Why Operation In Our Sites Is Illegal And Needs To Be Fixed ASAP
from the speech-violations dept
With the latest round of Homeland Security and the Justice Department illegally seizing domain names, it seems like a good time to point people to a new paper from Andy Sellars, which he was kind enough to send over a few weeks ago (though I just had a chance to read through it), in which he does an excellent job analyzing the law, the caselaw and the overall constitutionality of Operation in Our Sites, and finds it quite lacking. He doesn't suggest that the entire program be done away with, but suggests a number of ways to bring it into line with basic First Amendment, due process and copyright law principles.It's worth reading the whole thing, but among the key points is how this "right" to seize domains for supposed copyright infringement is one of the things that was quietly slipped into law via PRO-IP a few years back. While this point hasn't received much attention, it is important to discuss, because it highlights how the RIAA/MPAA lobbyists have a history of sneaking little timebombs and easter eggs into new laws proposed by "friendly" lawmakers. There were so many things that people were concerned about with PRO-IP that this issue of "harmonizing" seizure laws between copyright and counterfeiting was something no one paid attention to because, honestly, no one realy thought that the US government would start censoring websites. Everyone assumed, falsely it turns out, that the intention of this part of PRO-IP was to allow for the seizure of physical tools, not domain names. This is another reason why we should be fearful of PROTECT IP. Who knows what other "goodies" the RIAA and MPAA have hidden in there that will pop out in a few years' time.
Of course, even though PRO-IP may have extended seizure laws to allow for more broad seizures in copyright cases, that still doesn't make these seizures legal or Constitutional, in any sense. Defenders of the seizures often point to Terry Hart's analysis of the seizures as legal on First Amendment principles, but Sellars does a nice job dismantling Hart's analysis and showing how the seizures do not fit with existing jurisprudence on prior restraint (footnotes removed):
And the question here is not whether substantive free speech law would save the websites from copyright liability. It is clear that it would not, if adjudicated as infringing. Instead, the question is whether the in rem seizure of pure speech, done because it may be infringing, violates the procedural safeguards instituted by the First Amendment. Here, entire websites consisting of pure expression were removed, presumably because some of the speech encouraged viewers to follow links to third-party websites and commit copyright infringement. Direct copyright infringement was not being conducted on these websites at all; it was instead the cyberlockers that reproduced and distributed the content. If the speech is adjudicated to be “inducing” under that secondary liability theory the speech is likely enjoinable consistent with the First Amendment. If it is not so found, it is constitutionally protected free speech. And at this moment no court has actually turned to the merits of this claim and determined if it is indeed unlawfully inducing. Instead, a magistrate judge determined that there was a sufficient probability that it may be infringing, and used that alone to take the website down. Courts would not tolerate such a cursory review in all other areas of free speech law.Sellars notes, as we have in the past, that the caselaw is pretty specific that seizures involving speech should be limited to areas in which the seizure is necessary to preserve evidence and isn't done solely for the purpose of blocking that speech. That is clearly not the case here.
The First Amendment embodies certain procedural safeguards to help prevent free speech from being accidentally silenced while unprotected speech is enjoined. An analogy to obscenity doctrine can provide useful guidance. Like infringing speech, obscene speech is unprotected by the First Amendment. The determination of whether a work is obscene also depends entirely upon an examination of its content, requiring application of a legal test to specific facts. And in both cases the difference between protected and unprotected speech can sometimes be a “dim line.”
Courts are quite sensitive about the precarious line between proscribable speech and protected speech, and are very hostile against government efforts that engage in “prior restraint.” Prior restraints are considered the “most serious and least tolerable infringement on First Amendment rights,” and bear a “heavy presumption” against validity. Any effort to remove speech from circulation before the speech is adjudicated as unlawful can work an unconstitutional prior restraint, even when imposed after the speech is published.
To that end, courts have recognized that seizure of expressive works requires special procedural considerations.
Needless to say, these safeguards were not followed in Operation In Our Sites. The seizures here were not done to preserve evidence, as nothing tangible was taken into custody, and it would be illogical to claim that there was any risk that a defendant would “flee” with their domain name and thus deprive the court of evidence. This seizure instead took the website out of circulation entirely, at least for a time. No administrative proceeding with the safeguards of Freedman was present. Instead, a single federal agent made a probable-cause level statement to a magistrate judge, who ruled ex parte. In striking contrast to the careful process required when seizing expressive works in the doctrine of obscenity, the seizures conducted in Operation in Our Sites show the bare minimum of process. This turns First Amendment due process on its head; it takes down speech on the basis of its content (to wit, that it is infringing content or induces others to infringe copyright) before an adversarial proceeding determines if the speech is in fact unlawful.One of the popular explanations from Hart and one particular commenter on our site is that there is no First Amendment issue here because the seizure of the domains are not because of the domain's expressive nature, but merely because they are "property" used to facilitate infringement. Sellars punctures that claim deftly:
Critics also argue that First Amendment analysis is inappropriate because the websites were not seized because of their expressive content, but because they are “property” used to facilitate crimes. This has intuitive appeal. After all, we do not use the First Amendment to stop the closure of a bar that violates liquor laws, even though bars are often places where members of the public gather to debate the issues of the day.Sellars also responds to critics who say it's important to seize these domains without a hearing or notice to stop the immediate harm of damage being done. But, as he notes, First Amendment case law on prior restraint has long held that's a meaningless argument:
The problem with this argument is it unfairly characterizes the law at issue. Copyright forfeiture is not a content-neutral law allowing for the seizure of any property used in crime. The law providing for forfeiture in copyright cases expressly incorporates substantive copyright law. Copyright itself is a content-based form of regulation: it determines the legality or illegality of speech on the basis of how the speech is expressed. To equate content based laws with content-neutral laws does not conform with First Amendment doctrine. These websites were not seized here because their domain name offended copyright. It was the speech on the website, allegedly telling people where and how to find infringing content, that was the crux of the forfeiture. The object of the domain name seizure was to constructively remove this offending speech. The analysis of illegality here begins and ends with an examination of the speech for its content.
This argument ignores the very reason why courts are so hesitant to engage in prior restraint in the first place. The same argument could be raised for defamatory speech, speech that could threaten national security, or speech that incites others to violence, and yet we do not tolerate prophylactic injunctions in those cases.Sellars also does a nice job highlighting, yet again, how these seizures don't even work, which really highlights the ridiculousness of the whole thing. ICE insists it needs to seize these domains without warning, notice or adversarial hearing to stop the infringement, and yet (contrary to ICE claims) there is no indication that these seizures have slowed the use of these websites. In many cases, the websites come back more popular than before.
Finally, Sellars raises a point that is often ignored in this: that the seizures seem to go against the intent of current copyright law itself, in the form of the DMCA. For whatever its many problems, the crux of the DMCA was to try to resolve issues of copyright infringement through the ability of rights holders to issue notices and get online services to takedown the offending content. That is, the point was to avoid any judicial or law enforcement involvement altogether. And yet, there is no indication that rights holders properly notified the seized domains of issues regarding the content that was used as the basis for the seizures. In fact, there is evidence that when many of these sites did receive takedowns, they promptly complied:
This is not just coincidence or legislative good fortune for websites that frequently link to content that may be infringing. The safe harbors of the DMCA are a legislative expression of a desire to foster cooperation between online service providers and copyright owners. The legislative history around the safe harbor indicates that the provision is “intended to promote the development of information location tools generally, and Internet directories ... in particular.” The statute mandates a bargain between these two groups: the websites will have a designated person to receive complaints and respond expeditiously to remove infringing links, and in exchange the copyright owners will not sue the websites for infringement through their linking.Of course, Sellars' paper also offers some ways to fix Operation In Our Sites, and none are too surprising or crazy. In fact, they're things that many of us have suggested in the past: require initial action be "in personam" (against those involved, rather against the site itself), meaning that there is an opportunity for an adversarial hearing prior to the seizure. To date, despite my asking many times, no one has been able to give a reasonable answer as to why the federal government does not allow for such due process. Thankfully, at least, PROTECT IP does seem to say that an attempt should be made for an in personam action before an in rem action, but there are some pretty big loopholes. Secondly, he notes that Operation In Our Sites should follow existing standards for the seizure of speech as laid out in existing case law. Specifically, he points to the standards put forth in Freedman v. Maryland. Finally, due to the clear failure of these seizures to actually stop the actions targeted, he suggests that ICE recognize the low likelihood of success and focus on efforts that might actually have a positive impact.
This spirit of cooperation vanishes when enforcement moves from an inter partes to an ex parte remedy. The copyright owner is no longer encouraged to reach out to the website owner. Instead, they will persuade ICE to file a seizure warrant to take down the disputed websites. The website owner now has no chance to expeditiously right the perceived wrong. Instead she must come forward in court and dispute the criminality of the seized domain name. A nervous website owner would probably prefer letting that website die out and starting a new one elsewhere. This induces evasion. It is therefore unsurprising that these websites have the feel of criminality; the law treated them as criminals. The forfeiture provisions of the PRO-IP Act undercut the cooperative spirit of the DMCA, when applied against websites.
All in all an excellent and worthwhile read for those interested in the legal issues here.
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Filed Under: coica, copyright, domain seizures, free speech, homeland security, ice, infringement
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A few extra questions
I don't think this is the case for all sites, but it certainly seems that ICE is stating merely the success of the first takedowns means that the deterrence factor of the takedowns has succeeded.
Of course this is not the case but how do you convince an organization of their need to change when they only look at their past "success" as an outright victory for their cause?
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Re: A few extra questions
They look at each battle they win. They fail to recognize they are on the wrong side of reality and history.
People will pay for content if it were conveniently in the format they wanted. Concurrently with suing Napster, the labels could have introduced $0.99 downloadable mp3's without DRM -- effectively what Amazon sells now. They could have made a fortune and stopped newer forms of piracy before they got started. With fewer people downloading, but more importantly uploading content, networks of pirates would choke. After all, it's easier to just go to the store and buy a legal track, feel good, and not have to fight with software / setup / slowness of engaging in piracy.
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Re: Re: A few extra questions
Hasn't done the job. If there is an illegal free option without penalty of being caught, immoral people are going to take advantage of it.
If people simply did the right thing all the time, we wouldn't need laws for anything.
But sadly, that's not how life works, is it?
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Re: Re: Re: A few extra questions
Only after the record labels sat on their hands and did their best to push people towards even cheaper and easier (though less legal) avenues. Getting them to go backwards to harder and more expensive methods is tougher to accomplish.
immoral people
Illegal != Immoral.
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And just because that model may work for some is no reason to expect all IP creators to follow that same model.
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And everyone else online with that specific arrangement of bits. Give me a reason to come to you for that arrangement instead of someone else, and you're gold. Tell me that I have to come to you or else you'll send goons to my house to beat me up and I'll tell you to get lost instead.
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I've never "ripped off an artist". I have, however, copied some things from people who were willing to let me. Voluntary transactions don't consitute a "ripping off" of anyone.
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And before you retort with the classic "Then why do you STEAL it?", the answer is I don't. I don't listen to retail music, and haven't for years. Not even for free.
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I'd like to point out that taking someone's domain name without any real proof of illegal activity is also immoral.
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It could be illegal, it could be unlawful, it could also be unethical, or dependant on context it could be actually ethical to "rip off" an artist.
But being immoral means to be actively opposed to morality of any form.
Maybe you should take a quick course in Normative ethics
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Re: Re: Re: Re: A few extra questions
Really? Name one single legal place where I can buy any track with no hassle in multiple desirable formats at a price close to marginal cost.
It doesn't sound difficult, but since the legacy labels don't seem to get it, I'll have to spell out a good user experience.
Some definitions:
- buy - not lease or license, buy and download and keep indefinitely, legally transferable to someone else (if I delete my copies) as befits right of first sale
- any track - every single track the big labels have ever put out on a CD, regardless of country of origin, plus as many indy labels you can get, and unreleased and "rare" tracks and older analog recorded if possible a definite plus
- no hassle - all they need is my payment details, if I don't want to create a profile or supply an email address I don't have to - if I do supply personal info or create an account, being able to re-download files would be an obvious plus, as would good recommendations on other things I could be interested based on what I've downloaded, etc.
- desirable formats - DRM-less formats - high bitrate MP3s, FLAC or other lossless
- price - since the marginal cost of each string of ones and zeros is zero, being gouged $1 a track is truly absurd. We're talking about $0.01 a track, maybe $0.05 for a brand new release.
I can more or less get all that above for free. If I'm paying, your store needs to offer a better experience.
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This makes perfect sense.
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These people should learn from history. The Catholics had the Index Librorum Prohibitorum. In the end it became the list of books everyone got curious about and read ... it existed from 1559 to 1966. Lets hope the copyright industry doesn't take as long to realize that they are pointing people towards these sites.
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Re: Re: Re: A few extra questions
Define "the right thing" please.
Apparently, there are millions of people out there that feel that file sharing is the right thing and shouldn't be illegal.
Just because you think something is immoral doesn't make immoral to society as a whole. If that were the case, the porn industry wouldn't be nearly as big as it is today would it?
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If you think it's illegal, then sue the government.
Otherwise, please just shut the fuck up already.
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Then . . . stop reading?
Critical thinking > anonymous shills everywhere.
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It's so great that no one can really discuss this out in the open, but we have to run to sue the government in expensive lawsuits that are aimed at only supporting this type of legislation in the future.
There's no apologist here, just people frustrated with a govenment intent on taking away freedoms. But I guess that goes ignored for this aimless attack on a strawman group, right?
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The problem is you people have no case. That's the real reason they're not being challenged.
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You've already hurt your argument considerably by trying to say that groups such as the ACLU are akin to the fear mongering site such as the Copyright Alliance.
The case has been made about the unconstitutionality of these laws. It's been made twice now. I've already said you need to do some research in another post just before this one.
And yes, they ARE being challenged. It just takes a while because there's no actual procedure in place (that makes sense) to get your site back without jumping through hoops.
Do you really have anything to add or are you making that hot air balloon rise higher?
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Prove it. Those seizures happened in November of last year. We're already almost halfway through 2011.
Let's see your proof they're being challenged.
Post it right here:
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So we'll have an update in a day or two.
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You are truly a gigantic douchenozzle.
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No brownie points for you.
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I mean I do make millions of dollars by linking to infringing content, thats why I do it as the jackass above will point out, but I'd probably be better off just spending 50 bucks and getting a European domain
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No.
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I'm getting tired of your idiotic belief that anyone concerned about these seizures is an "apologist."
Then again, I guess someone who thinks opposing viewpoints should "just shut the fuck up already" probably doesn't like the First Amendment very much.
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So get lost already. Good riddance.
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i could not disagree more with ac's statements, but finding it flagged and hidden away has made me ashamed to be a part of the techdirt community for the first time since i joined.
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Seriously, and on a much brighter note, I was heartended to read a comment in the article that much of what the writer sees as problems with in rem actions can be cured by first attempting to establish in personam jurisdiction. I presume this means that the Protect IP ACT, if enacted, will eliminate the large majority of the writer's legal concerns.
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The ICE domestic actions are likewise governed by Rule 65.
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Butt hat's not happening. what's happening is that people are having to challenge these in a court that has not told them when the court date is. That's like being told to attend a job interview 100 miles away with no notice. IT makes no goddamned sense whatsoever.
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Obviously they are doing it because it would open a shitstorm that would put an end to "Operation In Our Sites" had they seized ThePirateBay or isoHunt or the like.
(Why did they call it "Our Sites" anyways, its not their sites that they are seizing.... its corrupt foreign government taking illegal control over the Domain Name system)
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It's illegal, that's not even debatable.
I read the entire PDF, thanks for the link.
It's hilarious to read that the sites seized who now operate under new URLs are actually more popular than ever. For example, under an entirely new domain name OnSmash has gained thousands of places in Alexa ranking.
ICE has effectively promoted these "rogue" sites to the public and the public has responded, they like them.
What's sad is if ICE isn't stopped then they probably won't take any of the advice to making these seizures legal, they'll just wait for the RIAA lobbying efforts to bribe some of their lawmaking friends to MAKE it legal (ie - the new PRO-IP bullshit act)
They're going after smaller sites on purpose. As soon as they mess with someone with a few bucks their entire game plan will go up in flames because they're operation is entirely illegal.
Can you imagine if this was 2005/2006? YouTube would've been killed off before it even had a chance.
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You're right, because they wanted to sell out fast for big bucks so they had to get popular fast.
If youtube had been killed off, someone else would have stepped right up and done it legally.
Instead, youtube has a monopoly- and it built it on infringement.
Silicon Valley businesspeople are shady, greedy opportunists with little or no morals.
The government is determined to stop any more "businesses" being built on the back of illegal behavior, so those that abide by our country's laws have a chance to compete in a fair and free marketplace.
Good for them.
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thanks I needed that
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No someone beyond US jurisdiction would have done it.
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A site where Grandpa can post videos of his cats and he can likewise see video of his grandkids?
Yes, that's so fucking mind-blowingly innovative. No one would have ever thought of that.
Snore.
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There is so much wrong with just that one sentence. So the government is committing crimes to stop crimes. And don't even get me started on how a monopoly on content is not a fair and free marketplace ...
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Could he be one of the RIAA losers pretending to be doing work behind his desk while commenting on TECHDIRT hoping to protect his obnoxious salary that doesn't contribute to actually helping the music industry or artists?
I hope you mask your IP a few times over homie you don't want your cover blown. I know one thing for sure, if you're a content creator there's no progressive thinking going on in that peanut brain of yours and that's gonna hurt your bottom line in the long run. Piracy is here to stay one way or another, you better figure out an alternative way to survive that doesn't involve endless lobbying.
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Masnick knows who I am.
He blows a lot of hot air about rights and privacy, but we also know from his writing how honest a person he really is(n't).
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Such as?
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Society at large?
A select bunch of individuals?
Is it a moral code based on ideological beliefs
As you can see just with three questions (and there are many more that can be asked) the alleged morality of copyright is very questionable.
and as I said in an above comment to another foolish AC immoral is not the correct word.
And just because someone has a different set of ethical mores and opinions on what is right or wrong does NOT make them amoral, immoral, or less moral than yourself.
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Yeah, and the big content companies wouldn't be making a fraction of what they make now on YouTube. Afterall, we all know history has shown big content has been able to capitalize on technology. HAHA.
A fucking niche (at the time) computer company started and owns the largest online music service. I'm sure your version of youtube would've been brilliantly successful LOL.
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It is clear that it would not, if adjudicated as infringing. Instead, the question is whether the in rem seizure of pure speech, done because it may be infringing, violates the procedural safeguards instituted by the First Amendment.
I'm quite curious what authority he cites for this. The caselaw and doctrine I've read suggests that the First Amendment procedural safeguards work differently in the copyright context than they do elsewhere.
Instead, a magistrate judge determined that there was a sufficient probability that it may be infringing, and used that alone to take the website down. Courts would not tolerate such a cursory review in all other areas of free speech law.
Right, courts would not tolerate such a cursory review in other contexts. Who cares? What about in THIS context? You know, the one we're talking about. Again, copyright works differently than other types of speech-affecting laws.
The First Amendment embodies certain procedural safeguards to help prevent free speech from being accidentally silenced while unprotected speech is enjoined. An analogy to obscenity doctrine can provide useful guidance.
Is an analogy to obscenity doctrine really helpful here? Why not look to actual copyright doctrine and jurisprudence? Again, obscenity works differently than copyright.
Prior restraints are considered the “most serious and least tolerable infringement on First Amendment rights,” and bear a “heavy presumption” against validity. Any effort to remove speech from circulation before the speech is adjudicated as unlawful can work an unconstitutional prior restraint, even when imposed after the speech is published. To that end, courts have recognized that seizure of expressive works requires special procedural considerations.
Again, I think he's trying to pigeonhole obscenity doctrine into the copyright context. I'll have to read his full paper to see how he addresses actual copyright doctrine. I know that prior restraint works differently when it's copyright.
Needless to say, these safeguards were not followed in Operation In Our Sites. The seizures here were not done to preserve evidence, as nothing tangible was taken into custody, and it would be illogical to claim that there was any risk that a defendant would “flee” with their domain name and thus deprive the court of evidence.
I'm curious what support he has for the idea that such seizures must be for the purpose of preserving evidence. That's a claim that's been thoroughly debunked in the techdirt comments before. Seizures done pursuant to in rem forfeitures may be done for reasons other than preserving evidence.
One of the popular explanations from Hart and one particular commenter on our site is that there is no First Amendment issue here because the seizure of the domains are not because of the domain's expressive nature, but merely because they are "property" used to facilitate infringement. Sellars punctures that claim deftly:
I'm on the edge of my seat...
Critics also argue that First Amendment analysis is inappropriate because the websites were not seized because of their expressive content, but because they are “property” used to facilitate crimes. This has intuitive appeal. After all, we do not use the First Amendment to stop the closure of a bar that violates liquor laws, even though bars are often places where members of the public gather to debate the issues of the day.
The problem with this argument is it unfairly characterizes the law at issue. Copyright forfeiture is not a content-neutral law allowing for the seizure of any property used in crime. The law providing for forfeiture in copyright cases expressly incorporates substantive copyright law. Copyright itself is a content-based form of regulation: it determines the legality or illegality of speech on the basis of how the speech is expressed. To equate content based laws with content-neutral laws does not conform with First Amendment doctrine. These websites were not seized here because their domain name offended copyright. It was the speech on the website, allegedly telling people where and how to find infringing content, that was the crux of the forfeiture. The object of the domain name seizure was to constructively remove this offending speech. The analysis of illegality here begins and ends with an examination of the speech for its content.
I got all excited for nothing, it seems. If "copyright itself is a content-based form of regulation," then why aren't copyright laws subject to heightened scrutiny? They aren't. The reason is because they are not content-based. Maybe they should be--that's a different matter--but under the current jurisprudence, they are not.
Secondly, he notes that Operation In Our Sites should follow existing standards for the seizure of speech as laid out in existing case law. Specifically, he points to the standards put forth in Freedman v. Maryland.
And that's an obscenity case, not a copyright case. Again, he appears to be trying to analyze this like it's an obscenity case.
Interesting find, Mike. Thanks for posting it. I look forward to giving his paper my full attention later on.
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The Supreme Court made clear in Eldred v. Ashcroft that copyright laws are only subjected to rational basis scrutiny, and great deference is given to Congress's enactment of such laws.
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Would you stop it with this claim? It's simply not true.
The court ruled that an extension to already existing copyright laws did not require "uncommonly strict scrutiny."
They never said what kind of scrutiny it actually required (rational basis or intermediate). They also said "the D.C. Circuit spoke too broadly when it declared copyrights 'categorically immune from challenges under the First Amendment.'"
And they said it did not require additional First Amendment scrutiny because "Congress has not altered the traditional contours of copyright protection."
Those "traditional contours" didn't allow for the suppression of non-infringing speech, ex parte, without notice or an immediate chance to respond. They didn't involve ICE deliberately ignoring an entire section of copyright law, that was specifically written to deal with online entities such as these.
Copyright is a regulation of speech. The courts are split on whether it is content-neutral or content-based. But no judge that I know of has stated that all copyright laws require only rational basis review. It is not suggested anywhere in Eldred, that's for sure.
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Re: First Amendment doesn't apply to copyright?
You can find a nice example of the case law supporting Andy's excellent research at footnote 141, citing Salinger v. Colting, in which the 2d Circuit applied the Supreme Court's decision in eBay Inc. v. Mercexchange, L.L.C., to a copyright-based application for a TRO. It specifically holds copyright-based challenges to the same standards of equity as other applications for a TRO [in case you missed it, in that sentence I'm directly refuting your assertion that the First Amendment has a copyright exception]. Andy draws an analogy between TROs and website seizure, and suggests that some of the judicial rules governing TROs should also govern website seizure because the two are so similar. To be extra clear, an analogy examines the similarities between two different things; that's part of how lawyers and judges decide new areas of law. You seem to have a lot of objections to the use of analogy in your comment.
If my response is snarky, it's because your comment was, as well. Andy's the smartest (future) copyright lawyer I know. I'm not suggesting that you kowtow to him, but it wouldn't be too much.
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Re: Re: First Amendment doesn't apply to copyright?
As far as the TRO goes, I'm not sure that works either. These are seizures of property used to commit crimes. It's not a TRO and it's not a civil matter--the underlying issue is criminal. The standard is probable cause.
I still haven't read his paper yet, but I will soon.
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(By the way, Terry Hart posted a very similar critique to my paper here: http://www.copyhype.com/2011/05/the-free-speech-critique-of-copyright-mistake/ I posted a response here: https://andyontheroad.wordpress.com/2011/05/20/hart-response/)
I would love to examine this issue purely under copyright, but the law is novel. A probable-cause, ex parte standard for the removal of expressive material in the name of copyright is, as far as I can tell, unprecedented. But the analogy to obscenity (I think) is a completely reasonable one. Both obscenity and infringement examine the legality of speech entirely on the basis of its content. Both deal with content that, if they are not found to be illegal, is fully protected under the First Amendment. And both deal in dim lines and uncertainties. There are easy cases in both, sure, but there are many where reasonable minds (and reasonable judges) will split. So the procedural safeguards we adopt in obscenity should apply with copyright infringement as well, even though neither obscene speech nor infringing speech will be saved by crying "First Amendment."
The closest thing copyright had up until this point is the Rule 65(b) TRO, and that requires more procedure than is followed in civil forfeiture proceedings. A magistrate judge's only concern in examining a forfeiture warrant is whether there is sufficient probable cause stated. In a TRO, a court has to be persuaded that the hardships command that the court not wait until communication is established with the defending party.
The idea that "obscenity works different" than copyright is fairly empty, as there is nothing in the opinions I cited that suggests that the concerns about taking the speech out of circulation or seizure of expressive material without a warrant is limited to allegedly obscene works. The court spoke of speech more broadly than that.
The whole Eldred argument (both raised for and against my claim) is not really appropriate. That was looking at substantive First Amendment issues and their scrutiny, not anything regarding the correlating procedural concerns.
This is a bit scattershot, and for that I apologize. I do encourage you to read the paper, as I address many of these concerns you're raising directly.
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Now I'm turning my sights to the constitutionality of these seizures. I've been thinking about it and doing some research since the seizures started, but I'll be doing my "real" research starting next week after my vacation is over. I'm taking a class this summer on Due Process, and in the fall I'm taking a First Amendment class. That should help with my paper. I should be done by Christmas--hopefully it'll be one I want to publish, or at least release into the wild. I'll send you a copy. ;)
And I'm sure I'll read your paper later today--looking forward to it. Watching "Avatar" with my boys now... Take it easy.
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Thanks for the comments on the paper. I hope you did take time to read it, as I do go into some detail as to why the analogy to obscenity is appropriate, how even the procedural safeguards common in copyright cases would call for greater safeguards here. And the law is evolving in this area, as the Salinger case identifies and Lemley and Volokh noted in their influential article on point over ten years ago.
I'm not sure you really demonstrated that there are mandatory, minimum procedural safeguards common in copyright cases that aren't being met here. Your focus seemed to be on injunctions in civil cases, not ex parte seizures in criminal cases. I'm familiar with the writings of Lemley and Volokh. While they make great points about things could/should be, that doesn't really support your argument for how things actually are with ex parte seizures in copyright cases.
(By the way, Terry Hart posted a very similar critique to my paper here: http://www.copyhype.com/2011/05/the-free-speech-critique-of-copyright-mistake/ I posted a response here: https://andyontheroad.wordpress.com/2011/05/20/hart-response/)
I missed that on Copyhype. Thanks for the link. I see he was echoing what I was saying above about copyright laws generally not be subject to heightened scrutiny. The always-excellent Terry Hart does a great job of explaining how copyright works in the First Amendment context.
And thanks for the link to your blog. I enjoyed looking around, and I've added it to my list of "must read" copyright blogs. I'm not sure your response to Hart hit the mark. You say: "And thus any regulation of speech that depends on regulating the exact words used should invite strict scrutiny, be it embraced in a viewpoint judgment or not." Maybe it should be subject to strict scrutiny, as much of the doctrine you cite agrees, however the jurisprudence is clear that such heightened scrutiny is not necessary in the copyright context. The reason is, as Hart points out, that copyright has its own built-in First Amendment safety valves.
I would love to examine this issue purely under copyright, but the law is novel. A probable-cause, ex parte standard for the removal of expressive material in the name of copyright is, as far as I can tell, unprecedented.
My research into the matter leads me to believe that ex parte seizures in copyright infringement cases has been happening regularly for over a century. See for example, the Supreme Court Copyright Practice Rules from 1909: http://ipmall.info/hosted_resources/lipa/copyrights/United%20States%20Supreme%20Court%20Copyright%20 Practice%20Rules%20_1909.pdf
In fact, I believe that the lack of reported cases of such seizures is not because they are so rare, but in fact it is because they are so commonplace and routine that few cases merit reporting.
But the analogy to obscenity (I think) is a completely reasonable one. Both obscenity and infringement examine the legality of speech entirely on the basis of its content. Both deal with content that, if they are not found to be illegal, is fully protected under the First Amendment. And both deal in dim lines and uncertainties. There are easy cases in both, sure, but there are many where reasonable minds (and reasonable judges) will split. So the procedural safeguards we adopt in obscenity should apply with copyright infringement as well, even though neither obscene speech nor infringing speech will be saved by crying "First Amendment."
I follow your argument about how the procedural safeguards used in obscenity cases could be applied to copyright cases. I think the analogy misses the fact that obscenity and copyright are treated differently under the First Amendment. Not just substantively, but procedurally as well.
The closest thing copyright had up until this point is the Rule 65(b) TRO, and that requires more procedure than is followed in civil forfeiture proceedings. A magistrate judge's only concern in examining a forfeiture warrant is whether there is sufficient probable cause stated. In a TRO, a court has to be persuaded that the hardships command that the court not wait until communication is established with the defending party.
I agree that the TRO standard offers more due process, but I'm not convinced that the ex parte seizure/civil forfeiture procedure offers inadequate process.
The idea that "obscenity works different" than copyright is fairly empty, as there is nothing in the opinions I cited that suggests that the concerns about taking the speech out of circulation or seizure of expressive material without a warrant is limited to allegedly obscene works. The court spoke of speech more broadly than that.
My understanding of the jurisprudence is that obscenity does in fact work differently than copyright in a way that's relevant to the issue of due process. The procedural safeguards needed are in fact different.
The whole Eldred argument (both raised for and against my claim) is not really appropriate. That was looking at substantive First Amendment issues and their scrutiny, not anything regarding the correlating procedural concerns.
But the procedural concerns are a function of the substantive First Amendment issues. As the Court in Eldred pointed out, copyright laws are not immune from First Amendment scrutiny. However, the procedural safeguards necessary are different with copyright laws because copyright has its own safety valves--the idea/expression dichotomy and fair use. The reason the safeguards used in obscenity cases are not necessary in the copyright context is because of these safety valves. I think Eldred is very important in understanding the constitutionality of these seizures.
This is a bit scattershot, and for that I apologize. I do encourage you to read the paper, as I address many of these concerns you're raising directly.
No worries. I've enjoyed the chat.
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They're also a function of general issues of due process. Depriving people of their property before a fair trial, or even a fair hearing, or even any notice, is extremely disfavored regardless of the substantive law being applied.
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It may be disfavored, but the Court has said that the forfeiture procedures are constitutional in general. Couple that with a lengthy history of ex parte seizures in copyright cases, and I'm not convinced that these seizures are unconstitutional. One thing the critics can't point to is authority that says in a copyright case there must be a preseizure, adversarial hearing before a seizure. To me, that speaks volumes.
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What, because ICE hasn't been sued yet there's no opposition? I suppose every time a branch of Govt. does something illegal magically the next day they're in court being sued?
Unfortunately when your opponent is the UNITED STATES OF AMERICA it's a little more difficult to oppose.
As has been stated many times in the comments here and other places they are going after small frys who don't have the financial ability to sue or properly defend themselves. Your entire argument is non-existent.
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Sites are contesting BTW, Mike said he'll have a post today or tomorrow regarding that.
Why do you think no more hip-hop music blogs or sites have been shutdown? ICE is learning their lesson. Once it comes out in court that the labels directly supply blogs with tracks for promotion as well as purposely "leak" music to build buzz then their cover is blown. It doesn't look good when you're suing the sites you have direct contact with.
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So you're saying that you now have shit on your face because you were asleep when the bill was being debated? WTF? you describe it as a "key point" of the bill. AND it was "quietly slipped in"?
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When...
With the DOJ now being more and more in conrol of the RIAA/MPAA it is not surprising that they would go crazy.
It used to be that the DOJ was for protecting the citizens, now it is for protecting big business.
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A site where Grandpa can post videos of his cats and he can likewise see video of his grandkids?
Yes, that's so fucking mind-blowingly innovative. No one would have ever thought of that.
Snore."
It was innovative, in fact, internet video is one of the most innovative technologies ever created thanks to YouTube. Do you remember the internet before YouTube? There was no video dude. Too bad you didn't think it up! You'd be rich instead of broke and commenting here.
We know one particular group who would never have thought it up and that would be the industry you back so blindly. You've never innovated. Ever. You're pushing the same legacy business model that Elvis was selling records under in the 50s. Poor you.
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shareyourworld.com
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Six Principles of Global Manipulation
http://www.youtube.com/watch?v=0fF3TQ0lJnU
Anti-Qur'an Strategy of the Bible Project Wheeler-Dealers
http://http://www.youtube.com/watch?v=_1wXgXwj3MI
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"We cannot allow foreign website operators to flout the law simply because their headquarters are based outside the country.”
Does this mean Twitter will be shutdown in the UK?
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Why?
well... They are American! Didn't you get the memo ;)
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I don't know why...
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Re1ease is back
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