Rep. Lofgren Challenges IP Czar On Legality Of Domain Seizures

from the example-to-the-rest-of-the-world dept

Fri, Mar 4th 2011 9:47am — Mike Masnick

A friend of the site sent over a great video of Rep. Zoe Lofgren quizzing IP Czar Victoria Espinel about the recent domain name seizures. It's clear that Lofgren has been well-briefed on the topic (which makes her one of very few elected officials). Lofgren has always been really good on copyright issues, so this isn't a huge surprise, though I wish she were more vocal on some of these issues. What's really stunning is Espinel's deer-in-headlights reaction to the multiple questions... and the fact that she didn't really address the key questions: She starts out her response with a total non sequitur about how copyright infringement is an important issue and part of her mandate. That may be true, but what Lofgren had specifically asked her was why ICE and Homeland Security are spending taxpayer dollars on a few random blogs, rather than actual criminals.

Where it gets good is when Espinel tries to claim that there was due process in the domain seizures, where Lofgren jumps back in and points out that Espinel is wrong, and that there is no due process here. Espinel pulls out the same claim we keep hearing: that a magistrate judge approved the seizures based on "probable cause," but Lofgren responds by pointing out that judges in such circumstances approve almost anything -- and highlights ICE's similar massive screwup in taking down 84,000 innocent sites -- which also happened with a magistrate judge's rubber stamped approval. Lofgren knows that that's not due process by any stretch of the imagination, and ICE and Espinel really should give up on this line of argument. What they should do is actually provide real due process. Rather than seizing domains, file a lawsuit.

Lofgren's statement in response to Espinel's "due process" claim is so good that we'll repeat it here:

With all due respect, judges sign a lot of things... For example, the FreeDNS takedown -- it wasn't a copyright enforcement, but "supposedly" a child pornography enforcement -- ICE took down 84,000 websites of small business people that have nothing to do with child pornography at all. And put up a little banner saying "this was taken down for child pornography." Really smearing them. If I were them, I'd sue the Department. These were just small businesses. They had nothing to do with anything, and yet a judge signed that. So, if that's the protection, it's no protection. I want to know, what is the Department doing to think about the affirmative defenses, to think about -- yes, there's piracy, and all of us are united that we gotta do something about piracy -- but there's also a First Amendment that you should be considering when you go and destroy a small business. Are you thinking about that?

Espinel's response is that they are thinking about this -- but it's not shown in their actions at all. Once again, there's a very simple way to handle this: have real due process that involves an actual adversarial hearing where before you shut down a website with tons of perfectly legal expression, someone points out to the clueless newbies in Homeland Security that they're not breaking the law. Why is that so difficult?

Espinel goes on to talk about how important due process and the First Amendment are to Americans -- and how what we do serves as an example to other countries. That leaves us with a pretty big question: if that's the case, why did she and ICE ignore both due process and the First Amendment with these domain seizures?

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Filed Under: domains, due process, first amendment, ice, seizures, victoria espinel, zoe lofgren

63 Comments

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The eejit (profile), 4 Mar 2011 @ 9:17am

Because their alien, corporate overlords saids so. Or because they thought of the moral outrage, like Faux News.
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rubberpants, 4 Mar 2011 @ 9:59am

The fact that we even have an IP czar shows how captured our government is by the industry.
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The eejit (profile), 4 Mar 2011 @ 10:20am

Re:
There needs to be an IP cszrina, in case of revolution, too.
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Dark Helmet (profile), 4 Mar 2011 @ 10:26am

Re: Re:
When do we get a Citizen's Rights Czar? I mean, it'd be nice is there were SOMEONE in Washington lookin' out for us....
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Anonymous Coward, 4 Mar 2011 @ 10:32am

Re: Re: Re:
The majority of American citizens don't really have any money so I don't see why they would receive any rights.
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DH's Love Child (profile), 4 Mar 2011 @ 10:34am

Re: Re: Re:
HA HA HA HA HA!!!
Oh wait, you were SERIOUS?
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Kevin (profile), 4 Mar 2011 @ 10:43am

On the brighter side
The video only highlights the naivety of Espinel in the matter of law and due process (woops). It also highlights how little oversight there truly is in cases like this and the damage that it can bring upon people who have truly not done anything wrong. Whether or not anything is actually done about any of this remains to be seen (and I don't expect any), but perhaps it might serve as a wake up call to those who have remained silent, and make others aware that we cannot continue on this road.
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Joe Grachhii, 4 Mar 2011 @ 10:47am

I, for one would welcome a rebirth of the office of Tribune for the People and and humbly offer myself as a contender.
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Whatis42? (profile), 4 Mar 2011 @ 11:12am

She admitted the 84000 episode...
was a mistake in this public hearing. How does that bode when we consider the inevitable law suit that will be filed in that case?
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Anonymous Coward, 4 Mar 2011 @ 11:12am

Re: On the brighter side
There should be a hearing with ICE and DOJ officials present. Lofgren's original question was about safeguards and the only answer Espinel had was that a judge signed the warrant. She then passed the FreeDNS argument off as 'not my department' and said there's safeguards in Operation In Our Sites, without specifically mentioning the process of how sites are chosen. Despite what she said about the FreeDNS seizure, ICE most likely used the same poor training skills they learned from the IPR Center when seizing mooo.com. Go to ipr.gov and check out the logos of the entities involved on their front page and you can see who's really pulling the strings.

The last statement Lofgren had about not going after bigger sites and operations was eye opening, and pretty much repeats what a lot of us suspect, that they're doing this to the small fries in the hopes that they would just walk away and not dispute the seizures. They're using deterrence through prosecution which is a ridiculous way to gauge their success instead of convicting people. Instead of going after the sites that only cater to one sector of piracy, ICE should be going after the piracy multitaskers who deal in music, movies and software. I'm not saying that they'd win those cases. But obviously if they're erroneously applying laws against sites that are 2-10 degrees away from the distribution(which is what the MAFIAAs want but don't have) then they'll eventually lose all of these cases.
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Anonymous Coward, 4 Mar 2011 @ 11:18am

Why is it that everyone has to say "by the way, I am not in favor of piracy"?
Mildly offtopic, but I have been noticing lately that, for some reason, people feel the need to add something to the effect of "by the way, I am not in favor of piracy" in any copyright-related discussion. Why do people feel the need to state that?

Is it that they feel copyright infringement is so vile that they feel the need to explicitly distance themselves from it?

Is it that they feel copyright infringement is so common that if they do not state otherwise people will think they are in favor of it?

Is it that they are in denial and trying to distance themselves from how they really feel?

Or is it something else?
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Dark Helmet (profile), 4 Mar 2011 @ 11:18am

Re:
"I, for one would welcome a rebirth of the office of Tribune for the People and and humbly offer myself as a contender."

Might as well make that petition with me. Once people in America start revolting and supplant the current government with an all powerful Helmetocracy, headed by yours truly, I'll be needing directors of different functions.

It should be fun reading the resumes for the "Director of making sure Charlie Sheen pays for his asshatery" position....
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Marcus Carab (profile), 4 Mar 2011 @ 11:22am

Re: Re: Re:
Does anyone know when exactly it was that modern democracies decided they were going to start giving their public servants an outdated Slavic title for supreme monarchs?
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Anonymous Coward, 4 Mar 2011 @ 11:24am

Re: Why is it that everyone has to say "by the way, I am not in favor of piracy"?
An example from this article, on the quote: "yes, there's piracy, and all of us are united that we gotta do something about piracy".
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Dark Helmet (profile), 4 Mar 2011 @ 11:24am

Re: Why is it that everyone has to say "by the way, I am not in favor of piracy"?
It's because you can't have a rational dissenting opinion on current copyright policy without twenty knuckle-dragging mouth-breathers showing up, pulling down their pants, chopping their nutsacks off and then screaming "YOU MUST LOVE PIRACY YOU FILTHY PIRATEY PIRATE COMMUNIST NUN-PUNCHER!" all the while writing the word "RAPORIST" in big bold letters all over the place with their scrotum-blood.

See? We're just looking out for the potential children.

Bitches....
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Anonymous Coward, 4 Mar 2011 @ 11:25am

Re: Why is it that everyone has to say "by the way, I am not in favor of piracy"?
Here's what I think. When discussing these topics, anyone who doesn't approve of anything the industry wants is accused of "just wanting stuff for free." It's an upfront defense of a common accusation.
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Jay (profile), 4 Mar 2011 @ 11:32am

Comes down to this?
Because once someone admits they're for pirate, it shuts down ALL conversation. In politics, it's unfortunate because out of ALL of this, you don't hear about the consumer's side of why they may like piracy.

In the private sector, you know that TAM comes in here to talk about people being "freetards" when they're calling out the bad behavior of enforcing copyright litigation. Best I can say it best comes down to a dichotomy:

Moral based (I don't download music because of X)
Utilitarian (I don't support the laws of copyright)

What seems to happen is the moral based argument says more in regards to guilting people into stopping the sharing.

The utilitarian argument just wants better laws to reflect the technology advantages of today.
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Dark Helmet (profile), 4 Mar 2011 @ 11:34am

Re: Re: Re: Re:
"Does anyone know when exactly it was that modern democracies decided they were going to start giving their public servants an outdated Slavic title for supreme monarchs?"

Yes, actually. The first recorded instance of this happened in the USA in the latter part of World War 1 when President Woodrow Wilsonput Bernard Baruch in charge of the War Industries Board. The press and some politicians dubbed it the "Industry Czar" position.

It was also used in 1919 after the Chicago Black Sox scandal occurred and Kenesaw Landis, a former judge, was named the first commissioner of baseball, or "baseball czar", in order to clean up the sport's image.

Good enough?
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Joe Grachhii, 4 Mar 2011 @ 11:35am

Re: Re:
It should be fun reading the resumes for the "Director of making sure Charlie Sheen pays for his asshatery" position....

I can only assume the list will be long, distinguised, and heavily armed.
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Matt Bennett (profile), 4 Mar 2011 @ 11:41am

Just a pedantic editing note:
"Supposedly" should not be in quotes. She was not quoting someone else, nor being ironic, she really meant "supposedly" as part of the structure of the sentence. You might want "child pornography enforcement" in quotes, but I think that's a judgement call.
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Anonymous Coward, 4 Mar 2011 @ 11:45am

Re: Comes down to this?
Perhaps they could dislaim:

I am not in favor of piracy *when the laws regarding it are sane and realistic*.
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Anonymous Coward, 4 Mar 2011 @ 11:52am

Re: Re: Why is it that everyone has to say "by the way, I am not in favor of piracy"?
I, for one, am a capitalist nun-puncher, thank you very much and good day to you, sir!
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Joe Grachhii, 4 Mar 2011 @ 11:55am

Re: Re: Why is it that everyone has to say "by the way, I am not in favor of piracy"?
It's a bummer, because the best things in life are free, and money can't buy you happiness!

Now that I have that out of the way, I'll give the Three Commandments as a Consumer:
1) I like free stuff!
2) If I can't get it for free, I won't mind getting it for cheap.
3) If I can't get it for cheap, then I will consider paying the sticker price, but only if I believe that I am being fairly charged. And yes "fairly charged" is a little vague, but you know what? Tough cookies.

I don't think I'm that unique, and if a business can't change to keep up with me, then I go elsewhere.

And to try to keep this somewhat germane to the actual post, a czar is just one more face meant to make us believe that bureaucratic inertia doesn't exist.
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a-dub (profile), 4 Mar 2011 @ 11:57am

"The majority of American citizens don't really have any money so I don't see why they would receive any rights"

This is the reality. Gov. officials can easily ignore the namesless, faceless masses of American citizens because they rarely have contact with them. On the other hand, they are frequently visited by organizations with big money and power.
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Trails (profile), 4 Mar 2011 @ 12:15pm

Re: Why is it that everyone has to say "by the way, I am not in favor of piracy"?
Because it heads off the non-argument of "Yuo just wantz teh free moveez adn warez"
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Josh in CharlotteNC (profile), 4 Mar 2011 @ 12:17pm

Re: Re: Re: Why is it that everyone has to say "by the way, I am not in favor of piracy"?
I don't think I'm that unique, and if a business can't change to keep up with me, then I go elsewhere.

The fundamental underlying concept of economics is that if the value of something is greater to an individual than the price, they will buy it.

If a business is not providing value to their customers at a price those customers are willing to pay, that business will fail. Even if it a monopoly. Even if it gets the government to pass draconian laws.
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Berenerd (profile), 4 Mar 2011 @ 12:18pm

Re: Re:
Can I be the minister of strip clubs? cause I am good at that...
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Anonymous Coward, 4 Mar 2011 @ 12:21pm

Victoria Espinel is a shill for the entertainment industry. She represents the interests of big business, and not Americans. Lying about issues starts at the top, with George Bush lying about WMD and leading many Americans to their deaths in Iraq to fight a war based on lies. It's no surprise that she can't answer this. The American government doesn't represent the people and I hope there will be an uprising like we're seeing in Libya. When George Bush kills people, it's in the name of democracy. When Ghadaffi kills people, he's a dictator. Bwahahaaha

How do you know USA government officials are lying? They talk.
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Anonymous Coward, 4 Mar 2011 @ 12:30pm

Espinel - liar!
When Espinel is asked about due process, she keeps moving the microphone and her body language is evidence that she is then speaking her "lines" given to her.

There was no due process, ICE can't justify their actions, and belong in jail for violating the rights of innocent people. More lies to justify illegal actions in the name of "protection." Please tell me all the FreeDNS sites are suing the government.
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Dark Helmet (profile), 4 Mar 2011 @ 12:39pm

Re: Re: Re:
I don't believe routinely getting tossed out of places for screaming "I can your soul!" everytime a stripper bends over equates to you being good at something....
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vivaelamor (profile), 4 Mar 2011 @ 12:50pm

Re: Espinel - liar!
"she keeps moving the microphone and her body language is evidence that she is then speaking her "lines" given to her."

In case you're a body language expert, could you explain that one for me please?
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Anonymous Coward, 4 Mar 2011 @ 1:00pm

Espinel - liar!
When people are telling the truth, they look directly at you when speaking. When they start moving their eyes, or shifting, or moving microphones around, it shows they're trying to remember what they've been told to say, or what they've convinced themselves is the truth.

In this case, Espinel has convinced herself that due process was used (it wasn't) and has to fight her real thoughts (shit, this looks really bad for me/ICE/USA govt/corporate overlords) and give the lines that were fed to her by a media advisor that would have run through mock interview sessions with her, and how to guide the conversation away from the subject and state the BS about protecting the first amendment, due process, blah blah blah.
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Anonymous Coward, 4 Mar 2011 @ 1:12pm

Re: Re: Espinel - liar!
I'm not an expert, I think she was definitely nervous and possibly didn't know what to say, but I wouldn't call her an outright liar like the OP says she is.

The "Oops sorry" moment when she was moving the mic around costed a few seconds of the hearing. Each member of the committee was allotted 5 minutes and she wasted several of them when Rep. Lofgren started asking her the tough questions.

I think it can be as simple as asking "Why haven't ICE's procedures in choosing sites and discovering evidence been disclosed?". Also a majority of the warrants haven't even been publicly released. Calling something due process before the seizures have been disputed in court is B.S.

Thankfully if there's any hint the judicial branch is rubber stamping for the executive branch, Congress can open an investigation and check them both.
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Anonymous Coward, 4 Mar 2011 @ 1:37pm

Question: if that's the case, why did she and ICE ignore both due process and the First Amendment with these domain seizures?

Answer: $
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vivaelamor (profile), 4 Mar 2011 @ 1:41pm

Re: Espinel - liar!
"When people are telling the truth, they look directly at you when speaking. When they start moving their eyes, or shifting, or moving microphones around, it shows they're trying to remember what they've been told to say, or what they've convinced themselves is the truth."

The esteemed Rep. Lofgren made less eye contact in any specific direction and had a microphone which appears to have been fixed to her desk. Plus, she apparently wasn't having to turn to be able to look at Espinel directly. How did you conclude from what you've stated about her body language that Espinel was being any less honest than Lofgren?
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The eejit (profile), 4 Mar 2011 @ 1:55pm

Re: Re: Espinel - liar!
Looking at the video, Espinel is actually lying more than pretty much any other politician I've ever seen. She looks shiftier than a dealer in a sting operation.
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wallow-T, 4 Mar 2011 @ 1:56pm

As a commenter above said: Due process is not affordable at the scale needed.

Protecting copyright is so important that it no longer matters how many innocent people get their efforts, or their lives, trashed. We can no longer afford to worry about collateral damage in the zealous protection of copyrights.

So say our masters.

(Don't mention the Constitution, please. Allow it to rest in peace, it died in 2001.)
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Anonymous Coward, 4 Mar 2011 @ 2:06pm

Re:
Apparently, Rep. Lofgren is apparently a shill for the freetard minority. She represents the interests of those most interested in piracy and other illegal acts online. Her concerns are more about assuring that criminals won't get harrassed, it seems.

See how that works?
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Marcus Carab (profile), 4 Mar 2011 @ 2:45pm

Re: Re: Re: Re: Re:
Excellent answer. Thanks DH. (though I still think it's really weird how much everyone embraces a title that is so inherently opposed to democracy)
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coldbrew, 4 Mar 2011 @ 2:49pm

Re: Re:
Do you realize how your comments focus on such a small circle of people? You simply have your interest on such a small number of people these ideas will make no sense to you. This isn't rocket science.
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Marcus Carab (profile), 4 Mar 2011 @ 2:49pm

Re: Espinel - liar!
When people are telling the truth, they look directly at you when speaking. When they start moving their eyes, or shifting, or moving microphones around, it shows they're trying to remember what they've been told to say, or what they've convinced themselves is the truth.

That's actually a myth. Studies have shown that only 1 in about 10,000 people have the ability to detect lies visually, and that none of the well-known "tells" are really tells at all. Most of us are actually much better at detecting lies by voice, and our ability improves when we can't see the person.
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coldbrew, 4 Mar 2011 @ 2:58pm

Re: Re: Re: Espinel - liar!
Yes, the government has been so willing to devote resources toward introspection, that makes so much sense. Can I get you business card? You are a genius.
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Richard (profile), 4 Mar 2011 @ 3:07pm

Re:
I, for one would welcome a rebirth of the office of Tribune for the People and and humbly offer myself as a contender.

I wish you luck but I hope you are prepared for the consequences..

Tiberius Sempronius Gracchus (Latin: TI�SEMPRONIVS�TI�F�P�N�GRACCVS) (b.168-163 BC d.133 BC) was a Roman politician of the 2nd century BC and brother of Gaius Gracchus. As a plebeian tribune, his reforms of agrarian legislation caused political turmoil in the Republic. These reforms threatened the holdings of rich landowners in Italy. He was murdered, along with many of his supporters, by members of the Roman Senate and supporters of the conservative Optimate faction.
(from Wikipedia)
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Richard (profile), 4 Mar 2011 @ 3:31pm

Re: Re: Re: Re: Re:

Yes, actually. The first recorded instance of this happened in the USA in the latter part of World War 1

Ironically just when the real Tsar was in "some trouble".

However if you go back further in time you will find that the title "Caesar" from which "Tsar" derives was commonly used in the Roman Empire for a person give absolute authority over a limited domain. You should worry more if someone is given the title "Augustus" which implies a more universal authority..
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Anonymous Coward, 4 Mar 2011 @ 5:15pm

Re: Re: Re: Espinel - liar!
Perhaps she realizes how important it is to use exactly the right words to wingnut tech bloggers won't come down on her like a ton of bricks for using a single incorrect word. Perhaps there is only one correct answer, and that is all she can say.

Perhaps she is having gas, and doesn't want the sounds to get into the microphone.

Who knows? Do you?
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Anonymous Coward, 4 Mar 2011 @ 5:17pm

Re: Re: Why is it that everyone has to say "by the way, I am not in favor of piracy"?
Funny stat for the day: 20% of people in Mike's last great study post approved of piracy. 10% of people in the US shoplift. See a trend here?
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coldbrew, 4 Mar 2011 @ 5:31pm

Re: Re: Re: Why is it that everyone has to say "by the way, I am not in favor of piracy"?
Absolutely. Let's imprison half the population. They are obviously criminals.
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Anonymous Coward, 4 Mar 2011 @ 6:30pm

Re: Re: Re: Re: Espinel - liar!
Does she?
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Anonymous Coward, 4 Mar 2011 @ 7:07pm

Re: Just a pedantic editing note:
I dunno, I got a distinct air-quotey vibe off of how she said 'supposedly'.
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xenomancer (profile), 4 Mar 2011 @ 9:03pm

Re: Re: Re: Re: Re: Re:
The month of August scowls at you while Jimmy Durante's "September Song" plays in the background.
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xenomancer (profile), 4 Mar 2011 @ 9:11pm

Re: Re: Re: Why is it that everyone has to say "by the way, I am not in favor of piracy"?
"money can't buy you happiness!"

But it CAN rent it!
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xenomancer (profile), 4 Mar 2011 @ 9:18pm

Re: Re: Re: Re: Espinel - liar!
"using a single incorrect word"

When she says "the united states of the government" I don't think she would believe there is any mistake.
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Jay (profile), 4 Mar 2011 @ 10:31pm

Re:
1998. That's when Clinton signed the DMCA and started this entire process...
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The eejit (profile), 5 Mar 2011 @ 3:20am

Re:
it didn't die in 2001, it died in 1998, it just didn't know it yet.
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Tom Landry (profile), 5 Mar 2011 @ 12:25pm

ICE are merely tools doing what they can get away with. The person to blame here are the judges who are obviously just acting as a rubber-stamp approval with zero inquiries into what it is they are signing off on.

I know if I owned a site in which I was accused of distributing child porn I'd be up at the front of the lawsuit line.
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nasch (profile), 6 Mar 2011 @ 6:33pm

Re: On the brighter side
Still waiting to hear about the bright side...
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nasch (profile), 6 Mar 2011 @ 6:36pm

Re: Re: Re: Why is it that everyone has to say "by the way, I am not in favor of piracy"?
Funny stat for the day: 20% of people in Mike's last great study post approved of piracy. 10% of people in the US shoplift. See a trend here?

Considering that a trend includes at least two data points of the same measurement at different times, no.
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where are those victims?, 7 Mar 2011 @ 7:07am

84,000 wet panties
Every time you cite the 84k number, anyone who matters dismisses your opinion as sensational hyperbole. If there were really 84k people injured in this, you'd have people coming out of the wood-works to sue.

But that's far from reality. There were 84k accounts registered. Virtually all of them were inactive or unused. The top 2 mooo.com subdomains account for less than 3% of the entire afraid.org's traffic which is already negligible, and one of those was in a copyright infringement ring.

So not only are you missing those constitutional law attorneys backing your arguments, but you're also missing this army of pissed off innocent people whose rights have been violated.
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vivaelamor (profile), 7 Mar 2011 @ 8:25am

Re: 84,000 wet panties
"If there were really 84k people injured in this"

Huh? Who's suggested that apart from you?
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Anonymous Coward, 7 Mar 2011 @ 8:49am

Re: Re: Why is it that everyone has to say "by the way, I am not in favor of piracy"?
"yes, there's piracy, and all of us are united that we gotta do something about piracy"

Yes it is a phenomenal pity that there is this utter acceptance of what is to date an utterly unsubstantiated claim.

We all know that there is no evidence that supports this view, its a case of people assuming that there must be an issue because of the sqawking from the publishers.
The fact that these wailing assertions are not only lacking in supportive evidence but in at least some cases are directly contradictory to what little evidence there is; should (if only!) mean that legislators do absolutely nothing to enable enforcement and before they consider doing anything further one way or the other launch an enquiry to determine if there is a problem or not, whether that problem comes from infringment or the use of IP itself and then act accordingly.
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nasch (profile), 7 Mar 2011 @ 12:01pm

Re: 84,000 wet panties
There were 84k accounts registered. Virtually all of them were inactive or unused.

Does that make it OK for them to be shut down?
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wvhillbilly (profile), 12 Mar 2011 @ 4:42pm

ICE putting innocent websites on ice
>>... And put up a little banner saying "this was taken
down for child pornography." Really smearing them.
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wvhillbilly (profile), 12 Mar 2011 @ 8:14pm

Libel on ICE
**... And put up a little banner saying "this was taken**
**down for child pornography." Really smearing them.**

Ice taking down websites and publicly accusing them of child porn, just on suspicion? If it's not true, this is libel. At least that's the way I understand libel.
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