Yet again, you fail to consider that ANY censorship is bad. Sadly, we have censorship each day:they're called laws. Every single law censors speech, via action or otherwise.
So the noise ordinance that prevents me from blasting my pro-same-sex-marriage diatribe is bad? I bet my next door neighbor would disagree. You're right that censorship is all around us. I respectfully disagree that it's all bad. In fact, I don't see how society could properly function without censorship.
I suppose you think it's bad that you can't break into your neighbor's house so you can exercise your free speech rights there, right? I mean, those silly trespassing laws are CENSORSHIP, and all censorship is bad, right? Sigh.
McCarthy, with criminal intent, set up a website dedicated to infringement and profited off of it while violating other people's rights.
Righthaven, with good intent, was set up to vindicate people's rights that were being violated. It's apples and oranges.
God knows why they didn't turn over documents last Thursday, but violating a court order should lead to a contempt charge and a warrant. They'll get what's coming to them (as they have been all along) so I don't understand the notion that they're getting special treatment. They're not.
Really? Piracy is what you got out of this article? Are you really that insane? Has it never occurred to you that censorship, no matter what justification is given, is bad and people don't like to be censored?
Not one word about how Mike turned "an example" into the "key reason"? Tell me, Zachary, can you admit that Mike exaggerated that and that it's just another example of Mike's bias when it comes to all things SOPA? Please, address this point. I'm curious what your take is.
As far as all the whining about "censorship" goes, tell me this: How exactly is SOPA censorship? I posted a couple days ago about how there's a broad and a narrow defintion of censorship. Not sure if you saw it.
Basically, my argument is that SOPA is not about censorship in the narrow sense, which is how I think most people use the term. Censorship under this view is when the government regulates the subject matter or the viewpoint being expressed. For example, government regulation of what people say about same-sex marriage would be censorship--the bad kind of censorship that China has.
Under the broad definition, any government regulation of speech is considered to be censorship. An example of this would be a noise ordinance. I can stand in my front lawn, standing on a soapbox, talking about how great same-sex marriage is all day long. But what I can't do is crank up my amplifier so that I'm outputting 160 decibels. While the noise ordinance is censorship in the broad sense, I don't think most people would agree that that's the bad kind of censorship--the Chinese kind of censorship--because the government is not regulating WHAT I say. They're only regulating the manner in which I can say it.
Mike, of course, is using the broad definition of censorship because it carries with it negative connotations (China!!!!), but really, this isn't the bad kind of censorship. SOPA is more like a noise ordinance than it is like China-style censorship.
So tell me this: What kind of censorship are you talking about with SOPA? Is it the bad, Chinese kind, or is it the other kind, like a time, place, or manner restriction that already constrain most of what we can do?
I'm just not seeing how this is the bad kind of censorship. Comparing us to China and pretending like this is the end of the world is just a rhetorical device that pro-piracy apologists like Mike use. It works on the masses, I suppose, but apparently I'm immune (thank God!).
but because it's a company that's involved, all be it a supposed 'shady' one, it's ok to behave like this. typical double standards of courts in general and US courts in particular!
Huh? What makes you think Gibson is not about to have a bench warrant issued for his arrest?
LMAO @ you guys. It's hilarious how much Mike NEEDS piracy to prevail. Like governments are going to allow satellites to be launched and operated that are dedicated to violating people's rights. Give me a break. And really, the "key reason given" is SOPA, even though these guys aren't in the U.S.? Exaggerate much? The article says: "He cited the proposed Stop Online Piracy Act (Sopa) in the United States as an example of the kind of threat facing online freedom." "An example" gets turned into the "key reason." What a joke.
And Mike, if you're so worried about people's rights, then where is your concerned for all of the people whose rights are violated everyday on the internet? Funny how you don't care about those people, and in fact, you support the lawbreakers. Guess some rights are worth more than others, right? What a piece of work you are.
This goes far beyond what is allowed under Rule 65. The A.G. may issue blacklist orders to third parties, immediately after initiating the lawsuit, something that would never in a million years be allowed under Rule 65.
You say that so confidently, but I suspect you haven't researched the point. Rule 65 can bind third parties. See Rule 65(d)(2)(C). I haven't read much about the extent of this, i.e., what exactly it means to be "in active concert or participation" with the defendant, but I don't think it's nearly as neat and simple as you think. I have a list of legal points to look up, and this is actually already on my list as something to learn more about. If you have specific information from caselaw that shows Rule 65 cannot bind payment processors and such, then I'd certainly like to hear the arguments. Maybe you're right!
I read that a while back. I see Sellars is quoting the book "No Law" and the Lemley/Volokh article, both of which are making normative arguments, not descriptive ones. And again, you won't find a single court opinion holding that copyright is a content-based restriction on speech because no court has ever held that. So when you see someone arguing that copyright is a content-based restriction, like Sellars is, you know they're telling you their view of what the law should be and not the law as it actually exists.
Sellars is clearly arguing that he thinks copyright SHOULD be considered to be a content-based restriction while recognizing that under the current jurisprudence it is not. That only confirms what I'm saying.
The A.G. can send out notices to ISP's, search engines, financial transaction providers, and advertisers within hours or minutes of initiating the lawsuit. No opportunity is given for the sites to reply in any way, either to the courts or to the ISP's et al, until after the A.G. issues the blacklist orders. This is black-letter law in these bills.
It does say that "the court may issue a temporary restraining order, a preliminary injunction, or an injunction, in accordance with rule 65 of the Federal Rules of Civil Procedure." So you're right, there is in fact the possibility of ex parte action. I thought you were talking about the sections they cut out, so that's why I was asking what sections you were looking at... Anyway, yes a TRO is an ex parte proceeding. But the plaintiff cannot get that TRO unless they can show that waiting for notice and a hearing would cause them great harm. I doubt a TRO would issue in a regular case, and even if one does, it's only good for 14 days (with a chance to renew for another 14, I think).
If you think the possibility of a TRO means this violates the Constitution, then I'm just not seeing it. That's the same as finding one of the Rules themselves unconstitutional (which has never happened). And it's not like Pappert because the process there was insufficient. The blocking going on there wasn't happening in the adversarial conditions that these cases would be brought. Apples and oranges. Actions under SOPA and PROTECT IP have all the procedural safeguards of a standard federal civil trial. It's ludicrous to say that process is insufficient since that's the process all civil cases in federal courts get.
That may be a misunderstanding, but it is not moving the goalposts. You appeared to be saying that copyright has never been deemed to be a content-based restriction on speech, and I pointed to two cases where the courts said it was in those specific cases.
It is a misunderstanding. The court is those cases did not hold that a copyright law was content-based and subject to strict scrutiny. Those courts weren't even looking at the constitutionality of a copyright law. That's where you're misunderstanding things. I'm talking about a court considering the law itself, not somebody simply making a copyright claim of some sort.
The situation is that you have some cases where the courts said only those specific laws were content-neutral, and some cases where only those specific cases were content-based. This is the problem: copyright law in general does not really fit in either category. Certain laws and certain cases can be one or the other.
That's not what's happening. You need to distinguish between when the court is applying a copyright law, and when the copyright law itself is being challenged. When the court is applying a copyright law, they aren't considering it to be content-based like you're saying. "Content-based" analysis only makes sense when the law itself is being analyzed under the First Amendment. I hope that makes sense.
What, seriously? All of them, basically. All of the actions the A.G. is allowed to take are done before the accused site has a chance to respond. It must serve notice to the allegedly rogue site, but that site does not have a chance to respond before it is blacklisted.
I see what you're talking about. You're using the word ex parte incorrectly. Ex parte means the other side isn't even invited, not that they're invited and don't show up. Ex parte is when the other side is not given notice. With SOPA and PROTECT IP, the actions are governed by the Federal Rules of Civil Procedure and their own notice provisions. There is more than adequate notice provided for in each. If adequate notice is given and the other side doesn't show up, that's not an ex parte proceeding. It's all of the possibilities for notice and hearings that make the bills comport with the Due Process Clause and the First Amendment. That's what makes this nothing like Pappert. I don't care if you think these bills are unconstitutional, but the fact is you don't know what you're talking about and you're very confused about much of this.
So, yeah, the whole shebang is done ex parte.
No it's not at all, and you simply have no idea what you're talking about.
From Black's Law Dictionary: "ex parte, adj. (17c) Done or made at the instance and for the benefit of one party only, and without notice to any person adversely interested; of or relating to court action taken by one party without notice to the other, usu. for temporary or emergency relief"
You can't have "descriptive" writings if you're writing about something no court has ever actually decided.
You're right. That would be a predictive argument.
On a different note, happy New Year. I think one of my resolutions is going to be: stop wasting time arguing on the internet.
Happy New Year to you as well. Sounds like a good resolution. Good luck!
And, no, neither one said copyright law in general is content-based, which is why I specifically said they didn't. On the other hand, no court has ever said they are content-neutral, either.
Now you're moving the goal posts. I said: "You and others might think that copyright should be content-based, but what you can't do is point to a single court that has ever held is." To which you said: "I sure can." But then you didn't, and none of the cases you pointed to had a court saying that copyright was a content-based regulation of speech. And you're wrong in saying that "no court has ever said they are content-neutral, either." You might want to research that one.
what does this say about a law that allows ex parte blacklisting of entire websites, protected expression and all?
Can you point to the sections of SOPA and PROTECT IP that you think provide for ex parte blacklisting?
Under SOPA and PROTECT IP, you could not raise a fair use defense. Nor could you raise a DMCA defense, nor the defense that the content was in fact authorized. You could not raise any defense whatsoever before the sites were blacklisted. That is certainly a fundamental change from traditional copyright cases, where by and large, the accused at least gets a judicial hearing prior to any injunctions or restraining orders.
Again, what sections are you talking about? We'll take a look.
SOPA and PROTECT IP have no more procedural safeguards than Pappert did.
Huh? SOPA and PROTECT IP have tons of procedural safeguards that didn't exist in Pappert.
Hart is not the most reliable source on these matters. He is unabashedly pro-copyright, which makes his analysis suspect at best, and flawed at worst. His views are definitely in the minority among legal circles. It's also worth mentioning that he is not yet a practicing lawyer, and has never seen the inside of a courtroom, much less argued a copyright case before a judge or jury.
LMAO! His research is thorough and he backs up what he says with citations. And notably, you aren't even trying to rebut what he says. You're just attacking him personally. That's probably your best attack because you could NEVER hold your own against him on the merits.
All of this is fairly well known. It's rather telling that he is your go-to guy on copyright issues, and not, say, Nimmer and Nimmer, Paul Goldstein, Eugene Volokh, Eric Goldman, Mark Lemley, or even Lawrence Lessig, all of whom have far more experience and knowledge than Hart.
LOL! I'll use anybody as a source if they're writings are descriptive and not normative. Otherwise, they're just telling us their version of how the law should work in their alternate universe instead of telling us the status quo of the law in the real world. But again, you aren't rebutting anything Terry has said about content-based regulations, and you would be wise to read Terry's article and learn from it since it's extremely obvious how confused you are about it. I know you're smart and will pick it up quickly.
There's a huge debate within legal circles about whether copyright is a content-based or content-neutral regulation. The Supreme Court never weighed in on the matter, so it's still being debated. I think it's somewhere in between, but much closer to content-based than content-neutral.
That's simply not true, and I see little point in going through it with you again. Let me just point you to a few things:
To be certain, copyright's potential for burdening speech has long been recognized in U.S. case law, legislation, and commentary. Nevertheless, courts have almost never imposed First Amendment limitations on copyright, and most have summarily rejected copyright infringement free speech defenses. In almost every instance, courts have assumed that First Amendment values are fully and adequately protected by limitations on copyright owner rights within copyright doctrine itself. They have posited accordingly that “copyrights are categorically immune from challenges under the First Amendment.”
Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 Stan. L. Rev. 1, 2-4 (2001).
Now, you and I both know that the Supreme Court in Eldred said that the court of appeals went too far when they said that "copyrights are categorically immune" from First Amendment challenges. And then the Supreme Court went on to apply rational basis scrutiny to the CTEA. Not intermediate scrutiny, like they would have applied if the CTEA were content-neutral, and certainly not strict scrutiny, like they would have applied if the CTEA were content-based. So, yeah, the Court said that the CTEA doesn't get a free pass because it has to pass mere rational basis scrutiny (which is the most deferential review possible).
Scholars certainly argue normatively that copyright should be considered to be content-based, but that's not a descriptive portrayal of how courts actually view the matter. You and others might think that copyright should be content-based, but what you can't do is point to a single court that has ever held is.
But the government can and does restrict your exercise of free speech rights by controlling the time, place, or manner of it. In my example it was the government saying that you can't express yourself above a certain sound level. I think most people would agree that such restrictions aren't generally thought of as "censorship," but Mike is certainly entitled to define the term broadly so that it is. I'm not being at all obtuse. If you think the "fucking GOVERNMENT can't take said rights from you," you're just wrong. They can and do so all the time. Free speech does not mean speech that is completely free. It's not absolute, and it never has been.
I'm not avoiding anything. I chose to focus on the issue of whether Mike is correct in claiming that Smith is being intellectually dishonest by saying it's not censorship. You're bringing up a separate topic. If you want to focus on that point, go right ahead. No need for redirection, just direct the conversation to that other point.
Not really. The difference is well settled. Simply put, if the regulation controls what you can say, then that's a content-based restriction and that's "censorship" under anyone's definition. If the regulation controls not what you say, but only where, when, or how you can say it, then that's "censorship" only under Mike's broad definition.
Another example: Say I want to hold a rally in a public park and I want to use a sound system. If the city has a noise ordinance, then I can't amplify the sound above a certain level. Smith would reasonably say that's not "censorship," but Mike would say (whine) that it is. I think it's fair to say that most people would not agree with Mike that such a noise ordinance is "censorship."
Yes, let's nitpick over semantics when it's a bad law that can and will be used for both definitions.
It's not nitpicking. Mike is claiming that Smith is being intellectually dishonest for saying it's not censorship, and that's just silly. The difference between Mike's and Smith's definitions is critical, and if anything, Mike is the one capitalizing here by playing with words.
An example: Say I want to go down to a local public park, stand on a soapbox, and talk about how terrible President Obama is. If there's a city regulation that prohibits people from talking negatively about the President in that park, that's a content-based restriction and that's censorship under Smith's or Mike's definition. On the contrary, if there's a city regulation that prohibits people from using the park at all from midnight to dawn every night for safety reasons, then that's a content-neutral restriction and that's only censorship under Mike's definition (and not Smith's).
You can certainly define things broadly so that a time or place restriction like the one in my example is considered to be "censorship," but I think it's fair to say that such restrictions aren't commonly thought of as censorship. Censorship is more commonly thought of as the restriction on WHAT you can say, not WHERE & WHEN you can say it. Mike's pretending like the only meaning of censorship is ANY restriction on speech whatsoever, and while that's certainly one definition, it's not the only one. In fact, it's intellectually dishonest of Mike to say that Smith is intellectually dishonest for using a different definition.
But this is Techdirt, so I expected nothing else...
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So the noise ordinance that prevents me from blasting my pro-same-sex-marriage diatribe is bad? I bet my next door neighbor would disagree. You're right that censorship is all around us. I respectfully disagree that it's all bad. In fact, I don't see how society could properly function without censorship.
I suppose you think it's bad that you can't break into your neighbor's house so you can exercise your free speech rights there, right? I mean, those silly trespassing laws are CENSORSHIP, and all censorship is bad, right? Sigh.
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Righthaven, with good intent, was set up to vindicate people's rights that were being violated. It's apples and oranges.
God knows why they didn't turn over documents last Thursday, but violating a court order should lead to a contempt charge and a warrant. They'll get what's coming to them (as they have been all along) so I don't understand the notion that they're getting special treatment. They're not.
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Not one word about how Mike turned "an example" into the "key reason"? Tell me, Zachary, can you admit that Mike exaggerated that and that it's just another example of Mike's bias when it comes to all things SOPA? Please, address this point. I'm curious what your take is.
As far as all the whining about "censorship" goes, tell me this: How exactly is SOPA censorship? I posted a couple days ago about how there's a broad and a narrow defintion of censorship. Not sure if you saw it.
Basically, my argument is that SOPA is not about censorship in the narrow sense, which is how I think most people use the term. Censorship under this view is when the government regulates the subject matter or the viewpoint being expressed. For example, government regulation of what people say about same-sex marriage would be censorship--the bad kind of censorship that China has.
Under the broad definition, any government regulation of speech is considered to be censorship. An example of this would be a noise ordinance. I can stand in my front lawn, standing on a soapbox, talking about how great same-sex marriage is all day long. But what I can't do is crank up my amplifier so that I'm outputting 160 decibels. While the noise ordinance is censorship in the broad sense, I don't think most people would agree that that's the bad kind of censorship--the Chinese kind of censorship--because the government is not regulating WHAT I say. They're only regulating the manner in which I can say it.
Mike, of course, is using the broad definition of censorship because it carries with it negative connotations (China!!!!), but really, this isn't the bad kind of censorship. SOPA is more like a noise ordinance than it is like China-style censorship.
So tell me this: What kind of censorship are you talking about with SOPA? Is it the bad, Chinese kind, or is it the other kind, like a time, place, or manner restriction that already constrain most of what we can do?
I'm just not seeing how this is the bad kind of censorship. Comparing us to China and pretending like this is the end of the world is just a rhetorical device that pro-piracy apologists like Mike use. It works on the masses, I suppose, but apparently I'm immune (thank God!).
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Huh? What makes you think Gibson is not about to have a bench warrant issued for his arrest?
On the post: Hackers Figuring Out How To Set Up Satellites To Route Around Internet Censorship
And Mike, if you're so worried about people's rights, then where is your concerned for all of the people whose rights are violated everyday on the internet? Funny how you don't care about those people, and in fact, you support the lawbreakers. Guess some rights are worth more than others, right? What a piece of work you are.
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You say that so confidently, but I suspect you haven't researched the point. Rule 65 can bind third parties. See Rule 65(d)(2)(C). I haven't read much about the extent of this, i.e., what exactly it means to be "in active concert or participation" with the defendant, but I don't think it's nearly as neat and simple as you think. I have a list of legal points to look up, and this is actually already on my list as something to learn more about. If you have specific information from caselaw that shows Rule 65 cannot bind payment processors and such, then I'd certainly like to hear the arguments. Maybe you're right!
http://www.law.cornell.edu/rules/frcp/rule_65
By the way, I see I was remembering it correctly: A TRO is for at most 14 days plus another 14 day extension for good cause. See Rule 65(b)(2).
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Sellars is clearly arguing that he thinks copyright SHOULD be considered to be a content-based restriction while recognizing that under the current jurisprudence it is not. That only confirms what I'm saying.
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SOPA doesn't target anyone's speech because of the idea or viewpoint contained therein, so it's not a content-based restriction.
On the post: Lamar Smith Out Of Touch With The Internet: Still Thinks It's Just Google That Opposes SOPA
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Looking at Section 103(b)(3) of SOPA 2.0: http://judiciary.house.gov/hearings/pdf/HR%203261%20Managers%20Amendment.pdf
It does say that "the court may issue a temporary restraining order, a preliminary injunction, or an injunction, in accordance with rule 65 of the Federal Rules of Civil Procedure." So you're right, there is in fact the possibility of ex parte action. I thought you were talking about the sections they cut out, so that's why I was asking what sections you were looking at... Anyway, yes a TRO is an ex parte proceeding. But the plaintiff cannot get that TRO unless they can show that waiting for notice and a hearing would cause them great harm. I doubt a TRO would issue in a regular case, and even if one does, it's only good for 14 days (with a chance to renew for another 14, I think).
If you think the possibility of a TRO means this violates the Constitution, then I'm just not seeing it. That's the same as finding one of the Rules themselves unconstitutional (which has never happened). And it's not like Pappert because the process there was insufficient. The blocking going on there wasn't happening in the adversarial conditions that these cases would be brought. Apples and oranges. Actions under SOPA and PROTECT IP have all the procedural safeguards of a standard federal civil trial. It's ludicrous to say that process is insufficient since that's the process all civil cases in federal courts get.
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It is a misunderstanding. The court is those cases did not hold that a copyright law was content-based and subject to strict scrutiny. Those courts weren't even looking at the constitutionality of a copyright law. That's where you're misunderstanding things. I'm talking about a court considering the law itself, not somebody simply making a copyright claim of some sort.
The situation is that you have some cases where the courts said only those specific laws were content-neutral, and some cases where only those specific cases were content-based. This is the problem: copyright law in general does not really fit in either category. Certain laws and certain cases can be one or the other.
That's not what's happening. You need to distinguish between when the court is applying a copyright law, and when the copyright law itself is being challenged. When the court is applying a copyright law, they aren't considering it to be content-based like you're saying. "Content-based" analysis only makes sense when the law itself is being analyzed under the First Amendment. I hope that makes sense.
What, seriously? All of them, basically. All of the actions the A.G. is allowed to take are done before the accused site has a chance to respond. It must serve notice to the allegedly rogue site, but that site does not have a chance to respond before it is blacklisted.
I see what you're talking about. You're using the word ex parte incorrectly. Ex parte means the other side isn't even invited, not that they're invited and don't show up. Ex parte is when the other side is not given notice. With SOPA and PROTECT IP, the actions are governed by the Federal Rules of Civil Procedure and their own notice provisions. There is more than adequate notice provided for in each. If adequate notice is given and the other side doesn't show up, that's not an ex parte proceeding. It's all of the possibilities for notice and hearings that make the bills comport with the Due Process Clause and the First Amendment. That's what makes this nothing like Pappert. I don't care if you think these bills are unconstitutional, but the fact is you don't know what you're talking about and you're very confused about much of this.
So, yeah, the whole shebang is done ex parte.
No it's not at all, and you simply have no idea what you're talking about.
From Black's Law Dictionary: "ex parte, adj. (17c) Done or made at the instance and for the benefit of one party only, and without notice to any person adversely interested; of or relating to court action taken by one party without notice to the other, usu. for temporary or emergency relief"
You can't have "descriptive" writings if you're writing about something no court has ever actually decided.
You're right. That would be a predictive argument.
On a different note, happy New Year. I think one of my resolutions is going to be: stop wasting time arguing on the internet.
Happy New Year to you as well. Sounds like a good resolution. Good luck!
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Now you're moving the goal posts. I said: "You and others might think that copyright should be content-based, but what you can't do is point to a single court that has ever held is." To which you said: "I sure can." But then you didn't, and none of the cases you pointed to had a court saying that copyright was a content-based regulation of speech. And you're wrong in saying that "no court has ever said they are content-neutral, either." You might want to research that one.
what does this say about a law that allows ex parte blacklisting of entire websites, protected expression and all?
Can you point to the sections of SOPA and PROTECT IP that you think provide for ex parte blacklisting?
Under SOPA and PROTECT IP, you could not raise a fair use defense. Nor could you raise a DMCA defense, nor the defense that the content was in fact authorized. You could not raise any defense whatsoever before the sites were blacklisted. That is certainly a fundamental change from traditional copyright cases, where by and large, the accused at least gets a judicial hearing prior to any injunctions or restraining orders.
Again, what sections are you talking about? We'll take a look.
SOPA and PROTECT IP have no more procedural safeguards than Pappert did.
Huh? SOPA and PROTECT IP have tons of procedural safeguards that didn't exist in Pappert.
Hart is not the most reliable source on these matters. He is unabashedly pro-copyright, which makes his analysis suspect at best, and flawed at worst. His views are definitely in the minority among legal circles. It's also worth mentioning that he is not yet a practicing lawyer, and has never seen the inside of a courtroom, much less argued a copyright case before a judge or jury.
LMAO! His research is thorough and he backs up what he says with citations. And notably, you aren't even trying to rebut what he says. You're just attacking him personally. That's probably your best attack because you could NEVER hold your own against him on the merits.
All of this is fairly well known. It's rather telling that he is your go-to guy on copyright issues, and not, say, Nimmer and Nimmer, Paul Goldstein, Eugene Volokh, Eric Goldman, Mark Lemley, or even Lawrence Lessig, all of whom have far more experience and knowledge than Hart.
LOL! I'll use anybody as a source if they're writings are descriptive and not normative. Otherwise, they're just telling us their version of how the law should work in their alternate universe instead of telling us the status quo of the law in the real world. But again, you aren't rebutting anything Terry has said about content-based regulations, and you would be wise to read Terry's article and learn from it since it's extremely obvious how confused you are about it. I know you're smart and will pick it up quickly.
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That's simply not true, and I see little point in going through it with you again. Let me just point you to a few things:Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 Stan. L. Rev. 1, 2-4 (2001).
Now, you and I both know that the Supreme Court in Eldred said that the court of appeals went too far when they said that "copyrights are categorically immune" from First Amendment challenges. And then the Supreme Court went on to apply rational basis scrutiny to the CTEA. Not intermediate scrutiny, like they would have applied if the CTEA were content-neutral, and certainly not strict scrutiny, like they would have applied if the CTEA were content-based. So, yeah, the Court said that the CTEA doesn't get a free pass because it has to pass mere rational basis scrutiny (which is the most deferential review possible).
Scholars certainly argue normatively that copyright should be considered to be content-based, but that's not a descriptive portrayal of how courts actually view the matter. You and others might think that copyright should be content-based, but what you can't do is point to a single court that has ever held is.
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On the post: Lamar Smith Out Of Touch With The Internet: Still Thinks It's Just Google That Opposes SOPA
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Another example: Say I want to hold a rally in a public park and I want to use a sound system. If the city has a noise ordinance, then I can't amplify the sound above a certain level. Smith would reasonably say that's not "censorship," but Mike would say (whine) that it is. I think it's fair to say that most people would not agree with Mike that such a noise ordinance is "censorship."
On the post: Lamar Smith Out Of Touch With The Internet: Still Thinks It's Just Google That Opposes SOPA
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It's not nitpicking. Mike is claiming that Smith is being intellectually dishonest for saying it's not censorship, and that's just silly. The difference between Mike's and Smith's definitions is critical, and if anything, Mike is the one capitalizing here by playing with words.
An example: Say I want to go down to a local public park, stand on a soapbox, and talk about how terrible President Obama is. If there's a city regulation that prohibits people from talking negatively about the President in that park, that's a content-based restriction and that's censorship under Smith's or Mike's definition. On the contrary, if there's a city regulation that prohibits people from using the park at all from midnight to dawn every night for safety reasons, then that's a content-neutral restriction and that's only censorship under Mike's definition (and not Smith's).
You can certainly define things broadly so that a time or place restriction like the one in my example is considered to be "censorship," but I think it's fair to say that such restrictions aren't commonly thought of as censorship. Censorship is more commonly thought of as the restriction on WHAT you can say, not WHERE & WHEN you can say it. Mike's pretending like the only meaning of censorship is ANY restriction on speech whatsoever, and while that's certainly one definition, it's not the only one. In fact, it's intellectually dishonest of Mike to say that Smith is intellectually dishonest for using a different definition.
But this is Techdirt, so I expected nothing else...
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