How Would US Politicians Respond If Spain Seized Domains Of American Companies?
from the a-little-thought-exercise dept
Here's a little thought exercise. We've written about the recent domain name seizures by Homeland Security's Immigration and Customs Enforcement (ICE) group -- including the domains of a Spanish company (which had already been found to be legal in Spain). The defense of why this is okay seems to be that since this company was using .com or .org domain names, which are both run by US companies, that it suddenly makes those domains US property, and thus subject to seizure under US laws. There are some serious questions to ask concerning whether or not these URLs really are "US" based. I mean, if you are hosting all of the content for a domain on a server in Spain, and the vast majority of the traffic is in Spain, it seems like a stretch to call the domain American.That said, in the comments Nick Dynice suggests that Spain should retaliate by seizing the Spanish (.es) domain names of various big American companies. And, of course, that raises a related question. How do you think US politicians would react if that's what had happened? If the Spanish government suddenly seized the domain names of some big American companies because Spain decided (unilaterally, with no notice or trial) that the company had violated the law, you would see American politicians screaming bloody murder about how Spain was intruding on American sovereignty, and discussing just how ridiculous it is that the Spanish government felt comfortable seizing a domain off the "open" internet.
So will any American politicians speak up about Americans seizing a Spanish domain?
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Filed Under: censorship, domain seizures, international incident, spain, us
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Easy
US pols would like US sites in the US namespace (which is within their control,) so they probably would tacitly encourage such a move.
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Tit for tat retaliation just isn't going to solve anything. Issues will not be resolved until Spain joins the rest of the world in not protecting pirates.
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Actually they are protecting the rule of law and the rights of the individuals.
Also with how poorly the record labels and movie studios have served their customers in Spain over 85% of the population infringes. This is a nightmare for any politician in spain wishing to change things. They can't implement the copyright maximalist version of reform, and if they do they can't enforce it with out a substantial backlash at the polls.
Basically anything the content industry trys will be ineffective.
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Only if it doesn't conflict with U.S. laws.... jeez i thought everyone knew that.... break it down for him Joe!
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Having different copyright laws from the US is not "protecting pirates"
In any case, the US tortures and murders people and we should probably stop doing that before lecturing anyone about IP garbage
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a pirate with a good stereo a huge collection of kei$ha could reek havok on an entire populace.
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75 mph might be too fast for Spains motorways (0.5 mph too fast) but that doesn't mean me driving 75 mph on a US Interstate makes me a speeder.
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You guys love Spain because their laws and their justice comes down on the side of pirates. Done in the US (or almost any other Western country for that matter) the site would be shut down in an instant. That the site was readily available in the US using a domain on a registry in the US sort of makes it a no-brainer, for the domain, the US law applies. What was decided in a Spanish court has no bearing on what happens in the US.
Your speeding example applies. Someone from Germany use to driving on the unlimited stretches of the Autobahn cannot come to the US and expect to do the same. Putting a German person in your passenger seat (or driving a German car) wouldn't make it legal for you either.
The site is clearly providing access to content without permission. That you can dream up a way to defend it is up there with defending drunk drivers.
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If it's illegal in the US, ban it in the US. If it's not illegal in the rest of the world: Guess what, you're not allowed to ban it in the the rest of the world.
You can't get arrested for smoking pot in Amsterdam when you come back to the US, can you? Didn't think so.
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Up to 1909 the US was a pirate nation. How about you pay back all those back royalties you owe to the UK (plus interest) for the years 1776-1908. If you don't then we'll seize US property that happens to be over here in compensation.
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Somehow in all of this, you don't seem to notice how they always try to pin their problems on "piracy", or how they try to pin anyone they don't like as a "pirate". You don't get the fact that the moguls will do anything they can get away with to extend and protect their own rights, with little regard for the rights of anyone else--not the artist or customers, and least of all you! But no matter what, to you, they can do no wrong and anyone that doesn't bow to them is just a "pirate".
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Unlike the US, Spain apparently has due process, where justice gets decided in court and not by some "special" agent fresh out of college.
The US is also holding people prisoner for 7 months without trial (Manning), while mentally torturing them. So I guess this whole concept of innocent until proven guilty is somewhat foreign to you.
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Could just as easily say
"Issues will not be resolved until USA joins the Islamic world in not protecting blasphemers."You see that's the thing, in democratic country's, people vote their own politicians/lawmakers into positions to write/create laws for their own society (you know the whole "government of the people, by the people, for the people" thing), not, contrary to American thinking, to write whatever laws the Americans tell them to write
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You have France, Italy, Germany, U.K., Iceland, Brazil, China, Russia, Australia, Canada, Mexico and others
If they all decide to seize American assets as a good way to exclude them from their markets what that would mean?
The U.S. opened that can of worms.
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And then this gem--> So, AC-- who exactly is "we"?
Does "we" include you?... Perhaps you're John Morton or one of his junior in-house counsel from ICE, out to fend off the criticism you're taking over the "Consti-what?" attitude which seems to be running rampant over there at DHS.
Or-- are you an 'IAA insider who knows you can buy your own law, regulation and enforcement whenever needed?
Gosh, I may not be part of your "we", but I happen to be a rights-holder myself, and I have "concerns" dammit, and I intend to make a call or two and get some changes made to DNS resolution of TLD's from some of these impudent little countries like Spain. Who cares if somebody traveling outside of Spain on business can't access their own website. It will still be there for them when they get back home.
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You're losing it, Masnick.
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Surely, if Spain were to seize www.google.se, no one in the US would complain, right?
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well pissed for a swede anyway.
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For example, if Spain made it illegal for search engines to index pirated material, they could then seize Google.es.
Get it?
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We've been over the Google thing a million times. Google's primary usage isn't infringement. That Spanish site's was. Completely dedicated to facillitating infringement.
Nonetheless, maybe Spain should try pulling google.es. Let's see if it happens. I'd chuckle.
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Not "Completely dedicated to facilitating infringement" according to Spain's laws.
Try again retard.
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No, it wasn't, but can't let things such as facts muck up your FUD, can we?
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Google's primary usage isn't infringement. That Spanish site's was. Completely dedicated to facillitating infringement.
And that's always been a crap argument anyway, like saying, "he has a day job and only rapes and murders people on weekends, so that's OK, let him go"
Either something is legal or not, the whole primary usage 'defense' is one the entertainment industry invented to hide behind so they don't have to go after the likes of Google because that is target that would bite back
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That is why we have courts to decide these things. And in this day and age there is more gray area than ever.
The crux of the matter is that the US is unjustifiably self righteous whenever it comes to piracy, terrorism, rape, pedophilia, or drugs. The bad logic is that these crimes are so terrible that if you do stop and consider due process you are considered a supporter or defender of them.
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They why were they found not guilty at trial?
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Ah, but in whose view?
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Battle Cry
"Remember the doMaine!"
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Totally confused
I am confused by some of the comments:
If a US company was facilitating infringement of Spanish IP and Spain decided to seize that company's .es domain, the US wouldn't think twice about it.Mike's comment did not say anything at all about IP, he said that "the company had violated the law". What if Spain had a law that said anyone promoting the sale of American products was violating the law? With this law they could seize the domains of almost any American company. Not IP law, but a different law. Or what if they had one that said spitting on the sidewalk was illegal and a company posted a video of someone spitting on the sidewalk? They could take away the domain due to contributory infringement.
None of this has anything to do with IP law. Yes, the reason why the site was taken down was probably due to an American company complaining that the site violated their IP, but the process that is being undertaken does not restrict itself to IP issues. What if, due to the discussion of these topics, TechDirt.com was seized by ICE? No actual infringement, but merely talking about the infringement.
Just because the company that merely registered the domain name is located in the U.S. does not mean that it is U.S. property. Does a patent registered with the U.S. Patent Office now belong to the U.S. government if it wants to appropriate it?
This does highlight a bigger issues, however, in that there is a problem with Verisign being the "owner" of .COM. Welcome to a world where the U.S. government runs the Internet. Let's bring back the Internet Kill Switch. Let's give the MPAA and RIAA the reins to the country. After all, we know what a good job they did with their own market.
Welcome to the United States of American Corporations�. Please register your DNA as you enter so that we can make money from you.
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Re: Totally confused
Seizing assets can be construed to include physical assets, financial assets, human assets and so forth.
This is a real can of worms that could have severe consequences for American interests.
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No, there's no violation of any law, just alleged violation, so it should be "might have violated" actually.
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More confusion
The activities of the site seized were legal under Spanish law and illegal under American law.
And I guess so much for "innocent until proven guilty". What ever happened to "O'er the land of the free and the home of the brave". Free? Brave?
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They would realize that a U.S. company that had registered its domain name in Spain would have agreed to abide by the laws of Spain. In other words, they wouldn't care. Good grief with the FUD, Mike. It's pretty unreal. Why don't you ever get worked up about rights holders who are having their rights trampled on by pirates? Oh, never mind... We know. You're not pro-piracy. Your goals just happen to be coextensive with the pirates. Whatever...
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Stop! I can't take it! LOL!
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OK, who added "The Masnick Effect" the Mike's Wikipedia page?
"He is also the name sake for the term "The Masnick Effect", on the techdirt blog in January 2011. The Masnick Effect discusses the idea of using and bending data to come to a predefined conclusion, even if the data does not clearly support the outcome. Often referred to as working backwards."
http://en.wikipedia.org/wiki/Mike_Masnick
Too freakin' funny!
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So you're saying it was censored. That sounds about right. I would expect no less from the "minions."
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I'm pretty sure more people will have read the Douglas Adams book than Techdirt...
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Surely you must know by now that Wikipedia is not a blog?
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How's that an effect?
Besides that sounds more like what the IP maximalists are doing.
A better definition would be: The Masnick Effect works by holding corporate/government double speak to the light of real unbiased data. The EFFECT is that people then see that these corporations and government agencies lie, cheat and steal.
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I can't personally speak for Mike, but these are the themes which I see as dominant here (in no particular order).
1) Government can't be trusted to act in the general interest of the country because of the pervasive relationship between the need to get re-elected and the influence of special interests. --> Scrutiny and transparency are needed to keep everyone honest.
2) Individuals, organizations, and especially government forever seek to accumulate power. Unchecked power will be abused, regardless of original intentions.
3) Businesses seek to avoid competition by any means possible, ethical or otherwise. Monopoly is like an all-candy diet. --Taste's good. --Not good for anybody.
4) New technology brings new competition and hence need for new business strategies. Some businesses have obviously chosen to try to use the legal system to limit the need for change rather than looking for new opportunities.
Why should we enable folks who would rather remain "fat, dumb, and happy", rather than innovate?
5) Despite energetic public promotion of the vast IP apparatus, scholarly economic research don't support the idea that IP == innovation, or that it is essential for innovation.
--> Perhaps we hear a lot about the piracy wars on TD because piracy touches all of these themes.
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Fun fun analogy time: You went and got your lip pierced. Some random guy comes up to you and says, "I don't like that piercing, take it out." You say, "It's my lip, and I like it this way." Random guy rips out your piercing anyway, just because he can.
I'm sure someone else can come up with a better analogy though, any takers?
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"Perfectly legal in Spain" is completely irrelevant to the issue of whether or not it's legal in the United States, dude.
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To put it another way, would it be fair if you had money in a foreign bank, and even though you're not a citizen of the country or had ever been within its borders, its government seized your money merely due to an accusation that you infringed on the rights one of its companies?
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Okay, I did like THAT one, but this still isn't FUD. It's just classic role reversal and a fair argument.
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Thanks. I've been sitting on that one for a while.
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I myself don't get 'worked up about rights holders who are having their rights trampled on by pirates', for the same reason that Republicans don't get worked up about cops raiding medical marijuana dispensaries: lack of sympathy. You don't have to support people's enemies just because you are apathetic about their plight.
I hope, though, for your own intellectual integrity, that you realize that many creative people actually disagree with the things that you support. I know you like to play 'McLaughlin Group' and throw in these little asides about Mike supporting piracy (just like others will call you a shill), but it's quite possible to be a rights holder and yet disagree with things done in the name of rights holders.
I couldn't live without the money that I've earned with various forms of audio-related IP. And I know for a fact that stuff I've worked on has been pirated many times over, especially in China. But as a citizen, I think that IP law as it exists today tends to favor lawyers more than anyone else.
And as an internet user, I don't want technology to be any more inhibited than it already is. Honest businessmen like myself can't really use BitTorrent to distribute our promotional materials because so many people will assume that our stuff is going to get them in trouble. As a result, my bandwidth costs are considerably higher than they could be. This is the kind of technological inhibition I am talking about. And before you tell me that we 'should hate the damn pirates for giving BitTorrent a taint of illegality, and not the stainless members of the legal profession for acting in the name of rights holders', allow me to point out that we who avoid using BitTorrent don't do so because we are afraid of losing potential customers for fear of pirates. Our potential customers aren't afraid of pirates. They're afraid of people like you.
Now, does this make me pro-pirate, too? Or will you concede the possibility that not everyone who disagrees with you supports criminal behavior?
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I love how you guys think you know me so well. My plan is to clerk for a judge for a couple of years (I love/respect the judiciary, and I've greatly enjoyed working for judges while in law school) and then get a job teaching law (IP, of course) while having a small practice on the side, hopefully IP. I'm following these mass litigation/Righthaven suits closely because I'm hoping to defend some people once I'm able to. Heck, I'm planning to do it pro bono at first just to get some trial experience.
But hey, if demonizing me makes you guys all feel good...
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For the record: I don't claim to know you, and I don't want to to know you.
I comment on things that you write because you are more articulate than most of your pro-IP brethren, and I think that the Pirates VS Creators model of the internet that so many of you seem to push is short sighted and harmful.
And I think that it's ridiculous to assume that everyone who disagrees with you is a criminal or supports criminals. There are many cultural reasons to support an open internet that have nothing to do with pirating content or glorifying an anarchistic remix culture that appropriates copyright material. I myself do neither. And, parenthetically, I can't stand 99% of the remixes that I have been subjected to. But I accept them as part of the price of freedom.
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Understanding, or even guessing at, the incentives of other interested parties is an inherent part of the equation when ideas are being tossed around.
BTW, I believe you do it to Mike all the time... and have even done it in the comments to this post.
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It's not really that .com is arguably "American"
On this particular point, it doesn't matter if the person or property is "American", "Spanish" or "Martian". It's not an issue of sovereignty. It's a matter of where they are physically located at the time the court is exercising its power (in the most simplistic approach to jurisdiction).
So, that doesn't change the fact that, yes, there would likely be cries of foul if the Spanish government were to arbitrariliy seize the .es domains of US companies, but if those domains are controlled in Spain, they arguably fall within Spain's jurisdiction.
This is a separate issue from whether or not the DHS seizures are or are not legal on other grounds.
HM
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Re: It's not really that .com is arguably "American"
First, who's laws determine whether the content is infringing. And THEN, who's laws will determine how to deal with the filthy pirateses.
If the copyrights in question originated in Spain, then HOW THE HELL do we get about to using our laws, enacted in support of treaties intended to support Spanish (and others') copyright law, to seize a Spanish publisher's domain for engaging in activities that Spain says are legal?
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Re: Re: It's not really that .com is arguably "American"
So, to the high-level question of how in the heck can a US agency seize a Spanish domain, the basic answer is, "because it's here". That's the core concept of jurisdiction.
HM
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You mean, websites can end
OMG!!!
Seriously, I would wager that the vast majority of politicians have NO IDEA what a TLD is, let alone that various countries have their own.
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Domain Names
There are countless examples of extortion attempts by individuals registering domain names and then extorting money from the real companies.
I understood that the only protection a domain name holder has, is if the domain name is also a registered trademark.
And as far as .es goes, there are hundreds of these "top level domains" (TLD); one for each country in the world, but 21 of them for TLDs; originals such as .COM and .EDU, and newer ones such as .TV or .INFO.
Anyone with USD 100,000 can setup a new TLD (top level domain), such as recently .asia When new TLDs come out, existing domain name owners are barraged with requests to signup their name with that TLD (and pay annual fees, of course). Does a company have to go broke paying annual domain name fees to each of hundreds of TLDs just to protect its rights?
http://en.wikipedia.org/wiki/List_of_Internet_top-level_domains
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Re: Domain Names
http://www.icann.org/en/registrars/ra-agreement-21may09-en.htm#3.7.7.10
According to ICANN, you are in the jurisdiction of the courts where you live and where your registrar is located. If your registrar is in the U.S., you are subject to U.S. law.
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German laws are more restrictive than U.S. law, can Germans now seize all assets from American companies and exclude them from the market?
American law is irrelevant to others, but an opportunity to exclude your competition through legal means is just to much to let it pass, America just handed over the tools and rationale for other countries go crazy to protect their territory from "illegal American interests"
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Presumably in reality that applies only to the domain name itself and not the company, which makes only marginally more sense.
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That rule does apply to the real world--the real world of domain name registrations, not signposts in Florida. Your point makes no sense.
Presumably in reality that applies only to the domain name itself and not the company, which makes only marginally more sense.
That rule applies to whatever company agrees to it, no matter where they are located.
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As for the idea of punishing these particular foreign companies.... Well with or without the domain being in the US, I suppose that if it's determined that a foreign company is breaking US law despite not operating anywhere near the country, that as a sovereign nation you can have them tried in absentia (not that any of these have actually been tried as far as I am aware) and sentenced to death if you desire - as long as they don't go to America it's not going to make much difference.
It just strikes me that such tactics are, given their effectiveness in "combating piracy", the government's equivalent of DRM; pointless and prone to piss off the people you're actually trying to work with - in this case other governments rather than paying customers - by trampling over what they will rightly see as their sovereign rights as a country.
The only way that kind of thing is going to have any real effectiveness is if it turns out the US really is big enough economically to bully and browbeat the rest of the planet into submission. It's possible, though personally I suspect there's a bit of smoke and mirrors , but just because you can is it really the way to go?
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Verisign..
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We have had ton's of cases recently of domain's being seized by everyone from the DHS to local AG's with no actual prior notification, never mind an actual trial
Thing's like rights to your property, right to trial, innocent until proven guilty no longer seem to apply in the USA if it involves anything online, especially if it involves the entertainment industry and/or "think of the children" types
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sort of related question
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Re: sort of related question
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I wish I got paid for posting. That sounds awesome!
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I wish I got paid for posting. That sounds awesome!"
Dude, seriously, if you are not getting paid to be the massive corporate shill that you are, then you are a HUGE fucking idiot. No one who isnt a traitor against humanity would be such a massive supporter of "might makes right" and "the law is absolute and immutable" and "accusation means guilt" points of view unless they were being fronted or otherwise benefiting directly from propagating such extreme views.
If not, you are a shill wrapped in fail wrapped in massive tool.
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The second-to-last refuge of someone who has lost their argument, and can no longer put forth any relevant points. Accuse them of being a young child and/or in school in an attempt to undermine their point by attacking their age or maturity. Pathetic.
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repeating earlier dismissive remarks in an attempt to "get the last word", and not actually replying to any comments or concerns.
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I used to welcome the additional debate from somebody who seemed intelligent and was able to respond to questions. Now he just ignores most questions and repeat what he said 3 posts ago. It is getting pretty lame.
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Sorry if I missed a post of yours. I try and respond to posts directed at me if I have something to say.
And if you follow most of his comment threads, he repeats the exact same thing over and over far more often then he ever offers actual proof to back stuff up or respond to new points.
I'm not sure what I'm supposed to be proving. Most of my arguments are legal arguments. I could cite legal authority for what I'm posting, but that doesn't really seem to interest many people, so I don't. If you want me to offer "proof" for any particular point, just ask.
He has a very limited argument set and I find myself losing respect for him lately.
Oh well, I'm not here to make everyone happy. I here to discuss issues and law.
I used to welcome the additional debate from somebody who seemed intelligent and was able to respond to questions. Now he just ignores most questions and repeat what he said 3 posts ago. It is getting pretty lame.
I'll try and freshen it up. I think we're all just repeating ourselves though, really.
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Actually, I'm in 21st grade now. LOL!
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At some point you have to decide to go out and do some real work. That didn't come until after the 25th for me.
Of course you can't forget the old aphorism "Every day's a school day", so maybe some of us are still at it.
I do think there's plenty to learn by paying attention to the conversations around here.
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You take that back! :)
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European hate speech and libel laws
Based on a theory of contributory liability it's not far out that a German or French court might seize yahoo.de or yahoo.fr on account of hateful materials being made available by the service.
Remember that Yahoo and US based companies have been in trouble for displaying nazi memorabilia and selling Mein Kampf.
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Re: European hate speech and libel laws
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Bloody Trolls are getting SO annoying
Because, if they aren't, well....
'nuff said about their brainpower in the comments :).
And, for all the idjeets out there....the USA is NOT an empire, nor do we govern foreign countrys.
They are perfectly entitled to have whatever laws they care to about IP.
For the USA to unilaterally decide to "punish" companies in foreign countries, without at a mininmum a court order, is ridiculous.
I don't know about anyone else, but I am not looking forward to the backlash this sort of attitude will cause towards the USA.
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It just struck me.....
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Analogy
Amazon is selling nazi/racist material under the cover of liberal US free speech laws. It may be legal in the US, but it's illegal in France and Germany. Residents of France and Germany can however access this material on amazon in the US via the Internet.
The real analogy would be if France or Germany controlled .com and now decided to seize the amazon.com domain, preventing amazon from doing business on that domain in the US, where their business of selling racist content is apparently legal.
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Re: Analogy
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Re: Analogy
Amazon is selling nazi/racist material under the cover of liberal US free speech laws. It may be legal in the US, but it's illegal in France and Germany. Residents of France and Germany can however access this material on amazon in the US via the Internet.
The real analogy would be if France or Germany controlled .com and now decided to seize the amazon.com domain, preventing amazon from doing business on that domain in the US, where their business of selling racist content is apparently legal.
Not just an analogy, but just like an actual case: Yahoo v. LICRA
http://files.grimmelmann.net/cases/Yahoo.pdf
In that case, a French court ordered Yahoo to "take all necessary measures to dissuade and render impossible any access [from French territory] via Yahoo.com to the Nazi artifact auction service and to any other site or service that may be construed as constituting an apology for Nazism or a contesting of Nazi crimes."
Then later, the Ninth Circuit held that French groups were under U.S. jurisdiction because there were sufficient contacts in the U.S.
Courts make orders that affect foreigners and foreign websites with regularity--and no "international incidents" come from it. Don't buy the FUD.
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Re: Re: Analogy
In that case it looks to me like the french caved to the US (again... I'll avoid any Cheese Eating Surrender Monkey analogies... oh, oops). I wonder what would have happened if for example the french had unilaterally declared yahoo itself illegal for hosting such content and seized any french-based bank accounts (assuming yahoo have any of course)
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Righteoushelter LLP, sues American site perezhilton.es in the US because it used its client's content. The case goes to court and perezhilton.es mounts a great, precedent setting legal defense, and its use is found to be fair use in US courts. Then, Righteoushelter complains to Spain and Spain takes it take down because Righteoushelter "says it is illegal" in Spain, even though perezhilton.es was not notified about the Spanish legality AND the US court fount it legal AND there is no opportunity given to mount a defense in a Spanish court.
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