We're still talking at cross-purposes here. There are at least three issues here which you are completely ignoring.
1. The ex parte determination that particular materials are infringing, and that the infringer did so willfully, cannot be made ex parte. The difference between infringement and non-infringement (especially on the Internet) is not "a determination [that] can be made entirely on observation rather than evaluation." It is not one where "No 'subjective' determinations were required — all the factors can be established with the naked eye." It is not one where "Any law enforcement officer — or even a lay person [...] could make the necessary observations." (Boggs)
When it comes to criminal infringement, even cases of "simple, wholesale piracy" do not meet the Boggs standard. If someone "offered 'Harry Potter' in full for download" from a website, it is impossible to tell "made on the basis of mere observation" whether that copy is infringing or non-infringing, and whether the infringement is willful. The Dajaz1 case proved this, and it was also shown in Viacom v. Google (where allegedly infringing videos were in fact deliberately uploaded by Viacom themselves).
It may seem like an infringing copy, but "protected speech does not become unprotected merely because it resembles the latter" (ACLU v. Ashcroft).
2. That determination is relevant only to whether the seizure is a prior restraint of the allegedly unprotected materials themselves. It is not the only situation where extra procedural protections are required. Even if a determination of non-protection is trivially easy to make with the naked eye, the government does not have the right to also suppress innocent speech in the process.
The Boggs case you cited do not even suggest that the overbreadth doctrine would not apply, if the government had seized speech in addition to the unprotected speech.
And neither do Marcus and Bantam. They discuss the "ease of determination" only because the cases dealt with removal of specific books, and not of entire venues of speech. Had they done so, there's no indication that they would have contradicted this rule. In fact, the reason they discuss it is precisely because innocent speech should not be shut down along with unprotected speech:
We held in Roth v. United States, 354 U. S. 476, 354 U. S. 485, that "obscenity is not within the area of constitutionally protected speech or press." But, in Roth itself, we expressly recognized the complexity of the test of obscenity fashioned in that case and the vital necessity in its application of safeguards to prevent denial of "the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest."
- Marcus v. Search Warrant
Our insistence that regulations of obscenity scrupulously embody the most rigorous procedural safeguards, Smith v. California, 361 U. S. 147; Marcus v. Search Warrant, supra, is therefore but a special instance of the larger principle that the freedoms of expression must be ringed about with adequate bulwarks.
- Bantam Books v. Sullivan
The "ease of determination" criteria is not a determination of prior restraint, but merely a specific instance of it. Prior restraint, generally, occurs with any speech restriction that also interferes with innocent speech.
This is universally held to be true:
The pretrial seizure of petitioner's bookstore and its contents in No. 87-470 was improper. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, books or films may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protection accorded searches for and seizures of First Amendment materials, renders invalid the pretrial seizure here. Even assuming that petitioner's bookstore and its contents are forfeitable when it is proved that they were used in, or derived from, a pattern of violations of the state obscenity laws, the seizure was unconstitutional. Probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films. Here, there was no determination that the seized items were "obscene" or that a RICO violation had occurred. The petition for seizure and the hearing thereon were aimed at establishing no more than probable cause to believe that a RICO violation had occurred, and the seizure order recited no more than probable cause in that respect. Mere probable cause to believe a violation has transpired is not adequate to remove books or film from circulation. [...]
While we accept the Indiana Supreme Court's finding that Indiana's RICO law is not "pretextual" as applied to obscenity offenses, it is true that the State cannot escape the constitutional safeguards of our prior cases by merely recategorizing a pattern of obscenity violations as "racketeering."
At least where the RICO violation claimed is a pattern of racketeering that can be established only by rebutting the presumption that expressive materials are protected by the First Amendment, that presumption is not rebutted until the claimed justification for seizing books or other publications is properly established in an adversary proceeding. Here, literally thousands of books and films were carried away and taken out of circulation by the pretrial order. Yet it remained to be proved whether the seizure was actually warranted under the Indiana CRRA and RICO statutes. If we are to maintain the regard for First Amendment values expressed in our prior decisions dealing with interrupting the flow of expressive materials, the judgment of the Indiana Court must be reversed.
- Ft. Wayne Books v. Indiana
The key in determining the constitutionality of a law that 'spills over' from a legitimate governmental interest--such as the effort against child pornography--onto protected material is whether the legislation is 'narrowly drawn' to avoid as much interference with protected material as possible while furthering the legitimate governmental interest. Courts must be especially vigilant in scrutinizing broad legislative efforts that clearly burden protected First Amendment material in the name of attacking things not constitutionally protected. [...]
Under the forfeiture provisions, however, there is never any determination that the forfeited material is "obscene" — the laws provide for forfeiture of any property used in, to promote, or obtained from the commission of the offense, whether or not it is "obscene" material, First Amendment protected material, or non-expressive material.
Nonetheless, this Court can glean from the Fort Wayne Books opinion a clear proscription against pre-trial seizure of material protected by the First Amendment from a business that is primarily engaged in producing or selling expressive material. To allow pre-trial seizure of entire bookstores upon a showing that just two pieces of probably obscene material have been sold — as occurred in the Indiana case — offends the Supreme Court's holdings against unduly "interrupting the flow of expressive materials."
- American Library Ass'n V. Thornburgh
In addition, the Act suppresses substantially more protected material than is essential to the furtherance of the government's interest in reducing child sexual abuse. Although the prevention of child exploitation and abuse is an state interest unrelated to the suppression of free expression, defendant has not produced any evidence that the implementation of the Act has reduced child exploitation or abuse. The Act does block some users' access to child pornography; however, the material is still available to Internet users accessing the material through ISPs other than the one that blocked the web site. [...] Although the inference could be drawn that making it more difficult to access child pornography reduces the incentive to produce and distribute child pornography, this burden on the child pornography business is not sufficient to overcome the significant suppression of expression that resulted from the implementation of the Act.
More than 1,190,000 innocent web sites were blocked in an effort to block less than 400 child pornography web sites, and there is no evidence that the government made an effort to avoid this impact on protected expression. [...] This burden on protected expression is substantial whereas there is no evidence that the Act has impacted child sexual abuse. Thus, the Act cannot survive intermediate scrutiny.
- CDT v. Pappert
In other words, it is not enough to determine whether the speech that drew the legal remedy in the first place is unprotected. It is necessary to determine that all expressive conduct interrupted by the seizure is unprotected. This is exactly what Marcus and Bantam (and pretty much every prior restraint case ever) has said. Nothing you have quoted contradicts a word of this.
3. The seizures were not targeted at infringing copies. They were targeted at links to infringing copies on third-party websites. Thus, the government made an ex parte judgement that the links themselves, not the content, were criminally infringing.
Even if you disagree with me on Point #1, and believe that it is "simple" to determine whether a link goes to infringing content, that is not the end of it. The government made an ex parte determination that the act of linking constitutes criminal infringement. Since this is nowhere in the copyright statutes, and nowhere in the case law on criminal infringement, the government made an ex parte decision about the legality of an entire category of expressive behavior. This is simply not allowed under prior restraint doctrine.
And, of course, it's worth mentioning that ICE's determination flies in the face of Perfect 10 v. Amazon, and (later) of lava Works v. myVidster. So, clearly, determinations of this kind cannot be made ex parte.
Nothing that you have quoted has contradicted any of this.
Weird. I wrote a post earlier, but apparently it got eaten somehow... oh, well.
You found the part in CDT v. Pappert where the court addressed the argument that the determination of child pornography is easy to make. Good.
I've read it numerous times, so I knew it was there. But, thanks for the condescension.
So right there, the district court says that, in its opinion, since the determination of child pornography is difficult to make, the extraordinary procedural safeguards are needed.
It was one reason extra procedural safeguards are needed. You missed the last line, which is odd, since you quoted it:
Moreover, even if fewer protections were necessary, the ex parte, probable cause determination provided for in the Act is insufficient.
Even with the lower threshhold of difficulty, ex parte probable cause is not enough for seizure.
And obviously the reverse is that if the determination is simple to make, as the APPELLATE COURT found it to be, then the extraordinary procedural safeguards aren't needed.
I have no idea which Appelate Court you're referring to, since the Camden court did not say that. They said they "do not necessarily agree with the implication that compliance with Fort Wayne Books is always required," but that "we do not decide the issue here." Nor should they have, as they didn't need to: "Nevertheless, under the particular facts of this case, we agree with the district court that the voluntary surrender plan imposed an unconstitutional prior restraint on speech."
And you are missing the larger issue, which you have never addressed. The cases we are discussing are deciding whether it is prior restraint when only the allegedly unprotected materials themselves are taken out of circulation. That is not the only situation where prior restraint occurs.
Another situation - and the situation which without doubt applies to the seizures - is when the removal of unprotected speech also blocks innocent speech as a consequence. An ex parte seizure of copies of child pornography may or may not be prior restraint; but the blocking of an entire website of protected speech, due solely to probable cause that there is child pornography on it, most certainly is.
All speech restrictions must be narrowly targeted to block only the unprotected speech. It matters not one whit how easy it is to tell if the speech in question is unprotected; if the government's actions result in the blocking of unrelated, protected speech, then it is overbroad, and unconstitutional. As the Ashcroft court so succinctly put it, "The Government may not suppress lawful speech as the means to suppress unlawful speech."
As far as "simple piracy" goes. That's my term. I wasn't referring to anything in particular.
Then you're stating your opinion, not settled case law. Which is fine.
I'm talking about simple, wholesale piracy, such as (and I've given this example numerous times) offering "Harry Potter" in full for people to download on the internet.
If an agent of the copyright holder to "Harry Potter" authorized me to offer it in full for people to download on the Internet, then it is not "simple, wholesale piracy," it is fully protected speech. And if the government seizes it ex parte on mere probable cause, they have committed prior restraint.
And as the Dajaz1 case showed us, the determination that a work is unauthorized cannot reliably be done ex parte.
Furthermore, if you are talking about this kind of "simple, wholesale piracy," then you are not talking about the domain name seizures.
Not a single one of the websites whose domains were seized offered "Harry Potter" in full for people to download. Instead, they linked to other websites that offered "Harry Potter" in full for people to download. Or, in some cases, they inline-linked to already-existing streams at other websites.
So, the agents were not determining whether a particular copy of "Harry Potter" was infringing. They were making an ex parte judgement that merely linking to that content constituted criminal infringement. That is anything but "simple piracy." It is so far from simple, that you were arguing that it was inconceivable that this wasn't direct infringement, right up until the point that Judge Posner said you're wrong.
But, again, even if it was simple, it does not give the government license to shut down innocent speech as well. They simply don't have the right to do that.
The court in CDT v. Pappert only shows that I'm right.
No, it does not. The passage I quoted said only that "if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint." What matters is not whether it could be considered "simple and objective" to determine whether materials are unprotected. The only thing that matters is if the seizure results in the blocking of protected speech.
You're probably thinking of the Ashcroft decision, which I quoted above, and discuss next.
FYI, some courts agree with Camfield that it's easy, and some agree with CDT v. Pappert that it's not; there's a split on that issue.
There is not. The court in CDT was fully aware of Camfield when it made its decision:
Defendant argues that fewer procedural protections are required for the removal from circulation of child pornography, as compared with obscenity, because the child pornography determination is easier than the obscenity determination. The Court rejects this argument. This argument is based on defendant’s position that Fort Wayne Books was distinguished in dicta by Camfield v. City of Oklahoma City, 248 F.3d 1214, 1227 (10th Cir. 2001). [...]
The court noted, however, that the appellant "does not cite, nor have we found, any cases which have held that the complete removal of suspected child pornography from public circulation without a prior adversarial hearing95 constitutes a prior restraint."
Camfield was decided before the Supreme Court’s decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). Ashcroft affects this Court’s analysis of Camfield in two respects. First, the Supreme Court acknowledged in Ashcroft that virtual pornography is indistinguishable from real child pornography. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 254 (2002) ("Experts, we are told, may have difficulty in saying whether the pictures were made by using real children or by using computer imaging."). Second, the Court held that virtual child pornography can be protected speech. Both of these statements make a child pornography determination more difficult because a court now must assess whether the alleged child pornography is virtual. [...]
The Supreme Court’s opinion in Ashcroft undercuts the Camfield court’s assertion that an obscenity determination is more difficult than a child pornography determination.
That is likely the quote in CDT that you are thinking of. But even though they discuss it, the fact that it is not "simple and easy" to spot child pornography is not what decided prior restraint. The court continues: "Moreover, even if fewer protections were necessary [for child pornography than for obscenity], the ex parte, probable cause determination provided for in the Act is insufficient."
several courts have explicitly held that prior restraint doesn't apply when it's simple piracy.
No, they haven't. The "simple piracy" term comes from an article ("Toward a Fair Use Standard") by Judge Pierre Leval of the Second Circuit - not from any case law. It is cited in a footnote in Campbell v. Acuff-Rose, and (quoting that case) in Suntrust Bank v. Houghton-Mifflin. Both of which were fair use cases - and both of which found in favor of fair use. Here's the entirety of the footnote from Campbell:
Because the fair use enquiry often requires close questions of judgment as to the extent of permissible borrowing in cases involving parodies (or other critical works), courts may also wish to bear in mind that the goals of the copyright law, "to stimulate the creation and publication of edifying matter," Leval 1134, are not always best served by automatically granting injunctive relief when parodists are found to have gone beyond the bounds of fair use. See 17 U. S. C. § 502(a) (court "may ... grant ... injunctions on such terms as it may deem reasonable to prevent or restrain infringement") (emphasis added); Leval 1132 (while in the "vast majority of cases, [an injunctive] remedy is justified because most infringements are simple piracy," such cases are "worlds apart from many of those raising reasonable contentions of fair use" where "there may be a strong public interest in the publication of the secondary work [and] the copyright owner's interest may be adequately protected by an award of damages for whatever infringement is found"); Abend v. MCA, Inc., 863 F. 2d 1465, 1479 (CA9 1988) (finding "special circumstances" that would cause "great injustice" to defendants and "public injury" were injunction to issue), aff'd sub nom. Stewart v. Abend, 495 U. S. 207 (1990).
As you can see, Leval was not even discussing prior restraint, and neither his article nor the court cases were even considering cases where protected speech was shut down along with infringing speech. And Leval was discussing preliminary injunctions, not ex parte seizures. None of this even suggests that "prior restraint doesn't apply when it's simple piracy."
You're going off on tangents and not focusing on the prior restraint issue.
It is not remotely tangential. It is, in fact, the heart of the matter.
You are arguing that an ICE agent can examine the MyVidster site, determine "based on his training and experience" that there is probable cause that MyVidster is committing criminal copyright infringement, and seize the myvidster.com domain, holding it for months on end.
And that it wouldn't raise any prior restraint issues, because "the determination is simple and objective and can be made reliably by agents in the field." And that even if the agent's wrong, "it's still not constitutionally protected speech at issue since it's the license that permits" MyVidster's activities; their "defense is the license, not the First Amendment."
That is exactly what happened with the domain names that were seized by ICE for copyright infringement. The idea that this could not possibly raise prior restraint concerns, under the same First Amendment doctrine that produced CDT v. Pappert and Fort Wayne Books, is completely insane.
I get what you're saying, but in the context of the copyright infringement action the First Amendment is not relevant. Your defense is the license, not the First Amendment.
My defense is that it's not infringing. Perhaps I have a license; or perhaps I'm engaging in behavior that falls outside of the scope of copyright's exclusive rights.
For example: under Judge Posner's ruling in the FlavaWorks case, MyVidster was not doing anything that infringed on copyright. Now, by your argument, Posner could say "well, even though it's not infringing, it's not authorized, so I'll allow the preliminary injunction anyway." You honestly don't think that would raise First Amendment concerns?
And it does not alter the fact that the Federal Government blocked protected speech when it seized Dajaz1's domain name. If the government blocks authorized speech, it is blocking speech protected by the First Amendment. End of story.
Note how the court says that when the determination is easy to make, the extraordinary procedural safeguards are not needed.
The question is not whether ex parte seizures of infringing copies require extraordinary safeguards. (Indeed, not one bit of infringing speech was blocked by the seizures.) The question is whether an ex parte seizure that results in non-infringing content being suppressed requires extraordinary safeguards.
And the answer is: yes, it does. Since you brought up child pornography (big surprise), it should be noted that government actions targeting child pornography, that also result in the removal of material that is not child pornography, have repeatedly found to be unconstitutional. For example:
The Act and Informal Notice process are not prior restraints in the traditional sense. They do not prevent speech from reaching the market place but remove material already available on the Internet from circulation. Alexander v. United States, 509 U.S. 544 (1993) ("The term 'prior restraint' describes orders forbidding certain communications that are issued before the communications occur.") However, they are administrative prior restraints as that term has been interpreted by the Supreme Court. According to the Court, "only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." Freedman v. Maryland, 380 U.S. 51, 58 (U.S. 1965). Thus, if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint. [...]
Based on the decision in Bantam Books and Fort Wayne Books, this Court concludes the procedural protections provided by the Act are inadequate. These cases require a court to make a final determination that material is child pornography after an adversary hearing before the material is completely removed from circulation. Under the Act, a judge is only required to make a finding of probable cause, he can make this determination ex parte, and there is no requirement that the publisher or distributor receive notice or an opportunity to be heard.
The key in determining the constitutionality of a law that "spills over" from a legitimate governmental interest-such as the effort against child pornography-onto protected material is whether the legislation is "narrowly drawn" to avoid as much interference with protected material as possible while furthering the legitimate governmental interest. [...]
The 1988 Act created a civil forfeiture scheme. 18 U.S.C. § 2254. In addition to providing for forfeiture of "[a]ny visual depiction" of pornography involving minors, the provision authorizes forfeiture of any "[a]ny property, real, or personal, used or intended to be used to commit or to promote the commission" of the offense. Id. § 2254(a). Like the law at issue in Fort Wayne Books, the 1988 Act "allow[s] prosecutors to cast wide nets and seize, upon a showing that two obscene materials have been sold, or even just exhibited, all a store's books, magazines, films, and video-tapes - the obscene, those nonobscene yet sexually explicit, even those devoid of sexual reference." Id. at 937 (Stevens, J., concurring in part and dissenting in part). The section provides for seizure and forfeiture procedures according to customs laws and the Supplemental Rules for Certain Admiralty and Maritime Claims ("Admiralty Rules"). See id. § 2254(b), (d). For a number of reasons, the Court concludes that aspects of the civil forfeiture provision are unconstitutional.
Under this scheme, an authorized federal agent may seize property based on a showing of "probable cause," which for seizure purposes has been held to be "a reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion." United States v. Twenty-Two Thousand Two Hundred Eighty Seven Dollars,709 F.2d 442, 446-47 (6th Cir.1983) (citation omitted). A warrant may be issued by filing ex parte a complaint with the clerk of the court, who may in turn issue the warrant without referring the matter to a judge or magistrate. Admiralty Rule C(3). Thus, it is clear that a large amount of assets-books, printing presses, films, etc.-may be seized based solely on an ex parte showing of probable cause.18 The Supreme Court has clearly stated, however, that "while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved." Fort Wayne Books, 109 S.Ct. at 927. Indeed, the Supreme Court cases "firmly hold that mere probable cause to believe that a legal violation has transpired is not adequate to remove books or films from circulation." Fort Wayne Books, 109 S.Ct. at 929 (citing, e.g., Heller v. New York,413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973)). First Amendment material may not be taken out of circulation completely until there has been a "judicial determination of the obscenity issue in an adversary proceeding." Fort Wayne Books, 109 S.Ct. at 927 (quoting Heller, 413 U.S. at 492-93, 93 S.Ct. at 2794-95); see Marcus v. Search Warrant,367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). The First Amendment's presumption for expressive materials must apply whether the alleged offense is child pornography or obscenity.
Finally, the Government says that the possibility of producing images by using computer imaging makes it very difficult for it to prosecute those who produce pornography by using real children. Experts, we are told, may have difficulty in saying whether the pictures were made by using real children or by using computer imaging. The necessary solution, the argument runs, is to prohibit both kinds of images. The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down.
The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse. "[T]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted ... ." Broadrick v. Oklahoma, 413 U. S., at 612. The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.
In sum, §2256(8)(B) covers materials beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in support of limiting the freedom of speech have no justification in our precedents or in the law of the First Amendment. The provision abridges the freedom to engage in a substantial amount of lawful speech. For this reason, it is overbroad and unconstitutional.
In sum: yes, those "extraordinary procedural safeguards" are necessary in child pornography cases, too. And there is no doubt that it is far, far easier to determine whether something is child pornography, than it is to determine whether something is infringing. After all, an authorized MP3 on a filesharing site, looks no different than an infringing MP3 on a filesharing site.
Furthermore, ex parte intellectual property seizures have often been overturned for being overbroad - though almost always on due process grounds. Examples:
Thus, the district court abused its discretion in issuing the ex parte order of inventory and impoundment. The court was required to apply the standard provided in Fed.R.Civ.P. 65(b) for granting ex parte relief, because neither 17 U.S.C. Sec. 503(a) nor the Copyright Rules authorizes the copying of business records, which the district court's order permitted. Plaintiff did not make a sufficient showing of at least one prerequisite for obtaining an ex parte order under Fed.R.Civ.P. 65(b); namely, why notice should not have been required. Plaintiff did not sufficiently show that it was necessary to proceed ex parte and that there were no less extreme remedies available. Plaintiff's assertion that defendants would conceal evidence if given notice because defendants allegedly misappropriated trade secrets and infringed plaintiff's copyrights is insufficient to establish that notice to the defendants would have rendered fruitless further prosecution of the action. Because plaintiff failed to comply with Fed.R.Civ.P. 65(b), the district court's ex parte order of inventory and impoundment was an abuse of discretion. Therefore, the district court's order denying defendants' motion to vacate that ex parte order was, likewise, an abuse of discretion.
For the reasons stated, the district court's order denying defendants' motion to vacate the order granting plaintiff's request for immediate ex parte order of inventory and impoundment is REVERSED, and this case is REMANDED for further action consistent with this opinion. The district court is ORDERED to immediately return to defendants all items taken from defendants pursuant to the ex parte order of inventory and impoundment, including all photocopies and electronic copies made, but the district court may condition the return of these items by such safeguards as it deems necessary to prevent the secretion, alteration, or destruction of the returned items.
In June 1984, Mrs. Cho purchased twelve small plastic dolls from a wholesaler. Unknown to her, these dolls were similar to a copyrighted character called "Gizmo" in a Warner movie. The Chos were not familiar with either the movie or the characters. On June 27, 1984, a private investigator for Warner visited the store and purchased six of these small figures for $15. [...]
When Warner's investigator returned with news of his purchase, Warner's attorneys promptly prepared a complaint against Dae Rim and "John Doe", together with motion papers for what was designated a "Temporary Restraining Order, Seizure and Impoundment Order and Order to Show Cause for Preliminary Injunction and Accelerated Discovery." The complaint alleged that Warner owns copyrights for two characters in its movie "Gremlins", one called "Gizmo", the other called "Stripe", and that the defendants willfully and knowingly offered for sale, distributed and publicly displayed "various products" bearing the likenesses of both characters. [...]
Fed.R.Civ.P. 65 prescribes the method for securing preliminary injunctive relief, but specifically provides that "no preliminary injunction shall be issued without notice to the adverse party." While Rule 65 permits the grant of a temporary restraining order without notice, such an order, as is indicated by the very word "restraining", should issue only for the purpose of preserving the status quo and preventing irreparable harm and for just so long as is necessary to hold a hearing. Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439, 94 S.Ct. 1113, 1124, 39 L.Ed.2d 435 (1974). "The purpose of a temporary restraining order is to preserve an existing situation in statu quo until the court has an opportunity to pass upon the merits of the demand for a preliminary injunction." Pan American World Airways, Inc. v. Flight Engineers' Int'l Ass'n, 306 F.2d 840, 842-43 (2d Cir.1962). An order issued without notice directing an agent of plaintiff's attorney to search a defendant's premises, seize goods, documents and records and deliver them to the attorney, is not an order aimed at maintaining the status quo. See Punnett v. Carter, 621 F.2d 578, 582 (3d Cir.1980); United States v. Spectro Foods Corp., 544 F.2d 1175, 1180-82 (3d Cir.1976); Warner Bros. Pictures, Inc. v. Gittone, 110 F.2d 292, 293 (3d Cir.1940). [...]
For all of the foregoing reasons, we agree with Judge Wyatt that the seizure conducted by Warner's attorneys and their agents was improper. We also agree that the "search" conducted by the agents was not authorized by 17 U.S.C. Sec. 503, and that the "discovery" of defendants' documents and records without notice was not authorized by either section 503 or Fed.R.Civ.P. 34. See American Can Co. v. Mansukhani, 742 F.2d 314, 323-24 (7th Cir.1984).
Judge Wyatt made numerous findings of fact which led him to conclude that the action was conducted in a "vexatious", "oppressive" and "unreasonable" manner. 677 F.Supp. at 771-73. These factual findings were not clearly erroneous, and they fully supported Judge Wyatt's conclusions.
- Warner Bros. Inc. v. Dae Rim Trading, Inc., 877 F.2d 1120 (2d Cir. 1989)
I'm sure I could dig up more, but you're the one with Lexis-Nexus access.
If there isn't a case where First Amendment overbreadth doctrine hasn't applied to copyright seizures, it's because I couldn't find even one copyright seizure case where speech that was not even allegedly infringing was suppressed. The ICE seizures are unprecedented in that regard.
If the First Amendment protected your posting "Harry Potter" on the internet, then there would be no need for a license to do so.
Two quick things.
1. The seizures did not target anyone who posted "Harry Potter" on the Internet. They targeted blogs, search engines, and forums that linked to other sites that hosted "Harry Potter" on the Internet. The seizures did not block one single byte of infringing content; all of it was still available at the third-party site that hosted the content.
2. If that copy of Harry Potter is infringing, then I do not have a First Amendment right to post it, because infringement creates an exception to First Amendment protection. If that copy of Harry Potter is not infringing - whether through authorization, or because it is exempt from infringement for other reasons - then yes, I do have a First Amendment right to post it.
Under my view, everyone can post whatever works that are not infringing that they want, even without a license, because the First Amendment protects them. And yes, it does work that way.
it's still not constitutionally protected speech at issue since it's the license that permits it.
This is another howler of a statement that you keep repeating.
The freedom of expression is an inalienable right, one that is protected from government intrusion by the First Amendment. By default, all speech is protected speech. Exceptions to First Amendment protections can be made, but only if they further a "substantial" or "compelling" public interest - one that overrides the infringement upon free speech rights. (In the case of copyright, it is the general public benefits from the creation and distribution of expression, and the entirely-theoretical belief that copyright acts as an "engine of free expression.")
So, no. A license does not "permit" First Amendment protection. The determination that the speech is infringing creates an exception to the First Amendment. There are about a dozen limitiations on exclusive rights, and well-defined boundaries to the scope of those rights; and if the speech is outside copyright's scope, or exempted from restriction by those limitations, then it is fully protected by the First Amendment. Similarly, authorization does not "permit" the speech; it determines that it is not infringing - hence the "infringement exception" to the First Amendment never applied, and the speech was always just as protected as any other speech.
As an example: unless the works that were linked to on Dajaz1's site were infringing, they are fully protected under the First Amendment. Since they were not infringing (and since that was the only excuse to shut down the not even allegedly unprotected speech that was also on the site), there is absolutely no question whatsoever that the government suppressed nothing but protected speech when it shut down the site.
That you find such suppression acceptable shows how little you respect free speech. Or, at the very least, how willing you are to disregard it in order to persecute those you believe are pirates.
My subsequent research on the point indicates that the test is not simply whether the speech is presumptively protected. The test identified by the Supreme Court is that extraordinary procedural safeguards are only necessary when the determination that speech is not constitutionally protected is difficult to make.
I have just re-read the Ft. Wayne Books ruling. They specifically use the words "presumptively protected," as in: "Probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films." They never once indicate that those safeguards are "only necessary when the determination... is difficult to make."
Nor have I ever seen this "necessity" expressed in any other First Amendment case.
Plus, the website seizures were hardly "simple piracy" cases. There are, by my count, at least three separate First Amendment issues to consider:
1. The ex parte seizure and redirection of the domain names themselves (which can be protected speech).
2. The ex parte blocking of links to content (often user-generated), based solely probable cause that the content on third-party sites was infringing.
3. The ex parte blocking of absolutely protected speech - news, reviews, blog posts, forum posts - that was also on those sites.
All of these issues have nothing to do with whether the determination of infringement was "difficult."
Also, as dajaz1 shows, even the appearance of "simple piracy" doesn't mean the determination isn't difficult to make.
The government seizure of domain names has nothing to do with the alphanumeric characters making up the domain name itself, so your point makes no sense. You're conflating several separate issues.
I have personally debated people in these comments, who claimed that the domain seizures didn't violate the First Amendment because domain names aren't speech. For example:
The HUGE POINT that you consistently seem to gloss right over without any explanation is the fact that when the primary thing being seized is not potentially protected speech, the First Amendment does not bar its seizure absent a prior adversary hearing.
(In fact, I suspect that person was you.)
As this case (and others) makes clear, domain names themselves are can be considered potentially protected speech in their own right. Thus, any kind of domain name seizure implicates First Amendment concerns to some degree. (To what degree is debatable.)
"The RSC issues a lot of memos," a source with knowledge of the RSC's operations told Ars. "They're a small shop" with a lot of issues on their plate. Our source didn't think the memo reflected a sea change in the views of Republican members of Congress. But he said the fact Khanna was able to get his memo through the RSC's vetting process suggested there was sympathy for his views at least within the RSC staff.
The source told us content industry lobbyists exerted pressure on RSC leadership to repudiate the memo.
So, it appears Mike was correct. The brief was vetted; then pulled, at least in part (if not mostly), because "industry lobbyists" went ballistic about it.
In case you don't want to follow the link, here's the relevant section:
Nope. Try again. And try to do it without linking to that Trichordist site - it lies.
Examples: SoundScan only collects POS data if you register a UPC with them, regardless of whether you sell stuff on iTunes (&etc) or not.
There notion that there are fewer releases is not true.
And, when you hear that there were "only" 75,000 Albums released in 2010, keep in mind that from 1992-2001, the labels never released more than 38,900 albums released [sic] per year. The number in 2001 was 27,000 new releases. That's from the RIAA; in fact, they may have been wrong (or lying) - this BusinessWeek article quotes Neilsen SoundScan as saying the number for 2002 was 31,734 new releases.
In other words: in ten years, the number of new releases more than doubled.
You also won't hear that, according to the BLS, there were only 46,440 Musicians and Singers working in the U.S. In 2011, that number was 42,530 - a difference of 10%. I guess things weren't that much better under the old label model, eh?
(Incidentally, the years with the highest numbers of employed musicians was 2001-2002: the Napster years. Things declined after that; but the number of working musicians increased again in 2004 - the year iTunes came out.)
Oh, and the number of "Independent Artists, Writers, and Performers?" The earliest data I could find for that was 2007. At that point, there were 1,640 in the "Musicians and Singers" category, making up 3.28% of that category. In 2001, that number rose to 1,910 people and 4.00%. So independents are gaining ground (slightly).
So, that article is a lie. And that's only on one article. The entire site is full of bullshit. It's not even subtle bullshit, either. It's obvious, rampant hate speech directed at any part of the music industry that's not based upon the old label model.
Yeah, because that doesnt sound suspiciously like a barrel of RIAA shills at all.
It's the site of David Lowery, former front-man for Camper Van Beethoven and Cracker. It exists mainly to rant against the Internet in general, and Google in particular, under the flimsy excuse of "protecting artists' rights."
You may remember Lowery from when Techdirt wrote a critique of a Facebook post he made (loosely outlining a talk he gave). Where, in response, Lowery went ballistic, threatened to sue, pulled the Facebook post, and continued to pollute the comments section of nearly every story with off-topic ad hominems for days. You probably also remember him from his attempts to public shame an NPR intern for admitting to sharing music.
Occasionally he has "guest posts" from the likes of Chris Castle, the copyright lawyer behind the equally-ridiculous Music Technology Policy, or from whichever disgruntled artist he can dig up (so far just Gavin Castleton, Chris Whitten, and Zack Hemsey). I actually debated Castleton in the comments section here (as did others). He also regularly links to laughably inaccurate sites like Pop Up Pirates.
So, generally he's trying to be a clearing-house for copyright maximalist propaganda. But an RIAA shill he's not, unless you think being a musician on a major label makes you an "RIAA shill."
I've read enough of their briefs in copyright cases to know whose side their on. And it ain't the rights-holders.
Which, if true, shows only than that rights-holders are not on the side of civil rights on the Internet. It certainly doesn't show that the EFF is "piratical."
It just proves you fell for the ridiculous propaganda pushed by corporate rights holders, that everyone who is a copyright reformer is "bought out" by Google, that Google is "anti-copyright," or what have you. It's a load of bullshit - just as it would be if the accusations were leveled against Yahoo! or Bing or iTunes.
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
1. The ex parte determination that particular materials are infringing, and that the infringer did so willfully, cannot be made ex parte. The difference between infringement and non-infringement (especially on the Internet) is not "a determination [that] can be made entirely on observation rather than evaluation." It is not one where "No 'subjective' determinations were required — all the factors can be established with the naked eye." It is not one where "Any law enforcement officer — or even a lay person [...] could make the necessary observations." (Boggs)
When it comes to criminal infringement, even cases of "simple, wholesale piracy" do not meet the Boggs standard. If someone "offered 'Harry Potter' in full for download" from a website, it is impossible to tell "made on the basis of mere observation" whether that copy is infringing or non-infringing, and whether the infringement is willful. The Dajaz1 case proved this, and it was also shown in Viacom v. Google (where allegedly infringing videos were in fact deliberately uploaded by Viacom themselves).
It may seem like an infringing copy, but "protected speech does not become unprotected merely because it resembles the latter" (ACLU v. Ashcroft).
2. That determination is relevant only to whether the seizure is a prior restraint of the allegedly unprotected materials themselves. It is not the only situation where extra procedural protections are required. Even if a determination of non-protection is trivially easy to make with the naked eye, the government does not have the right to also suppress innocent speech in the process.
The Boggs case you cited do not even suggest that the overbreadth doctrine would not apply, if the government had seized speech in addition to the unprotected speech.
And neither do Marcus and Bantam. They discuss the "ease of determination" only because the cases dealt with removal of specific books, and not of entire venues of speech. Had they done so, there's no indication that they would have contradicted this rule. In fact, the reason they discuss it is precisely because innocent speech should not be shut down along with unprotected speech:
- Marcus v. Search Warrant
- Bantam Books v. Sullivan
The "ease of determination" criteria is not a determination of prior restraint, but merely a specific instance of it. Prior restraint, generally, occurs with any speech restriction that also interferes with innocent speech.
This is universally held to be true:
- Ft. Wayne Books v. Indiana
- American Library Ass'n V. Thornburgh
- CDT v. Pappert
In other words, it is not enough to determine whether the speech that drew the legal remedy in the first place is unprotected. It is necessary to determine that all expressive conduct interrupted by the seizure is unprotected. This is exactly what Marcus and Bantam (and pretty much every prior restraint case ever) has said. Nothing you have quoted contradicts a word of this.
3. The seizures were not targeted at infringing copies. They were targeted at links to infringing copies on third-party websites. Thus, the government made an ex parte judgement that the links themselves, not the content, were criminally infringing.
Even if you disagree with me on Point #1, and believe that it is "simple" to determine whether a link goes to infringing content, that is not the end of it. The government made an ex parte determination that the act of linking constitutes criminal infringement. Since this is nowhere in the copyright statutes, and nowhere in the case law on criminal infringement, the government made an ex parte decision about the legality of an entire category of expressive behavior. This is simply not allowed under prior restraint doctrine.
And, of course, it's worth mentioning that ICE's determination flies in the face of Perfect 10 v. Amazon, and (later) of lava Works v. myVidster. So, clearly, determinations of this kind cannot be made ex parte.
Nothing that you have quoted has contradicted any of this.
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re: Re: Re: Re: Re: Re: Re:
You found the part in CDT v. Pappert where the court addressed the argument that the determination of child pornography is easy to make. Good.
I've read it numerous times, so I knew it was there. But, thanks for the condescension.
So right there, the district court says that, in its opinion, since the determination of child pornography is difficult to make, the extraordinary procedural safeguards are needed.
It was one reason extra procedural safeguards are needed. You missed the last line, which is odd, since you quoted it:Even with the lower threshhold of difficulty, ex parte probable cause is not enough for seizure.
And obviously the reverse is that if the determination is simple to make, as the APPELLATE COURT found it to be, then the extraordinary procedural safeguards aren't needed.
I have no idea which Appelate Court you're referring to, since the Camden court did not say that. They said they "do not necessarily agree with the implication that compliance with Fort Wayne Books is always required," but that "we do not decide the issue here." Nor should they have, as they didn't need to: "Nevertheless, under the particular facts of this case, we agree with the district court that the voluntary surrender plan imposed an unconstitutional prior restraint on speech."
And you are missing the larger issue, which you have never addressed. The cases we are discussing are deciding whether it is prior restraint when only the allegedly unprotected materials themselves are taken out of circulation. That is not the only situation where prior restraint occurs.
Another situation - and the situation which without doubt applies to the seizures - is when the removal of unprotected speech also blocks innocent speech as a consequence. An ex parte seizure of copies of child pornography may or may not be prior restraint; but the blocking of an entire website of protected speech, due solely to probable cause that there is child pornography on it, most certainly is.
All speech restrictions must be narrowly targeted to block only the unprotected speech. It matters not one whit how easy it is to tell if the speech in question is unprotected; if the government's actions result in the blocking of unrelated, protected speech, then it is overbroad, and unconstitutional. As the Ashcroft court so succinctly put it, "The Government may not suppress lawful speech as the means to suppress unlawful speech."
As far as "simple piracy" goes. That's my term. I wasn't referring to anything in particular.
Then you're stating your opinion, not settled case law. Which is fine.
I'm talking about simple, wholesale piracy, such as (and I've given this example numerous times) offering "Harry Potter" in full for people to download on the internet.
If an agent of the copyright holder to "Harry Potter" authorized me to offer it in full for people to download on the Internet, then it is not "simple, wholesale piracy," it is fully protected speech. And if the government seizes it ex parte on mere probable cause, they have committed prior restraint.
And as the Dajaz1 case showed us, the determination that a work is unauthorized cannot reliably be done ex parte.
Furthermore, if you are talking about this kind of "simple, wholesale piracy," then you are not talking about the domain name seizures.
Not a single one of the websites whose domains were seized offered "Harry Potter" in full for people to download. Instead, they linked to other websites that offered "Harry Potter" in full for people to download. Or, in some cases, they inline-linked to already-existing streams at other websites.
So, the agents were not determining whether a particular copy of "Harry Potter" was infringing. They were making an ex parte judgement that merely linking to that content constituted criminal infringement. That is anything but "simple piracy." It is so far from simple, that you were arguing that it was inconceivable that this wasn't direct infringement, right up until the point that Judge Posner said you're wrong.
But, again, even if it was simple, it does not give the government license to shut down innocent speech as well. They simply don't have the right to do that.
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re: Re: Re: Re: Re:
No, it does not. The passage I quoted said only that "if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint." What matters is not whether it could be considered "simple and objective" to determine whether materials are unprotected. The only thing that matters is if the seizure results in the blocking of protected speech.
You're probably thinking of the Ashcroft decision, which I quoted above, and discuss next.
FYI, some courts agree with Camfield that it's easy, and some agree with CDT v. Pappert that it's not; there's a split on that issue.
There is not. The court in CDT was fully aware of Camfield when it made its decision:
That is likely the quote in CDT that you are thinking of. But even though they discuss it, the fact that it is not "simple and easy" to spot child pornography is not what decided prior restraint. The court continues: "Moreover, even if fewer protections were necessary [for child pornography than for obscenity], the ex parte, probable cause determination provided for in the Act is insufficient."
several courts have explicitly held that prior restraint doesn't apply when it's simple piracy.
No, they haven't. The "simple piracy" term comes from an article ("Toward a Fair Use Standard") by Judge Pierre Leval of the Second Circuit - not from any case law. It is cited in a footnote in Campbell v. Acuff-Rose, and (quoting that case) in Suntrust Bank v. Houghton-Mifflin. Both of which were fair use cases - and both of which found in favor of fair use. Here's the entirety of the footnote from Campbell:
As you can see, Leval was not even discussing prior restraint, and neither his article nor the court cases were even considering cases where protected speech was shut down along with infringing speech. And Leval was discussing preliminary injunctions, not ex parte seizures. None of this even suggests that "prior restraint doesn't apply when it's simple piracy."
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
It is not remotely tangential. It is, in fact, the heart of the matter.
You are arguing that an ICE agent can examine the MyVidster site, determine "based on his training and experience" that there is probable cause that MyVidster is committing criminal copyright infringement, and seize the myvidster.com domain, holding it for months on end.
And that it wouldn't raise any prior restraint issues, because "the determination is simple and objective and can be made reliably by agents in the field." And that even if the agent's wrong, "it's still not constitutionally protected speech at issue since it's the license that permits" MyVidster's activities; their "defense is the license, not the First Amendment."
That is exactly what happened with the domain names that were seized by ICE for copyright infringement. The idea that this could not possibly raise prior restraint concerns, under the same First Amendment doctrine that produced CDT v. Pappert and Fort Wayne Books, is completely insane.
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re: Re: Re: Re: Re: Re: Re:
My defense is that it's not infringing. Perhaps I have a license; or perhaps I'm engaging in behavior that falls outside of the scope of copyright's exclusive rights.
For example: under Judge Posner's ruling in the FlavaWorks case, MyVidster was not doing anything that infringed on copyright. Now, by your argument, Posner could say "well, even though it's not infringing, it's not authorized, so I'll allow the preliminary injunction anyway." You honestly don't think that would raise First Amendment concerns?
And it does not alter the fact that the Federal Government blocked protected speech when it seized Dajaz1's domain name. If the government blocks authorized speech, it is blocking speech protected by the First Amendment. End of story.
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re: Re: Re:
The question is not whether ex parte seizures of infringing copies require extraordinary safeguards. (Indeed, not one bit of infringing speech was blocked by the seizures.) The question is whether an ex parte seizure that results in non-infringing content being suppressed requires extraordinary safeguards.
And the answer is: yes, it does. Since you brought up child pornography (big surprise), it should be noted that government actions targeting child pornography, that also result in the removal of material that is not child pornography, have repeatedly found to be unconstitutional. For example:
In sum: yes, those "extraordinary procedural safeguards" are necessary in child pornography cases, too. And there is no doubt that it is far, far easier to determine whether something is child pornography, than it is to determine whether something is infringing. After all, an authorized MP3 on a filesharing site, looks no different than an infringing MP3 on a filesharing site.
Furthermore, ex parte intellectual property seizures have often been overturned for being overbroad - though almost always on due process grounds. Examples:
I'm sure I could dig up more, but you're the one with Lexis-Nexus access.
If there isn't a case where First Amendment overbreadth doctrine hasn't applied to copyright seizures, it's because I couldn't find even one copyright seizure case where speech that was not even allegedly infringing was suppressed. The ICE seizures are unprecedented in that regard.
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re: Re: Re: Re: Re:
Two quick things.
1. The seizures did not target anyone who posted "Harry Potter" on the Internet. They targeted blogs, search engines, and forums that linked to other sites that hosted "Harry Potter" on the Internet. The seizures did not block one single byte of infringing content; all of it was still available at the third-party site that hosted the content.
2. If that copy of Harry Potter is infringing, then I do not have a First Amendment right to post it, because infringement creates an exception to First Amendment protection. If that copy of Harry Potter is not infringing - whether through authorization, or because it is exempt from infringement for other reasons - then yes, I do have a First Amendment right to post it.
Under my view, everyone can post whatever works that are not infringing that they want, even without a license, because the First Amendment protects them. And yes, it does work that way.
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re: Re: Re:
This is another howler of a statement that you keep repeating.
The freedom of expression is an inalienable right, one that is protected from government intrusion by the First Amendment. By default, all speech is protected speech. Exceptions to First Amendment protections can be made, but only if they further a "substantial" or "compelling" public interest - one that overrides the infringement upon free speech rights. (In the case of copyright, it is the general public benefits from the creation and distribution of expression, and the entirely-theoretical belief that copyright acts as an "engine of free expression.")
So, no. A license does not "permit" First Amendment protection. The determination that the speech is infringing creates an exception to the First Amendment. There are about a dozen limitiations on exclusive rights, and well-defined boundaries to the scope of those rights; and if the speech is outside copyright's scope, or exempted from restriction by those limitations, then it is fully protected by the First Amendment. Similarly, authorization does not "permit" the speech; it determines that it is not infringing - hence the "infringement exception" to the First Amendment never applied, and the speech was always just as protected as any other speech.
As an example: unless the works that were linked to on Dajaz1's site were infringing, they are fully protected under the First Amendment. Since they were not infringing (and since that was the only excuse to shut down the not even allegedly unprotected speech that was also on the site), there is absolutely no question whatsoever that the government suppressed nothing but protected speech when it shut down the site.
That you find such suppression acceptable shows how little you respect free speech. Or, at the very least, how willing you are to disregard it in order to persecute those you believe are pirates.
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re:
I have just re-read the Ft. Wayne Books ruling. They specifically use the words "presumptively protected," as in: "Probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films." They never once indicate that those safeguards are "only necessary when the determination... is difficult to make."
Nor have I ever seen this "necessity" expressed in any other First Amendment case.
Plus, the website seizures were hardly "simple piracy" cases. There are, by my count, at least three separate First Amendment issues to consider:
1. The ex parte seizure and redirection of the domain names themselves (which can be protected speech).
2. The ex parte blocking of links to content (often user-generated), based solely probable cause that the content on third-party sites was infringing.
3. The ex parte blocking of absolutely protected speech - news, reviews, blog posts, forum posts - that was also on those sites.
All of these issues have nothing to do with whether the determination of infringement was "difficult."
Also, as dajaz1 shows, even the appearance of "simple piracy" doesn't mean the determination isn't difficult to make.
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re:
I have personally debated people in these comments, who claimed that the domain seizures didn't violate the First Amendment because domain names aren't speech. For example:
(In fact, I suspect that person was you.)
As this case (and others) makes clear, domain names themselves are can be considered potentially protected speech in their own right. Thus, any kind of domain name seizure implicates First Amendment concerns to some degree. (To what degree is debatable.)
On the post: That Was Fast: Hollywood Already Browbeat The Republicans Into Retracting Report On Copyright Reform
Re: Re: Re: A recent update
It depends what you mean by "Hollywood." If you include companies like Comcast, Time Warner, and News Corp, then they do give more money to Democrats. (Yes, even News Corp.)
However, if you are talking about the MPAA, then not so much. In 2012, their PAC gave roughly $46K to Republicans, and $43K to Democrats.
Of course, that's just contributions to Congresspeople directly; they spend far, far more on lobbying.
On the post: That Was Fast: Hollywood Already Browbeat The Republicans Into Retracting Report On Copyright Reform
Re: A recent update
Also from that article:
So, it appears Mike was correct. The brief was vetted; then pulled, at least in part (if not mostly), because "industry lobbyists" went ballistic about it.
On the post: That Was Fast: Hollywood Already Browbeat The Republicans Into Retracting Report On Copyright Reform
Re: Re: Re: Re: Re: Re: Re: Re:
FYI, this article is completely wrong. I debunked it in the comments section here.
In case you don't want to follow the link, here's the relevant section:
On the post: That Was Fast: Hollywood Already Browbeat The Republicans Into Retracting Report On Copyright Reform
Re: Re: Re: Re: Re: Re: Re: Re: Re:
It's the site of David Lowery, former front-man for Camper Van Beethoven and Cracker. It exists mainly to rant against the Internet in general, and Google in particular, under the flimsy excuse of "protecting artists' rights."
You may remember Lowery from when Techdirt wrote a critique of a Facebook post he made (loosely outlining a talk he gave). Where, in response, Lowery went ballistic, threatened to sue, pulled the Facebook post, and continued to pollute the comments section of nearly every story with off-topic ad hominems for days. You probably also remember him from his attempts to public shame an NPR intern for admitting to sharing music.
Occasionally he has "guest posts" from the likes of Chris Castle, the copyright lawyer behind the equally-ridiculous Music Technology Policy, or from whichever disgruntled artist he can dig up (so far just Gavin Castleton, Chris Whitten, and Zack Hemsey). I actually debated Castleton in the comments section here (as did others). He also regularly links to laughably inaccurate sites like Pop Up Pirates.
So, generally he's trying to be a clearing-house for copyright maximalist propaganda. But an RIAA shill he's not, unless you think being a musician on a major label makes you an "RIAA shill."
On the post: That Was Fast: Hollywood Already Browbeat The Republicans Into Retracting Report On Copyright Reform
Re: Re: Re: Re: Re: Re: Re:
Worst. Porno. Ever.
On the post: House Republicans: Copyright Law Destroys Markets; It's Time For Real Reform
Re: meow...
Yep, and Techdirt wrote about it.
Still no evidence whatsoever that Google even knew about the brief, much less paid to produce it.
On the post: Why Do We Even Have 'Distribution' As A Right Protected By Copyright?
Re: Re: Re: Re: Re: Re: Re: Re: Re:
Which, if true, shows only than that rights-holders are not on the side of civil rights on the Internet. It certainly doesn't show that the EFF is "piratical."
On the post: House Republicans: Copyright Law Destroys Markets; It's Time For Real Reform
Re: Re: Re: Re: Re: Re: Re: Re: Dear Shills
It just proves you fell for the ridiculous propaganda pushed by corporate rights holders, that everyone who is a copyright reformer is "bought out" by Google, that Google is "anti-copyright," or what have you. It's a load of bullshit - just as it would be if the accusations were leveled against Yahoo! or Bing or iTunes.
On the post: House Republicans: Copyright Law Destroys Markets; It's Time For Real Reform
Re: Re: Re: Re: Re: Re: Dear Shills
There's not one shred of evidence that this is true. You may believe it, but that just proves that you hate Google.
On the post: House Republicans: Copyright Law Destroys Markets; It's Time For Real Reform
Re: Re: Re: Re: Re: Re: Dear Shills
Well, except that Google had absolutely nothing to do with this report... and I've never heard of Google hiring sock puppets to post on blogs.
So, basically, you have no point at all.
Next >>