Who Needs SOPA When Courts Will Pretend SOPA Already Exists?

from the seems-unfortunate dept

Tue, May 15th 2012 9:37am — Mike Masnick

Back in November, we wrote about one of a series of cases we had seen where trademark holders were going to court with a list of domain names that they insisted were selling counterfeit goods and getting the courts to issue injunctions that appeared to be quite similar to what SOPA would have allowed had it passed. That is, basically upon request, a trademark holder was able to get domain registrars to kill domain names, while forcing search engines and social networks to put in place blockades barring such sites from being listed. It appears that more trademark holders are taking notice. Jeff Roberts has the story of (regular IP extremist) Louis Vuitton trying the same thing.

Basically, it lists out a bunch of websites that may or may not be involved in the sale of infringing works. Most, if not all of them, are foreign run. However, it is seeking a full injunction against those sites, not just to get them to stop selling any counterfeit goods, but to get the domains themselves turned off, and to block search engines from being able to find them:

Entry of an order requiring the Subject Domain Names, and any other domain names being used by Defendants to engage in the business of marketing, offering to sell and/or selling goods bearing counterfeits and infringements of the Louis Vuitton Marks to be disabled and/or immediately transferred by Defendants, their Registrars and/or the Registries to Louis Vuitton’s control so they may no longer be used for illegal purposes.

Entry of an Order that, upon Louis Vuitton’s request, the top level domain (TLD) Registries for the Subject Domain Names and their administrators place the Subject Domain Names on Registry Hold status, thus removing them from the TLD zone files maintained by the Registries which link the Subject Domain Names to the IP addresses where the associated websites are hosted.

Entry of an Order that, upon Louis Vuitton’s request, those in privity with Defendants and those with notice of the injunction, including any Internet search engines, Web hosts, domain-name registrars and domain-name registries or their administrators that are provided with notice of the injunction, cease facilitating access to any or all domain names and websites through which Defendants engage in the sale of counterfeit and infringing goods using the Louis Vuitton Marks.

Entry of an order that, upon Louis Vuitton’s request, the Internet Corporation for Assigned Names and Numbers (“ICANN”) shall take all actions necessary to ensure that the Registrars and the top level domain Registries or their administrators responsible for the Subject Domain Names transfer, change the Registrar of Record, and/or disable the Subject Domain Names as directed by the Court.

As we noted back in the fall, there are all sorts of problems with these kinds of rulings (assuming that the South Florida court in this case follows the lead of previous courts). First of all, it's not clear under what authority the courts can issue such broad injunctions. Second, there are serious jurisdictional questions. But the biggest issue of all is that the court seems to be requiring non-parties to the litigation to take pretty drastic action: requiring search engines and domain registrars to effectively kill sites with little in the way of review or recourse. Now, it's likely that most -- or perhaps all -- of the sites in question are selling counterfeit goods. But how long do you think it will be until others use these cases as precedent for taking down all sorts of sites -- even those that are perfectly legitimate?

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Filed Under: sopa, trademark
Companies: louis vuitton

56 Comments

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Anonymous Coward, 15 May 2012 @ 9:52am

Looking back at the history of ICE and DHS domain seizures, it seems that the only effected businesses are legitimate, dajaz1.com, mooo.com, rojadirecta.com, etc. The illicit businesses simply register foreign domain names that are not controlled by US companies and continue to do business as usual. It looks like they are trying to put out an oil fire with water, basically they are just spreading the fire and causalities without ever effecting the fire.
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Anonymous Coward, 15 May 2012 @ 9:54am

Actually I have to agree. With six strikes, the AAAA best practices for advertisers, the judicial remedies, private contractor disruption of bit torrents, judicially mandated delisting, trade agreements and forthcoming industry agreements (stay tuned) I think the need for SOPA has been fulfilled by the above. Funny, it seems like IP protection sees childish obstruction and fear mongering to thwart laws as damage and routes around it.
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Anonymous Coward, 15 May 2012 @ 9:56am

Re:
Looking back at the history of ICE and DHS domain seizures, it seems that the only effected businesses are legitimate, dajaz1.com, mooo.com, rojadirecta.com, etc.

You should ask Richard O'Dwyer, Queen Phara, et al and Kim Dotcom about that.
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Anonymous Coward, 15 May 2012 @ 9:59am

Maybe if we get an injunction against ICE or HADPI for their theft of IP people will take notice at the dangers of acting as if SOPA is law already.
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Richard (profile), 15 May 2012 @ 9:59am

Re:
Funny, it seems like IP protection sees childish obstruction and fear mongering to thwart laws as damage and routes around it.

You think that's funny?

I think its just a Cargo cult remark.
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:Lobo Santo (profile), 15 May 2012 @ 10:01am

Re: Re:
Hey, that Cargo Cult stuff totally works!

The trick is to remove the "real" runway before you set up your own runway...
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John Fenderson (profile), 15 May 2012 @ 10:01am

Re:
Funny, it seems like IP protection sees childish obstruction and fear mongering to thwart laws as damage and routes around it.

Trying to minimize collateral damage to innocent citizenry and society is childish obstruction? Being engaged and trying to be represented and have a say in legislation affecting us is childish obstruction?

In any case, the "routing around" you mention is ineffective, so it's not actually "routing around" anything at all.
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Anonymous Coward, 15 May 2012 @ 10:06am

What I don't get is what gives the rights of a USA judge to do anything to a registrar that is outside of the USA.

If the site was hosted in Russia, domain registered as a .ca (Canada) TLD, through a registrar based in Sweden, how can the USA claim jurisdiction? Would that not be like them trying to shut down a brick and mortar store in Russia, selling Canadian goods and run through a shell corporation from Sweden, while also forcing the telecom companies to remove all listings from the phone books and yellow pages?

Why do they think that just because it's on the Internet that it's ok?
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Anonymous Coward, 15 May 2012 @ 10:09am

probably within about 2 weeks and it will be the wankers involved with the entertainment industries, simply because they are of the opinion that the internet is theirs to do with as they want, when they want, regardless of the (un)intended consequences
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Anonymous Coward, 15 May 2012 @ 10:14am

Re: Re:
"Funny, it seems like IP protection sees childish obstruction and fear mongering to thwart laws as damage and routes around it."

Trying to minimize collateral damage to innocent citizenry and society is childish obstruction? Being engaged and trying to be represented and have a say in legislation affecting us is childish obstruction?

They're trying to put Justin Bieber in jail!! It will break the Internet!!!! This law will shut down Facebook and YouTube!!!!!

In any case, the "routing around" you mention is ineffective, so it's not actually "routing around" anything at all.

You remind me of the boxer who gets rocked, then shakes his head as if to say he wasn't hurt. If all of these steps were meaningless within the context of SOPA, there'd have been to controversy. If they're meaningless now, Masnick would have nothing to fill these pages with. While these measures are not 100% effective, there's little dispute that a vast number of infringers lack even the rudimentary technical skills to overcome many of these measures.
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John Fenderson (profile), 15 May 2012 @ 10:18am

Re: Re: Re:
You remind me of the boxer who gets rocked, then shakes his head as if to say he wasn't hurt.

How so? I never said he measures didn't affect me. I said they don't appreciably affect piracy. I am not a pirate. If I were, these measures wouldn't bother me.

They can be ineffective (in terms of their stated goal) and harmful to innocent others simultaneously.
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Anonymous Coward, 15 May 2012 @ 10:18am

Re: Re:
You think that's funny?

yes
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weneedhelp (profile), 15 May 2012 @ 10:22am

Re: Re: Re:
You are a legend in your own mind.
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Atkray (profile), 15 May 2012 @ 10:28am

Re: Re: Re:
Ignoring due process amuses you, that explains a lot.
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Anonymous Coward, 15 May 2012 @ 10:30am

Re: Re: Re: Re:
His last album was in the Billboard top40!
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The eejit (profile), 15 May 2012 @ 10:34am

Re: Re:
They were "seized" pursuant to "criminal" charges, at great expense to the American taxpayer (as well as those nations from which they were extradited) at the behest of an outdated businessmodel and lies upon deceptions upon slanders.

Moreover, note how not a single one of those has been fully legitimate.
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The eejit (profile), 15 May 2012 @ 10:36am

Re: Re: Re:
So is lying about your profits to everyone. But the MAFIAA seem to have bought their way out of that, too.
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Anonymous Coward, 15 May 2012 @ 10:37am

Re: Re: Re: Re:
To be clear Itshay, a court decides the issue of due process- not you.
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Anonymous Coward, 15 May 2012 @ 10:37am

Re: Re: Re: Re:
Lawyers love loopholes.
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Anonymous Coward, 15 May 2012 @ 10:41am

Re:
Funny, it seems like IP protection sees childish obstruction and fear mongering to thwart laws as damage and routes around it.

Awesome!
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Anonymous Coward, 15 May 2012 @ 10:43am

who fucking needs democracy
the USA dont lets all join gangs and take over our own govts and then when they try shit we demand a piece of the action

damn right to hell with law
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Anonymous Coward, 15 May 2012 @ 10:45am

Re: Re: Re:
What are you babbling about? Only NinjaVideo has been adjudicated and they admitted their crimes, forfeited their ill-gotten proceeds are are in prison. The others have barely started. A surprise revelation: You are not the final arbiter of judicial legitimacy.
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Josh in CharlotteNC (profile), 15 May 2012 @ 10:54am

Re: Re: Re: Re: Re:
Really? Which one has made a clear ruling on domain seizures after an adversarial hearing?

Would it be the court in the Dajaz case? Hmm, no. Mooo.com? Nope. Megaupload? Nope.

Keep spinning. Maybe you'll get good at it one day.
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The eejit (profile), 15 May 2012 @ 10:58am

Re: Re: Re: Re:
And neither is ICE. Your point?
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Anonymous Coward, 15 May 2012 @ 11:01am

Re: Re: Re: Re:
Surprise! Neither are you!

Just sayin.
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Ninja (profile), 15 May 2012 @ 11:15am

Re: Re: Re:
You remind me of the boxer who gets his brain damaged after being hit repeatedly, consistently and mercilessly over the years. That's the only way to explain how you spin and twist the facts so badly.
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Hak Foo (profile), 15 May 2012 @ 11:19am

The logic baffles me:

* Bootlegs generally target a really different market. They have no $19 product to offer. Therefore, eliminating bootleggers will not sell any more bags.

* However, paying for endless judicial wrangling does increase your cost of operations, plus it may cause some public distaste.

From a strict business perspective, the endless attempts to preserve and glorify LV's trademarks are a net cost centre. They may as well blow the money on gold plated bathroom fixtures instead.

It amazes me that the stockholders are willing to go along with it. Or have most investors-- even those driven by actual metrics-- drunk the Kool-Aid (tm) on IP enforcement?
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Anonymous Coward, 15 May 2012 @ 11:26am

Re:
You forgot one important metric, the lawyer floor. Every large and sufficiently paranoid company has a full division of lawyers. Those are the ones driving this nonsense and expanding it to insane levels. Especially in America, a famously litigation happy country.
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Anonymous Coward, 15 May 2012 @ 11:34am

Re:
The technical is is that back when the internet first started it was set up with three address endings .com, .org, and .gov by academics who did not believe in national borders instead of a realistic set up of country code, and then what ever that country decided to implement as far as the rest of the URL. The current setup makes very good sense from a technical point of view but is completely insanity from a legal view.

Under the current situation we now have .com Hong Kong companies using servers located in the US while the executives reside in New Zealand being seized by the US government for actions taken by Canadians located in Europe. Whose judicial authority is this company operating under? Which set of laws?

As long as foreign, non US agencies, use US servers with US based .com addresses expect to have US courts assume that they do have control over such companies. If of course such companies did not want US control and legal structure the would not use US facilities but would use some other countries whose legal system the desired to be under facilitates.
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Richard (profile), 15 May 2012 @ 11:46am

Re: Re:
You should ask Richard O'Dwyer....about that.

When you find yourself arguing from a position to the right of the Daily Mail......
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Anonymous Coward, 15 May 2012 @ 11:52am

Ironic
If we're going to shut down any venue that anyone sells counterfeit goods through, maybe we can at least be consistent.

My local community college has a swap meet every weekend where there are many vendors who are selling obviously infringing goods. The college gains some money from the swap meet vendors and, by proxy, sales of counterfeit goods. Let's not forget that the college is a state government institution. I think you can see where this is going.

Getting extremely hard-line about IP just seems to open up so many cans of worms doesn't it?
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Dave Xanatos, 15 May 2012 @ 12:15pm

Re:
Funny, it seems like IP protection uses childish obstruction and fear mongering to thwart laws and damage as much as possible around it.

Corrected your obvious spelling mistakes. Preview is your friend!
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Anonymous Coward, 15 May 2012 @ 12:35pm

Re: Ironic
Sorry, I didn't catch the name of that college....
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Jay (profile), 15 May 2012 @ 12:40pm

Re: Re: Re: Re:
NV never had a chance for a legal battle and you know it.
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Anonymous Coward, 15 May 2012 @ 1:09pm

Re: Re: Ironic
Why do you wanna know? You lookin' to file charges?

From what I've seen, this seems to be pretty standard at swap meets. The vast majority of vendors are selling stuff that's on the up and up, but there's always SOMEONE selling SOMETHING that's an obvious infringement. My point was that the good vendors shouldn't (if we're going to have a real-world analogy) have their forum for selling things shut down because of a few people peddling knock-offs.
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Anonymous Coward, 15 May 2012 @ 1:12pm

Re: Re: Ironic
Sorry, but you're going to have to look for your cheap, counterfeit good purchases elsewhere.
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Anonymous Coward, 15 May 2012 @ 1:21pm

Re: Re: Re: Re: Re:
Yeah, because all you keyboard anarchists suddenly went dark when Phara asked for money to mount a defense. You all are really great at talking shit, but when it involves making an actual sacrifice to back shit up, you disappear. It explains your short term SOPA success (e-mails and electronic petitions) and also why your side is getting killed by voluntary agreements and enforcement standards.
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Anonymous Coward, 15 May 2012 @ 1:44pm

Re: Re: Re: Re: Re: Re:
What the fuck are you talking about, douchebag? And keyboard anarchists? Really? Thats all you got?

Still, better a keyboard anarchist, then a keyboard wannabe lawyer asshole like you. You spend all day on-line, defending who? The MPAA/RIAA and company. Jesus, talk about being pathetic. Shows what kind of person you are. Even Lars Ulrich doesn't love the monopolists as much as you do.
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Anonymous Coward, 15 May 2012 @ 1:44pm

Re: Re: Re: Ironic
'Sorry, but you're going to have to look for your cheap, counterfeit good purchases elsewhere.'

Ah, but where else am I going to get my crudely colored shirts of Super Mario Galaxy-era Mario holding a Superman symbol medallion?

And yes, most of the knock off stuff is that obvious and that laughable.
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The eejit (profile), 15 May 2012 @ 2:49pm

Re: Re: Re: Re: Re: Re:
"voluntary" like removing cancerous tumours for survival are "voluntary".
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techinabox (profile), 15 May 2012 @ 2:50pm

Names
Is it weird that I want to name my kid Louis Vuitton just to see if I will get sued?
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Anonymous Coward, 15 May 2012 @ 3:09pm

Re: Re: Re: Re: Re: Re: Re:
"voluntary" like removing cancerous tumours for survival are "voluntary".

I think of it like how a pawn can be "volunteered" by a chess player into being sacrificed as a part of their overarching plan. Too bad it doesn't work out too well for the pawn.
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Anonymous Coward, 15 May 2012 @ 3:09pm

Re: Re: Re: Re: Re: Re: Re:
"voluntary" like removing cancerous tumours for survival are "voluntary".

I think of it like how a pawn can be "volunteered" by a chess player into being sacrificed as a part of their overarching plan. Too bad it doesn't work out too well for the pawn.
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Anonymous Coward, 15 May 2012 @ 3:18pm

Sorry about the double post. Can't quite find the "delete" option.
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Anonymous Coward, 15 May 2012 @ 3:24pm

Re: Re: Re:
You need new arguments.
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Jay (profile), 15 May 2012 @ 3:39pm

Re: Re: Re: Re: Re: Re:
Wow, you've really gone off the deep end. Phara used the money unwisely IIRC in her choices for legal counsel. Both of them ran in the last story that you didn't even pay attention to. So now she's a felon for nothing other than the government censoring her for over two years.

Bravo on showing how ineffective that was against piracy.
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Anonymous Coward, 15 May 2012 @ 4:04pm

Re: Re: Re: Re: Re: Re:
You know what's hilarious? That you don't see the irony in YOU of all people calling others "keyboard anarchists" and saying they "suddenly went dark", as well as saying that WE here are "really great at talking shit" and that we "disappear".

Those are all things you're even more guilty of than anyone here. Keyboard anarchist? Check. You're all brave and bold hiding behind that "Anonymous Coward" moniker. Suddenly going dark/disappearing? Check, check. You are one of those same ACs who seems to disappear the moment everyone gangs up on you as far as presenting evidence to contradict and disprove your various claims. Great at talking shit? Sheesh, check major! You're also probably one of the same ACs who calls Mike chubby, the rest of us pirates, and so on.

Our "side" isn't getting killed, unless by our "side" you mean the innocents being caught in the sights of people like you. We're the ones who actually will be affected by the draconian laws, excuse me, "voluntary agreements", your side enacts. Agreements that won't have any actual effect, especially not on piracy itself or gaining you back the customers you've driven away in droves.

Short term SOPA success, huh? You wouldn't be the same AC who said we'd all be crying into towels now would you? Technically, since you're still bitching about SOPA (although trying to play it off by dismissing the people's victory as a minor and temporary occurence), it seems the one crying would be you and your kind.

You guys can't just face the reality. The people are tired of your shit. And the ones you are trying to punish just laugh at you and keep going on unaffected by any of your "agreements and enforcement standards". Rather than focus on your paying customers though, you keep your gaze focused elsewhere and thus neglect those who would give you their money, if you'd only listen to them. Your loss. Again.
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Anonymous Coward, 15 May 2012 @ 4:50pm

Re: Re: Re: Re: Re: Re: Re:
So how much did you and the other Techdirtbags donate? Where were you guys calling for donations? Where was EFF, ACLU, etc? Where were all of the people who come on Techdirt and talk about protests, marches on Washington, blah, blah, blah? Sitting at home sipping a latte making idle threats and making big talk into an echo chamber. I'd hate to go to war with any of you pussies.
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Jay (profile), 15 May 2012 @ 5:53pm

Re: Re: Re: Re: Re: Re: Re: Re:
Dude, switch to decaf. Don't take your SOPA loss so personally.

I'm sure one of these days we can change your diaper for you but it's just not today.
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Anonymous Coward, 15 May 2012 @ 6:20pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
What did the Ninja Video comments have to do with SOPA, other than the fact that moving the goalpost allows you to avoid dealing with what a poseur and phony you are? I guess I should be grateful that you are all so soft. I think Washington is also figuring that your e-mails and petitions are as empty as your rhetoric, not translating to votes. That would require leaving Mom's basement and casting a ballot.
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Anonymous Coward, 15 May 2012 @ 6:35pm

Re: Re: Re: Re: Re: Re: Re:
You're all brave and bold hiding behind that "Anonymous Coward" moniker.

Wait. You're calling me out...... anonymously???

And the ones you are trying to punish just laugh at you and keep going on unaffected by any of your "agreements and enforcement standards".

So then you admit that all of these Chicken Little antics and hysterical predictions about censorship and breaking the internet are so much bullshit. No big surprise there.
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Anonymous Coward, 15 May 2012 @ 7:43pm

Re: Re: Re: Re: Re: Re: Re: Re:
"Wait. You're calling me out...... anonymously??? "

No, I'm pointing out how everything you just called the rest of us out on applies to you much more than it does us. Do try and keep up.

In fact, you're comments since then have been nothing but the antics of a keyboard warrior, not anarchist.

"So then you admit that all of these Chicken Little antics and hysterical predictions about censorship and breaking the internet are so much bullshit. No big surprise there."

No, that is not what I said at all. How you got that from what you quoted I haven't a clue. I said YOUR ACTIONS ARE AFFECTING INNOCENT BYSTANDERS AND NOT THE PIRATES AS INTENDED. There, clear enough for you?

As far as "Chicken Little antics and hysterical predictions", again, you don't see the irony in saying that do you? Nah, wouldn't expect you too. Your reality distortion field is strong. RIAA/MPAA (labels and studios) have been throwing Chicken Little antics for going on over several decades now. Or do I need to point out how the player piano would be the death of musicians and how the VCR was a serial killer looking to rape/murder the movie industry? Oh wait, I just did point that out, guess it was rhetorical. As far as hysterical predictions go, well... let's see... "piracy will lead to these industries dying". Lol. Doesn't get anymore hysterical than that, and yet despite all this "rampant piracy and infringement" [rolls eyes] here we are, decades later and both industries are still around and thriving. I'll just remind you that despite piracy that I'm sure took place The Avengers has grossed over $1 BILLION (with a B) worldwide.

As far as my side's antics and predictions, suffice it to say that since the Patriot Act first took effect and came to be, it's pretty easy to see how things like SOPA would easily lead to and be used for censorship purposes, and when the people who built the internet say it would be broken by such an act, well... bullshit I think it is very much not. And suffice it to say, the guys who built the internet have a lot more credibility than one AC calling it "so much bullshit".

But hey, leave it to an AC of your type to try and spin things that weren't said into something else entirely and attempting to "win" the argument that way. I wouldn't expect anything less from you. You're classy like that. ;)
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Jay (profile), 15 May 2012 @ 8:52pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Who was talking about SOPA in regards to NV? You just went off on your little tantrum, not saying a damn thing.

Just saying. Baby Wipes are on aisle 14.
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The eejit (profile), 16 May 2012 @ 1:45am

Re: Re: Re: Re: Re: Re: Re: Re:
FYI, I did donate. Because, unlike you, I have principles.
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The eejit (profile), 16 May 2012 @ 1:48am

Re: Names
No, it's not at all weird. But for the mnaximum effect, you need to name him Louis Vuitton Handbags Techinabox.
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Anonymous Coward, 16 May 2012 @ 6:42am

Even more drastic
You say "requiring search engines and domain registrars to effectively kill sites with little in the way of review or recourse". But I see something even more drastic in that paragraph.

"[...] those with notice of the injunction, [...] cease facilitating access to any or all domain names and websites [...]"

It does not say "search engines and domain registrars". It says anyone who has ever heard of the injunction. And "facilitating access" could mean something as basic as running a recursive domain name server (something every ISP does), or even routing packets to the websites in question! This is ridiculously over-broad.
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