New Filing Explains How Domain Seizures Violate The First Amendment
from the hello-prior-restraint dept
We've already covered how Puerto 80, the company that runs Rojadirecta, has challenged the government's seizure of its domain. The arguments presented by the company focused on a few different aspects of the law, and, obviously, focused mainly on what's most likely to get the domain returned. That meant that, while it mentioned both, it didn't spend too much time on two larger issues associated with the Rojadirecta seizures: (1) that it appears to violate the First Amendment's ban on "prior restraint" of speech and (2) that Rojadirecta was declared legal (twice) in Spain, and ignoring that sets a dangerous precedent.Thankfully, the EFF, CDT and Public Knowledge have filed amici briefs that dig into both of these issues in great detail. I've embedded the filing below, and it's worth reading, as it does a very detailed and well annotated and cited explanation for why such seizures, prior to any adversarial hearing, violate the First Amendment. The whole thing is worth reading, but here's a snippet:
The impact on speech resulting from domain-name seizure is far beyond what is necessary to further the government interest. The government alleges that links (located on pages accessible through Petitioner’s domain names) to infringing content -- i.e., pointers to content accessible elsewhere on the Internet -- constituted criminal copyright infringement.... By seizing Petitioner’s domain names, however, the government blocked access to all content contained on Petitioner’s site, including obviously non-infringing content, such as user-created forums, discussions, and technical tutorials....Separately, it digs into the larger issues related to the fact that the site was found to be legal in Spain, something that the challenge from Puerto 80 mentions, but does not spend much time on. Here, however, the amici filing points out that this presents a big legal problem for the US government in supporting these seizures. Again, the entire argument is worth reading, but a quick snippet:
This tactic, as discussed above in Section III, was dramatic and unprecedented. While the government may pursue actions that further important interests, “it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms.” Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 637 (1980) (citing Hynes v. Mayor & Council of Borough of Oradell, 425 U.S. 610, 620 (1976)). “Broad prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone . . . .” NAACP v. Button, 371 U.S. 415, 438 (1963) (citations omitted).
Decisions of foreign courts are not binding on the U.S. judiciary; however, it is a “well-settled rule” that unless the findings offend fundamental standards of procedural fairness or public policy, foreign judgments are generally conclusive. See Telenor Mobile Commc’ns AS v. Storm LLC, 584 F.3d 396, 408 (2d Cir. 2009) (citing Ackermann v. Levine, 788 F.2d 830, 837 (2d Cir. 1986)); Cunard S.S. Co. v. Salen Reefer Servs. AB, 773 F.2d 452, 457 (2d Cir. 1985) (“comity will be granted to the decision or judgment of a foreign court if it is shown that the foreign court is a court of competent jurisdiction, and that the laws and public policy of the forum state and the rights of its residents will not be violated.” (emphasis added)). Cf. Clarkson Co., Ltd. v. Shaheen, 544 F.2d 624, 631 (2d Cir. 1976) (holding that “a foreign judgment may not be collaterally attacked ‘upon the mere assertion of the party that the judgment was erroneous in law or in fact’” and requiring “[c]lear and convincing evidence” to attack a foreign judgment) (internal citations omitted))....Separately, it notes that the consequence of ignoring such foreign judgments may do serious harm to US interests abroad, as it will enable other countries to do the same thing to US citizens and companies.
[....]
In the case of Rojadirecta, that standard was not applied, much less met. There is no reason to believe the Spanish rulings were procedurally unsound or offensive to public policy. Indeed, on the limited facts available in the record, U.S. copyright law may have dictated the same outcome, at least in the context of criminal infringement.
The effect may be felt well beyond the commercial context. Simply put, if the United States courts allow — with no adversarial hearing and on a low legal standard — the seizure of foreign-based content that is lawful in the home country, then that will set an example for other countries to seek to seize U.S.-based speech that is perfectly lawful in this country. As one example, U.S.-based websites have provided a crucial safe haven for political speech, including speech that is critical of foreign governments, in part because U.S. law offers strong protections for political commentary. If such a website were seized by a foreign government (even though the content is hosted in the U.S.), that action would likely be subject to intense criticism, including disapproval by the U.S. government. Unfortunately, it would be all too easy for the foreign censor to cite to the circumstances of this case as reason to ignore such criticism. Once the United States goes down the path of seizing websites hosted around the world, we will be less able to complain when other countries turn around and do the same thing to speech hosted here.The filing also notes the oddity of the US government not mentioning the Spanish rulings in its affidavit to seize the sites, which suggests one of two things: that the ICE/DOJ folks hid this rather important fact or that that they didn't bother doing even the most basic investigation to find that information out.
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Filed Under: domain seizures, first amendment, free speech, prior restraint, rojadirecta
Companies: cdt, eff, public knowledge, puerto 80
Reader Comments
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Due diligence...what is this due diligence you speak of?
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New Rules
Hynes v. Mayor & Council of Borough of Oradell, 425 U.S. 610, 620 (1976)
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NAACP v. Button, 371 U.S. 415, 438 (1963)
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1976? 1963? Things have changed since then.
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Re: New Rules
Everything changed on September 11, 2001. The old rules and the Old Constitution no longer apply.
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Freeloaders
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Re: Freeloaders
Just a bunch of "freetards".
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Re: Freeloaders
cuz, that's the only reason they even added it in the first place lolololol
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You should have said "what the entertainment people PAID them to do" The entertainment industry owns quite a few members of Congress plus the agencies. Anyone notice how the DOJ is turning into Entertainment Industry Police?
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And, yet, America keeps reelecting them.
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That question was answered in the article and references. Did you even bother to read it? Of course not.
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There, now you can get all the free stuff that you deserve. You shouldn't have to pay for anything!!
There not hosting illegal content, there just linking to illegal content. Is aiding and abeting a crime still a crime in this country??
These seizures were done with a warrant. A warrant issued by a judge. Does that not constitute due process?
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http://www.opensecrets.org/bigpicture/reelect.php
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I doubt it.
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Also, most judges will laugh at the argument that foreign decisions mean anything on our law, unless it's due to the enforcement of a treaty which both countries have signed onto. Just because the spanish flavor of IP came up with a decision, doesn't mean the US flavor of IP would follow that decision. It's not like we're following French or Italian law when it comes to google searches.
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I'm not really sure this is prior restraint, because they haven't physically silenced someone on the internet or the publishers of the content, they just forced them to do it someplace else. Is there any injunction in place? I thought they just seized the domain name.
It might be overbreadth, because this violates some free speech by getting rid of the offending content. But most of the cases dealt with statutes, so not sure how they'd apply it to a warrant for a seizure.
I'm not really sure there is much of a 4th or 5th amendment claim, since they got a warrant from a judge(unless they lied, which is pretty cut and dry).
Really, seizing a domain name is like plugging a hole in a sieve, which means 1) that it's dumb to try and do it because you're not stopping anything and 2) it's a tougher case for a first amendment claim because you're really not stopping anyone from doing anything. Either way, this should make for some interesting case law.
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Since there is no edit button
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No, they hid the fact. I understand your position, Techdirt, but exactly what is it going to take to convince you?
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Last I checked, NO ONE has been given the power to seize a domain based on any actual laws, which is why this is contested. The AG's power that you're implicating is a part of the PIPA bill currently debated in Congress. If we're to look at the affidavits for the takedowns as well as see what the government has done, then there's a LOT that the government "has done improperly".
Finally, these seizures have been going on for a year. So where's the government's court cases and calling in of people for their trials to get the domains back?
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Re: New Rules
btw, try googling "stare decisis".
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Re: What relevance does the Spanish decision have in the US?
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"Just out of curiosity, exactly what type of free speech is alleged to having been unlawfully restrained?"
its more the simple fact that any type of speech (comments and such) are actually protected. its like my video being hosted on Piratebay, if the site was taken down (highly likely) that the government BY DIRECT ACTION will have silenced speech, their by abridging the first amendment.
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Further, there is no indication that trading files or violating copyright is protected speech. There are already lower court rulings which accept that a certain amount of protected speech may be harmed when the greater non-protected speech is stopped. So having a file trading chat board and blog full of copyright violating content wouldn't be protected by a small amount of legal free speech buffering between the unprotected speech.
The are arguments made ignore the huge harm that is done with the unprotected speech.
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more the fact that I'm not a trained lawyer and the simple fact that however its cut, if you post even 1 non infringing content on any site and the government takes that site down they have effectively silenced free speech (least according to me and my own completely untrained legal background)
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Re: Re: What relevance does the Spanish decision have in the US?
Comity! here for your education is both the Wikipedia entry, and the Cornell Law School Entry which calls it its real name in this context Comity of Nations
Basically it is the reciprocity that is shown between different Jurisdictions and like all diplomatic diplomacy it is either used by all or if one side only used it whenever it wants and not other times, the other country courts will bite back when you least expect it.
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Re: Re: Re: What relevance does the Spanish decision have in the US?
txpatriots reply amd not yourself Lawrence :(
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No one's argued that. Why even make a strawman like that?
There not hosting illegal content, there just linking to illegal content. Is aiding and abeting a crime still a crime in this country??
Yes, aiding and abetting is, but as we've discussed, at length, aiding and abetting has certain very specific characteristics, most of which don't apply to Rojadirecta. Here the Spanish rulings come into play. The fact that Rojadirecta had been told by courts twice that what it was doing was legal, makes an "aiding and abetting" charge nearly impossible.
These seizures were done with a warrant. A warrant issued by a judge. Does that not constitute due process?
No, it doesn't. As is explained quite clearly in the filing (which I'm pretty sure you didn't read), when it comes to speech a prior adversarial hearing is required.
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What you "believe" and what "is" may be two separate things.
I also believe that congress gave him this right.
This is, at best, an exaggeration, and at worst, an intentional misstatement of fact. Under ProIP, Congress did extend federal seizure and forfeiture abilities to property used in criminal copyright infringement. However, as it was put in there, it was designed for things like seizing CD stampers and recorders and such. Claiming that this extends to URLs is not nearly as clear cut, and runs into serious problems with you look at things like the Fort Wayne case cited.
In these cases, the procedures were all met so there is no way they will be "found to have been done improperly".
That's very much in question, and the massive number of errors in the filing raises serious questions as to whether or not the procedures were actually all met.
I recognize that people who support these seizures *want* to believe this is the case, but the facts do not support your position.
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The forums and discussions on the site is one key part, but basically all of the non-infringing content there.
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Idea!
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Have they really silenced free speech though? It's not like you can't put your message out there by a different means(a different website). The courts like to make arguments by analogy, and these are the first that came to mind(you can tell me if they're idiotic, I won't mind, I haven't had my coffee yet):
1) A group likes to demonstrate outside of a particular place, the government forces them across the street for public safety issues.
2) Government seized a crack den, which also puts political slogans on the front lawn.
3) Government preemptively seized and shut down a store that sold obscene books.
1 & 2 would probably be legal restrictions on free speech(the first was based on a few abortion cases, and the second seems utterly ridiculous). The third is Fort Wayne Books v. Indiana, but it's an obscenity case so it's not directly on point here.
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"once upon a time" isn't obscene. Neither is "and they all lived happily ever after once their wounds healed".
So what if 50% of the book isn't obscene? Should it all be protected because there is some protected speech in there?
The argument is key here. If the websites are rife with copyright violations, the presence of some protected speech on them shouldn't give them any more coverage than the book that is less than 50% obscene by word count.
The other examples you cite are similar. You cannot protect criminal actions behind free speech (unless you are in politics). You cannot use the first amendment as some sort of bunker to hide your illegal activities in.
As a result, the first amendment arguments are nice, but they are relatively meaningless, because they ignore the basic facts about the websites in question.
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but would the author of the non-infringing work have proper standing in terms of court for censorship?
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And really, copyright laws are subject to heightened scrutiny under in First Amendment analysis? That was the premise of the brief, yet not one source was cited as authority stating such. Do they really thing the judge won't notice this?
It's a really well written and researched brief. Too bad it says nothing about copyright laws.
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If you are an author of a non-obscene book, example, sold at a book store closed because it sells obscene material, you don't have a lot of comeback. You cannot force the courts to re-open the store to sell your non-obscene work. You were in a bad neighborhood, and there isn't much you can do about it.
It is on par with being in a car with a driver holding a big bag of crack. The car gets stopped, the driver gets arrested, the car gets seized, but you aren't charged. Do you get the car back and a new driver to keep driving? Nope. Your "free speech" rights to travel in a car are curtailed by a bigger issue. Whatever of your rights are lost because the car is seized is not enough to justify the police releasing the car to you.
You can find good in almost every website, even the very worst. What would you say to a child porn website filled with naked kid pictures and classic fairy tales and maybe some political commentary about safety at school? Would the courts permit the child porn, because there is significant protected speech on the site? The answer is clearly no.
While commercial copyright infringement isn't on par with child porn (I wouldn't even suggest it), there really is a black and white thing here. Illegal acts are not protected free speech, and on that standard and that standard alone, all of those illegal acts are the same. The courts are not permitted to grey scale on the first amendment, it's either all the way in or all the way out. There isn't any middle ground.
The only way out of it would be the "oops" factor, as in "oops, I didn't know that single video was infringing". But on sites that had massive amounts of infringing materials as part of the site's basic layout and structure (regardless of the location of the files), it is hard to claim an oops.
As a result, the first amendment arguments are weak in my opinion.
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Example, if you stand in the middle of a freeway with a sign that says "end gas taxes now!", you are likely to be removed from the freeway because it isn't safe for you and for others. If you did the same thing from the side of the road or an overpass, you might not get the same response.
Even free speech has it's limits.
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That's quite misleading. Whether it's legal under Spanish law is irrelevant to whether it's legal here. Here, they're looking at accomplice liability for aiding and abetting, inducing, encouraging, or whatever you want to call it. An accomplice is treated as if he had committed the crime himself.
No, it doesn't. As is explained quite clearly in the filing (which I'm pretty sure you didn't read), when it comes to speech a prior adversarial hearing is required.
The brief explained how the First Amendment works in the context of libel, defamation, obscenity, etc. But it made absolutely no mention of how it works in the copyright context. None. And why do you think that's so? It's because two centuries of jurisprudence and doctrine is working against their constitutional challenge of 18 U.S.C. 2323. It's more than telling that they never brought up copyright laws.
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As to your points, which are both valid, and both in the proverbial gray area(or nuance) of the law. The first, as to the censoring, it has been censored, but the first amendment doesn't protect all speech no matter what. There is a weighing aspect to it, or else any government action would somehow touch some component of free speech(I could list strange hypotheticals all day, but a little lazy right now). The case law says that restrictions on free speech must be narrowly tailored and content neutral. The second one is pretty easy, they didn't pick and choose, they just took down content from sites that "violated"(not sure if they did, hence scare quotes) copyright law. The first one might be what the argument hinges on. Is removing an entire website that infringes copyrights, even though it has some worthwhile information on it, overbroad? I don't know, and I look forward to hearing the arguments.
As to the Police telling you to move away peacefully, the government has the ability to regulate the time, place and manner that you use government property. The government can close parks, or regulate hours of a courthouse or open government property. There are even abortion cases where injunctions and laws are in place which says that you can't picket within x feet of a clinic or place that practices abortions, and they've been upheld by the SC, although this may be an abortion of the first amendment(forgive the bad pun, but most rules that pertain to abortion are very partisan and aren't really applicable to much else because they can do some hand waving around the law).
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The statute says that "property" used to commit criminal copyright infringement can be seized. It doesn't limit the type of property that may be seized to the types you've listed. When Congress wants to limit a statute's applicability, it knows how to draft it as such.
Fort Wayne has no application in the copyright context. That is an obscenity case, and obscenity is treated differently in the First Amendment analysis. I know you don't agree, but it is a fact that has been proven many times over in the comments section here.
Did you notice how the EFF brief couldn't cite to one court saying that heightened scrutiny is used when analyzing a copyright law under the First Amendment. They didn't cite any because none exists. AUSA Frey will most certainly be explaining this to the judge. Of course, you won't have any coverage of his briefings on the matter. We know you don't like to cover both sides of the issue.
That's very much in question, and the massive number of errors in the filing raises serious questions as to whether or not the procedures were actually all met.
I recognize that people who support these seizures *want* to believe this is the case, but the facts do not support your position.
The brief points to errors in other seizures, but none in this seizure. That's very telling as well. The procedure is: someone makes a complaint, the feds investigate, an affidavit is presented to a judge stating probable cause, and the instrument of crime is seized pursuant to a judge-issued warrant. Claiming this violates procedural due process will get them nowhere.
This brief is a "Hail Mary" pass if there ever was one. 18 U.S.C. 2323 is not unconstitutional. No judge will agree. Guess we'll see soon enough who's right on this.
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And it's precisely because the PRO IP Act, which modified 18 U.S.C. 2323 to include seizures of property used to commit criminal copyright infringement, was drafted under Congress's enumerated power in the Copyright Clause of Article I. Courts give such exercises of power deferential review--it passes constitutional muster if it's rationally related to a legitimate governmental interest.
The brief is trying to cram the issue into the jurisprudence that exists vis-a-vis obscenity, libel, defamation, etc. Those laws are treated differently. Those laws aren't written pursuant to an enumerated power like copyright laws are.
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The Fort Wayne case was one in which a book store was shut down prior to a trial because it was selling "obscene" literature. I think this falls apart in a few places. First, a book is generally not sold in just one store(so you're not really silencing the writer). Second, if after trial the bookstore was found to be selling obscene material it would be shut down, whether or not all the material was obscene. The issue in Fort Wayne was whether it was constitutional to shut down a store prior to a trial, which in obscenity cases it was not because of the fact specific nature of the abuse and the need for juries. The big difference here is that copyright law is a little more black and white, and can be determined prior with some certainty prior to adjudication.
Last thoughts, if I were writing the gov't brief I'd make the parallels to the right to first publication, where leaked copyrighted information (for example, Sarah Palin's book) can preclude publication of it by a news organization until after it has become public. I'd also look for case law where they've shutdown book stores for selling licensed and unlicensed materials at the same time.
Either way, I think this will be interesting to watch.
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> there just linking to illegal content.
> Is aiding and abeting a crime still a
> crime in this country??
You are misrepresenting 'aiding and abetting a crime'.
Google also links to illegal content. Links are just a tool. A tool you can use to find the illegal content and shut it down. If you stop the actual illegal content, then the links are worthless. But it seems that you'd rather stop the linking and keep the illegal content hosted somewhere.
If I verbally link to something, (eg "Yeah, that house on the corner is a crack house.") is that aiding and abetting a crime? Maybe resources are better spent shutting down the crack house? Maybe not. Maybe it is better to arrest people who verbally state the fact.
Replace "abeting" with "abetting"; and "There" with "They're".
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Since the complainant cannot prove that they hid it, the best they can do is to state both obvious alternatives. Either (1) they're lying to the court, or (2) they are too stupid to have properly investigated before wasting the court's time. Either way, they should be sanctioned.
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> entire movies were banned because of an obscene scene.
Does this still happen in the 21st century, in the US?
If the Phelps can be allowed to protest military funerals, then I think nothing that is fiction, documentary, or the actions of consenting adults should be able to be banned.
Regulated, probably; and that should apply to both examples.
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In these cases, going to first amendment as the first refuge suggests that all other arguments are already lost. So they are instead attempting to get the courts to ignore the circumstance, the situation,and overt acts that have occurred, and to pay attention only to an extremely narrow interpretation of the first amendment.
Thankfully, the government lawyers get to play the other side, and can more widely open the discussion. It is in my opinion extremely unlikely that the courts will side with EFF (or anyone else arguing first amendment issues here) because the alternative is tearing down plenty of caselaw and "greater good" judgements that have stood for a very long time.
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If anyone is hiding anything it's the EFF et al. in submitting this brief. They are hiding everything that has to do with how the First Amendment works in the copyright context. The brief is so misleading that I think it borders on being unethical for the lawyers who worked on it to even submit it. Seriously. If you know of relevant law that hurts your position, you're supposed to be honest about it. This brief is anything but honest.
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I could never submit a brief to a court saying that copyright laws are content-based restrictions of speech subject to intermediate scrutiny because I know that's not true. They know it too. And that's not right.
I understand they're just trying to frame it as such, but to do so without even mentioning the fact that they're trying to get the court to do what no other court has done in two centuries is misleading and dishonest.
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I think the phelps thing is more "public figure" doctrine. They essentially(although I disagree) said that he's a public figure and people have the right to protest public officials or public policy.
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That's not how the First Amendment works, as is clearly discussed in the filing:
The idea that because the speech can still be found via other means does not mean there is no 1st Amendment violation. At all. Not sure why you'd even suggest otherwise.
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That's incredibly misleading. As you well know, the modifications to 2323 were pitched as being needed to seize things like DVD/CD pressing machines, not SPEECH.
That's the whole crux of this case and the filing. The DOJ/DHS have pretended that they can ignore the fact that they're cutting off speech due to a very loose interpretation of 2323.
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Really? You don't think that the government coming in and shutting down a ton of perfectly protected speech is a First Amendment issue around prior restraint?!?
The reason I'm having trouble is because this isn't normal case law, because there are 2 competing constitutional issues(the first amendment and Article 1 section 8(science and the useful arts), which always changes the calculus. That's my big "WHOA" on this one.
The courts have always tried to balance the two. I don't necessarily think that they do a good job of it, but even so, that's not the actual issue here. Under the copyright clause there is the ability to remove infringing material. The issue is that's not what's happening here. The government is seizing protected speech in a (weak) effort to block access to pointers to potentially infringing material.
That's a huge First Amendment no-no.
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The problem is, hosting a LINK is NOT committing infringement. If it is... Then where is the seizure of google.com? Seems to me I can find plenty of links to illegally download Lady Gaga from there.
Oh, I know why. Because if ICE seized that domain, they'd find their ass in a sling so fast it would make their head spin. And ICE knows this. So instead, they go after smaller operators, those that are likely to not have governmental connections, powerful lobbies, big banks, and bigger lawyer teams.
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It may be irrelevant to whether or not its legal here, but as the filing clearly notes (and you totally ignore for whatever reason), the courts should give some deference to those rulings before declaring unilaterally that it's infringing with no prior adversarial hearing.
Separately, since folks like yourself are so wedded to the aiding and abetting concept, it seems that the fact that it was judged legal in Spain (twice) weakens the whole aiding and abetting claim. The people behind the site had every reason to believe that what they were doing was entirely legal.
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Um. What?!? If you don't think copyright laws are content-based restrictions of speech, then you have no business being involved in the law.
That's the entirety of copyright law: it is a content-based restriction of speech. There may be good reasons for it, but that doesn't change what it is.
Claiming otherwise is ludicrous.
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That's the whole crux of this case and the filing. The DOJ/DHS have pretended that they can ignore the fact that they're cutting off speech due to a very loose interpretation of 2323.
It's not misleading in the least. The statute was drawn so that property used to commit criminal infringement could be seized. A domain name is such property. The argument you're espousing will go nowhere in the courts. The fact is, the incidental effect on speech is permitted. The target of the seizures is not the protected speech, and you know it.
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The fact that some or all of the information available through the targeted domain names may still be available to the public, by (for example) using another domain name or by typing in the site’s numerical IP addresses directly, does not change the analysis. The Supreme Court has repeatedly held that “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised elsewhere.” Schneider v. New Jersey, 308 U.S. 147, 163 (1939); accord Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 757 n.15 (1976) (“We are aware of no general principle that freedom of speech may be abridged when the speaker’s listeners could come by his message by some other means . . . .”).
The idea that because the speech can still be found via other means does not mean there is no 1st Amendment violation. At all. Not sure why you'd even suggest otherwise.
You mean as it's discussed in the lopsided, dishonest, and misleading brief? The brief that makes no mention of the fact that this is a copyright case and that the First Amendment analysis under other situations is inapplicable? That brief? Wow, you think maybe they aren't telling the whole story?
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I don't "know" that at all because it's WRONG. Flat out, totally, and completely wrong.
First of all, while a domain name may be property, it is NOT the property that is used to infringe. A domain name is a pointer to a server. That server was not property used to infringe here either. Instead, the infringement occurs on a totally different server, and was put there by a totally different user. Claiming that the domain is property used to infringe is wrong.
And even so, that's not the point. You are pretending -- in an incredibly misleading way -- that 2323 makes it clear that speech may be seized. That's not at all true.
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The brief is not lopsided, dishonest or misleading. If anyone is being misleading here it's you.
But, most telling, you don't actually respond to the point. Hilarious. But telling.
As for your claims that the First Amendment is inapplicable in copyright cases, you *know* that's false. Separately, you *know* that this isn't even about infringing content at all, but the non-infringing speech that is being stifled here.
Why do you constantly pretend otherwise?
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The court that issued the warrant didn't unilaterally declare that it's infringing. They declared that the government stated probable cause of the property's use in criminal infringement, which is all they had to show. The government had no duty to bring up the fact that a court declared the site legal as to one plaintiff in a foreign country. It's just another line of attack that will get your side nowhere.
Separately, since folks like yourself are so wedded to the aiding and abetting concept, it seems that the fact that it was judged legal in Spain (twice) weakens the whole aiding and abetting claim. The people behind the site had every reason to believe that what they were doing was entirely legal.
Only if they believed that what's legal in one country must be legal in the next. That's a silly belief to hold.
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2323 makes it clear that property used to infringe may be seized. Whether incidentally speech is affected is not the point of the statute. The statute is not aimed at the protected speech.
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I find it absolutely disgusting that you consider censorship of free speech to be incidental.
It's not.
And, stop with the crap about 2323 making it clear. It does not. 2323 was sold as a tool to seize tangible and physical property. Not a means of speech. Pretending otherwise isn't just dishonest, it's downright sleazy.
It's sickening that you would pretend such an abuse of the law that stifles free speech is fine and dandy, when you know damn well that this was not the stated intent behind the change in the law.
It's disgusting to see you trample the Constitution.
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The Court in Eldred pointed out that it goes to far to say that copyright laws are categorically immune from First Amendment scrutiny, and that's true. I'm not saying that the First Amendment is inapplicable. What I'm saying here is what the Court went on to say in Eldred: They applied rational basis scrutiny to the CTEA. If I've implied that it's categorically immune, I apologize. I don't think I did though.
I know some courts have applied heightened scrutiny to copyright cases--Golan and Suntrust come to mind as possible examples, but I'd have to reread them to see exactly what was said there--but those are the exception and not the rule. My problem with this brief is that it pretends the issue is settled and the jurisprudence is clearly in their favor. It's not. To pretend otherwise is dishonest.
From one of my favorite papers on the topic (the Eleventh Circuit reference is to Suntrust):Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 Stan. L. Rev. 1, 2-3 (2001) (emphasis added).
If Netanel is right, and I have no reason to believe he's not, then the EFF is being dishonest about the whole thing.
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If I'm sleazy, then prove it. I've spent the last hour scouring the congressional record, and I can find no mention that 2323 was "sold as a tool to seize tangible and physical property." Please point me to the source for your claim.
And while you're there, please explain why they wrote the statute to include "any property" rather than property of the type you insist was what they meant.
If you're going to call me sleazy for misstating something, I assume you can back it up. And if you can't, I presume an apology is on the way.
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Mike, You hinge on the foreign jurisdictions, but I'm sure you'd hate for English libel laws, or France and Italies idiotic opinions about Google to take hold in the US. You can't pick and choose which foreign ruling you feel should be controlling. Yes, it should be persuasive, if both countries had the exact same laws, but a Spanish ruling on the legality of the site based on Spanish law doesn't mean a lick when adjudicating US law.
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I don't think the brief is dishonest at all. Again, you seem to keep focusing on the copyright part of it, ignoring that we're not talking about infringing speech. Why? I do not know.
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Prior restraint is stopping speech before it has been said. This includes licensing for movies(which can be legal) or injunctions on individuals(which is not). Seizing of property in no way touches the prior restraint doctrine, so this is a non-starter. For example, if The United States stopped Wikileaks from publishing Bradley Mannings leaked documents, that would be prior restraint.
The Doctrine you should be screaming about is overbreadth, which tries to limit the effects on free speech that legislation might have. I know this is picking nits, but if you're going to throw a temper tantrum when people disagree with you at least be right. A second point to make about overbreadth is that you don't need a perfectly tailored law(the SC doesn't expect perfection), so the fact that any free speech is curtailed isn't the issue. It has to be a substantial burden to free speech, which I don't think this is(just my opinion here).
Inherent in copyright law is first amendment doctrine. Any restriction of speech is, by definition, limiting of that speech. The nuance that you seem to miss is that this was foreseen, and can supersede a first amendment right(and I'm sure this sentence will turn into a pissing match). The other thing you're missing is that just because a content neutral(content refers to what is being said, copyright infringement just cares about what is copyrighted) law suppress free speech, it isn't illegal. For example, noise and time restrictions at a public park are legal because there are other ways to participate in free speech besides blaring a boombox with "Jesus' greatest hits" at 3AM. Yes, you've suppressed speech by stopping that person, but it's not a violation of his constitutional right.
PS I'm really hoping for a personal attack and the claim that I'm purposely misleading the readers in the response. It's what I strive for in life.
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I find this to be especially true in briefs from these usual suspects: EFF, CDT, and PK. I admire them for what they do and what they believe in, but I don't agree with their methods. If they think heightened scrutiny should be applied to the forfeiture statute, then that's great. I wouldn't mind if it were. But to pretend that it's only natural to apply such scrutiny without pointing out the long history of courts refusing to do the same is just intellectually dishonest. I think this type of argument on their side--lopsided, dishonest, super-narrow or super-broad, whatever's better for them at the moment--hurts them in the long run. If you know they have a tendency to stretch credulity, then how much weight are you really going to give their arguments?
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I'm not trying to make it "work" on you. I'm telling you that it's disgusting in my view.
I've explained why I think the statute is aimed at unprotected speech and how it's use here was targeting unprotected speech. Calling this "censorship" is just throwing out a buzzword for its intended effect.
You've explained it, and yet you ignore that we're NOT TALKING ABOUT UNPROTECTED SPEECH.
Which I told you.
Kinda scary that you can't even admit the basics here.
Under your logic, if I have a website devoted to child porn that also includes my doctoral thesis on the history of western civilization, any attempt to take down my website would be "censorship." That's just not what the word means. Those sites are free to say whatever they want. They just can't violate criminal laws while saying it
That's not what I said at all, and you know it, and are being blatantly and obnoxiously dishonest.
We're talking about sites with almost entirely non-infringing speech on it, taking down to try to stop infringement, which isn't even occurring on that site. That's ridiculous.
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For the simple reason that this is a copyright case, and they are asking for a statute with a copyright component to be ruled unconstitutional as applied. Why focus on other doctrines? Or more to the immediate point, why ignore the actual doctrine that's at issue here? I think it's dishonest. I respect the fact that you see it differently.
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Indeed. And I've said that. But that's NOT what I said here, nor what the brief says, and it's misleading to suggest otherwise.
What it said was that given that ruling, under current US law and policy, the courts should at least presume that the site is legal until a full hearing is held on the matter. That didn't happen. That's the problem.
No one is saying that because it's legal in Spain it's automatically legal here. But what we're saying is that before having the court declare -- sans adversarial trial, no less -- that this is a criminal enterprise, it needs to acknowledge that this is not so under foreign law.
but a Spanish ruling on the legality of the site based on Spanish law doesn't mean a lick when adjudicating US law
This is misleading again. We're not saying that it means that the site cannot be found guilty of violating US law. But there hasn't been a trial. There haven't even been any charges filed. They just declared unilaterally that it was used in criminal activity, and *that* goes against US law and policy.
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And I'm not losing any sleep over it. Agree to disagree.
You've explained it, and yet you ignore that we're NOT TALKING ABOUT UNPROTECTED SPEECH.
Which I told you.
Kinda scary that you can't even admit the basics here.
I know you're not talking about the unprotected speech. I feel like you're sweeping that whole part under the rug, even though it's really what this case is about. It's also about the protected speech--I agree--but I don't see that the protected speech saves the unprotected speech from government action.
That's not what I said at all, and you know it, and are being blatantly and obnoxiously dishonest.
We're talking about sites with almost entirely non-infringing speech on it, taking down to try to stop infringement, which isn't even occurring on that site. That's ridiculous.
I don't know how much non-infringing speech is on the site. I do know that there was probable cause that the site was being used to commit a crime. If true, that's disgusting to me.
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As for taking snippets out of cases, fine, I can do that too if you really want. I'll just tell you that if you picket on I-95 you'll be arrested, same as if you picket inside a courthouse after hours. It's called time, place and manner. The government has a legitimate reason to regulate activity, it the incidental nature of first amendment restrictions does not necessarily make the legislation illegal. One of the caveats is that you need to give people ample place to speak their mind where the message would be heard. In my legal opinion, your argument is going to fall on extremely deaf ears and I look forward to skimming your rant in 6 months.
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Seizing printing press is considered prior restraint. Seizing a domain name is like seizing a printing press. Taxing ink has been considered prior restraint. So, no, you are wrong. Again.
Inherent in copyright law is first amendment doctrine. Any restriction of speech is, by definition, limiting of that speech. The nuance that you seem to miss is that this was foreseen, and can supersede a first amendment right(and I'm sure this sentence will turn into a pissing match). The other thing you're missing is that just because a content neutral(content refers to what is being said, copyright infringement just cares about what is copyrighted) law suppress free speech, it isn't illegal. For example, noise and time restrictions at a public park are legal because there are other ways to participate in free speech besides blaring a boombox with "Jesus' greatest hits" at 3AM. Yes, you've suppressed speech by stopping that person, but it's not a violation of his constitutional right.
None of which has anything to do with anything. I'm not sure why you think bringing up irrelevant points matters.
PS I'm really hoping for a personal attack and the claim that I'm purposely misleading the readers in the response. It's what I strive for in life
Good for you. You must be so proud of yourself.
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Not everything happens in the Congressional record. For those of us who actually were paying attention when ProIP was being debated, when we raised these issues, we were told directly it was a non-issue and that it was about seizing devices.
And while you're there, please explain why they wrote the statute to include "any property" rather than property of the type you insist was what they meant.
Because guess who wrote the actual language?
If you're going to call me sleazy for misstating something, I assume you can back it up. And if you can't, I presume an apology is on the way.
I'll happily apologize when I'm wrong. In this case, I'm right.
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That's like saying that CDT v. Pappert was a child porn case. It was a free speech case because the concern was the other speech. Same here.
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It doesn't. That's the whole point. If they want to go after unprotected speech, go after the unprotected speech. But they can't do it in the way that they've done it if it has such a massive impact on protect speech.
Want to go after infringing content? Go for it. But focus on that content and not a broad swoop that has no prior adversarial hearing, when there's protected speech involved.
I don't know how much non-infringing speech is on the site. I do know that there was probable cause that the site was being used to commit a crime. If true, that's disgusting to me
Interesting. I note that you seem to be equating site with URL. You sure you want to do that?
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Did I ever say that? My goodness you're full of it.
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Alright smart AC, where's the convictions for CCI? Why are there domain seizures, to preserve evidence, and yet no court dates for "offenders"?
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If a printing press is used to commit crimes, I see no reason why it couldn't be seized. If you have a particular case in mind, I'd like to see it.
As far as the tax on ink goes, I believe you are referring to Minneapolis Star. I also believe that case doesn't mean what you think it means.
The Court there said: "Clearly, the First Amendment does not prohibit all regulation of the press. It is beyond dispute that the States and the Federal Government can subject newspapers to generally applicable economic regulations without creating constitutional problems." Minneapolis Star & Tribune Co. v. Minnesota Com'r of Revenue, 460 U.S. 575, 581 (1983).
So obviously there can be a tax on ink. This is no surprise, since there in fact is. But why was it prior restraint in that case?
As the Court explains: "Minnesota, however, has not chosen to apply its general sales and use tax to newspapers. Instead, it has created a special tax that applies only to certain publications protected by the First Amendment." Id.
That case does no work whatsoever for your argument. If you disagree, I'd love to hear your reasoning. I think you are simply holding out the case to mean something that it doesn't.
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I do vaguely remember the tax on ink case. I think it was more because it disproportionately affected printers, therefore being biased.
I am proud. Although I still don't think I'm wrong, I just think you simplified the cases and missed the nuance that make the law. It's just a feeling though, so don't be too upset.
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Are you sure that's not applicable? Really, really sure?
Because the way it seems to me is that ICE has not chosen to seize all domain names that are being used for infringement, but only certain ones.
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Pappert was an child pornography case, and it was analyzed under First Amendment child pornography doctrine (I believe the court applied intermediate scrutiny there). This is a copyright case. Analyzing it under any other doctrine makes no sense. The EFF doesn't want to look at it like a copyright case because the copyright doctrine is not helpful to their position.
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I also would have liked to see a Supreme Court opinion, although this being the SDNY the 2nd Circuit is controlling. I would also like to read both opinions before I replace what I was taught in law school with snippet from a brief which is saying that a foreign ruling should be good, and would like to know what facts and for what types of decisions they meant.
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Minnesota had no sales tax on newspapers.
Minnesota imposed a tax on ink, but only over a certain threshold. Small papers did not need to pay the tax, since they didn't use the required ink.
The complainant paid 2/3 of all the revenue collected from the tax.
Therefore, a law that was innacted that burdened one speaker heavier than another was prior restraint or not content neutral.
http://supreme.justia.com/us/460/575/
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There, now you can get all the free stuff that you deserve. You shouldn't have to pay for anything!!
There [sic] not hosting illegal content, there just linking to illegal content.
I've got an even better link for you: http://www.google.com
They're not hosting illegal content either, they're just linking to illegal content.
These seizures were done with a warrant. A warrant issued by a judge. Does that not constitute due process?
Because, my little apologist friend, a judge (or any authority in general, probably) can do no wrong, huh?
No.
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It's disgusting to see the Constitution trampled like that.
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It's disgusting to see the Constitution trampled like that.
Censorship! Prior restraint! Procedural due process! The Constitution isn't toilet paper, you know. ;)
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No one said that at all. Why lie? No one said that people have to be allowed to speak everywhere.
What we are saying, and there is support for this whether you a agree or not, is that seizing protected speech is a violation of the First Amendment. Now, you can -- as some here do -- say that this is not about that. But to argue that anyone is saying that everyone must be allowed to broadcast their feelings anywhere is clearly a strawman.
But, you know what I do find amusing. Based on your tone, I'm pretty damn sure that you're the guy who pretty vehemently insisted that none of the domains would challenge these seizures. In fact, you claimed that I had to pay up on a bet we made because of that.
Funny that you got silent on that point as soon as the challenge happened. I wonder why.
Can you at least admit that you were totally and completely wrong that no one would challenge?
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And you've LOST THE BET.
When are you going to pay MusiCares the $500 you owe them?
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And you've LOST THE BET.
Uh, slow down their kiddo. The bet was after the lawsuits are exhausted. And, how could you possibly think I'd lost the bet this early in the game?
I find it funny that you can't even live up to the terms of the bet. Which is why I know you'll never pay up when I win.
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It's very relevant since it isn't located here but in that foreign country.
People like you are a good example of why copyright should be abolished.
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No, no, you see, Mike, that just means that *Spain* itself was also "aiding and abetting". Today the site gets taken down, tomorrow: the country. Spain hasn't heard the last of this!
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It does when that site is located in Spain.
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I would like very much for you to cite a movie that was found to still be obscene after the removal of all obscene scenes. Go ahead, we're waiting...
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Yeah, like to another country. Oh, wait...
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You know Arcara is totally different. You know Arcara *explicitly* notes that it does not apply in cases like this.
Why even bring it up?
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Why even bring it up?
I simply disagree with you on Arcara. I don't think it explicitly says what you think it says, and it's applicable here. We'll see if AUSA Frey uses Arcara in his opposition papers. Bet he does.
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I'm not posting this to rub your face in how you're wrong. I'm trying to get you to understand how these things really work. Since the Rojadirecta case is a copyright case, the proper way to look at it is under copyright First Amendment doctrine.
Anyway, here's the opinion from the D.C. Circuit Court of Appeals. I'm using this case because the procedural posture is similar to that of Rojadirecta. In this case, Boggs had his artwork seized. The artwork happened to look just like real dollar bills. He wanted to get it back, and he argued that under free speech precedent, it was a violation of his First Amendment rights to seize the artwork without a prior adversary hearing. The court didn't buy it:Boggs v. Rubin, 161 F.3d 37, 40-41 (D.C. Cir. 1998).
Do you see what they did there? Boggs can't just say it's the First Amendment, so there must be a pre-seizure hearing. It's not that simple. The court looks at in context. In this context it was counterfeiting. The court doesn't think that a pre-seizure hearing is needed because the inquiry into whether it's counterfeiting "is not inherently content-based." This means that it's quite simple to tell if something is a counterfeit or not.
Courts apply the same reasoning in copyright cases, and this is why ex parte seizures in copyright cases are commonplace. Now, I know what you're thinking. You think that it's not so simple to tell if something is infringing, and you can point to examples of where others got it wrong. That may be so, but that's not how it works when it's copyright. For the most part, with some exceptions that don't negate the rule, it's very easy to objectively tell if something is infringing. This is why the courts don't require a pre-seizure hearing when it's copyright.
I know you don't agree with this logic, and that's fine. I'm simply explaining how it actually works in the real world of the judicial system. Hope this helps.
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Second, and more importantly, the Boggs case is distinguished by the fact that they were seizing the actual work itself, which may have violated the law. That's entirely different than the situation that we're describing here, where in an effort to stop violations, *non-infringing* content was seized.
That's the key issue. That's why a higher standard is required. If the seizures solely seized content that was deemed infringing, I would agree that this case would be important. But in a case where we're talking about significant protected speech being harmed in the process, I just don't see how this applies.
In other words, if the Boggs case involved the Secret Service seizing an entire gallery of perfectly legal artwork, in order to get that one painting, do you still believe the court would have ruled the same way?
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As far as your museum example goes, I don't think that sort of logic will work either. The nexus between one piece of art and the whole museum is too attenuated. I think the argument will be more along the lines that the site and the domain name are being used to commit crimes, and so the domain name is being seized to prevent its further use to commit crimes. The thing being seized is directly related to the crime, and the nexus between the domain name and the crime is strong.
I really don't think there's any chance that Rojadirecta gets its domain name back with this petition, which is only for its temporary return anyway. The real show comes later when the government files for permanent forfeiture. The judge will not be impressed by the protected speech on the site because that speech doesn't save the site from being a criminal asset. It's like if I have a car that I use to run over my ex-girlfriend. It doesn't matter if the other 99.9% of the time I use that car to drive little old ladies to church and orphans to the zoo. The judge won't take his eyes of the ball like that. As long as the protected speech wasn't the target of the seizure, and it's not, then the incidental burdens are an unfortunate casualty.
I'm kind of bummed the judge granted an extension until mid-July. I was looking forward to seeing what Frey comes up with sooner than that. I do want you to know that I would have no problem with there being a pre-seizure hearing before these sites get taken down--and PROTECT IP at least provides for that--but I just don't see how the judge will agree that one should have been granted here. I wouldn't care either if copyright laws were subjected to heightened scrutiny. Perhaps they should be. But as I understand it, with a few exceptions, they just aren't.
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