The government shut down a communication channel for a year and half. And the government shut that expression down without the procedural safeguards of Freedman. What do you want to call it? A fuck-up? A constitutional fuck-up? A giant constitutional fuck-up? A giant constitutional fuck-up that might well have been avoided?if the government had willingly shouldered its proper burden in an adversary hearing prior to the seizure?

Freedman and its progeny are all obscenity cases. When it’s obscenity, the Court has found that more procedural safeguards are needed. Those procedural safeguards have never been applied to the copyright context, nor is there any reason ever to do so. The key is understanding the underlying rationale. The problem with identifying obscenity is that it’s a subjective analysis. Whether something is obscene turns on local community standards. Such is not the case with copyright. Determination of copyright infringement is an objective analysis.

Prior restraints are content-based restrictions; copyright laws are content-neutral. You just don’t have the same First Amendment concerns. With obscenity, there is a possibility that the work at issue will turn out to not be obscene, i.e., will turn out to be constitutionally-protected speech. There’s no similar concern with copyright. Once a determination has been made that the work in question is copyrighted, its suppression is not the suppression of constitutionally-protected speech. Even if the alleged infringer can prove a defense, such as license, it’s the license that protected the speech, not the First Amendment. The only exception would be if the use was protected by fair use, in which case it might be a constitutionally-protected use. But, as Techdirt likes to point out, determination of fair use is simple and objective. Not like obscenity.

Prior restraints take on two forms: a licensing scheme, or an injunction. With these seizures, we have neither. The danger of a prior restraint is that it will be used for censorship. I mean real censorship (not the TD over-inflated version), that is, speech restrictions based on viewpoint or subject matter. Copyright enforcement is about protecting proprietary rights, not censorship.

What’s more, seizing a domain name is not even a restraint. All that’s happened is a piece of property that’s been tainted by past wrongful acts has been seized so that it may be forfeited. The owners of the property (and their users) are free to carry on their protected speech activities, they just can’t use the seized piece of property. There is no licensing scheme and no injunction preventing them from speaking their minds. This is demonstrated by the fact that Rojadirecta was back up and running under a new domain name shortly after their property was seized.

Another distinction from Freedman is that here it’s not expressive materials themselves that are being seized (such as a quantity of allegedly obscene magazines). Instead, it’s an instrumentality that is seized. So it’s not like seizing the magazines. It’s more like seizing the truck that delivers the magazines, or the printing press that produces them. And the reason it’s seized is because of the role it plays in copyright infringement. The fact it’s also used for protected activities is irrelevant:

Following the logic in Arcara, forfeiture may be ordered for assets used in, to promote, or obtained from a criminal violation, whether or not these assets ?incidentally? happen to include expressive materials. Under such logic, the forfeiture is not ?prior restraint.?

Am. Library Assn. v. Thornburgh, 713 F. Supp. 469, 486 (D.D.C. 1989).

Other than in obscenity and child pornography cases, I’m aware of no court ever saying the Freedman procedural safeguards are necessary. Take away the issues of censorship, and the need for the added safeguards disappears.

Courts routinely reject the prior restraint argument in the context of copyright:

Reduced to its simplest terms, the petitioner’s argument suggests that any injunction entered by the District Court with respect to the initial broadcast of the Movie would constitute a ?prior restraint? in violation of the First Amendment. We disagree.

The copyright owner’s rights spring from Article 1, ? 8, Clause 8 of the Constitution, which provides in pertinent part as follows:

The Congress shall have the power … to promote the Progress of Science and the Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

The Copyright Act of 1976, codified at 17 U.S.C. ? 101 et seq., sets out the rights of a copyright owner and the method of vindicating those rights. The ?[e]xclusive rights in copyrighted works? [17 U.S.C. ? 106] include certain severable rights, such as the right to prepare derivative works7, the right to reproduce the copyrighted work in copies8, and the right to display the copyrighted work publicly (?in the case of literary, dramatic … works, … including: the individual images of a motion picture …? 17 U.S.C. ? 106(5)). Moreover, the Copyright Act specifically authorizes injunction as a remedy for infringement. Section 502(a) (17 U.S.C.) provides that: ?Any court having jurisdiction of a civil action arising under this title may … grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.? (emphasis added). Accordingly, the Copyright Act clearly contemplates injunctive relief to ?prevent? infringement.9 Section 501(a) (17 U.S.C.) (entitled ?Infringement of copyright?) states: ?Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 118 … is an infringer of the copyright.? Therefore, in the context of the instant case, subject to proper proof, it is certainly conceivable that petitioner, ABC, could be an ?infringer? of the ?exclusive rights? of the plaintiff, the copyright owner. As this court recently noted in Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 849 (11th Cir.1990):

With respect to copyright protection, ?[t]he first amendment is not a license to trammel on legally recognized rights in intellectual property.? *144 Dallas Cowboys [Cheerleaders, Inc. v. Scoreboard Posters, Inc.], 600 F.2d [1184] at 1188 (5th Cir.1979). Since the Copyright Act is the congressional implementation of a constitutional directive to encourage inventors by protecting their exclusive rights in their discoveries, copyright interests also must be guarded under the Constitution, and injunctive relief is a common judicial response to infringement of a valid copyright. [citations omitted.]

In re Capital Cities/ABC, Inc., 918 F.2d 140, 143-44 (11th Cir. 1990).

As a last resort, Penguin argues that issuance of a preliminary injunction against its work would constitute a prior restraint in *1575 violation of the First Amendment. The Court rejects this argument.

Penguin’s book is undoubtedly noncommercial speech entitled to full First Amendment protection. However, enforcement of the copyright code is a long-sanctioned means of securing the important governmental interests underlying the copyright code. Copyright law accommodates the concerns of the First Amendment through its exclusion of protection for ideas, and through the fair use doctrine. See Sid & Marty Krofft, 562 F.2d at 1170 (?[T]he idea-expression dichotomy already serves to accommodate the competing interests of copyright and the first amendment. The ?marketplace of ideas’ is not limited by copyright because copyright is limited to protection of expression.?); New Era Pubs. Int’l v. Henry Holt & Co., 873 F.2d 576, 584 (2d Cir.1989) (rejecting district court’s First Amendment rationale for denying preliminary injunction because ?the fair use doctrine encompasses all claims of first amendment in the copyright field,? and ?[a]n author’s expression of an idea, as distinguished from the idea itself, is not considered subject to the public’s ?right to know? ?), cert. denied, 493 U.S. 1094, 110 S.Ct. 1168, 107 L.Ed.2d 1071 (1990); cf. Harper & Row 471 U.S. at 560, 105 S.Ct. at 2230 (?In light of the First Amendment protections already embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, we see no warrant for expanding the doctrine of fair use …?); Zacchini, 433 U.S. at 577 n. 13, 97 S.Ct. at 2858 n. 13 (?We note that Federal District Courts have rejected First Amendment challenges to the federal copyright law on the ground that ?no restraint [has been] placed on the use of an idea or concept.? ?); New York Times Co. v. United States, 403 U.S. 713, 726 n. *, 91 S.Ct. 2140, 2147 n. *, 29 L.Ed.2d 822 (1971) (Brennan, J., concurring) (copyright cases inapposite to prior restraint discussion because copyright cases deal with restraint of form of expression, not the ideas expressed). The Supreme Court has shown no receptivity to First Amendment arguments in the copyright context; to the contrary, it has noted that ?the Framers intended copyright itself to be the engine of free expression? by supplying ?the economic incentive to create and disseminate ideas.? Harper & Row, 471 U.S. at 558, 105 S.Ct. at 2229. Although it is possible that some rare newsworthy photograph or work might require copyright to temporarily step aside in the interest of the First Amendment, this is not that case.

Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 924 F. Supp. 1559, 1574-75 (S.D. Cal. 1996) aff’d, 109 F.3d 1394 (9th Cir. 1997).

Defendants argue that this injunction is overly broad and represents an unconstitutional prior restraint on freedom of the press.

We have repeatedly rejected First Amendment challenges to injunctions from copyright infringement on the ground that First Amendment concerns are protected by and coextensive with the fair use doctrine. See Twin Peaks, 996 F.2d at 1378; New Era Pubs. Int’l, ApS v. Henry Holt & Co., 873 F.2d 576, 584 (2d Cir.1989) (?[T]he fair use doctrine encompasses all claims of first amendment in the copyright field.?); Wainwright, 558 F.2d at 95 (?Conflicts between interests protected by the first amendment and the copyright laws thus far have been *75 resolved by application of the fair use doctrine.?). We have already determined that, as to the copyright claim, Comline’s infringing abstracts were not fair uses of the Nikkei articles, and accordingly we reject defendants’ First Amendment challenge.

The injunction is only intended to bar abstracts that constitute copyright infringement and are beyond fair use. Abstracts that do not infringe Nikkei’s copyright, such as the two discussed above, are not barred by the injunction. The phrase ?substantial similarity,? conveying its particular legal significance, was designed to designate the proper boundary of the injunction. For additional clarity, however, we modify the injunction to replace ?substantially similar to any article or work? with the phrase ?substantially similar to the copyrighted elements of any article or work.? We affirm the injunction as modified.

Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 74-75 (2d Cir. 1999).

Passport first argues that the preliminary injunction is unconstitutional because (1) Passport can present a plausible fair use defense; (2) commentators have suggested in such situations that a preliminary injunction might be an unconstitutional prior restraint; and (3) some cases have refused to grant preliminary injunctions based on, at least in part, First Amendment principles.

We need not jump into this briar patch. We have held that First Amendment concerns in copyright cases are subsumed within the fair use inquiry. In other words, if the use of the alleged infringer is not fair use, there are no First Amendment prohibitions against granting a preliminary injunction. See, e.g., A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1028 (9th Cir.2001) (?Uses of copyrighted material that are not fair uses are rightfully enjoined.?); Dr. Seuss Enters. v. Penguin Books USA, Inc., 109 F.3d 1394, 1403 (9th Cir.1997).

Elvis Presley Enterprises, Inc. v. Passport Video, 349 F.3d 622, 626 (9th Cir. 2003).

Furthermore, it is well-settled law that the prior restraint doctrine is inapplicable in cases where one’s proprietary interests are at stake, such as infringements of copyright or trademark. See e.g., Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184 (5th Cir.1979). In upholding a preliminary injunction in a case involving a potential copyright infringement, the Fifth Circuit noted that ?[t]he first amendment is not a *931 license to trammel on legally recognized rights in intellectual property.? Id. at 1188 (citing Zacchini, 433 U.S. at 577, 97 S.Ct. 2849).

Bosley v. Wildwett.com, 310 F. Supp. 2d 914, 930-31 (N.D. Ohio 2004).

There’s plenty more where that came from.

The court here does a great job of explaining why the extra procedural protections are not always necessary, even when it’s expressive materials being seized. The context is counterfeiting, but the logic applies perfectly to copyright. I highly recommend reading this a couple times, since it gets to the heart of why the First Amendment concerns are not present:

The events that transpired in Pittsburgh do require this court to consider whether proper Fourth Amendment procedural safeguards were followed prior to the seizure of Boggs’ 2 presumptively expressive materials.2 In Pittsburgh, the Secret Service obtained warrants for Boggs’ residence, person and studio; there is no dispute that both a ?search? and a ?seizure,? as those terms are commonly understood, occurred. The question for this court is whether the magistrate’s authorization of the warrant afforded the proper rigorous procedural protections and was based on sufficient information so as to ensure against the unjustified suppression of legitimate First Amendment speech.5

When the subject matter of a search is expressive material, the potential for a seizure to act as a de facto prior restraint of that speech requires a more searching inquiry before issuing a warrant. ?Thus, while it is the general rule under the Fourth Amendment that any and all contraband, instrumentalities and evidence of crimes may be seized on probable cause, it is otherwise when materials presumptively protected by the First Amendment are involved.? Fort Wayne Books v. Indiana, 489 U.S. 46, 63, 109 S.Ct. 916, 927?28, 103 L.Ed.2d 34 (1989) (recognizing the risk of prior restraint); see also Roaden v. Kentucky, 413 U.S. 496, 501, 93 S.Ct. 2796, 2799?2800, 37 L.Ed.2d 757 (1973) (?A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material.?); Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961).

Plaintiff contends that for the government to seize his art en masse, as occurred in Pittsburgh, the government was required to first secure judicial approval in an adversary hearing on notice. As authority for this proposition, plaintiff cites Fort Wayne Books, 489 U.S. at 63, 109 S.Ct. at 927?28. However, this court finds that the concerns triggering the need for the pre-seizure adversary hearing in that and similar cases are not present in the Pittsburgh seizure.

Fort Wayne Books, along with Roaden, Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), Huffman v. United States, 470 F.2d 386, 392 (D.C.Cir.1971) and the other cases cited in support of plaintiff’s argument that additional process is demanded for warrants covering expressive materials have one common thread?they are obscenity cases. The probable cause determination in such cases centers around whether the subject of the potential seizure violates an obscenity statute. This court agrees that obscenity cases do provide a good starting point for the analysis that the court is undertaking here, as they present the paradigm situation in which presumptively expressive materials are routinely seized, raising the specter of prior restraints and censorship pending prosecution.

The analogy is not a perfect one, however. The rationale behind requiring special procedures (such as in camera review or adversary hearings on notice) before authorizing a seizure pursuant to an obscenity statute is that a determination as to whether a photo, film or book is obscene (and therefore unprotected) versus only pornographic (and therefore protected) is inherently subjective. ?Because the line between protected pornographic speech and obscenity is dim and uncertain, a State is not free to adopt whatever procedures it pleases for dealing with obscenity, but must employ careful procedural safeguards to assure that only those materials adjudged obscene are withdrawn from public commerce.? Fort Wayne Books, 489 U.S. at 79, 109 S.Ct. at 936 (citations omitted); see also Roth v. United States, 354 U.S. 476, 488, 491, 77 S.Ct. 1304, 1310?11, 1313?14, 1 L.Ed.2d 1498 (1957) (recognizing the complexity inherent in determining whether materials are obscene). ?The line between speech unconditionally guaranteed and speech which may be legitimately regulated, suppressed or punished is finely drawn. The separation of legitimate from illegitimate speech calls for … sensitive tools.? Marcus, 367 U.S. at 730?31, 81 S.Ct. at 1715?16. If obscenity seizures were to be authorized on nothing more than an officer’s affidavit, the affiant would have substantial, if not exclusive power to make the difficult determination as to whether the material in question taken as a whole, appeals to the prurient interest in sex, or portrays in a patently offensive way, sexual conduct specifically defined by the applicable state law. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). For a magistrate or other judicial officer to make a probable cause determination based merely on the bald affidavit of a police officer presents too much of a possibility that the subjective impression of that police officer will act as a prior restraint on protected speech. It is the evaluative aspect and sensitivity inherent in making an obscenity determination that requires a magistrate to have more that the officer’s word at his or her disposal. ?When presumptively protected materials are sought to be seized, the warrant requirement should be administered to leave as little as possible to the discretion or whim of the officer in the field.? Zurcher v. Stanford Daily, 436 U.S. 547, 564, 98 S.Ct. 1970, 1980?81, 56 L.Ed.2d 525 (1978).

The difficulty encountered in determining whether materials are obscene is not present when determining whether materials might violate counterfeiting statutes. While an obscenity determination requires evaluation, a counterfeiting determination requires only observation. The seizures in the instant case were executed based upon potential violations of Chapter 25 of Title 18 of the United States Code. To make a finding of probable cause that the relevant statutes were being violated, the issuing magistrate needed to be convinced of only three facts: 1. that the bills were made or executed in whole or in part after the similitude of United States obligations, 18 U.S.C. ? 474 para. 5; 2. that the bills were color reproductions, 18 U.S.C. ? 504(1); and, 3. that they were more than three-fourths or less than one and one-half the size of actual United States currency, id. No subjective? determinations were required?all the factors can be established with the naked eye. Any law enforcement officer?or even a lay person?who has average familiarity with United States currency could make the necessary observations of similarity, size and color to conclude that Boggs Bills potentially violate the counterfeiting statutes at issue. The concern underlying *8 the additional process for obscenity warrants?that a law enforcement officer will use his or her own internal definition of ?prurient interest? or ?patently offensive? to restrain speech based upon a mere dislike of the speech?is practically nonexistent here. The criteria that renders something as counterfeit does not require reaching a legal conclusion, but rather a factual one. When a determination can be made entirely on observation rather than evaluation, the traditional warrant requirement is sufficient, even when presumptively protected materials are at issue.

Perhaps the most apt analogy to the instant case is not obscenity seizures, but rather warrants issued in child pornography cases where a determination of potential violations of applicable law can be made on the basis of mere observation. The courts have held that probable cause determinations in the child pornography area can be made solely on the basis of affidavits even though potentially expressive speech could be restrained when the affiant is wrong. ?Identification of visual depictions of minors engaging in sexually explicit conduct, in comparison [to the legal determination as to whether materials are obscene], is a factual determination that leaves little latitude to the officers.? United States v. Kimbrough, 69 F.3d 723, 727?28 (5th Cir.1995); United States v. Koelling, 992 F.2d 817, 822 (8th Cir.1993) (noting that while there is some chance of a mistaken seizure, generally, ?most minors look like minors and most adults look like adults, and most of the time most law enforcement officers can tell the difference.?); United States v. Smith, 795 F.2d 841 (9th Cir.1986). The child pornography holdings demonstrate that courts do not require more rigorous procedural safeguards or an adversarial hearing prior to seizure when law enforcement officers have objective and non-evaluative criteria by which to make their determinations. Similarly, in order to demonstrate probable cause in support of the Boggs warrant, all that had to be ascertained was that the bills were in the likeness of United States currency, that they were in color, or that they were of an impermissible size. Such objective criteria obviate the necessity for anything more than the standard Fourth Amendment inquiry required for issuance of a warrant.

Substantial deference is given to a magistrates’ determination that probable cause exists. Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721 (1984); United States v. Vaughn, 830 F.2d 1185, 1187 (D.C.Cir.1987); United States v. Desantis, 802 F.Supp. 794, 803 (E.D.N.Y.1992) (noting that a magistrate’s finding of probable cause is in and of itself a factor tending to uphold the validity of a warrant). It is this court’s conclusion that the information contained in Secret Service Agent Thomas Abraham’s Affidavit in Support of Application for Search Warrant (?Abraham Affidavit?) provided a legally sufficient basis for the magistrate to issue the warrant authorizing the Pittsburgh search and seizure. In a November 20, 1992 conversation, Boggs admitted to Abraham that, pursuant to ?Project Pittsburgh,? he had printed $1 million of Boggs Bills and that he would circulate them in Pittsburgh over the next two years. Abraham Affidavit ? 17. Having seen Boggs Bills before?specifically, the fifteen Boggs Bills taken in Wyoming?Abraham was able to conclude that they were ?sufficiently similar to genuine bills that they satisfy the test of similitude? in violation of 18 U.S.C. ? 474 para. 5, that they were color reproductions, and that they were approximately the same size as genuine bills, in violation of 18 U.S.C. ? 474, para. 6 and 18 U.S.C. ? 504 (printing of photographic likenesses). Abraham Affidavit ? 18. This court also holds, based on the above analysis, that the affidavit was, by itself, a legally adequate basis upon which the magistrate could make the probable cause determination. As the warrant was supported by probable cause and did not require additional procedural protections prior to its issuance, this court holds that the Pittsburgh seizure did not violate plaintiff’s First Amendment rights.

Boggs v. Merletti, 987 F. Supp. 1, 6-8 (D.D.C. 1997) aff’d sub nom. Boggs v. Rubin, 161 F.3d 37 (D.C. Cir. 1998)

If I used a domain name to violate copyright laws, that property could be seized and forfeited. I’m not prohibited from saying what I like, I’m only prohibited from using that particular piece of tainted property. You haven’t removed my voice or ability to type, you’ve only taken away a single piece of property because I used it in the past to violate other people’s rights. It’s not a prior restraint because an affidavit establishing probable cause is sufficient for First Amendment purposes–no prior adversarial hearing is needed since the determination of infringement is objective and the Court’s obscenity cases don’t apply when it’s copyright. And it’s not a violation of due process since probable cause was demonstrated to a neutral magistrate who issued a seizure warrant. You may not like the seizures, but the arguments that they’re unconstitutional are not at all convincing.