted work, then that speech is not authorized by the First Amendment. It’s authorized by the permission you’ve been granted. The First Amendment doesn’t protect use of works except through the safety valves of fair use and idea/expression dichotomy. If you’re using a copyrighted work by license, then it’s the license that gives you that right–not 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.

The statute in Arcara and the statute here are laws of general applicability. It’s not prior restraint, and you don’t even get heightened scrutiny. The fact that Arcara hasn’t been used in a copyright case, if true, is totally irrelevant. The First Amendment analysis there not only applies, but controls and is dispositive.

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.

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.

– Arcara v. Cloud Books, 68 NY 2d 553 – NY: Court of Appeals 1986

Um, the court there is interpreting the state constitution, not the federal one. Arcara was the last word on the federal constitutional issues that we’re talking about here. Nothing in that opinion applies.

Gwizsays:

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What materials have been seized here? None.

Ok, if I am reading this right you are saying that because the actual protected speech wasn’t seized it isn’t prior restraint. Not sure that flys. In Minneapolis Star v. Minnesota Comm’r the issue was a tax on ink the publishers used – nothing whatsoever to do with the actual expression only the means to circulate said expression.

What injunction prevents protected expression in the future? None.

Umm. The order that removed the domain name. No expression allowed at all for over a year on “dajaz1.com”. Whether the expression could be placed on another domain is immaterial, it was prior restraint concerning this particular domain name. The fact I can print my expression on a printing press other than the one the government seized doesn’t remove the prior restraint on the seized one.

Anonymoussays:

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The tax in Minneapolis Star had the effect of singling out protected expression, even though the tax statute was neutral on its face. When a facially neutral statute singles out protected expression, you get heightened scrutiny. You could try and make that argument here, but I don’t buy it. I think the forfeiture statute that allows for seizure and forfeiture of any property used to facilitate crimes passes heightened scrutiny with ease. However, I don’t think the forfeiture statute has the inevitable effect of singling out protected expression like the tax in Minneapolis Star did. I don’t think you get heightened scrutiny in the first place.

But it’s not a prior restraint. The property is being seized and forfeited because of its use to facilitate crimes in the past. If Dajaz1.com was enjoined from opening up any website every again–that would be a prior restraint. This is just punishment for crimes that have already occurred. Just like we arrest and then try a suspected criminal, we seize and then forfeit suspected instrumentalities of crime.

Gwizsays:

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This is a subsequent punishment, not a prior restraint. That’s a critical point to understand, that you, Mike, and others aren’t picking up on. The seizure was subsequent to the investigation, affidavit, and warrant. The forfeiture comes after the seizure, and that’s when the final punishment is completed. The seizure just initiates the forfeiture process.

Wrong. The Supreme Court makes it very clear in Fort Wayne Books v. Indiana that an ex parte seizure of potentially protected speech is prior restraint:

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.

Seizing a domain name has absolutely nothing to do with evidence preservation. Nothing was preserved at all. Seizing a domain name does remove the content from circulation. It’s prior restraint.

But make no mistake, the seizure and forfeiture are subsequent punishment for suspected past criminal wrongs. (Emphasis mine)

And you really see nothing wrong with that? Putting aside the moral implications, such thinking would be the end of your chosen profession – why would we need lawyers if we just punished based on suspicion without adversarial hearings?

Anonymoussays:

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Fort Wayne doesn’t apply for reasons I’ve repeated several times already. The seizure happened without an adversarial hearing, just like people get arrested and property gets seized every single day. Final judgment of forfeiture will not happen until there’s been a hearing, just like with every other criminal prosecution or forfeiture. This isn’t a special situation. There is no restraint, prior or otherwise.

Gwizsays:

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Fort Wayne doesn’t apply for reasons I’ve repeated several times already.

Sorry if you have repeated this – it’s a really large thread now and I’m sure I’ve missed some of the comments here.

The seizure happened without an adversarial hearing, just like people get arrested and property gets seized every single day.

Yes, seizures happen everyday. I’m a strong opponent of asset forfeiture laws as they sit today – but that’s a discussion for another time.

I’m still not sure why you believe Fort Wayne doesn’t’ apply here. It’s specifically states that the pretrial seizure was unconstitutional because there wasn’t any adversarial hearing to determine if the protected speech was violating any laws prior to the seizure. Where’s the difference?

Anonymoussays:

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Obscenity cases are different. There is a possibility that after an adversarial hearing, a work that was thought to be obscene could turn out to be protected expression. So obscenity cases have more procedural safeguards, requiring a determination that a work is obscene before it can be enjoined.

With simple piracy, like someone offering a torrent of a new release movie, there is not the same problems as with obscenity. First of all, it’s much easier to determine whether a work is infringing. Determination of obscenity is a subjective analysis that involves ascertaining local norms, among other things. Determination of simple piracy is an objective determination. Second of all, there is no First Amendment issue. If a work is infringing, it’s not protected by the First Amendment. And if there turns out to have been permission to use the work, then again the First Amendment is not in issue–it’s not the First Amendment that allows use of the work, it’s the permission.

Anonymoussays:

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Who gets to make the determination if an accused infringement is “simple?” It seems like its a big issue, if its simplicity decides if its protected by the constitution or not.

(oh yeah, we might as well bring this back to the case that this discussion is about, its quite obvious that in the Dajaz1.com case, the infringement was NOT “simple”)

Anonymoussays:

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The neutral magistrate/judge determines if there’s probable cause. I suspect that the Dajaz1.com case has been a learning experience for the government. If the investigation was incomplete, then I’m sure they’re reviewing their procedures.

Anonymoussays:

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If there’s probable cause that a piece of property has been used to facilitate crime, it can be seized then forfeited as subsequent punishment. The First Amendment doesn’t apply because the conduct that drew the remedy in the first place, copyright infringement, is nonexpressive conduct.

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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.

The Logiciansays:

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You say that infringement is easy to detect, AC 349. Therefore, complete this exercise. You have two files, one infringing, one not, and no information about which is which or where they came from. The files are identical in every way. How do you determine which in infringing and which is not?

The answer is that you cannot. And you are incorrect. As has been stated before, all expression is protected, with very few exceptions in narrowly defined circumstances. There was no court hearing to determine if Dajaz1 was infringing, therefore, until such a hearing occurs and such judgement is passed, the site is not infringing and its expression is protected. The presumption of innocence is one of the core foundations of the American justice system, and it would not be wise for you to continue in your attempts to undermine it.

In addition, the very complex nature of copyright law itself speaks of how far it has strayed from its original purpose. It has been perverted over the years into a tool for mercantilism and monopolists and no longer serves the goal it was created for. It must be either reformed or removed. There are no other options.

Anonymoussays:

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If there is a website offering up streaming and/or downloads of the latest Hollywood movie, then it’s a simple matter to ascertain whether it’s probably infringing. Copyright infringement is not protected expression, which is what’s relevant here. The court in this case did determine that there was probable cause that the Dajaz1.com domain name was property used to facilitate criminal infringement. The rule is that such property is seizable and forfeitable. There are some First Amendment doctrines not applicable here that call for more procedural protections, but with piracy and other easy cases there is no need for a prior adversarial hearing–probable cause is sufficient. And there is still a presumption of innocence. When the neutral magistrate found that there was probable cause, the presumption of innocence gave way to a seizure warrant.

The Logiciansays:

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That was not the scenario I outlined, AC. What I said was that you have two identical files, one infringing and one not, with no information as to where they came from. You were to explain how to tell the difference from that information alone. You did not. Therefore, your argument is invalid.

You also fail to take into account the fact that the name of a file does not always equal what the contents of the file actually are. Or that files can be placed inside of other files. The only way to verify what a file actually is is to download it and open it yourself. And even that does not tell you anything about the source of the file or whether it was authorized or unauthorized.

By your definition of “offering up streaming and/or downloads of the latest Hollywood movie,” sites like Netflix and Hulu would be classified as infringing, because that is exactly what they do. Your definition is extremely vague and easily abused. You also fail to accept that laws can be unethical, and that copyright law in its current state is, in fact, unethical in what it has become, and that infringement is only currently illegal because of laws that have been purchased by an industry that fears losing control.

And probable cause is not enough to override the presumption of innocence. Only a guilty verdict can do so. Mere accusations must never be allowed to bring judgement without trial or a hearing. Especially accusations originating from an extremely biases and powerful party such as the legacy entertainment industries.

Gwizsays:

Re: Re: Re:12 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

First of all, it’s much easier to determine whether a work is infringing. Determination of obscenity is a subjective analysis that involves ascertaining local norms, among other things. Determination of simple piracy is an objective determination.

Oh man. Saying that the determination of a copyright violation is an easy thing to do when talking about a case where ICE, DoJ and the Court got it so blatantly wrong is just plain silly. Obviously it isn’t as easy as you or Lemly imply.

Second of all, there is no First Amendment issue. If a work is infringing, it’s not protected by the First Amendment. And if there turns out to have been permission to use the work, then again the First Amendment is not in issue–it’s not the First Amendment that allows use of the work, it’s the permission.

So what does that make all the text on Dajaz1 that wasn’t links? Chopped liver? Perhaps the links weren’t protected speech, but the rest surly was. Does that speech not get First Amendment protection?

Anonymoussays:

Re: Re: Re:13 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Of course that speech gets protection. It’s always been protected. It just can’t be disseminated via the seized domain name. Other than that, there are no restraints. The Court explains in Arcara that the First Amendment burden imposed on one who can’t use one particular piece of property (a bookstore in that case) are dubious at best.

PaulTsays:

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“Expressing other people’s copyrighted works based on a license doesn’t invoke First Amendment protection.”

No wonder these people all post as ACs. There’s no way you can repeatedly miss the points being raised and attack debunked strawmen like this. Unless you’re being wilfully ignorant or just plain stupid, neither of which are things you’d want to be able to have pinned down on a regular username.

The Sporksays:

Re: Re: Re:2 Re: Re: Re: Re:

But you, my dear troll, are forgetting the simple fact that ICE/MAFIAA/DOJ ILLEGALLY censored the website for just over ten months on nothing more than the MAFIAA’s own word. By chance, when was the last time the MAFIAA done anything that didn’t trample innovation? Here is the breakdown of why they deserve no credibility:
1. They claimed that the radio would kill music.
2. They falsely issue DMCA requests to other people’s content then claim it as their own.
3. They claim that Billions of dollars are lost to piracy when they have no proof other than their own statistics.
4. they kill any business that tries to compete with them with ridiculous lawsuits.
5. They try to sue mass amouts of people for infringement based on the user’s IP address

Karlsays:

Re: Re: Re:2 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.

Anonymoussays:

Re: Re: Re:3 Re: Re: Re: Re: Re:

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.

O’Brien doesn’t apply because it’s not a situation where a single course of conduct has both an expressive and a nonexpressive component. In that case it was destroying a draft card. Here, the wholesale copyright infringement–the conduct that drew the remedy in the first place–has no expressive element. O’Brien doesn’t apply. The opinion in Arcara distinguishes O’Brien and explains how the court in New York was making the same mistake in reading O’Brien as you are.

Fort Wayne doesn’t apply either since that’s an obscenity case, and with obscenity there’s additional procedural requirements because of the risk that presumptively protected materials will get erroneously suppressed. As I’ve explained above, when it’s wholesale copyright infringement, there is no similar risk. This is the point of the Lemley/Volokh article I linked to above.

Pappert is distinguishable on its facts. Regardless, Arcara is clear enough that whatever difficulties there were in moving a physical adult bookstore were insufficient to invoke First Amendment review. Moving a website is easier than moving a bookstore, so I don’t see how the hassle of moving a website invokes First Amendment review.

Mike Masnicksays:

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Here, the wholesale copyright infringement–the conduct that drew the remedy in the first place–has no expressive element.

You keep saying those words, and I’m beginning to wonder if you understand what you’re saying — because effectively you’re arguing there is no First Amendment.

Posting a blog post — which is what Dajaz1 did, IS EXPRESSIVE conduct. There is simply no way, in no form, that you can claim that posting a blog post is not expressive. Now, if a part of that blog post did infringe (and again, the government failed to present any evidence that it did — in large part because it did not infringe) and you then take down the entire site, you have absolutely attacked expressive conduct.

I’m at a loss how you can continue to claim otherwise.

You keep repeating this mantra that “wholesale copyright infringement” is not protected. But you are confusing multiple subjects: the activity the site was engaged in was clearly expressive — including posting those links. Whether or not it was protected is a different issue. But it was expressive. Thus, Arcara simply does not apply.

Arcara only applies when the issue is separate from the expressive activity. Here, it is not. It is a part of the expressive activity. Because just about anyone with even an ounce of common sense knows that posting a link to a blog is an expressive activity.

Fort Wayne doesn’t apply either since that’s an obscenity case, and with obscenity there’s additional procedural requirements because of the risk that presumptively protected materials will get erroneously suppressed.

Um. There’s an equal (if not larger) risk that protected content would get erroneously suppressed in copyright cases as well. In fact, that’s exactly what happened here.

Pappert is distinguishable on its facts.

Not really. The issue in Pappert was the overaggressive stifling of protected free speech. Seems entirely apt to the situation here.

I’m beginning to think that your love of strong copyrights is blinding you to common sense here.

Anonymoussays:

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As explained above, linking to copyrighted works is not First Amendment-protected expression. It’s either infringement or it’s licensed. This is exactly the point of the section of the Lemley article I linked to. I know it’s a subtle point to grasp.

If, as subsequent punishment, a domain name is seized and forfeited, then the fact that the domain name was also used for protected expression is irrelevant. You get no First Amendment review, as per Arcara.

Lastly, you have the wrong idea of what a restraint is as that term is used in the prior restraint doctrine. Having to relocate a website to a new domain name is not a restraint, just like having to relocate an entire bookstore wasn’t a restraint in Arcara.

hmmsays:

Re: Re: Re:2 Re: Re: Re: Re:

>everyone is still able to carry on their protected speech elsewhere.

SO by your logic there is no such thing as blocking of the first amendment, because if someone says something bad about the government and is locked in solitary confinement, SOMEONE ELSE can say the same thing…therefore there is no prior restraint?

Anonymoussays:

Re: Re: Re:3 Re: Re: Re: Re: Re:

But with a new domain name and a Google search, and you’re back up and running in hours. The analogies to shutting down buildings are useful, but I think we have to keep in mind the differences between the real world and cyberspace. I can pack up my website to a new domain much easier than the adult bookstore in Arcara could find a new place to open up. And the Court said that Arcara’s difficulties were “no restraint at all” on their First Amendment activities.

Lowestofthekeyssays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re:

When it comes to domains, there’s the issue of pagerank. If you have an established domain name for several years, your rank in Google is sure to be higher than if you have a brand new domain. If your page rank is low, then your organic search traffic goes down because your articles will not hit the 1st page of the search results.

You would have your loyal fanbase, however…though if you store contact information in a database, and that get’s seized along with your domain, then you are veritably screwed.

John Fendersonsays:

Re: Re: Re:4 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.

Well, if you say “days” instead of “hours” (to allow for DNS propagation), you’re technically correct. But only for people who are technologically clueful — and most people aren’t. For the majority, removing the domain name is functionally identical to removing the site completely.

Anonymoussays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re:

When someone comes at you with wording that says copyright infringement, felony, 10 years in prison, 2,000,000.00 in fines do you really think any lawyer worth a shit is going to advise going back online and continue like nothing just happened? Especially in a situation when you know you are innocent?

G Thompsonsays:

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I’m going to call you a “Sexual Predator” and I am going to place you on all the watch lists of the LEO’s in the USA based on the notion that we know “AC” did the crime, we were told by the victims family. Oh and we have knowledge that you too are “male”…

But don’t fret.. we haven’t charged you with a crime yet, only told everyone that you are the deviant in our opinion based on “evidence” but we just have to get enough more evidence from the family members to charge you.

Guess what? You could always move to Canada, you wont be on watch lists their, and hey tell all your friends your new number, its not like you don’t have access to a phone or residence, no one will kknow ytou.. but make new friends.. You can start a new business. You are free to do all of it. What it costs money? Well thems the breaks .. We are thinking of the children/victim/community/electionfunds/etc

Oh and if you think this scenario is far fetched, you really need to read more http://blog.simplejustice.us/2012/05/07/sorry-doesnt-cut-it.aspx

This is the same sort of thing your saying is ok to happen to Dajaz1. They are both criminal offences, yes one is a Personal Violence offence the other is a Trespass on a corporations profit margin. But Same rules of evidence apply, same criteria for investigating.

So.. Are you saying the above is correct? We can accuse you? or……

Karlsays:

Re: Re: Re:4 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.

Anonymoussays:

Re: Re: Re: Re:

I’m no expert but part of the First Amendment is freedom of the press.

Wikipedia says:

“This clause is generally understood as prohibiting the government from interfering with the printing and distribution of information or opinions, although freedom of the press, like freedom of speech, is subject to some restrictions, such as defamation law and copyright law.”

So the takedown could have been justified if copyright law was broken, which I assume the RIAA was supposed to provide evidence for, but they didn’t.

Gwizsays:

Re: Re: Re:5 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

The affidavit didn’t show probable cause?

It had just enough probable cause to get rubber-stamped by Magistrate Judge Margaret Nagle.

Under further scrutiny it didn’t hold up. 3 of 4 examples used were given to Dajaz1 for promotion by the artist or the artist’s agent. The 4th wasn’t even an RIAA artist. Most likely, these are the reasons the USG didn’t push for forfeiture and quietly returned the domain name.

Jaysays:

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I somewhat understand what he’s saying. Unfortunately, he’s correct that they didn’t have a high bar to show damages in this case. That’s where the problem lies.

You have 4 different levels of evidence that you can show in order from lowest to highest:

Circumstantial
Preponderance of evidence
Probable cause
Beyond a reasonable doubt

With the preponderance standard all they have to do is show that the site was used to commit a crime. What we need to find out here is how the judge rubberstamped this without a hearing in the last 22 looks into this case.

Effectively, I would say that the Judicial branch failed far more than anyone else. We need some independence between what prosecutors are allowed to do in front of a judge in regards to an ex parte hearing.

Anonymoussays:

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

Read Arcara v. Cloud Books. The seizure of a domain name (which shuts down the underlying website) is not a restraint, prior or otherwise. The protected speech can’t take place via the seized domain name, but nothing is stopping that speech from occurring elsewhere. There is no licensing scheme, no injunctive order, no censor’s approval needed before publishing–no prior restraint. Property used to commit crimes may be seized and forfeited. The fact that the property is also used for non-criminal, protected activities is irrelevant.

Anonymoussays:

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I can’t find any court documents about charges being filed against this blog. Can you point me to them?

There is no need for charges to be filed. Property may be forfeited upon showing by a preponderance of the evidence that it was used to commit a crime. The underlying crime need not be charged.

Rikuosays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re:

“a preponderance of the evidence that it was used to commit a crime.”

from
http://www.techdirt.com/articles/20120502/16575418746/judge-lets-feds-censor-blog-over-year-so-riaa-could-take-its-sweet-time.shtml

read this

” A sampling of content obtained from the DAJAZ1.com website and its purported affiliate websites was submitted for rights holder evaluation and has yet to be returned to HS, SAC/LA. Additionally, a representative with the Recording Industry Association of America (RIAA) has stated that he will provide a very comprehensive statement to ICE’s and CBP’s outstanding questions, in coordination with corresponding rights holders, which will be forthcoming in approximately 30 days.

That was Reynolds statement on September 7th, 2011. Remember, thanks to Agent Reynolds, Dajaz1.com was seized on November 24th 2010. So we’re talking 10 months later, and he’s claiming that the RIAA still hasn’t gotten back to him over whether or not the tracks were actually infringing or with answers to ICE’s questions?!?”

Then tell me that there was a “preponderance of evidence” in this case.

Anonymoussays:

Re: Re: Re:5 Re: Re: Re: Re: Re: Re: Re:

I never said there was a preponderance of the evidence in this case. There was probable cause though. And for whatever reason, the property was returned and the investigation dropped. I don’t have all the facts, so I can’t really say anything in particular them. I’m focusing more on the broader issue of why the seizures are problematic generally.

Rikuosays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

“And for whatever reason, the property was returned and the investigation dropped.”

AFTER A FULL YEAR. Read that again. Then read it again another time. Someone accused Dajaz1, their site gets taken away with no evidence being presented, and only a full YEAR later, do they get it back.
The laws as written say that Dajaz1’s lawyer at the very least has to be made aware of any extensions in seizures or forfeitures. Yet, every single time he requested documentation on the extensions, he was denied.

Lastly…reread what you wrote there. So, you are saying that in the absence of a preponderance of evidence, you can somehow still have probable cause to believe?

John Fendersonsays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re:

There is no need for charges to be filed. Property may be forfeited upon showing by a preponderance of the evidence that it was used to commit a crime.

This may be legally true, but it’s highly immoral. It is nothing more than outright theft, and shows the depth of the corruption of law enforcement in the US today.

Forfeit should only happen on successful conviction because to say otherwise is to say that innocent people can be punished anyway. (Innocent until proven guilty in a court of law, remember.)

Anonymoussays:

Re: Re: Re:5 Re: Re: Re: Re: Re: Re: Re:

This may be legally true, but it’s highly immoral. It is nothing more than outright theft, and shows the depth of the corruption of law enforcement in the US today.

Oh, the legal argument fizzled so now you want to talk about the morality of it. How about the morality of taking the creative output of another without compensating the owner? That’s moral? Legal?

Lowestofthekeyssays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

How about the morality of taking the creative output of another without compensating the owner? That’s moral? Legal?”

This is either a reference to the Dajaz1 case or a totally baseless claim that anyone who supports the view of Techdirt are pro-piracy.

Both are awesomely ignorant.

John Fendersonsays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

I don’t concede that the legal argument fizzled at all. I think it’s clear that the government is legally incorrect. I was just making a larger point.

How about the morality of taking the creative output of another without compensating the owner?

What about it? It still isn’t shown that this site was doing that in any significant way. Which is a big part of the problem.

ltlw0lfsays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

Oh, the legal argument fizzled so now you want to talk about the morality of it. How about the morality of taking the creative output of another without compensating the owner? That’s moral? Legal?

I totally agree. The RIAA should immediately compensate the owner of Dejaz1 for taking the creative output of the site without compensating the owner. The RIAA used a flimsy accusation, not backed up by evidence, to take the creative output away from Dejaz1.

Anonymoussays:

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I don’t think the constitutionality of civil forfeiture is really debatable at this point. I know the Court approves. So I don’t think the procedure itself is flawed, if that’s what you meant.

I think there was probable cause in this case. I don’t really know the facts, but from what I do understand, there were certain tracks that turned out to be licensed (perhaps). I don’t see how having a viable defense negates probable cause.

Leigh Beadonsays:

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I think there was probable cause in this case. I don’t really know the facts, but from what I do understand, there were certain tracks that turned out to be licensed (perhaps). I don’t see how having a viable defense negates probable cause.

There was no probable cause, there was an accusation. As the court documents show, the RIAA never provided any evidence.

Even if you think their accusation is enough for probable cause to justify the initial seizure, it certainly does not justify holding the domain for a year without any evidence of criminal activity being presented.

There are clear issues with the constitutionality of the seizure – and since it involves a distribution channel for a blog full of protected speech, the first amendment bears some consideration here too. I can see some merit to the argument that just seizing a domain doesn’t prevent speech, but generally speaking we don’t want the government messing with newspapers and blogs and other publications, so any time they do, close scrutiny is a damn good idea.

Rikuosays:

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The tracks were given to the site. The labels still complained to ICE that this was infringing behaviour. And there’s no excuse for not knowing the facts. Just read back a few articles and you can read the court documents that were unsealed.
So, let me put it as simply as I can. You have a box on which you stand on which you read aloud plays. I give you a copy of a play to read aloud. Five minutes later, ICE comes along and takes your box, saying that I complained that the play you were reading aloud was an infringing copy. ICE asks me for confirmation that it was infringing, but I never get back to them. A year later, your box is returned.

John Fendersonsays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

I think there was probable cause in this case.

But according to the documentation available, all they had was an accusation. The accusers, when asked for information supporting their accusation, did not produce it. Are you saying that an unsupported accusation alone constitutes “probable cause”?

Anonymoussays:

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How is having a license a defense? That logic would make it legal for the police to seize every car on the road, with the assumption that there owners don’t have a license to own the cars. Then hold them indefinitely, and never give you a chance to show your license, because the cases never get to trial.

DCsays:

Re: Re: Re:8 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Such willful ignorance.

If the police can just assume I don’t have a license, without checking, and seize my car, that would be a police state.

If ICE can just assume I wasn’t given an implied license to distribute some music, without checking, and seize my domain name, that would be a police state.

You get it, right? The part about not checking?

Get it? They acted on the baseless accusation, not on actual evidence.

Anonymoussays:

Re: Re: Re:8 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Well, it only a defense in as much as not having done something is a defense against being accused of doing it. Its not something you need to affirm. By doing so, you flip the innocent until proven guilty concept on its head. Your statement was that that having a license was not enough to negate probable cause. So what your statement amounts to was, if there is proof that no crime was committed, you can still assert probable cause. In a world where that is true, then nothing is protected from seizure. The constitutions disallows laws that create such a situation, therefor the assertion that having a having a license negates probable cause is at odds with the constitution.

Rikuosays:

Re: Re: Re:8 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

A defense, as defined in the legal world, can only ever be used in a trial.
Dajaz1.com had licences to use the works in question, but were never allowed to use this as a defence, because they were never granted a trial. Just having their property seized for a year then quietly returned.

Josh in CharlotteNCsays:

Re: Re: Re:8 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Having a license is not a defense – it means the charges and/or accusations are completely wrong and shows a significant error in procedure and the judgement of those who brought the accusation.

Kind of like being accused of murder when the person you supposedly murdered is alive and talking to the judge in the courtroom. If this were a murder case, the prosecutor would be conveintly ignoring the not-dead person and still banging on the table about the heinous crime and the traumatized children.

DCsays:

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So a complete lack of evidence of wrong doing doesn’t trump trumped up probable cause.

So you don’t know the facts, but you are defending the seizure. That one is a mind bender.

I imagine you would be fine if every police officer you saw asked for your I.D. just, you know, to make sure you are legit.

Oh, but in this case, there wasn’t even any checking.

Fascist thinking writ large.

Anonymoussays:

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You keep saying that you don’t know the case, but you THINK there was probable cause. That’s a complete nonsequitor. Just because the court says it doesn’t make it true.

Also, just because the court approves doesn’t mean that the procedure is not flawed. This is, yet again, an Appeal to Authority.

Eponymous Cowardsays:

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So by your logic having copyrighted works (for which there are licenses for) on your site is “probable cause” of a crime and the whole site can be seized? If the bar is this low for enforcement then all websites can and should be seized for they all contain copyrighted work which might later prove to be infringing. ICE should seize iTunes too for they host tracks there and one, or more, may be infringing. . .

Rikuosays:

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So, what you’re saying is…its OK for the government to seize domain names, because you can always talk somewhere else.
Last I heard, that completely destroys the very foundations of the concept of free speech. Free as in libre, as in you don’t need to check with your government if you’re in the right ‘place’ to make free speech.
To say free speech is limited by place is to invite tyranny. I could have been on Osama bin Laden’s personal blog, on his site, writing articles full of peace and love. To say that my speech should be destroyed or limited because the guy ‘next’ to me is writing articles calling for a Jihad is just plain wrong, morally and ethically.

Anonymoussays:

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All I’m saying is that a domain name can be seized based on probable cause that it’s used to commit a crime. As long as the crime in question does not itself contain an expressive element (like burning a draft card), then there’s no First Amendment issue. The whole “prior restraint!” argument is a red herring.

Anonymoussays:

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You have a very scary interpretation of what is protected by the First Amendment.

Ha! Not really. The First Amendment just doesn’t make domain names unseizable and unforfeitable. They’re just pieces of property in the end. I get the urge to cry “First Amendment!” In fact, I’ve done the same myself. But upon closer review of the doctrines, I just don’t think the First Amendment arguments hold up.

Lowestofthekeyssays:

Re: Re: Re:10 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

What’s your opinion on a situation wherein First Amendment rights are indirectly violated due to a domain seizure?

I mean it’s obvious the RIAA wasn’t trying to hamper the opinions of the guy who ran the blog, but that happened as a side-effect of the seizure.

Anonymoussays:

Re: Re: Re:11 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

I think the proper way to look at is that if you have to go somewhere else to exercise your First Amendment rights–like to a website pointed to by any domain name other than the one seized–then your rights haven’t been restrained at all. As the Court says in Arcara (and elsewhere), such incidental effects are dubiously burdensome.

John Fendersonsays:

Re: Re: Re:12 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

I think the proper way to look at is that if you have to go somewhere else to exercise your First Amendment rights–like to a website pointed to by any domain name other than the one seized–then your rights haven’t been restrained at all.

Ahh, and here is where we get to the nut of our disagreement, I think.

The Acara decision notwithstanding (and it doesn’t seem like it clearly applies to this case anyway), there have been at least several cases where the courts have ruled that “you can always speak somewhere else” does not mean that the first amendment was not violated.

There’s a real balance to be had here. There are lots of exceptions to the first amendment, of course, but the general idea is that you don’t restrict first amendment rights without a very, very good reason to do so. There is no such reason being put forth in this case.

Anonymoussays:

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I am still not buying your argument that Acara applies. Acara was more like someone using the building where the printing press was housed to store and sell cocaine, which had nothing at all to do with the printing press, but would require it to be shut down to stop the illegal activity as a by-product. However, in this case, someone was printing something they had legal permission to print, but someone else made the claim, without evidence, that the material was illegal. I just cannot get my head around your reasoning, especially since you don’t know the specifics.

Anonymoussays:

Re: Re: Re:13 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

How was there not evidence in this case? Didn’t the affidavit proffer certain evidence? If you’re saying that there wasn’t actually probable cause, then there’d be a claim there, I suppose. But I thought the agent had reasonable indications that the tracks weren’t authorized. If that info turned out to be erroneous, that doesn’t make it unreasonable for the agent to rely on it at the time.

Anonymoussays:

Re: Re: Re:14 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

One of the songs listed on the affidavit directly thanked the VP of Promotions at Universal Music Group for providing the song to the site and being the source. Agent Reynolds completely ignored this and included it in his affidavit and Carlos from the RIAA then stated it was unauthorized work.

Ignoring evidence right in front of your face and intentionally excluding that evidence is not evidence of wrong doing.. It’s manipulating facts and intentionally being dishonest in order to obtain a rubber stamped warrant. The fact that Agent Reynolds still has a job bothers me.

DCsays:

Re: Re: Re:10 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Metaphors are always dangerous, but you keep making them the key to your argument (book store ruling).

So if I go into my back yard every sunday and display for my neighbors paintings that have been given to me by friends, and Getty complains because they have a photo of that painting, ICE is fully justified in seizing my house?

By the way, it damages your case when you support it with “doctrines” as opposed to, you know, constitutional and human rights.

Jakesays:

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What about contributors to the blog that have not violated copyright, they lose their forum for speech? What about the people who comment on that blog, didn’t they lose some speech rights? There were many people legitimately using that blog to exercise their rights that no longer could do so after it was seized. Whether the violations were justified or not may be another argument, but there is no argument that the violations occurred, it is a fact.

DCsays:

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“Their particular piece of property” FTFY

God, this is such a stupid argument. This is the police saying “Move along, get out of here. You aren’t wanted here.”

Which is bad enough.

But it is regarding someone using their own space in which to allow people to speak.

And no, substantial illegal activity has not been demonstrated at that site.

There is no restraint to free speech, except the restraints applied by ICE illegally.

John Fendersonsays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

Then we have very, very different ideas about what the first amendment guarantees. I think that if the government censors my legal speech, that is automatically a first amendment issue. It doesn’t automatically mean that the censorship is wrong, but that the first amendment must be taken into account, and that first amendment rights must weight very, very strongly.

Anonymoussays:

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Speech is not allowed to be expressed using a particular piece of property–but there is no court order affecting the speech itself. Just like closing the bookstore in Arcara was not a restraint of protected expression, having to use another domain name to express yourself is not a restraint. A restraint means a court telling you you can’t express yourself at all. Not being able to use a particular piece of property to express yourself is not a restraint as that term is used in First Amendment doctrine.

John Fendersonsays:

Re: Re: Re:8 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Not being able to use a particular piece of property to express yourself is not a restraint as that term is used in First Amendment doctrine.

Notice that I have not used the term “restraint”. However, there are indeed at least several court cases where it was ruled that closing down a particular venue for protected speech is a violation of the first amendment even when other venues are available. It depends on the particulars of the case, but one big one is: is the venue primarily used to violate the law? In the case of Dajaz, it was not any nobody on any side of this case is claiming that it was.

Cory of PCsays:

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I’m sorry but I have to ask this: are you working for the MPAA/RIAA or the government? That really sounds like something someone working for either (or maybe both) parties might say to us. And I don’t buy that quote. Maybe I’ll buy it if you show me… no, all of us, proof as to how Dajaz1’s rights have not been violated. We’ll be waiting.

Jakesays:

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By following your argument you could claim that the government could only allow you to speak freely in a one block radius of Washington DC and say, “Since you can speak freely here, your free speech rights are not affected by being required to be mute everywhere else. You can just not speak on any other property than this one.”

Tell me that is not insane.

Anonymoussays:

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You’re getting into a different doctrine, which would be a time, place, or manner restriction. The law on that doesn’t apply here. A website isn’t a physical place. A domain name is just a piece of property. It’s an important piece of property, for sure, but it’s not the same as a physical place. Rojadirecta is a good example. Up and running elsewhere in a matter of hours, IIRC. But even if we want to think of a website as a metaphorical place (which admittedly comes naturally), Arcara still teaches that incidental effects on protected expression don’t even raise First Amendment concerns. That’s the key to understanding this. Since the conduct that brought on the seizure wasn’t expressive (wholesale copyright infringement is not expressive), then the incidental effects on protected expression are disregarded. Like the Court said, you can just your protected speech elsewhere, whether it’s a new domain name or a new bookstore–and a website is a lot easier to move than a bookstore. Arcara is the key.

Jakesays:

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I was trying to apply it to the real world but to keep it digital.

The government could set up a site, free-speech.gov, and say you can say whatever you want on this one site, but every other web site must pass a review board before going live. But since you can still post on that one site, incidentally monitored, but not censored, by the government, then your free speech rights are not affected.

Lowestofthekeyssays:

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http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=478&invol=697

“After a county Deputy Sheriff’s undercover investigation of respondents’ “adult” bookstore disclosed that illicit sexual activities, including solicitation of prostitution, occurred on the premises, a civil complaint was filed against respondents seeking closure of the premises under the statute”

Keyword: “investigation”, which denotes that they most likely gathered evidence to use to close the premises.

They did not however, assume it was being used for unlawful purposes, then close it down.

Lowestofthekeyssays:

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http://www.ballerstatus.com/2012/05/09/dajaz1-com-returned-owner-seized-ice-owner-lashes-riaa/

“federal authorities seized the domain based on assertions from the RIAA (Recording Industry Association of America) that it was linking to four “pre-release” music tracks in November, 2010.”

“Assertions” does not sound like a “sworn statement of fact.”

Gwizsays:

Re: Re: Re:7 Re: Re: Re: Re: Re: Re: Re: Re: Re:

“Assertions” does not sound like a “sworn statement of fact.”

Well, to be fair. ICE’s Agent Reynolds did swear an affidavit in this case. Unfortunately for him (and Dajaz1 and the rest of us), he didn’t do enough of his own research and based his accusations of infringement solely on the word of the RIAA, which was incomplete and/or incorrect.

John Fendersonsays:

Re: Re: Re:10 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

To be fair, I don’t think the law student AC is a troll at all. He’s engaging in real debate, not mud-slinging, name calling, or any actual trollish behavior.

I disagree with him, but I think he’s making a good-faith argument and should be treated with respect.

Gwizsays:

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I disagree with him, but I think he’s making a good-faith argument and should be treated with respect.

I agree. This AC has been cordial and has kept his arguments on subject and should be treated with respect. Not at all like arguing with AJ who tends to jump into the ad homs at the slightest sign of being bested in an argument.

Anonymoussays:

Re: Re: Re:8 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

His affidavit states he did do his own research.

Source: https://www.eff.org/sites/default/files/filenode/AppliandAffforSeizureWarrant-1.pdf

Page 55 of the PDF: Downloads of Infringing Content via DAJAZ1.COM

79. I used the DAJAZ1.COM website to link to cyberlockers and stream and/or download illegal copies of songs. On or about the dates listed in the chart below, I clicked on links for the below listed songs on the DAJAZ1.COM website and streamed and/or downloaded the songs from the below-listed cyberlocker sites. Where indicated in the below chart, one or more of the available download links had been removed on the designated cyberlocker websites, replaced by the message “This file is either removed due to Copyright Clain, has Expired or is deleted by the uploader.

The problem is that NONE of the infringing content was stored on DAJAZ1.COM. The content was downloaded by Reynolds (page 56 of the PDF) from usershare.net, filezee.com, and usershare.net.

DAJAZ1.COM was taken down because they had links to alegedly infringing content.

Gwizsays:

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Yes, Reynolds did download some songs. That alone doesn’t prove any infringement occurred.

The research I was referring to was if the rights holders had given permission to Dajaz1 to promote those songs or if the RIAA even had any claim over the songs. If Dajaz1 had permission then it blows the “willful” part of the criminal copyright infringement out of the water. If the RIAA didn’t have a claim over the songs, then that’s a fraudulent claim of infringement. It’s seems like it was some of both here.

Anonymoussays:

Re: Re: Re:10 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Yes, Reynolds did download some songs. That alone doesn’t prove any infringement occurred.

I did not explain very well, actually at all. My point was that the warrant to seize DAJAZ1 was based on nothing more than 4 URLs pointing to files not hosted by DAJAZ1. If it is legal for ICE to seize domains based on nothing but a URL then all search engines and open forums are vulnerable to being seized. Its absolutely insane …

As for the rest of your post, I have not found anything from an authoritative source. It would be great if DAJAZ1 were able to show proof of permission being granted.

Gwizsays:

Re: Re: Re:11 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

I did not explain very well, actually at all. My point was that the warrant to seize DAJAZ1 was based on nothing more than 4 URLs pointing to files not hosted by DAJAZ1. If it is legal for ICE to seize domains based on nothing but a URL then all search engines and open forums are vulnerable to being seized. Its absolutely insane …

I agree. The whole linking/embedding/3rd part liability thing is another nasty can of worms.

As for the rest of your post, I have not found anything from an authoritative source. It would be great if DAJAZ1 were able to show proof of permission being granted.

I thought I read that Dajaz1 had the emails from those sending in the songs, but I could be remembering wrong or confusing it with other cases.

I’m not real sure how the emails would play into all this since they most likely would be on the lines of “Hey, here’s my song. Please promote it on your blog.” more than something more legal like a actual license or contract. I would think it would be considered permission enough as not to be considered as “willful infringement”.

Gwizsays:

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Huh? Did the affidavit not present the culmination of an investigation?

Not really in this case. 3 of the 4 examples used by Agent Reynolds were given to Dajaz1 for promotion by the artist or their agent. (IE: used with permission) and the 4th wasn’t even a RIAA artist, so the RIAA falsely claimed their copyrights were being violated for a track they have no claim over.

Anonymoussays:

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In Arcara v. Cloud Books, there was a complaint filed and an adversarial hearing was held, all before the store was closed. Sounds almost like the correct procedure. Contrast that with seized with no complaint filed, no adversarial hearing, when a hearing was held for extensions the Gov’t wouldn’t tell where, when, or that the hearing had took place.

Anonymoussays:

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Reread Arcara, including the cases below–especially the high court of New York that the Supreme Court reversed. The high court of New York actually misunderstands the First Amendment issues in much the same way that folks here are misunderstanding them. The claim of prior restraint in Arcara was that the bookstore couldn’t be closed at all, even after a full hearing on the merits. The only time you need a prior adversarial hearing is when there is presumptively protected expression (like books suspected to be obscene) being seized. The reasoning is that the books might turn out to be be nonobscene (and therefore protected expression). With wholesale copyright infringement, even if the use turns out to be noninfringing (like, if it was licensed), then there is no chance that protected expression would have been seized. This is so because one who exercises a license is not exercising First Amendment rights. With wholesale copyright infringement (as opposed to say fair use of a copyrighted work), there is no need for an adversarial hearing before the seizure takes place. This explains why the Copyright Act even provides for pretrial seizure of goods.

Leigh Beadonsays:

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The only time you need a prior adversarial hearing is when there is presumptively protected expression (like books suspected to be obscene) being seized. The reasoning is that the books might turn out to be be nonobscene (and therefore protected expression). With wholesale copyright infringement, even if the use turns out to be noninfringing (like, if it was licensed), then there is no chance that protected expression would have been seized. This is so because one who exercises a license is not exercising First Amendment rights.

Firstly, we are not talking about “wholesale copyright infringement” – we are talking about linking and embedding as part of news reporting and commentary. It is not at all clear that this is not protected speech. The fact that the tracks were also licensed does not eliminate the possibility of it being protected. Moreover, a whole bunch of clearly protected speech – reports, reviews, columns – was affected alongside the stuff that was potentially infringing. You seem to think that just “doesn’t count” because it’s not what the affidavit or the warrant covered – but that’s not how the first amendment works.

Under your interpretation, the government can take out whatever protected speech it wants as long as it poses it as collateral damage alongside its real target. That’s nuts.

Anonymoussays:

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If the links were being used in a way that was arguably fair use, then I would agree that there is a First Amendment issue. I honestly don’t have the facts with the dajaz1.com case. My understanding, from the affidavit, is that there was probable cause to believe there was wholesale copyright infringement taking place. If there is a colorable fair use argument, however, I’d agree that the analysis changes. With most websites engaged in wholesale copyright infringement, though, there’d be no First Amendment issue in seizing the domain name.

Anonymoussays: