Don't you think she should have done some investigating before bothering the Attorney General with this? I do. There was no hurry. She was just grandstanding--again.
And it worries me that the "news story" she offered to give to Holder was one of Mike's "stories."
Techdirt should have a big disclaimer on every "story" it publishes that Mike isn't actually a journalist, and he does not follow even the minimum, basic, fundamental tenets of real journalism.
I'd hate for someone to hand a Techdirt "article" to the A.G. and have him mistakenly think it had been properly vetted.
There is presumptively protected speech on that website (moreover there is in fact protected speech there, not just presumptively protected speech). When the government seized the domain name they blocked a means of getting to that protected speech. Seizing the domain name ex parte and without a prompt adversarial hearing afterwards is a prior restraint.
When the thing being seized is presumptively protected under the First Amendment, it's a prior restraint to seize it ex parte without adequate process.
Not at all. The bookstore in Arcara could not (and in fact was not) shut down before there had been a hearing on the merits. A seizure happens ex parte and without an adversarial hearing. A forfeiture happens after there's been a full adversarial hearing on the merits. For First Amendment purposes, the difference is critical.
There's a difference between saying that I think they were engaged in criminal infringement and saying that I don't doubt that they were. I've never even seen the site until a couple days ago, and I have no idea what used to go on there. I know that you raised some question of whether the examples listed in the affidavit were non-infringing, but I've read elsewhere that there was infringement on the site above and beyond the examples in the affidavit. Without knowing the details, I can't really say either way. There was certainly probable cause to think the site was infringing when the judge signed off on the warrant. Even if the facts asserted in the affidavit turned out to not be true, that doesn't change the fact that there appeared to be probable cause at the time. I really don't know what to believe, Mike. I certainly don't take your "reporting" on these things at face value, especially since you admit you're not a journalist who follows the basic rules of journalism.
Arcara justifies the ultimate forfeiture of the domain name, but not the initial seizure. The issue in Arcara was whether they could shut down the bookstore AFTER there had been a full trial on the merits.
I never said dajaz1.com was innocent. In fact, I said I had no doubt they were engaged in criminal copyright infringement.
I have no idea what dajaz1.com will do now, nor do I really care. I'm not into hip hop.
The original seizure was based on a showing of probable cause. A magistrate judge then issued a seizure warrant. That's due process. The seizure statute allows for the government to petition the court ex parte for extensions. The constitutionality of seizures/forfeitures has been tested in the courts and held to not violate Due Process. In general, the government can seize and forfeit property in this manner. The problem, IMO, is that domain names aren't just any kind of property. Seizing a domain name has the potential to block a channel of communication, and that's where First Amendment doctrine kicks in.
It wasn't any more a first amendment violation than any of the other seizures.
And perhaps they've all been First Amendment violations. I don't doubt that dajaz1.com was engaged in criminal copyright infringement. But I also don't doubt that First Amendment protected speech was happening on that site. It's the lack of a prompt, post-seizure adversarial hearing that I think makes the seizures constitutionally infirm. I'm all for Operation in our Sites, I just think there needs to be more process.
What is your take on the government being all super-duper double secret (seriously, so secret that the opposing lawyer can't even see the rulings involving his client, WTF?) on the Dajaz1 case.
I think that's normal for an ongoing criminal investigation, and I don't think it's a Due Process violation. But the whole dajaz1.com situation does seem like a clear First Amendment violation. I hope they sue.
I don't see a congressional investigation. I see one member asking a question, and pretty much the subject dies. When they set up an actual panel to look into this, you can call it an investigation. For the moment, it's an idle question, and not much more - mostly aimed at putting the AG on the defensive.
Sorry Mike, not much here.
Agreed. This is just typical grandstanding by Lofgren and Wyden.
And pretending like sites like http://www.demonoid.me/ aren't a problem is disingenuous. Sorry guys, but if you can't even admit that there's a rogue site problem to begin with, I can't take anything you say seriously.
Again, it's good that some research into that "significant harm" will be carried out, but shouldn't that come before the legislation is drawn up and enacted, not after it?
False premise. Congress makes findings about the need for legislation before creating it. That the legislation itself calls for FURTHER analysis doesn't mean the legislation was baseless to begin with. Nice try, but this is just standard copyright-hater nonsense.
Good grief. I'm not gonna quibble with you over the factors (let's just say I strenuously disagree with your assessment), but Mike himself admits that he shouldn't be held up to journalistic standards. God forbid he actually stand behind what he writes.
As far as the burden goes, wouldn't it be the defendant's burden since the shield law is a defense? That one seems like a no-brainer, but I haven't researched the point.
For example, I've noted plenty of times that I am not a "journalist." However, at times, I most certainly engage in journalism.
That's just silly double-talk. A journalist is one who engages in journalism. You are neither. And it has little to do with your affiliations or associations.
The court in this blogger's case listed several factors that go into determining whether someone is a journalist: "(1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting "the other side" to get both sides of a story."
N otice how affiliations is but one factor. I like TD, Mike, but everything here is entertainment value only. Until you develop some journalistic integrity, i.e., more of these factors, you aren't even close to "engaging in journalism."
On the post: Congressional Investigations Into Dajaz1.com Censorship Begin
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On the post: Congressional Investigations Into Dajaz1.com Censorship Begin
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And it worries me that the "news story" she offered to give to Holder was one of Mike's "stories."
Techdirt should have a big disclaimer on every "story" it publishes that Mike isn't actually a journalist, and he does not follow even the minimum, basic, fundamental tenets of real journalism.
I'd hate for someone to hand a Techdirt "article" to the A.G. and have him mistakenly think it had been properly vetted.
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On the post: Congressional Investigations Into Dajaz1.com Censorship Begin
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On the post: Congressional Investigations Into Dajaz1.com Censorship Begin
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On the post: Congressional Investigations Into Dajaz1.com Censorship Begin
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On the post: Congressional Investigations Into Dajaz1.com Censorship Begin
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I never said dajaz1.com was innocent. In fact, I said I had no doubt they were engaged in criminal copyright infringement.
I have no idea what dajaz1.com will do now, nor do I really care. I'm not into hip hop.
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On the post: Congressional Investigations Into Dajaz1.com Censorship Begin
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And perhaps they've all been First Amendment violations. I don't doubt that dajaz1.com was engaged in criminal copyright infringement. But I also don't doubt that First Amendment protected speech was happening on that site. It's the lack of a prompt, post-seizure adversarial hearing that I think makes the seizures constitutionally infirm. I'm all for Operation in our Sites, I just think there needs to be more process.
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I think that's normal for an ongoing criminal investigation, and I don't think it's a Due Process violation. But the whole dajaz1.com situation does seem like a clear First Amendment violation. I hope they sue.
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Sorry Mike, not much here.
Agreed. This is just typical grandstanding by Lofgren and Wyden.
On the post: HADOPI Wants To Research File Downloads: Shouldn't It Have Done That First?
Re: Another clueless troll. The shock. /irony
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On the post: HADOPI Wants To Research File Downloads: Shouldn't It Have Done That First?
False premise. Congress makes findings about the need for legislation before creating it. That the legislation itself calls for FURTHER analysis doesn't mean the legislation was baseless to begin with. Nice try, but this is just standard copyright-hater nonsense.
On the post: Should Shield Laws Protect Journalists? Or Journalism?
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As far as the burden goes, wouldn't it be the defendant's burden since the shield law is a defense? That one seems like a no-brainer, but I haven't researched the point.
On the post: Should Shield Laws Protect Journalists? Or Journalism?
That's just silly double-talk. A journalist is one who engages in journalism. You are neither. And it has little to do with your affiliations or associations.
The court in this blogger's case listed several factors that go into determining whether someone is a journalist: "(1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting "the other side" to get both sides of a story."
Source: http://ia600403.us.archive.org/9/items/gov.uscourts.ord.101036/gov.uscourts.ord.101036.95.0.pdf
N otice how affiliations is but one factor. I like TD, Mike, but everything here is entertainment value only. Until you develop some journalistic integrity, i.e., more of these factors, you aren't even close to "engaging in journalism."
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