If you believe: "Are reported?" By whom? Not the US government, who a year ago noted that all of the studies making those sorts of claims were bogus, and the various studies discussing these claims of "losses" to both jobs and the American economy have been thoroughly debunked. The only people still claiming that such things are factual are lobbyists and legacy industry insiders, who clearly stand to benefit from such laws that can be used to stifle innovation."
The seizure in the Kimbrough case was for preservation of evidence. The point from that case was that child porn can be seized absent a prior adversary hearing since child porn is easy to spot. I likened it to wholesale copying which is also easy to spot. To pass constitutional muster, such seizure warrants only need be sufficiently particular.
The point about in rem seizures and forfeitures of property being for purposes other than preservation of evidence was a different point. It is not accurate to say that seizures must be for the purpose of preservation of evidence. As in the case of these domain name seizures, the purpose is to seize the instrumentalities of crime. No matter what purpose the seizure is for, the same First Amendment hurdle would have to be met.
There is a difference between having a dismissal reversed on appeal, and having the appeals court declare that the use was fair. I'm sorry if you don' grasp the point.
I remember telling you before that Section 985 dealt with real estate. I believe I told you to look at Rule G from the Federal Rules of Civil Procedure, titled Forfeiture Actions in Rem.
You're right about Section 2319. I was confusing that section with 2323 in my head. My bad.
I think you're misunderstanding what can and can't be seized. Almost anything could be said to have some element of protected speech. That doesn't mean it cannot be seized by warrant absent a prior adversary hearing.
See, for example, U.S. v. Kimbrough, 69 F.3d 723 (5th Cir. 1995). In that case, Kimbrough was suspected of downloading child pornography from the internet. Agents executed warrants and seized his computers, among other things. Kimbrough argued that the warrants were unconstitutional because many of items seized were presumptively protected speech.
The Fifth Circuit, citing the U.S. Supreme Court case Marcus v. Search Warrants, 367 U.S. 717 (1961), held that: "In cases where warrants seek to seize material presumptively protected by the First Amendment, the level to which the items to be seized must be particularly described is heightened." The warrants in Kimbrough's case were sufficiently particular to withstand constitutional challenge.
The court further noted: "Kimbrough's reliance on cases involving obscenity is misplaced. The determination of which presumptively protected materials are obscene is a legal one and, therefore, not to be left to the discretion of the executing officers. Identification of visual depictions of minors engaging in sexually explicit conduct, in comparison, is a factual determination that leaves little latitude to the officers."
The obscenity cases that Kimbrough relied on included Fort Wayne Books, among others. The court is saying that obscenity is a subjective determination that the agents could not make, while child pornography is an objective determination that the agents could make.
Wholesale copying is also a factual determination that can be made by agents. It does not take a judge to determine that a website offering entire copies of the latest Harry Potter movie is probably doing so illegally. There is no First Amendment determination that has to be made as in an obscenity case.
Talking about a tax on ink misses the whole point. If a printing press is being used to commit crimes, that specific printing press can be seized and forfeited.
You seem to think that seizures must be for the purpose of preserving evidence. Again, this is not correct. Things that are themselves illegal, i.e., contraband, may be seized. So may the fruits of criminal enterprise. And lastly, the situation we have here, the instrumentalities of crime may be seized.
It's now appealed the ruling and wants the appeals court to say that such a use is not "fair."
As we talked about at the time, it was error for the judge to rule that the copying was fair use at the motion to dismiss stage of the proceedings, since there are still disputed facts that must be resolved later on. As you'll recall, Eric Goldman agreed that this was error: http://blog.ericgoldman.org/archives/2010/10/righthaven_defe.htm
Righthaven is not trying to get the court of appeals to say the use was not fair, as you've indicated. Rather, the issue is procedural error, and they want to get the judge's dismissal of the case overturned. The use may very well end up being fair, that's not the point. The point is the judge should not have ruled it was fair use on a motion to dismiss.
All but one of my guns is for shooting animals or targets. I like to hunt, and I like to compete in target shooting competitions. I have one gun meant for killing humans, and I keep it loaded with one in the chamber next to my bed in a combination gun safe. Its purpose is self-defense.
I'm all for the 1st and 4th Amendments. I just don't see how COICA violates either one of them.
In personam jurisdiction can easily be secured against someone who doesn't live in the district. How do you think Righthaven is able to sue people in Nevada who live in other states? Because those people purposefully avail themselves of jurisdiction in Nevada when they use the internet to violate the rights of a Nevada company.
Were you in the U.S. drinking under age? If not, you didn't break any U.S. laws. I'm not sure what you're confusion is. Using the internet to reach out across borders to break laws is what I'm talking about.
On the post: Can Senator Patrick Leahy Actually Provide The Proof That The COICA Censorship Law Is Needed?
Then why do you also believe piracy is not OK?
On the post: Righthaven Appeals Ruling That Said Using Partial Article Was Fair Use
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On the post: Once Again, Why Homeland Security's Domain Name Seizures Are Almost Certainly Not Legal
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The point about in rem seizures and forfeitures of property being for purposes other than preservation of evidence was a different point. It is not accurate to say that seizures must be for the purpose of preservation of evidence. As in the case of these domain name seizures, the purpose is to seize the instrumentalities of crime. No matter what purpose the seizure is for, the same First Amendment hurdle would have to be met.
On the post: Righthaven Appeals Ruling That Said Using Partial Article Was Fair Use
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On the post: Righthaven Appeals Ruling That Said Using Partial Article Was Fair Use
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On the post: Righthaven Appeals Ruling That Said Using Partial Article Was Fair Use
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On the post: Righthaven Appeals Ruling That Said Using Partial Article Was Fair Use
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On the post: Righthaven Appeals Ruling That Said Using Partial Article Was Fair Use
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On the post: Righthaven Appeals Ruling That Said Using Partial Article Was Fair Use
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On the post: Righthaven Appeals Ruling That Said Using Partial Article Was Fair Use
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On the post: Once Again, Why Homeland Security's Domain Name Seizures Are Almost Certainly Not Legal
Re: Re: Re: Re: Danke Shoen
On the post: Righthaven Appeals Ruling That Said Using Partial Article Was Fair Use
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On the post: Once Again, Why Homeland Security's Domain Name Seizures Are Almost Certainly Not Legal
Re: Re: Re: Danke Shoen
You're right about Section 2319. I was confusing that section with 2323 in my head. My bad.
I think you're misunderstanding what can and can't be seized. Almost anything could be said to have some element of protected speech. That doesn't mean it cannot be seized by warrant absent a prior adversary hearing.
See, for example, U.S. v. Kimbrough, 69 F.3d 723 (5th Cir. 1995). In that case, Kimbrough was suspected of downloading child pornography from the internet. Agents executed warrants and seized his computers, among other things. Kimbrough argued that the warrants were unconstitutional because many of items seized were presumptively protected speech.
The Fifth Circuit, citing the U.S. Supreme Court case Marcus v. Search Warrants, 367 U.S. 717 (1961), held that: "In cases where warrants seek to seize material presumptively protected by the First Amendment, the level to which the items to be seized must be particularly described is heightened." The warrants in Kimbrough's case were sufficiently particular to withstand constitutional challenge.
The court further noted: "Kimbrough's reliance on cases involving obscenity is misplaced. The determination of which presumptively protected materials are obscene is a legal one and, therefore, not to be left to the discretion of the executing officers. Identification of visual depictions of minors engaging in sexually explicit conduct, in comparison, is a factual determination that leaves little latitude to the officers."
The obscenity cases that Kimbrough relied on included Fort Wayne Books, among others. The court is saying that obscenity is a subjective determination that the agents could not make, while child pornography is an objective determination that the agents could make.
Wholesale copying is also a factual determination that can be made by agents. It does not take a judge to determine that a website offering entire copies of the latest Harry Potter movie is probably doing so illegally. There is no First Amendment determination that has to be made as in an obscenity case.
Talking about a tax on ink misses the whole point. If a printing press is being used to commit crimes, that specific printing press can be seized and forfeited.
You seem to think that seizures must be for the purpose of preserving evidence. Again, this is not correct. Things that are themselves illegal, i.e., contraband, may be seized. So may the fruits of criminal enterprise. And lastly, the situation we have here, the instrumentalities of crime may be seized.
I could go on and on, but I've got work to do.
On the post: Righthaven Appeals Ruling That Said Using Partial Article Was Fair Use
As we talked about at the time, it was error for the judge to rule that the copying was fair use at the motion to dismiss stage of the proceedings, since there are still disputed facts that must be resolved later on. As you'll recall, Eric Goldman agreed that this was error: http://blog.ericgoldman.org/archives/2010/10/righthaven_defe.htm
Righthaven is not trying to get the court of appeals to say the use was not fair, as you've indicated. Rather, the issue is procedural error, and they want to get the judge's dismissal of the case overturned. The use may very well end up being fair, that's not the point. The point is the judge should not have ruled it was fair use on a motion to dismiss.
On the post: Did Homeland Security Seize... And Then Unseize... A Dynamic DNS Domain?
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On the post: The Return Of COICA; Because Censorship Is Cool Again
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I'm all for the 1st and 4th Amendments. I just don't see how COICA violates either one of them.
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On the post: Ron Wyden Speaks Out Against COICA: We Shouldn't Toss Out The First Amendment Just To Go After A Few Bad Actors
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On the post: Ron Wyden Speaks Out Against COICA: We Shouldn't Toss Out The First Amendment Just To Go After A Few Bad Actors
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