Even though that's a substantial hardship in the general sense, it's not a substantial hardship as that term is used in the statute. That doesn't mean that Puerto 80 can't get any relief. They just need to bring the right type of lawsuit--one where the First Amendment issue is the actual issue before the court (and not some irrelevant, rejected argument).
Judge Crotty rejected their argument about the First Amendment, an argument that is irrelevant to the issue before the court. That doesn't make it his ruling. The issue before the court was whether or not this creates a substantial hardship. The ruling was that it does not. That's the ruling they get to appeal, whether they like it or not.
Honestly, both sides--Lemley et al. and Frey et al.--haven't been making a lot of sense throughout this case. Each side has a new theory of the case each time they file some new brief.
Judge Crotty told them to bring up the First Amendment argument in the forfeiture action (advice that I don't really understand either, but that's another story), not the 983(f) petition. Instead of doing that, they're pretending that the 983(f) petition (which is about whether the property should be returned in the interim because its seizure is causing them a substantial hardship) is about the First Amendment. It's not. They have every right to argue that it's a prior restraint, but it makes no sense to do so in the context of a 983(f) petition. IMO, they're just hoping the argument sticks. I don't see how it possibly could. Why don't they just file a proper First Amendment lawsuit against the government? WTF?
I. WHETHER THE FIRST AMENDMENT DEPRIVATION IS A “SUBSTANTIAL HARDSHIP” WITHIN THE MEANING OF CAFRA IS IRRELEVANT
Puerto 80 is appealing the district court’s rejection of its argument that the seizure constituted an unlawful prior restraint of speech. Puerto 80 has not appealed the district court’s finding that the hardship it bore as a result of the seizure does not constitute the type of “substantial hardship” articulated in 18 U.S.C. § 983(f)(1)(C). The government’s detailed effort to defend that ruling accordingly misses the point. If the government’s seizure of the domain names violates the First Amendment, it is irrelevant whether it also constitutes a substantial hardship within the meaning of section 983(f). Accordingly, we focus our reply on the one issue on appeal: the government’s prior restraint of speech.
So they are admitting that they are only appealing the district court's rejection of their First Amendment argument. Notice the sleight of hand. The issue on appeal is the court's holding that it's not a substantial hardship under 983(f). The rejection of their First Amendment argument is not the issue on appeal. For whatever reason, they chose to bring a 983(f) petition and not a First Amendment challenge. Whether or not this violates the First Amendment is irrelevant to a 983(f) petition. I think they're right--the First Amendment was violated--but that's got nothing to do with whether it's a substantial hardship under 983(f).
They can't sue the government claiming that it's causing them a substantial hardship, and then when the court rejects that argument, claim on appeal that really this is about the First Amendment and not a substantial hardship. They're really blowing this, IMO. Procedurally, I don't see how the Second Circuit can even reach the merits of the First Amendment claim. It's simply irrelevant to the type of petition they chose to file. It's like suing your neighbor for running over your dog, and then arguing about whether their fence encroaches your property. It's irrelevant. You can certainly sue your neighbor over the fence, but it's got nothing to do with running over your dog--the claim you in fact did bring.
I don't know if it was intentional or not. I was reading it the other way, but I see that your interpretation is truer to the text. Rather than speculate about intention, let's just agree that the perjury penalty should apply to the whole notice.
That is a valid interpretation of that sentence. Obviously they should clean up the language to make it clear that the whole thing is under penalty of perjury, not just the signature.
The counter-notification language is clearer: "A statement under penalty of perjury that the owner or operator, or registrant, has a good faith belief that it does not meet the criteria of an Internet site dedicated to theft of U.S. property as set forth under this section."
Not true. The only part under penalty of perjury for the one filing the notice is their statement that they are an authorized agent of the rightsholder. Everything else is completely penalty-free. Meanwhile, EVERYTHING in the counternotice is made under penalty of perjury. That's one of the major imbalances of this bill.
Untrue, Marcus.
Section 103(b)(4)(vii): "A statement that the information in the notification is accurate, and, under penalty of perjury, that the signatory is authorized to act on behalf of the holder of the intellectual property right harmed by the activities described in subsection 24 (a)(1)."
Footnote 4 displays Tribe's bias: "SOPA Section 103 targets speech based on its content, and the bill is justified by reference to “the content of the regulated speech,” United States v. Eichman, 496 U.S. 310, 318 (1990) (citation and internal quotation marks omitted), i.e., whether the message or substance of the speech infringes copyright or trademark rights. Therefore, SOPA is properly subject to the strictest version of First Amendment scrutiny . . . ."
Huh? How can an expert on copyright and First Amendment doctrine pretend like SOPA gets strict scrutiny? Give me a break. This analysis is so biased that I have to wonder who hired him to write it. Was it Google?
Huh? The one filing the notice does so under penalty of perjury, just like the DMCA if I recall correctly. There's no court involvement with a DMCA takedown notice either. I'm just trying to understand why it's OK under the DMCA but not under SOPA.
The court held that they were in fact facilitating infringement, but that it was legal in Spain. The DMCA notices and contacts from rights holders in the U.S. told them that what they were doing in the U.S. was illegal. Considering the fact that their domain name was property that existed in the U.S., they should have been concerned that they were using that property to violate U.S. law. And it should have no surprise to them that their U.S.-based property was seized by the U.S. government for violating U.S. law.
So why does the notice-and-takedown procedure in the DMCA pass constitutional muster, but then the notice-and-takedown procedure in SOPA violatess the First Amendment?
So pointing out that I'm just expressing my opinion about Righthaven means I'm playing a victim? I don't really follow you there. I think you're just trying to stir shit. I'm not interested in playing.
I'll add this. Even if the right answer is that Righthaven doesn't have standing, I don't think the courts in Nevada got there under the right reasoning. The reasoning out of the court in Colorado was much better. I think that's the result of the judge not tying to apply Silvers (and mangling it).
Either way, I do my own research and make my own arguments and back them up when I can. That you are insulting me for doing this just makes you look bad. I get stuff wrong all the time and I'm happy to be proved wrong. No need to put me down because I disagree with you on some issue.
I would be more excited about average_joe's return if he was here to apologize for his previous comments about these seizures and admit that he was wrong in pretty much every way.
I got into several "discussions" with him last time and he took a condescending attitude because there was no way someone understood these issues better than him. Surprise, every legal concept and theory he put forth was incorrect.
Can you be more specific than that I'm "wrong in pretty much every way" and "every legal concept and theory" I've ever put forth? That's a ridiculously broad statement. I'm happy to address any particular claim I've made that you feel is incorrect if you tell me what the claim is.
On the post: Puerto 80 Makes Its Argument For Why The Seizure Of Rojadirecta Was Unconstitutional
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On the post: Puerto 80 Makes Its Argument For Why The Seizure Of Rojadirecta Was Unconstitutional
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Honestly, both sides--Lemley et al. and Frey et al.--haven't been making a lot of sense throughout this case. Each side has a new theory of the case each time they file some new brief.
On the post: Puerto 80 Makes Its Argument For Why The Seizure Of Rojadirecta Was Unconstitutional
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On the post: Puerto 80 Makes Its Argument For Why The Seizure Of Rojadirecta Was Unconstitutional
They can't sue the government claiming that it's causing them a substantial hardship, and then when the court rejects that argument, claim on appeal that really this is about the First Amendment and not a substantial hardship. They're really blowing this, IMO. Procedurally, I don't see how the Second Circuit can even reach the merits of the First Amendment claim. It's simply irrelevant to the type of petition they chose to file. It's like suing your neighbor for running over your dog, and then arguing about whether their fence encroaches your property. It's irrelevant. You can certainly sue your neighbor over the fence, but it's got nothing to do with running over your dog--the claim you in fact did bring.
On the post: Constitutional Scholars Explain Why SOPA & PROTECT IP Do Not Pass First Amendment Scrutiny
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On the post: Constitutional Scholars Explain Why SOPA & PROTECT IP Do Not Pass First Amendment Scrutiny
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On the post: Constitutional Scholars Explain Why SOPA & PROTECT IP Do Not Pass First Amendment Scrutiny
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The counter-notification language is clearer: "A statement under penalty of perjury that the owner or operator, or registrant, has a good faith belief that it does not meet the criteria of an Internet site dedicated to theft of U.S. property as set forth under this section."
On the post: Constitutional Scholars Explain Why SOPA & PROTECT IP Do Not Pass First Amendment Scrutiny
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On the post: Constitutional Scholars Explain Why SOPA & PROTECT IP Do Not Pass First Amendment Scrutiny
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Untrue, Marcus.
Section 103(b)(4)(vii): "A statement that the information in the notification is accurate, and, under penalty of perjury, that the signatory is authorized to act on behalf of the holder of the intellectual property right harmed by the activities described in subsection 24 (a)(1)."
Source: http://judiciary.house.gov/hearings/pdf/112%20HR%203261.pdf
On the post: Constitutional Scholars Explain Why SOPA & PROTECT IP Do Not Pass First Amendment Scrutiny
Huh? How can an expert on copyright and First Amendment doctrine pretend like SOPA gets strict scrutiny? Give me a break. This analysis is so biased that I have to wonder who hired him to write it. Was it Google?
On the post: Constitutional Scholars Explain Why SOPA & PROTECT IP Do Not Pass First Amendment Scrutiny
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On the post: Constitutional Scholars Explain Why SOPA & PROTECT IP Do Not Pass First Amendment Scrutiny
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And SOPA notice-and-takedown doesn't take down any content. It only applies to online advertisers and credit card processors.
On the post: Constitutional Scholars Explain Why SOPA & PROTECT IP Do Not Pass First Amendment Scrutiny
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On the post: Court Dismisses Puerto 80 Rojadirecta Case (For Now)... But Doesn't Give Back The Domain
Re: Re: Agreed. No willfulness here.
The whole "legal in Spain" argument is silly.
On the post: Constitutional Scholars Explain Why SOPA & PROTECT IP Do Not Pass First Amendment Scrutiny
Can anyone explain that to me?
On the post: Breaking News: Feds Falsely Censor Popular Blog For Over A Year, Deny All Due Process, Hide All Details...
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On the post: Court Dismisses Puerto 80 Rojadirecta Case (For Now)... But Doesn't Give Back The Domain
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On the post: Breaking News: Feds Falsely Censor Popular Blog For Over A Year, Deny All Due Process, Hide All Details...
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Either way, I do my own research and make my own arguments and back them up when I can. That you are insulting me for doing this just makes you look bad. I get stuff wrong all the time and I'm happy to be proved wrong. No need to put me down because I disagree with you on some issue.
On the post: Breaking News: Feds Falsely Censor Popular Blog For Over A Year, Deny All Due Process, Hide All Details...
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We'll see what the Ninth Circuit says.
On the post: Breaking News: Feds Falsely Censor Popular Blog For Over A Year, Deny All Due Process, Hide All Details...
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I got into several "discussions" with him last time and he took a condescending attitude because there was no way someone understood these issues better than him. Surprise, every legal concept and theory he put forth was incorrect.
Can you be more specific than that I'm "wrong in pretty much every way" and "every legal concept and theory" I've ever put forth? That's a ridiculously broad statement. I'm happy to address any particular claim I've made that you feel is incorrect if you tell me what the claim is.
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