Full Homeland Security Affidavit To Seize Domains Riddled With Technical & Legal Errors
from the this-just-gets-worse-and-worse dept
Another day and even more evidence that Homeland Security's decision to have its Immigration & Customs Enforcement (ICE) group seize a bunch of domain names without any warning or adversarial hearing was a colossal screw up. We haven't heard too much about the sites seized concerning trademark infringement, but there were five that were the focus of copyright infringement -- including a bunch of hiphop blogs (which were regularly used by artists and record labels alike to promote their songs) and a search engine. Last week, we went through a partial affidavit from a newly minted ICE agent named Andrew Reynolds, which showed numerous technological and legal errors in explaining why the domain of the search engine, Torrent Finder, was seized. Yesterday, we wrote about how some of the "evidence" used against the blogs included songs sent by the labels for promotional purposes.A few different folks have since sent over the full affidavit which you can see below. So now we can see the "details" of the evidence put together by Agent Reynolds that was (literally) rubber stamped by magistrate judge Margaret Nagle, and it's looking worse and worse for Homeland Security. Basically, all of the sites in question had some forums and in some of those forums, some users posted links to other sites, which hosted some content. In other words, under these conditions, an awful lot of domain names on the internet can be seized by ICE.
Just for fun, I went through most of the files found in the document and searched for them all in Google. In every case, Google popped up plenty of links to sites hosting that content. Now, it's entirely possible that a copyright holder could make the argument that some of these sites reached the level of "inducing" copyright infringement, but, as both Agent Reynolds and Judge Nagle should know, inducement of copyright infringement is a very dynamic area of law, which has multiple factors needed to establish whether or not inducement occurs -- most of which Agent Reynolds did not bother to present. Furthermore, inducement is supposed to be determined in a court of law following an adversarial trial -- not because some recent college grad ICE agent asked a movie or recording industry exec their opinion on the matter.
At no point, does it appear that any effort was made to establish that seizing an entire domain based on a small fraction of what occurred on the site does not violate the First Amendment. This is going to present a pretty serious problem for Homeland Security, because there's a fair amount of legal precedence saying that you need to take into account the First Amendment implications before seizing forms of expression.
Of course, one response to this, that we saw in the comments, was a claim that since ICE only seized the "domain name," speech wasn't prevented, since the speech could still live on on the server itself. This explanation fails for two reasons. First, domain names themselves can be considered speech as has been highlighted in a few different cases. Second, and more importantly, Agent Reynolds' own affidavit makes it clear that the seizures of domain names was because of the content found on those domains (though, he repeatedly, mistakenly seems to think that content on other servers is the responsibility of those domains). If Reynolds was only seizing the domain names to avoid stifling speech of the content on the rest of the servers, his entire argument fails. In his affidavit, he clearly states that he wants to seize the domain names because the domain names are "property used, or intended to be used to commit or facilitate criminal copyright infringement." But, if we're really going to argue that the domain names and the content on the servers are separate, then this argument makes no sense. The domain names themselves are not being used to commit or to facilitate criminal copyright infringement. Only some of the content on the servers.
Furthermore, Agent Reynolds' explanation for why the domains need to be seized rather than allowing an adversarial hearing to take place are laughable at best:
Neither a restraining order nor an injunction is sufficient to guarantee the availability of the SUBJECT DOMAIN NAMES for forfeiture. By seizing the SUBJECT DOMAIN NAMES and redirecting them to another website, the Government will prevent third parties from acquiring the names and using them to commit additional crimes. Furthermore, seizure of the SUBJECT DOMAIN NAMES will prevent third parties from continuing to access the five websites listed above.In other words, in yet another moment of technological ignorance on the part of Agent Reynolds and the judge in question, they seem to really believe that seizing the domain names prevents people from accessing the content in question. Of course, that was quickly proven false by the fact that most of these sites reappeared within hours on different domain names. But it also highlights how Reynolds really did mean to shut down the entire website (he was just somewhat clueless in how to actually do so) with zero regard (as required by the law) for the First Amendment implications.
On top of that, his claims of why the domains need to be seized, rather than allowing a court to issue an injunction or a restraining order, don't make sense either. Did he really think that with an injunction or a restraining order and an actual case going to court that "third parties" would magically acquire the domain names in question? And, even if they acquired the domain names, what would that have to do with the content on the servers? Is Agent Reynolds really basing his claim that these domains needed to be seized prior to an adversarial hearing based on a series of highly improbable events: (1) that a lawsuit would be filed against these domain holders, (2) that the court would issue an injunction and (3) that, for some reason, it would also not instruct the domain holders not to get rid of the domains in question, and (4) that not having happened, that the domain holders would simply decide to sell off or to give away those domains, and (5) that those domains would then fall into other hands, and (6) that those others might possibly use it to commit "additional crimes"? Really? The first two steps in the chain could be reasonable, given certain conditions, but the following four steps are beyond improbable.
Is Homeland Security really basing its already First Amendment-questionable seizure of domain names, for sites the industry used to promote its own works with no notice or adversarial hearing, with questionable and error-riddled evidence on a series of six hypotheticals, many of which are highly improbable?
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Filed Under: domain names, homeland security, ice, seizures
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The first two are gimmies, obvious.
Third is pretty normal - you want to avoid the charged parties from selling the business to others to continue on. It is likely the judge would have enjoined them from selling any assets (including the re-assigning the rights to the domain names).
Fourth comes from the third, if the servers are seized by the domains are not, they could just set up shop under a different name and keep going, or transfer the domains to others to do the same.
Fifth in implied by the fourth - if the domains are out of the hands of the original parties, who knows where they end up, and the sixth is pretty much the same.
Seizing the domain doesn't stop the owners from engaging in other illegal acts (or even the same ones) but it does disconnect the users from the site(s) in question. It stops ongoing acts. That is the point, no?
It is no different from seizing a car that people deliver drugs in or a business that is used as a front to sell stolen goods. While the process is ongoing, the property stays locked up.
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Theory exersize gone wrong?
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Who cares?
Not to mention that the sites were all owned by Evil Foreigners, while the ones who wanted them seized are Law-Abiding Americans.
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Re: Harder.
To continue your incorrect analogy: This is like the cops driving your science-damned car--after they stole it from you with not even a whisper concerning why until their law-dogs drafted some bullshit for you a couple weeks after the fact.
And, perhaps after a year and more time spent on bullshit legal fees, you MIGHT get your car back. Mind you, they've used it up, you're getting no recompense for the "free lease" of your vehicle to the cops, and you've been raped for court fees far in excess of the vehicle's value anyhow.
[sarc]Yeah, sounds legit & fair to me. [/sarc]
Are you, A. Coward, perhaps a lobotomized prostitute? Because, aside from that possibility, your "logic" does not justify your conclusion.
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Re:
I admit that Mike's phrasing with the double "not"s was a little confusing, and I had to read it twice, but that is exactly Mike's point: a judge would prevent them from unloading the domain names once a lawsuit was filed. To justify the seizure, Reynolds claims that "neither a restraining order nor an injunction is sufficient to guarantee the availability of the SUBJECT DOMAIN NAMES for forfeiture" but I fail to see how that's the case.
It stops ongoing acts. That is the point, no?
But it doesn't. The material in question is still available on the servers. According to Reynolds own affidavit, the reason is not to stop ongoing acts but to "prevent third parties from acquiring the names and using them to commit additional crimes" - and its not at all clear why a seizure is necessary for that, or why that's even considered a significant risk in the first place.
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How Naive
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Re:
The first problem is that they seized the street rather than the car. They took a much larger piece of property than was necessary and it is a piece of property that is:
1) owned and run by someone who has not broken any laws
2) used by people for completely legitimate purposes
3) possibly something considered a platform for speech
Some of the sites were seized with reference to posts from users with links to infringing sites.
I'm an analogy person, so I will do my best to come up with one that really fits. There may be holes, but feel free to tell me.
A non-student sticks a flyer on a bulletin board board on the Yale campus about a rave party. In the flyer it gives the location of the party and possibly even notes that there will be some illegal drugs at the party. The party is off campus and not being run by anyone involved with the school. The police seize the entire Yale school.
Now, there are domains on the list that look like they may have, in some way, contributed to infringement. However, there are a couple that look like they were collateral damage - and collateral damage to our free speech rights in this country should not be allowed...something about letting ten criminals go free rather than locking up one innocent...
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Lemley and Volokh classic article
While it is now somewhat dated, Lemley and Volokh's 1998 article “Freedom of Speech and Injunctions in Intellectual Property Cases” (Duke Law Journal) is a must-read for serious students.
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It ends up harming everyone when there is the same stupidity flowing around.
Now the question is, how the hell do we get our government to listen to people and stop listening to the MPAA?
We have Biden, Espinel, and now Reynolds who are truly colluding to make Americans have a worse day.
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Re: Re:
Which is even more tragic.
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Re:
So really none of what you said was valid.
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Re:
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So sad
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Re:
Also note that by typing your message you've infringed someone's IP rights to the alphabet, who will be suing you shortly.
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Re:
A little premature and without jurisdiction, sure, but Operation In our Sites is just a sneak peek of the upcoming drama and sitcom season on CSPAN.
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Not All of the sites had forums
Dajaz1 did not have forums.
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Re: Re:
First the car itself is not carrying any drugs, and the owners of the car are not selling drugs. What the car is doing is driving up and down the street, keeping track of where people are selling things. You can stop the car and ask "Hey, where is a hot dog stand?" for example. The car also hands out newsletters that the owners of the car put together with commentary about what is happening on the street, and they also hand out newsletters that people along the street give them.
Now, as it happens, there are a lot of drug dealers and prostitutes along the street along with the hot dog carts, street-corner preachers, and other legitimate activities. The owner of the car is just collecting information on location and doesn't really have a way to know which operations are legit and which are not. Some are clearly illegal, but how is the driver to know whether the hot dog vendor has a forged health department certificate, or if that person who looks like a prostitute is actually handing out free condoms and pamphlets on preventing STD's?
What they have done here is to seize the car and pretend to have shut down the illegal activity on the street. True, they have taken away a popular method for people to get information about where illegal activity was going on. However, there are several other cars driving up and down the street doing the same thing, and the driver of this car has another car up and running within hours. Old patrons of the car might not recognize the new car at first, but they will either catch on eventually or find another car to provide information. Either way, the vendors keep on vending and the customers are only mildly inconvenienced.
By seizing the car, however, the police also shut down information about legitimate businesses. Now it so happens that most of those legal businesses were competing with a cartel of the traditional hotdog vendor industry. The Police Chief and assistant chief are pretty cozy with the established vender cartel, so shutting down the competition was a plus as far as the police are concerned.
The police hardly noticed the newsletters that were being distributed, although some of the beat cops noticed that a few of the newsletters happened to mention other newsletters that sometimes talked about illegal activity. Some of the other contents of the newsletters were very important to people who live along the street, but the cops thought it was unimportant because they themselves didn't really understand it.
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Re: How Naive
What else would you have Americans do? Shrug and accept any and all injustices committed by their government? Or would you prefer they organize violent revolution?
Just because the government is capable breaking the rules without consequence - an arguably widespread problem - doesn't mean people should ignore it or forgive them for it. Public disapproval is the one and only consequence we can ensure they face.
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Re: So sad
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Poor Andrew...
Unfortunately, there is no recourse here for the domain owners. The government will eventually give the domains back with no compensation, no apology, no nothing. When you actions don't have any consequences, you can do pretty much anything you like.
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This is just another rehash of Techdirt's previous attempt to smear a federal agent involved in the seizures. The facts about the blatant and flagrant copyright infringement are of course conveniently left out and the usual pathetic attempts to hide behind the first amendment are trotted out.
I exposed this bs before:
http://www.techdirt.com/articles/20101217/01190512310/homeland-security-presents-evidence-domain-sei zures-proves-it-knows-little-about-internet---law.shtml#c1304
and let's not forget the sociopathic owner of torrent-finder who claims innocence while hiding himself and his site in another country, as he is fully aware of how illegal it is and how he'd be shut down in a heartbeat if he was located in the US.
It seems rabid piracy supporter Mike Masnick is growing ever more desperate to create FUD around this issue.
Not only will these seizures stand, you'll be enjoying some more in a very short amount of time.
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Why is the DHS doing this?
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Re: Re:
Right, exactly. Sorry for the confusion, but I am saying the judge absolutely would prohibit them from getting rid of the domain name. Agent Reynold's main assumption is that the judge would not or could not do that.
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Re: Why is the DHS doing this?
It's through the constant stretching of mandates. Basically, you have the immigrations & customs enforcement group, which was moved into Homeland Security back when it was formed. What ICE is *supposed* to do is keep watch at the borders, and a part of that is preventing counterfeit goods from entering the country.
What ICE has done over the past few years is take that rather narrow mandate, and pretended it means that it has the right to try to stop any infringement online.
And that's how Homeland Security pretends this is under its purview.
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Re:
The Supreme Court has rejected that analogy.
A Quantity of Books v Kansas (1964):
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Re: Who cares?
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Re:
Umm, no, you didn't. You wrote a comment that did include some interesting points and challenges - and that comment sparked some lengthy responses, which drew more from you, which eventually formed a thread that carries on in great detail with lots of points being made on both sides.
It's a good read, and you say some things that make me think about the issue in slightly different lights, but it's hardly as simple as you "exposing this bs" - there's plenty of room for debate. Of course your ongoing strawman attacks on Mike as a "piracy supporter" and your repeated insistence that we will all be proven wrong in some nebulous "short amount of time" are lowering the standard of that debate somewhat...
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Re:
Um... [citation needed] Why do you say that he is hiding himself and his site in another country? He seems to be a citizen of Egypt ("Waleed – who runs the site from his home country of Egypt..." Source: http://www.libertyvoice.net/2010-12/torrent-finder-determined-to-fight-u-s-domain-seizure/). Living in your own country isn't considered hiding.
"the sociopathic owner of torrent-finder"
"rabid piracy supporter Mike Masnick"
Who is attempting to smear whom here?
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Re: Re:
Put in real world terms, selling drugs out of your car but keeping the stash in your buddy's car doesn't make you any less a part of the drug transaction. Remember, it's a full transaction, not just a single event. Each step to make the transaction happen are part of that illegal act. Anyone who participates with knowledge is at risk.
All the jumping up and down doesn't change the basic issue at hand, the sites were contributing to and helping people violate copyright, and doing potentially as a commercial activity.
All the going around in circles can't erase the basic facts.
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Re: Re:
So tell us, AC, by what logic are citizens of other countries hosting websites on local servers "hiding"?
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Re: Lemley and Volokh classic article
Anyone who reads that article (and the cases they cite), and still thinks these seizures are constitutional, is probably a lost cause.
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Re: Re:
In a situation like yours, the question of legality is focused on something that may or may not be a protected form of expression. And it isn't actionable until that is determined.
In the website's case, the question of legality is focused on something that is not only not a protected form of expression (copyright infringement) but not even questionable as to whether or not it is legal.
It's not.
Prosecuting a charge of obscenity is 1000x more difficult than prosecuting one of copyright infringement.
Once again, you people are confusing your first amendment issues.
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Re:
Trying to confusing the issue with stupid analogies doesn't work ... so just stop.
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Re: Re: Re:
The problem is, that's not a "basic issue", no matter how much you insist it might be. Contributory infringement is an incredibly complex and dynamic area of law. Even most IP lawyers who believe these sights WERE contributing would disagree with you that anything about proving that is "basic" (if it was, they'd be out of a job)
You can maintain the position that torrent-finder is guilty of contributory infringement, and I'm perfectly willing to hear your arguments as to why - that's an entirely valid position to hold, though it's not one that I agree with. But to claim that it is a "basic fact" or that it could possibly be determined without any sort of adversarial proceedings is absurd.
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Re: Re: Re:
If he operated the site in his own country, he would be in jail already. The issue would long have been settled. The operating of sites in one country and remaining in the other is often done as an attempt to create a legal smoke screen. Even if found guilty in the US of X or Y or Z, it is unlikely he will ever make it to jail in this country. Further, it is equally unlikely that his government would jail him for crimes "committed" in the US.
It is the same reason your best buddy Julian Assange plays the game of being and resident of nowhere. The result is that he doesn't have to file taxes anywhere, and he doesn't have to account for much of what goes on in his organization. Most of the world's legal systems do not handle these sorts of situations very well. When they do get caught, these sorts of people try to get caught in a country like Sweden, which is very lax on these sorts of issues, and very slow to take legal action.
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Re: Re: Re:
The downside is, anyone who is trying to think of this problem using an analogy is fundamentally incapable of understanding an analogy as complicated as this one - let alone the actually problem.
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Re: Re: Re:
Also, using your (non)logic - if poor people know that poor people commit more crimes then it should be criminal for poor people to have children because they are knowingly participating in a transaction which is likely to lead to an actual crime.
Typically, in this country at least, we punish people for crimes they have actually committed - and rarely try to punish people for crimes due to their lack of action. Thats why gun manufacturers are not all in jail for "contributing" to gun murders.
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Re:
Calling a federal agent out when he makes a huge mistake is not an "attempt to smear." A smear tactic would be saying he can't get it up, or worships Satan, or something. The correct term for "smear tactic" is argumentum ad hominium. Two good examples would be calling Mike a "rabid piracy supporter," or calling the owner of torrent-finder "sociopathic."
The facts about the blatant and flagrant copyright infringement are of course conveniently left out
Because "flagrant copyright infringement" is not a fact in these cases. These are supposed to be criminal cases, which have a far higher burden of proof of guilt than previous civil cases (e.g. Napster). Until they are found guilty of infringement in an adversarial trial, they are guilty of no copyright infringement whatsoever.
Furthermore, I doubt that some of these sites would be guilty in a civil trial, either. At least one of the rap blogs claims that they obeyed every DMCA takedown request they received, and if that's true, they're protected under the "safe harbor" provisions. Torrent-finder, on the other hand, could not obey a takedown request even if they wanted to - because they literally have nothing to take down. They operate like Google or Bing, and entirely unlike Napster, The Pirate Bay, etc.
and the usual pathetic attempts to hide behind the first amendment are trotted out.
Yeah, how dare people "hide behind" their fundamental human rights. The nerve!
I exposed this bs before:
You voiced your opinion before. From what I read, you were mostly wrong. You "exposed" nothing.
Not only will these seizures stand, you'll be enjoying some more in a very short amount of time.
My guess is that the seizures will not stand, and the sites will never be charged with any crime. But, unfortunately, you're probably right that we will be "enjoying" more of them soon.
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Re: Re: Re:
In other words, even if the website was actively encouraging illegal downloads and hosting the material on their own site, as long as they have one blog entry free speech rights need to be taken into consideration. That didn't happen and that is wrong. Period.
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Re: Re: Re: Re:
"He" does operate the site in his own country, one cannot be found guilty of a crime in the United States if you are not a citizen of this country and you do not reside in or visit this country. Copyright infringement isn't even a crime in most instances - it is a civil matter.
Julian Assange is a resident of Australia and (presumably) pays taxes there. No private entity "has to account for much of what goes on" at their organization. Countries are surprisingly adept at getting criminals extradited for actual crimes as long as they can be located, an extradition treaty is in place, and the foreign country actually agrees that the activity is criminal rather than political.
It is clear that you didn't think through anything you wrote and are just lashing out at TERRORIST AND MUSLIMS AND BLACKS, OH MY! I'll assume you were a Bush supporter and believe that the Patriot Act helps to "ensure our freedoms."
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Re: Re: How Naive
Actually attack them from an oblique angle. Something they are not expecting is a great way to go. For the RIAA types start a distributed legal music system that points to every piece of promotional music they have handed out. Host no files and forward all DMCA take downs to which ever sites have the promotional music. Allow people to add links they want. Basically make it a legal free download system, including FMA, CC, etc. They loose no matter what they do. They come at you with DMCA take downs every music blogger on the planet gets pissed at them and bad mouths them. They leave you be they loose sales. They go the domain seizure route lawyer up, sue, fight back the domain seizure with 1st, 4th, 14th amendment violations. Also with them taking down CC music, well the options here are huge. Think a little outside the box but stay legal. If you set the whole thing up so that one of the exit stategies is a lawsuit all the better.
"Public disapproval is the one and only consequence we can ensure they face."
The politicians don't seem to care anymore. The population has a very short attention span and by election time the news stations and papers dare not bring up past deeds for fear of loosing access to the politicians.
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Re:
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Re: Re: Re:
It's is exactly like the (stupidly named) war on drugs. When you take a million dollars of cash or pounds of crack off the street, you deal a blow to the people who were profiting from it. When you lock up the dealers and the distributors, you make it harder to people to do business.
Remember, they didn't just seize the car. They now know who was driving the car, and they can in theory use the car to see who all else will walk up looking for drugs. Depending on how the case does down, the guys driving the car are likely to end up in prison.
The guys running these websites are now exposed. They are in legal jeopardy. We now know that at least one of the guys is some smart-ss from Egypt who doesn't have the balls to run the site in his own country.
Law enforcement don't just take the car and go home. If it only ended there, it would be meaningless.
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That was me that said that. I've done some legal research on the issue, and I was wrong. Domain names, as used here, are commercial speech. One aspect that you've been neglecting is that the domain names are commercial speech, not core speech. The First Amendment protection of commercial speech is limited, but there is still some protection.
The domain names in these seizures are commercial speech, not core speech. They are commercial speech because they are being used as addresses for users to locate the website owners' goods and services, i.e., their websites. Commercial speech receives much less First Amendment protection than core speech. The Supreme Court has held that when commercial speech is used for unlawful purposes, it receives no First Amendment protection.
That said, I now agree with you that these seizures are unconstitutional prior restraints violative of the First Amendment.
Whether or not the commercial speech at issue is unlawful has not been determined yet. The presumption is that it is not unlawful. Commercial speech is speech "presumptively protected by the First Amendment," and an exception to the general Fourth Amendment seizure rule prohibits its seizure prior to determination of lawfulness. The commercial speech at issue here, the domain names, can moor in the safe harbor of the Court's exception to the general seizure rule. Seizing it before a determination of its unlawfulness is prior restraint.
I realize that it may surprise some people that I now think this since I'm generally seen as being pro-IP. The reality is, I respect the rule of law first and foremost. If one side is abusing the law, I'll call them out for it no matter which side it is. I am all for rights holders exercising their rights--they just have to do so without violating the other side's rights.
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Re: Re: Re: Re:
Why do you think Google is very reactive to DMCA notices, and has in fact stepped up it's program to comply with them more quickly? Because they know if they don't, they can be in a legal hole.
That is US law.
As for your other twisted piece of logic, if poor people know that poor people commit more crimes then it should be criminal for poor people to have children because they are knowingly participating in a transaction which is likely to lead to an actual crime., all I can say is that you are pretty clueless. There is a remarkable difference from giving birth to a child or permitting a crack dealer to deal out of your living room (and guiding people to the right room so they can buy the crack). If you can't grasp that simple concept, I can understand why you are having a hard time following the discussions here.
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Re: Re: Re: Re:
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Re: Re: Re: Re: Re:
So where in the affidavit is it demonstrated that these websites did not comply with DMCA notices? Where is it shown that the existing legal processes for this situation, the very ones you are pointing to as Google's protection, were ineffective when it comes to these websites?
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Re: Re: Re:
In the website's case, the question of legality is focused on something that is not only not a protected form of expression (copyright infringement) but not even questionable as to whether or not it is legal.
Wow, that's some tortured logic... You do realize that these sites have not been found guilty of anything yet, right? And so their content also "may or may not be a protected form of expression". That has yet to be determined.
You really can't grasp even the basics here, can you? You keep conflating separate concepts, or conveniently skipping major steps in your logic.
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Re: Re: Re:
You mean First Amendment case law, not "obscenity case law" and if you don't understand why it's pertinent, please read the Lemley/Volokh paper referred to elsewhere in the comments.
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Re:
Ah, no. They were included in the posting of the COMPLETE FREAKING AFFIDAVIT above as well as being referenced in a number of the quotes that Mike comments on in the post.
As for how blatant and flagrant the actions of the website owners was, it would seem that Mike disagrees with you.
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Re:
rapgodfathers ~7 million posts
onsmash ~1.8 million posts
rmx4u ~1.5 million posts
torrent-finder ~20,000 posts
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Re: Poor Andrew...
I wonder. The prescribed action listed in the statute of authority for the seizures is that the property seized be destroyed.
How do you destroy a domain name exactly?
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Only one real solution to current government(s)
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Re: Re:
No matter which side of this issue you fall on, claiming it is a simple issue is ludicrous, and shows you have no respect for (or understanding of) the system of law.
You seem to have a highly totalitarian mentality. Because it is apparent and obvious to you that these sites are guilty, you don't place very much importance on their fundamental rights or on the concept of due process. That's quite frightening.
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Re: Re: Re: Re: Re:
Remember, it's a full transaction, not just a single event. Each step to make the transaction happen are part of that illegal act.
I'm pretty sure that you wrote this, right? I used a logical extension of this argument and instead of pointing out what about my logic is incorrect you say I'm clueless, claim there is a "remarkable difference" between my example of your logic and some other new unrelated example of different logic and then declare yourself a genius.
So, instead of adding another point to this discussion, I'll let the previous one stand until you are capable of responding to it.
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Admittedly, the precise contours of the commercial speech doctrine are in well-known disarray. However, in Mattel v MCA Records, the Ninth Circuit reiterated the notion that commercial speech is speech “which does no more than propose a commercial transaction.”
The Ninth Circuit went on to decide that use of the “Barbie” name was non-commercial.
Mattel was, as has been mentioned in previous a comment, cited in Bosley Medical v Kremer.
The affidavits seem to disclose somewhat more than mere advertising taking place at the websites in question. However, in any case, I don't think the commercial vs non-commercial speech distinction should be determined before an adversary hearing. It's notoriously tricky.
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I'm not sure if I should be baffled by your statement about torrent-finder or what. The owner's claim about getting a lawyer to fight it? He isn't going to do anything of the sort. It is nothing but a publicity stunt to keep his name in the news and more hits to his site.
Do you understand that it is next to impossible to find a legal file on that site?
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I suppose I shouldn't have said public disapproval is the "one and only" consequence - but it is the springboard from which any action is going to launch.
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If that was how the law worked, then every criminal both in the real world and the cyber world would be sure to employ some element of protected speech in their crime, thus insulating them from prosecution.
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http://blog.servint.net/2010/12/06/servint-editorial-on-coica-and-the-thanksgiving-day-d omain-raids/
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Calling bullshit on this. In order to be in legal jeopardy, a law must have been broken. Please point out even one specific single act where a law was broken.
Any music hosted on these servers was provided by the artists who created it or the labels who marketed it with either explicit or implicit permission to host and share it.
Any forum posts, links to other sites, or user generated content would clearly fall under DMCA safe harbors provisions. If no takedown requests were sent then the operators are under no legal obligation to remove the content in question.
Again, please point out even one single specific instance of a law being broken.
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And despite wanting to do so, they also acknowledge the difficulty in trying to connect obscenity rulings to copyright rulings with respect to the First Amend.
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There are things called standards of judicial review (look 'em up) that must be properly applied whenever a state action is potentially at odds with the constitution.
Now, there is plenty of room for debate about what level of scrutiny is applicable, and about whether or not the action would pass said scrutiny, but that's not the issue (yet). Right now the issue is that it appears no attention whatsoever was given to the fact that there are clearly constitutional questions that need to be answered here.
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The connexion betwixt “offensive Books or Pamphlets” is quite evident in the 1637 Decree of Star Chamber
(Emphasis added.)
The chief difficulty in connecting them in modern first amendment doctrine flows from the founder's intent that the Bill of Rights should outlaw for all time the wicked abuses of the Sterred Chambre.
For quite some time, the founders' efforts were fairly successful.
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What, for sale?
I think the above post might have been unintentionally hilarious.
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Be that as it may, I am thrilled that MusiCares will benefit to the tune of $500 if I am correct.
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Interesting. In the freetard case last year, that was pretty much the guy's (Tenenbaum?) defense. That was a hoot. At least the kid was honest though.
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Was that a pig sprouting wings or did someone just start shivering a bit in hell? ;)
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That's legal, isn't it, because Night of the Living Dead is in the public domain.
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More accurate analogy
"Its like the government getting some major dealers to distribute crack for them, then arresting only one or two of them while the more immoral small time dealers continue to peddle in the streets. "
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I think now you can stop claiming that it's an obvious fact that these sites were breaking the law. See, this is why this stuff requires proper scrutiny: if you were in charge, we'd be losing chunks of the public domain every day because you simply assume they are copyrighted and don't even bother to check. Good thing you aren't a judge.
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What, for sale?
And, with that one comment, you demonstrate the false premise in your entire series of posts on this site: that it's obvious what is and what is not infringing.
It's great when people debunk themselves.
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How many other examples do you have? Like I said, next to impossible.
Maybe TF can use the defense that they had NOTLD on their site so everything's hunky-dory!
Yeah! That'll work!
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Re: Why is the DHS doing this?
US Customs- which has been around since the 18th century, and 20+ other agencies were put under the DHS umbrella after 9/11; a wise move, as it allows agencies to coordinate better on a myriad of issues.
They have a website that describes the work they do:
http://www.ice.gov/
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But that's not even the point. The point is that you keep insisting it is obvious that these sites infringe, when in fact it is not at all. You do realize that the DMCA exists, right? And that this is exactly why it requires notice of specific infringing content?
Look, this debate is going back and forth and back and forth, but there's only one thing that I feel you really are refusing to acknowledge, and that is how seriously the U.S. courts take the right to free speech.
Your position that these sites are guilty of contributory infringement and shouldn't be allowed to do business - well, that's not crazy. I don't necessarily agree, and I won't say yet since we are still missing so many details, but really, that's fine. The problem here is that a bunch of speech has been censored with absolutely no attention paid to free speech rights.
That is a problem. I don't see how you can say it isn't. As you just demonstrated, it's not always easy to know what is infringing, so your argument that there was too little protected speech on these sites doesn't hold any water. As soon as there is the potential - just the potential - for censorship of protected speech, the law (both as written and established by case law) calls for far more process and scrutiny than a rubber-stamped affidavit and a pre-trial seizure.
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That is certainly true in these cases (most of them, anyway - I'm not sure whether all the rap sites were commercial or not).
It is not true, however, for domain names in general. This is obvious if you read any of the court rulings about "sucks sites." One example is TMI v. Maxwell, where the court ruled that the Lanham Act (and others) didn't apply, in part because the "sucks site" was non-commercial in nature.
In any case, the only thing that could be criminal about the domain name itself is if it was a criminal trademark violation. But unless there's a product called "Rap Godfathers," that wouldn't apply here. And, in fact, I don't think the owner of any domain name has ever been charged with criminal infringement, just civil infringement.
Other than that... carry on.
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Even more accurate analogy
"He's got a knife! Based on my few years of experience and training, and using information mainly derived from what spoon and fork manufacturers told me just yesterday, that means he's going to use that knife to kill someone."
*SHOOTS MAN DEAD*
"Oh wait, he was just using it to cut the thanksgiving turkey..."
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That's the sense I got reading the caselaw. There's no one test for determining whether a domain name is commercial speech or not. For the purposes of the seizure hearings, though, it doesn't matter if the domain names are commercial speech or core speech. The First Amendment prevents their seizure either way. The court wouldn't necessary have to make a determination between commercial and non-commercial speech. The presumption is that a domain name is not protected speech. The court only needs to determine that it's either commercial speech or core speech since either one alone is sufficient to qualify for the exception. I don't think that it's really that tricky of a determination to make since it's hard to imagine a domain name that isn't either commercial speech or core speech.
If the domain names are in fact entitled to safe harbor from the seizure statute (18 U.S.C. 2323), the only problem seems to be that the judges simply don't know about it. I doubt the agents applying for the warrants know about it either. There isn't any caselaw directly on point so you have to connect the dots to reach the conclusion. I suppose we're about to get some new caselaw that's directly on point, and that will be a good thing. If a couple of courts quash these seizure warrants on constitutional grounds, I predict the feds will stop applying for them at all. That won't slow down their anti-piracy efforts though.
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18 U.S.C. 2323 can only take effect after a trial has occurred:
Furthermore, "infringing" does not necessarily mean "criminal," as criminal infringement must be willful. From 17 U.S.C. 506:
Additionally, the language is clear that the seized materials refer to counterfeit goods. The sites we're talking about did not sell counterfeit goods (though others in the seizure warrant supposedly did).
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Hey, when you're right, you're right. I'm happy to see it.
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18 U.S.C 2323 is still good law in general. The problem is in its application to domain names. Any seizure that is made pursuant to the statute must conform to Fourth Amendment doctrine, and the current doctrine says that protected speech can't be seized without a trial. The countervailing risk of prior restraint won't allow it. The key to the whole thing is the issue of whether or not a domain name is protected speech. The caselaw suggests that while such a determination must be made on a case-by-case basis, in general, domain names are protected speech. That's my takeaway anyhow.
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What's happening here is slightly different since the domain name gets the safe harbor if it's either commercial speech or core speech. Exactly which kind of speech it is might matter at the trial, but for the threshold inquiry of the seizure warrant, it only matters if it's one or the other.
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perhaps the question concerned us citizens should be asking is "did dhs/ice have such evidence to support their actions?" this is a bit different than seizing goods at the border. where are the goods? how can we measure success/failure of this operation?
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506 is what we are discussing:
http://openjurist.org/17/usc/506
"(a) Criminal Infringement.—
(1) In general.—
Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed
(A) for purposes of commercial advantage or private financial gain;
(B) by the reproduction or distribution, including by electronic means, during any 180day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or
(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.
(2) Evidence.—
For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.
(3) Definition.—
In this subsection, the term work being prepared for commercial distribution means
(A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution
(i) the copyright owner has a reasonable expectation of commercial distribution; and
(ii) the copies or phonorecords of the work have not been commercially distributed; or
(B) a motion picture, if, at the time of unauthorized distribution, the motion picture
(i) has been made available for viewing in a motion picture exhibition facility; and
(ii) has not been made available in copies for sale to the general public in the United States in a format intended to permit viewing outside a motion picture exhibition facility"
So, then back to 2323:
"(A) In general.—
The forfeiture of property under paragraph (1), including any seizure and disposition of the property and any related judicial or administrative proceeding, shall be governed by the procedures set forth in section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853), other than subsection (d) of that section."
Which gets us to USC 853:
http://openjurist.org/21/usc/853
"(f) Warrant of seizure
The Government may request the issuance of a warrant authorizing the seizure of property subject to forfeiture under this section in the same manner as provided for a search warrant. If the court determines that there is probable cause to believe that the property to be seized would, in the event of conviction, be subject to forfeiture and that an order under subsection (e) of this section may not be sufficient to assure the availability of the property for forfeiture, the court shall issue a warrant authorizing the seizure of such property."
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And the mixtapes alone break numerous examples of copyright law.
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http://torrent-finder.info/
What exactly did they seize?
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Do you want to make a bet with me about them also?
re: the rap sites; those were commercial sites. Not all the music on there was leaked. On another thread I pointed out an example; a guy that was selling an album of himself covering hip hop tunes. That's a blatant violation of copyright law.
I understand that there were examples of protected speech on there, and I've said that those examples are not going to usurp the numerous instances of infringement that were occurring.
And I've put my money behind that belief.
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Legal files?
No.
They primarily link to a massive amount of illegal files.
You can argue the sky isn't blue all you want, but me and the judge are going to laugh at you.
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Are you sure he didn't pay compulsories?
I understand that there were examples of protected speech on there, and I've said that those examples are not going to usurp the numerous instances of infringement that were occurring.
The point -- which we keep making and you keep ignoring -- is that the law is pretty clear: if there's content to be blocked or taken down, it needs to be focused on the infringing content *and* that determination is made *at trial* not prior to any adversarial hearing.
That's the problem, which you keep ignoring.
Could some of these sites be found guilty of contributory infringement? Maybe. But that should be decided at a trial on the facts. Not an affidavit from a guy who doesn't understand how the internet works.
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Go read what I wrote in response to Karl below.
You can demand what you think should occur all you want, but the law provides for those domains to be seized.
You seem to be vacillating on whether to fight this based on seizure law or because you think there is a first amendment issue.
You already suspect, judging by today's post, that the seizure will stand based on Title 17 ss 2323.
These are commercial sites. How much do you know about their first amendment protections?
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Because pre-trial civil forfeiture is not allowed where the materials in question are presumptively protected by the First Amendment. Any attempt to seize potentially expressive material prior to an adversarial hearing is unlawful prior restraint.
So, for example, the government can use civil forfeiture to seize counterfeit medications (which are not protected by free speech laws), but not infringing books (which are).
The Supreme Court laid this out explicitly. The most relevant case is probably Fort Wayne Books v. Indiana, but there are plenty of others, e.g. Suntrust Bank v. Houghton Mifflin, Rosemont v. Random House, Near v. Minnesota, New York Times Co. v. United States, CDT vs. Pappert, or Reno v. ACLU.
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Then said - accurately - that commercial speech is also protected. In fact, nearly all of the prior restraint cases in this country (including copyright cases) involved commercial speech.
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Under 21 USC 853, both "a restraining order or injunction" (e) or "a warrant authorizing the seizure of property" (f) are explicitly used only "to preserve the availability of property." Furthermore, seizures should only be allowed if protective orders "may not be sufficient."
Even if pre-trial seizure of potentially protected expression was constitutional (which it's not), the seizure of the domain names would not be justified, on these grounds alone.
Clearly, the agent was not trying to gather evidence. He was trying to shut the sites down.
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Wait, thinking more about this... it's even more ridiculous than you make it sound. Even if that album was infringing, it would be the album itself that's infringing, not the site.
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Hmm. And we've asked you about half a dozen times, what is factually incorrect about noting that ICE is a part of Homeland Security. It's not FUD, it's called being ACCURATE and TRUTHFUL.
So, once again, I'll ask: what is false about claiming that ICE is a part of Homeland Security.
You won't answer, of course, because you never answer.
US Customs- which has been around since the 18th century, and 20+ other agencies were put under the DHS umbrella after 9/11; a wise move, as it allows agencies to coordinate better on a myriad of issues.
In other words, what I said, in noting that ICE is a part of Homeland Security is 100% accurate.
So why are you complaining?
You are amazing. People prove you wrong over and over and over and over and over again -- and you pop back up the very next day and make the same debunked argument. It's like you're living in an alternate universe.
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Right, but it sounded like you were saying that all domain names get only the First Amendment protections afforded to commercial speech.
I guess I misunderstood, sorry about that.
(And I'm still not convinced that all of the sites were commercial in nature, but that's notoriously hard to determine - just ask Creative Commons.)
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The government did this as a civil forfeiture. I know you are trying to bring the First Amendment into it, but these were commercial sites. Every single one. And thus under different consideration re: the First Amendment.
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Protected speech trumps unproven copyright infringement claims. The domain names will be un-seized at the very least because a judge can easily issue an injunction over publishing the off-site links to the claimed material as their legality is decided by a jury, which Judge Nagle could have done in the first place.
The government may not even pursue a criminal infringement case because even if they proved something was being infringed, they would still have to be able to prove the site owners had criminal intent.
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a) On what grounds has Reynolds met any amount of necessary evidence to seize domains in such a way as to bring up prior restraint issues?
b) On what evidence that the judge actually properly, thoughtfully considered said evidence in combination with a thorough understanding of the technology involved?
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Prior restraint involves protected speech. Any protected speech on these commercial sites is secondary; the sites primary purpose is illegal dissemination of copyrighted work.
Has it been proven in court yet that their primary purpose is illegal dissemination of copyrighted work? No. But with probable cause, gov has the right to seizure when it thinks it will win a conviction at trial.
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No, you didn't.
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But you also go after the site as they are breaking the law when they distribute/disseminate them and run their site as a for-profit, commercial enterprise.
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It evidently isn't considering his woeful description of torrents which - as has already been pointed out - fails to distinguish between trackers, search engines and the .torrent files themselves, along side inability to distinguish between links to discussions about copyright from infringing files and encouraging infringement as already discussed. He also failed to recognise the difference between seizing only the domain as if it barred access entirely versus actually seizing the sites themselves.
And please tell me, how is a seizure of a domain name important in gathering and preserving evidence of any crime?
He also uses the listing of torrent sites that Torrent-Finder provides to show which ones it queries as if that is evidence of infringement (referring to the use of pirate in the titles of some sites like the pirate bay, and at one point merely the reference to Movies).
He also doesn't even understand that Torrent-Finder doesn't directly link to nor host infringing content - it merely embeds a browser through which to view the other websites that have been searched. Torrent-Finder is right in that it doesn't control the content on these sites - taking it down is pointless. The sites that actually have the .torrent files (not even the actual content) would still be available, saying nothing of any examination each individual sites compliance with DMCA take down notices (if any have even been files).
And this is without even having read the entire affidavit.
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Youtube runs advertising around all of its videos, and puts advertising in the videos should the uploader decide to do so (and Google/Youtube deems the video popular enough to warrant the opportunity).
So does their domain name get to be seized now? Will I have to browse to Youtube.co or Youtube.info tomorrow now that ICE has found this terrible piracy haven? Or does due process actually matter and rights holders should be expected to go through the DMCA process and actually go to trial to address prior restraint issues?
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He gave a theory stating why it works. A theory which, in my opinion, is wrong.
The government did this as a civil forfeiture.
Which it's not allowed to do in First Amendment related cases, at least not without an adversarial hearing.
I know you are trying to bring the First Amendment into it, but these were commercial sites.
All of the cases I cited involved as much "commercial speech" as the rap blogs or search engines. It was prior restraint in the cases I cited, and it's prior restraint in this one.
I'm not "bringing the First Amendment into it." The First Amendment is relevant in every copyright case, just as it is in obscenity or libel cases. You're simply trying to pretend it's not. Fortunately, the Supreme Court says you're wrong.
I mean, on a common sense level, your view is just ridiculous. A porno shop is protected by the First Amendment, but a blog and forum site devoted to rap music is not? That makes no sense whatsoever.
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In that case, neither are these sites.
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In order for these seizures to be valid, the "goods" would have to be the domain names themselves.
Unfortunately, there's no evidence that any of the domain names are infringing. You can't copyright a domain name, so they would have to be guilty of criminal trademark infringement.
What they should have done was seized the contents of the servers, not the domain names - though without an adversarial hearing, even that is prior restraint.
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The New York Times and Fox News are commercial sites. That doesn't mean that —under the First Amendment— they're automatically considered commercial speech.
The fact that a speaker engages in for-profit activity, has little to do with whether his speech “does no more than propose a commercial transaction.”
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I think you might be making a careless statement here.
No one argues that merely imaging the servers amounts to a prior restraint.
Further, seizing the actual server hardware may not amount to a prior restraint—if there's no impairment of the ability to continue publishing. If someone was crushed to death in a printing press, a newspaper might not object too much to the seizure of that press for forensic purposes.
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With what? I'm still at a loss how accurately reporting that this was done within Homeland Security is "kidding" anyone. Can you explain?
Yes, I referred to Homeland Security in post titles. Because this is under Homeland Security. I've asked you many times now why you find that to be incorrect when even you admit that it was Homeland Security.
I'm at a loss. You seem to be complaining that I'm telling the truth, and you don't like the truth. How does one respond to that?
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What the Supreme Court said recently, in Eldred v Aschroft (2003), was:
“The traditional contours of copyright protection”.
Whatever else may be said, an ex parte order to seize internet domain names is in no way “traditional.”
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You keep saying it was mostly infringing files, or the protected speech was "secondary", but none of that matters. Boy am I sick of arguing with you.
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You're absolutely right. In that case, the government would not really be "seizing" anything. They would be able to gather all the evidence they wanted, without the risk of prior restraint.
And in fact, ICE did not even attempt to do this. This makes it clear that seizing the domain names had zero to do with gathering evidence, and everything to do with suppressing speech.
Further, seizing the actual server hardware may not amount to a prior restraint—if there's no impairment of the ability to continue publishing.
Possibly true, but probably not, since seizing a web server is done primarily for the "impairment of the ability to continue publishing."
In the example you created (death by printing press), the government could seize the press, because the crime committed (criminal negligence) is not even potentially covered by the First Amendment.
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In computer crime cases, the Fourth Amendment has a well-known exception to the reasonableness requirement.
Sometimes one must be a realist.
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however, there can surely be no doubt about the judge's actions. she just gave the 'go ahead' without checking anything at all! what a complete shambles! all based on the usual lies of the entertainment industries. sincerely hope they have well and truly shot themselves in both feet. problem is, no action will be taken against them, even if the actual person(s) that set this up could be named. the power of money, yet again!
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Amazing how many times I have to explain this.
Masnick should be ashamed of how he's obviously confusing his readers.
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All of this was gone over by lawyers for Gov; of course they helped him. He needed to know what he needed to find to make a case, and he certainly required some instruction on how the affidavit had to written and presented.
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Repeating something that does not make any sense is not "explaining." It's repeating something that doesn't make sense.
Masnick should be ashamed of how he's obviously confusing his readers.
I have to ask you again, what is confusing about telling the truth? You keep pointing to the fact that Customs has been around for a while. Duh. Of course. But it is a part of Homeland Security and it is entirely accurate to point that out.
So what is "confusing"?
I'll ask again: what is false about saying that ICE is a part of Homeland Security? You keep accusing me of dubious intent for telling the truth. I'm curious how telling the truth can be shame worthy?
Either it's not the truth and I have lied -- in which case, I'd ask you to prove that ICE is not a part of Homeland Security. Or I have told the truth and you, as per usual, have so little to say that the best you can do is COMPLAIN that I told the truth.
It's amazing how scared you are of the truth. We recently pointed you to a bunch of studies that proved you wrong, and your response was to insult everyone else.
I've never met anyone so allergic to truth.
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Because you told them they were, instead of telling them it was Customs.
You did it to create as much controversy as possible; and now you can't man-up and correct it so your readers cease to be confused as to who is actually doing the seizures?
Pathetic.
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What is the non-incidental protected expression on torrent-finder?
Or DaJaz1?
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The only thing seized was a particular domain TLD.
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Anon, you're arguing over which shade of blue the sky is... it's freakin blue. It's blue, ICE is part of DHS, and it's all part of the government. So why not call Mike out to say "it's the government"? Come on... if he was really interested in sparking controversy, he'd just say "ooooh... big bad government is comin to get your domain names!"
Now, why not go answer up to some of the other challenges that Mike and others have posted to your claims [sic] and stop harping on what doesn't matter.
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If the government seized the printing presses and publishing capabilities of, say, the New York Times, or Time Magazine; those publishers could go acquire new physical equipment and locations and continue printing. But that would not remove the prior restraint issue the government would be guilty of. So... what's your point on this one again?
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That's only because Agent Reynolds is (like most people) technologically ignorant. His intent, quite obviously, was to shutter the sites entirely. And to do so without any sort of due process.
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Yes, but that assumes that the actual criminal files are on the computer itself. (The case above seized computers to search for child porn stored on their hard drives.)
On the other hand, these sites do not host files. They are, on the other hand, used primarily as a vehicle for public, third-party speech.
It's not cut and dry, of course, and possibly could have been allowed. But it's not a done deal - the fact that it the websites were not used for file storage, but for public speech, certainly could (I think should) trigger prior restraint.
I guess we'll never know, because the only thing ICE was trying to do was to prevent access to the sites, not gather evidence. That's a whole other kettle of fish.
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I'm afraid you have no idea what his intent was unless you talked to him.
But judging by his actions and the affidavit, his seizure action was to guarantee the evidence necessary to show unlawful activity was obtained.
No servers were seized and no content was deleted. ICE simply ordered Verisign to direct those particular exact domain IDs to a new IP address, http://74.81.170.110.
The sites were free to use something other than Verisign and apparently that is exactly what a couple have already done.
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A claim that is laughable on its face. Mike listed a bunch of reasons above, but I'd like to add one more: domain names are not evidence. If illegal activity did occur (which hasn't been proven), then it didn't happen on a domain name; it happened on a server somewhere.
The only use of a domain name as evidence, is that it points to a server where unlawful activity occurred. By forcing Verisign to point to a different server, ICE destroyed that evidence.
And if they didn't - if, for example, they had records of the domain name pointing to the servers at a particular time - then there was no need to seize the domain names at all.
The sites were free to use something other than Verisign and apparently that is exactly what a couple have already done.
Not exactly. The sites were free to use another domain name, even through Verisign (though I'm guessing they were wise enough to go with someone else).
Of course, that's almost certainly not what Reynolds intended. Either he's just technologically ignorant, and was trying to shutter the sites entirely; or was very, very stupid, and decided to seize property that could not be used as evidence, and would not impact any "illegal" activity. I'm giving him the benefit of the doubt, and believing the former.
But either way, he's in the wrong.
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Unless they are not complying with DMCA takedown notices, they are not breaking the law.
FYI, takedown notices were not even mentioned in the affadavit.
Nor was there any explanation of why "linking sites," "file lockers," or "bittorrent sites" (his words) should be considered criminal infringement, since none of these types of sites have ever been convicted of criminal activity.
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Freezing that particular TLD ensures the site as it was when Reynolds found his evidence remains exactly that way; it can not be changed.
You want the seizure to mean one thing: shutdown of the site. That's your agenda. Except that's not what happened and it can be shown that the reason was to preserve evidence. Much better than seizing servers, I might add.
The sites were free to use another domain name, even through Verisign (though I'm guessing they were wise enough to go with someone else).
They were free to use another TLD. Was the name Torrent-finder seized? Rapgodfathers? Obviously not.
Btw, if you understand that it was Verisign that actually did the mechanics of this, you'll realize why your First Amendment claims are dead out of the gate; not that I believe you had any to begin with.
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Re: commercial speech
I actually did a bit of research about this, and I don't think you're right here.
The confusion is the difference between "commercial speech" and "speech by a commercial entity." It is only the former that has lesser First Amendment protection.
The Supreme Court defines "commercial speech" as speech that does "no more than propose a commercial transaction" (Pittsburgh Press v. Pittsburgh Commission on Human Relations), or is "purely commercial advertising" (Valentine v. Chrestensen).
This is a pretty inaccurate view of a domain name. The name is an identifier, not an "advertisement" for a site. It does not "propose a commercial transaction" any more than a company's name does.
In any case, even commercial speech enjoys some level of First Amendment protection, meaning laws that ban it are potentially prior restraint. See e.g. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council.
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Um, that's not at all what it means. He just got the TLD to point to a different IP address - that's it. Any data on the original servers can be changed at will or destroyed. Not a single shred of evidence was preserved by these seizures.
You want the seizure to mean one thing: shutdown of the site.
His stated goal was to "prevent third parties from continuing to access" the websites. That he was attempting to shut down the sites is not "my agenda," it's a fact.
if you understand that it was Verisign that actually did the mechanics of this, you'll realize why your First Amendment claims are dead out of the gate
Yeah, and if Verisign had not complied with the seizure orders, they would have faced no legal consequences whatsoever. Right.
This is a government seizure. There is no question about that. That Verisign was involved is immaterial.
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Or DaJaz1?
Since neither has been convicted (or even formally accused) of criminal copyright infringement, the legally correct answer is "all of it."
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It's an interesting case, though it's not really relevant in this particular instance. For those onlookers who don't want to read the case, here is the short version: Name.Space wanted Network Solutions wanted to add more general top-level domain names (like .com or .net). Network Solutions contacted IANA and the NSF, and was told not to add them. Name.Space sued Network Solutions and the NSF, alleging anti-trust violations and prior restraint. The Supreme Court rejected Name.Space's arguments.
In other words, the Supreme Court ruled that government agencies can limit the content of domain names for practical technological purposes, without triggering any First Amendment issues whatsoever.
On the other hand, the case is entirely different when the content of the domain name is involved. Recent "gripe site" rulings have made it clear that the content of domain names is (at least potentially) protected speech. See, for example, Taubman Co. v. Webfeats:
Now, AFAIK no "sucks site" case has ever reached the Supreme Court, and a number of these cases have contradictory outcomes. Other courts ruled that "sucks sites" were not protected speech (e.g. Wal-Mart Stores v. Walsucks). However, their reasoning should be noted: the courts did not consider these "sucks sites" to be legitimate conumer complaints sites, but instead an attempt to extort money from the trademark holders. That reasoning has fallen by the wayside in the past couple years, and most circuit courts now follow the Taubman ruling. But it is by no means clear-cut.
Regardless, claiming that the content of a domain name is not even possibly protected speech is not really correct.
...And fascinating as this is, we're getting off topic here. These domains were seized to block access to the websites, not the domain names. Judging prior restraint rests on whether the websites are potentially protected speech. And we both agree that they are.
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Huh? You and I seem to read the same caselaw but come away with different takes. I have hardly seen a case or a law journal article on the subject that didn't include a reference to Name.Space. Here's why...
The Second Circuit in Name.Space first laid down this rule: "Domain names and gTLDs per se are neither automatically entitled to nor excluded from the protections of the First Amendment, and the appropriate inquiry is one that fully addresses particular circumstances presented with respect to each domain name." In other words, without a case-by-case analysis of the domain name, you cannot say that it is or is not per se protected by the First Amendment.
And then they listed factors to consider when determining whether or not a domain name is speech. This includes, "particularistic, context-sensitive . . . analyses of the domain name itself, the way the domain name is being used, the motivations of the author of the website in question, [and] the contents of the website."
More on point to our discussion here the Second Circuit could hardly have been. That's why I pointed you to it.
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Well, the entire case was about general top-level domains, not domain names in and of themselves. I guess I didn't dig deep enough into the ruling.
You're right, though, the court's ruling in Name.Space is a lot more nuanced than I thought. They do say that even a gTLD might possibly be protected in the future (though they're not at the moment).
So between this case and all the "gripes sites" cases, it seems to me that the ex parte seizure of a unique domain name is, in fact, prior restraint. The only way this would not be the case is if the defendant could not legally raise a defense when considering the speech analysis. This doesn't seem likely, especially since all the "gripes sites" cases revolve around just such a defense. And that's in a civil court.
Still, I don't think the issue will be completely settled until the Supreme Court weighs in.
Also, happy holidays!
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Happy Holidays to you as well. I'm in the middle of assembling a bike from Santa. :)
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not necessarily. under current copyright law, "derivative works" are permissible - this is what allows sampling, covers, mash-ups, and parodies. remember Weird Al Yankovic's parody of Coolio's "Gangsta Paradise?" and how Coolio was upset about it? the real reason Coolio didn't pursue any legal action is because, as a derivative work, Weird Al's "Amish Paradise" was protected under copyright law even though Coolio (says he) didn't give permission for such derivation.
mixtapes, depending on how they're mixed (simply one straight track followed by another straight track doesn't count; the specific compilation might be covered but not the use of the individual songs, therefore making moot of the compilation's protection), can be classified as "derivative works." if there is anything added, deleted, remixed, etc. (as is common with many mixtapes) then the mixtape becomes a "derivative work" and therefore is protected and legal under copyright law.
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Response to: Anonymous Coward on Dec 21st, 2010 @ 8:58am
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