Anyway, those 2 out of 535 happen to be the most influential and notable politicians advocating for open-internet in the US and their voices are more likely to be heard by their colleagues who lack an opinion on the matter.

Honestly, neither are particularly influential or notable. Their committee assignments aren’t particularly impressive, nor is their legislative history.

Another WIN for Ron Whyden! He will be getting support from me, although Obama will NOT.

Yeah, the only conduct that drew the remedy was the RIAA asking for it. That’s pretty nonexpressive.

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.

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!

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.

“My understanding, from the affidavit, is that there was probable cause to believe there was wholesale copyright infringement taking place.”

Will you please stop using the word ‘wholesale’. The use of it is a blatant lie.

Wiktionary defines wholesale in this context as “extensive, indiscriminate, all-encompassing or blanket”. Infringement on that scale was simply not taking place on the website. A massive proportion of the content was original, user-generated, or authorised. In fact there’s been no evidence provided that any of the content was infringing.

the AC student lawyer person used two word quite a bit,

Wholesale, and incidental….

sorry but…..

“I don’t think those words mean what you think they mean”

in your use of the word “wholesale” that would imply “no other use”

in your use of “incidental” that would imply “of limited quantity”

the fact is in THIS case, it’s exactly the opposite.

As far as first amendment violation, if I have posted to that blog and wanted to reference it and link to it at a later time, I would not be able to….

THAT is a violation of MY free speech rights. I would have no way to refer to MY free speech that I have already spoken (written).

A violation of the First is a violation of the First, you must acknowledge that in order to then formulate your reasoning further.

By seizing a blog that speech is being and it is a speech that speech is being violated but your argument seems to be that because it can be done elsewhere than there is no problem with this violation.

Well, if that is true piracy is not really a problem now is it, since individual acts of infringement over those rights don’t really stop copyright holders to exert those rights elsewhere, is that what you are arguing? really?

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. . .

True enough, though you know what they say about ascribing things to malice…

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.

So what you are saying is that piracy is not copyright infringement since those rights can be exercised elsewhere despite piracy it doesn’t matter right?

Copyright holders are free to exert their rights elsewhere and so separated acts of piracy are not really infringement since copyrights can be asserted elsewhere nobody is stopping anyone from using those rights.

Clever, but it misses the point. If you use a piece of property to commit crimes, then that property may be seized and forfeited as subsequent punishment. If that property also happens to be used for protected expression, that doesn’t make the piece of property unseizable and unforfeitable. There is no restraint–no legal impediment like an injunction–against the owner of the property. They can exercise their free speech rights using all the rest of their property.

Your argument here — again — makes no sense. Again, you could basically get rid of the First Amendment under your nonsensical analysis here. The purpose of the seizure in Fort Wayne was “incidental” to the expression. The purpose of the law in Pappert was “incidental” to the expression. Every first amendment case could be dumped based on this logic.

I should start using “indirect” instead of “incidental,” because I see now the confusion I’m causing. I don’t mean to indicate anything of the magnitude of the effect when I say it’s incidental. I only mean to say that causally, it’s an indirect effect. (And another reason to not use incidental is the fact that the word is used differently in O’Brien.)

You say: “purpose of the seizure in Fort Wayne was “incidental” to the expression.” That’s the way the issue was being framed, but the Court disagreed. The predicate act for RICO in that case was obscenity, so it was a misdirection–a pretext, perhaps–to say that presumptively protected speech was not involved. Whether there was a RICO violation turned on whether there was obscenity. Putting substance over form, the Court said that obscenity was still the issue.

That’s not the case here. No one is putting substance over form or pretextually pretending the seizures are about copyright but really their about protected expression. I think the hardest part to understand is the fact that seizing the domain name as a subsequent punishment is not in fact a restraint as the word is used in the term of art “prior restraint.” A restraint is a legal impediment, like an injunction telling you you can’t publish a certain work. There’s no restraint–no legal impediment–with these seizures. Just like Arcara forcing Cloud Books to relocate was no restraint on protected expression, forcing a website to change domains is not a restraint either.

I think your side of the argument has merit, but reading the law as I have, it appears your views are in the minority. Read the dissent in Arcara or even U.S. v. Alexander. You’ll find voices that agree with your POV.

But as far as the whole incidental (or what I’m now going to call indirect) effects goes–that’s straight out of the jurisprudence. It’s not a distinction I made up–it’s one the Supreme Court actually uses to analyze these things.

your*

So you ARE saying that you can ignore parts of the constitution if you add an adjective to the accusation.

Time for me to go shut down all the free speech in America, all I need to do is accuse everyone of not being creative enough.

Then there is probable cause to deem you a fool.

by that “logic” why can’t a citizen make groundless accusations and get say Warner Brothers shut down, or maybe VIACOM?

The fact that you have to ask about the price means you can’t afford it…..

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.

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.

“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.

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.

I mentioned above that if fair use is involved, then it’s different and there is an expressive element to it. I think the vast majority of infringement is just plain vanilla infringement, though.

” 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.

Because children are renowned for there reasoning abilities…

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.

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.

Yes, thank you. People here seem to have strange ideas about what evidence is or what constitutes probable cause.

“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.

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.

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.

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.

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.

Probable cause, sure, but how does that relate this simplicity argument that prevents the First Amendment from applying?

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.

Copyright infringement is protected expression.

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.”

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:

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

LOL

No, it isn’t.

I love watching parasites die a slow death.

Slow death is torture. Torture you deserve.

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.

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.”