On no measure are they effective in the "way that it matters". It is painfully obvious from the agents specific argument that the intention was for people to be unable to access the sites - which failed - and that the seizure would stop future crimes that hadn't happened yet and weren't likely to. Wendy Seltzer - the one who started chillingeffects.org - had brought up exactly the same point before the affadavit was public:
What I'd like to see instead is due process for the accused before domain names are seized and sites disrupted. I'd like to know that the magistrate judge saw an accurate affidavit, and reviewed it with enough expertise to distinguish the location of complained-of material and the responsibility the site's owners bear for it: the difference between direct, contributory, vicarious, and inducement of copyright infringement (for any of which a site-owner might be held liable, in appropriate circumstances) and innocent or protected activity.
In the best case, the accused gets evidence of the case against him or her and the opportunity to challenge it. We tend to believe that the adversarial process, judgment after argument between the parties with the most direct interests in the matter, best and most fairly approaches the truth. These seizures, however, are conducted ex parte, with only the government agent presenting evidence supporting a seizure warrant. (We might ask why: a domain name cannot disappear or flee the jurisdiction if the accused is notified — the companies running the .com, .net, and .org registries where these were seized have shown no inclination to move or disregard US court orders, while if the name stops resolving, that's the same resolution ICE seeks by force.)
Your argument keeps moving back to vague assertions, and never deals with the facts of the case. This indicates a weak argument, in particular assuming outright that direct criminal copyright infringement occurred here (the fact that one site was a glorified search engine implies at best contributory infringement) based solely on the accusation (the affidavit certainly isn't worth a damn as a basis for concluding this outright).
The only basis I've found in justifying any ex parte seizure has been that not granting the seizure would cause irreparable harm and that notification would allow for evidence to be destroyed. Neither of these are likely to have occurred, and in the latter, nor could it occur.
The seizures were not effective where it counts, as they weren't even effective on the basis of the ICE agents own reasoning.
Also:
(B) there is probable cause to believe that the property is subject to forfeiture and—
(i) the seizure is made pursuant to a lawful arrest or search; or
(ii) another exception to the Fourth Amendment warrant requirement would apply; or http://www.law.cornell.edu/uscode/18/981.html#b
Note the use of and, not or, along with probable cause referring to property being subject to forfeiture, not that probable cause is the standard for the seizure itself, unless there's a difference in legalese from what to me seems like the plain meaning. The only exception to Fourth Amendment would precisely be the standards already referenced.
That doesn't prove anything. The target of the seizures was no protected speech, and the effect on protected speech was merely incidental. It's not a legal loophole. It's the actual law.
Once again your argument is based on taking ICE's word upfront. We already know the primary purpose of sites like Dajaz1 was protected speech, with evidence used to support the idea of illegally distributing copyrighted material being false, and that the materials used to support the seizures were in fact authorised.
It's enough that criminal infringement was happening on the website, and the domain name was a tool that helped in that infringement.
It's telling that you assume this to be true, considering we already know for a fact the evidence that forms the basis of probable cause in these seizures is shaky at best.
The intended result of the seizures is that the domain name seized is not used to commit further crimes. The plan is working perfectly.
If by perfectly, you mean sites who had their domains seized were back up quickly, doing exactly what they were doing that apparently was criminal copyright infringement. Once again you make an erroneous assumption.
It turns out to the best of my knowledge you are correct. I confused 506 for 503. However, much of the same principles in justifying an ex parte seizure would also apply here, particularly with issues of prior restraint and the lack of convincing argument ICE made to justify why the domains needed to be seized (the crime was not stopped, and seizing the domain to prevent potential future crime of others is essentially doing a Mystic Meg impression).
However, American Can, 742 F.2d at 322-25, a case from the Seventh Circuit, demonstrates the limits of this circumstance. In that trade secrets case, the district court issued an ex parte order permitting the plaintiff, accompanied by U.S. Marshals, to enter defendant's business premises and seize samples of the allegedly infringing inks and to copy all documents relating to defendants' sale of jet inks, defendants' production documents, and defendants' correspondence with plaintiff's customers. Id. at 318. On appeal from the ensuing preliminary injunction, the Seventh Circuit held that issuing the seizure order ex parte was an abuse of discretion because there was no valid reason for proceeding ex parte and not complying with Fed.R.Civ.P. 65(b). Plaintiff had supported its argument that notice would have rendered fruitless the further prosecution of the action by asserting that the defendants, after receiving notice, "would have immediately caused [defendants] to alter the inks in their factory and secrete the pertinent documents." Id. at 322. The court noted that it "agree[d] with the Second Circuit that ex parte orders of very limited scope and brief duration may be justified in order to preserve evidence where the applicant shows that notice would result in destruction of evidence" but held that plaintiff's unsupported assertions that defendants would destroy evidence were insufficient to show the need for proceeding ex parte. Id. at 323.
Hmmmm, now for context, compare this to the reasoning given by the ICE agent to justify seizures, seeing as the AC's seem incapable of dealing with the actual specifics of this case:
Neither a restraining order nor an injunction is sufficient to guarantee the availability of the SUBJECT DOMAIN NAMES for forfeiture. By seizing the SUBJECT DOMAIN NAMES and redirecting them to another website, the Government will prevent third parties from acquiring the names and using them to commit additional crimes. Furthermore, seizure of the SUBJECT DOMAIN NAMES will prevent third parties from continuing to access the five websites listed above.
Now try and argue that these specific domains were rightfully seized. Not that seizures in general happen, not that you only need to show probable cause (a laughable argument in context of these seizures), but that the reasoning for seizing the domains was sound.
Regardless of whether the district court's order in this case merely preserved the status quo, plaintiff was required by Fed.R.Civ.P. 65(b) to show that the circumstances were appropriate for ex parte relief. The normal circumstance for which the district court would be justified in proceeding ex parte is where notice to the adverse party is impossible, as in the cases where the adverse party is unknown or is unable to be found. American Can Co. v. Mansukhani, 742 F.2d 314, 322 (7th Cir.1984). Plaintiff does not argue that this justification is present in this case. There is, however, another limited circumstance for which the district court may proceed ex parte: where notice to the defendant would render fruitless further prosecution of the action. See id.; In re Vuitton et Fils S.A., 606 F.2d 1 (2d Cir.1979); Paramount Pictures Corp. v. Doe 1, 821 F.Supp. 82, 89 (E.D.N.Y.1993).
34
In order to justify proceeding ex parte because notice would render further action fruitless, the applicant must do more than assert that the adverse party would dispose of evidence if given notice. "Where there are no practical obstacles to giving notice to the adverse party, an ex parte order is justified only if there is no less drastic means for protecting the plaintiff's interests." American Can, 742 F.2d at 323. In this case, the district court could have ordered the defendants not to disturb any of the items listed in the seizure order and held an immediate adversarial hearing to determine whether the seizure order should issue. Therefore, plaintiffs must show that defendants would have disregarded a direct court order and disposed of the goods within the time it would take for a hearing.
The provisions of federal Rule 65(b) are applicable to this relatively narrow but important band of cases involving copyrights, trademarks and trade secrets, in which ex parte relief is often essential if the case is not to become an exercise in futility.1 But Rule 65(b) with its companion requirements “is no mere extract from a manual of procedural practice. It is a page from the book of liberty”2 and obtaining no-notice relief in such cases is hardly a foolproof process.
Under Rule 65(b) a temporary restraining order may be granted without notice only if (1) it clearly appears from specific facts shown by affidavit or verified complaint that immediate and irreparable injury will result to the applicant before the adverse party or its attorney can be heard in opposition; and (2) the applicant’s attorney certifies to the court in writing the reasons supporting his claim that notice should not be required.3 While the applicant must also make the case for preliminary injunctive relief based upon irreparable injury and a balance of the equities,4 the immediate and irreparable harm to which Rule 65(b) speaks is the harm that will follow if notice is given to the adverse party prior to the hearing on the restraining order itself
As one commentator explained:
The ex parte temporary restraining order is indispensable to the commencement of an action when it is the sole method of preserving a state of affairs in which the court can provide effective final relief. Immediate action is vital when imminent destruction of the disputed property, its removal beyond the confines of the state, or its sale to an innocent third party is threatened. In these situations, giving the defendant notice of the application for an injunction could result in an inability to provide any relief at all.5
But just because the law sets forth a procedure for obtaining ex parte relief in situations where the property in dispute must be preserved, the advocate should not presume such relief will be available in her case, even if it seems highly likely the property in question will disappear following notice. The court in American Can Co. v. Mansukhani put it this way:
“Our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute,” and the procedural hurdles of Rule 65 are intended to force both the movant and the court to act with great care in seeking and issuing an ex parte restraining order.6
While it may seem self-evident to the advocate that the property at issue will disappear, that assumption standing alone will probably not be enough to convince the court to do away with the defendant’s 5th Amendment right to due process.7
[...]
In 2001 the outdated Copyright Rules were abrogated by order of the Supreme Court and Federal Rule 65 was amended to include a new subdivision, Rule 65(f), covering copyright impoundment proceedings. With respect to the no-notice seizure issue,15 the practical result of placing copyright impoundment proceedings under the auspices of Rule 65 was to directly bring into play Rule 65(b), providing that a temporary restraining order may be granted without written or oral notice to the adverse party only if the applicant can clearly demonstrate by specific facts that immediate and irreparable injury will result if notice is given before the adverse party can be heard. The reporter’s notes to Rule 65(f) make it clear that ex parte copyright impoundment may be ordered under Rule 65(b) only if the applicant makes a strong showing of the reasons why notice is likely to defeat effective relief.16
[...]
Indicative of the court’s reluctance to grant ex parte relief is Paramount Pictures Corp. vs. Jane Doe 1 and Twentieth Century Fox Film Corp. vs. Jane Doe 2, 821 F. Supp. 82 (E.D.N.Y. 1993), in which the plaintiffs unsuccessfully sought ex parte seizure orders in companion copyright infringement cases involving videocassettes. The court held that even where it has been established that the property to be seized is of a type that can be readily concealed, disposed of, or destroyed the plaintiff nonetheless must allege specific facts based on actual knowledge supporting its right to seize the property without notice. The Paramount court rejected as conclusory the plaintiffs’ argument that, because allegedly infringing videocassettes are small, lightweight and easily hidden or destroyed, film pirates will destroy or conceal them if apprised of a pending infringement action. In so holding the Paramount court held that the plaintiffs’ theory was “not backed up by any specifics about either the defendants in these actions or others.”17
What I'd like to see instead is due process for the accused before domain names are seized and sites disrupted. I'd like to know that the magistrate judge saw an accurate affidavit, and reviewed it with enough expertise to distinguish the location of complained-of material and the responsibility the site's owners bear for it: the difference between direct, contributory, vicarious, and inducement of copyright infringement (for any of which a site-owner might be held liable, in appropriate circumstances) and innocent or protected activity.
In the best case, the accused gets evidence of the case against him or her and the opportunity to challenge it. We tend to believe that the adversarial process, judgment after argument between the parties with the most direct interests in the matter, best and most fairly approaches the truth. These seizures, however, are conducted ex parte, with only the government agent presenting evidence supporting a seizure warrant. (We might ask why: a domain name cannot disappear or flee the jurisdiction if the accused is notified — the companies running the .com, .net, and .org registries where these were seized have shown no inclination to move or disregard US court orders, while if the name stops resolving, that's the same resolution ICE seeks by force.)
If seizures must be made on ex parte affidavits, the magistrate judges should feel free to question the affiants and the evidence presented to them and to call upon experts or amici to brief the issues. In their review, magistrates should beware that a misfired seizure can cause irreparable injury to lawfully operating site-operators, innovators, and independent artists using sites for authorized promotion of their own materials.
In this Article, we posit that the modern counterfeiting action has, in all but name, become an in rem action. Trademark owners and courts, however, continue to handle counterfeiting cases with only in personam procedures. The implications of this disconnect are myriad. In particular, the kinds of seizure and destruction orders routinely issued almost certainly violate the Due Process Clause and the Fourth Amendment. The solution to this dilemma is to call the modern counterfeiting action what it is - an in rem action, concerned only with the counterfeit goods - and to act accordingly by putting the proper procedures into place.
The Never-Ending Seizure Order: How Courts Have Granted Immortality to Congress's Mayfly
When Congress passed the Trademark Counterfeiting Act of 1984, it created a new means of combating counterfeiting: the ex parte seizure order. Armed with such an order, trademark owners can seize counterfeit merchandise without giving advanced notice. Congress, aware that such a process could lead to abuse, created several express limitations to the seizure process. One such limitation was that seizure orders shall not last longer than seven days. Courts, however, are extending the life of seizure orders; some extensions last only days, others months, and still others go on for years. Under what authority have the courts so extended seizure orders, thereby thwarting what appears to be Congress's clear intent that seizure orders under the Act last no longer than seven days? This Article details the problem that led to the Act's passage, Congress's goals embodied within the Act and its legislative history, the way courts have treated the Act and its newly minted seizure process, and the possible reasons why courts have found it within their power to extend seizure orders. Chief among these reasons is the breakdown of the adversarial process in counterfeiting suits, which often proceed only as Trademark Owner v. Various John Does.
The willingness of judges to grant these orders so easily is a double-edged sword. This article will describe the development of ex parte seizure orders and will raise a warning flag to litigators who believe that such orders will be automatically granted. Such an attitude, should it become pervasive, could well create hostility among judges, a hostility which might presage a stricter scrutiny of TROs.
The very first example given is counterfeiting, not copyright infringement, and the opening of the article appears to reference such a degree of ease as specifically being a double edged sword, not something that should be held up or meets a genuine legal standard.
Yes, it does. I just showed you the tangible and intangible ways that it does.
No you didn't. There is no connection between the change in demand of an item and a change in an item itself. There is no tangible change that occurs through others being able to create/duplicate their own version, only a difference in the price that the original owner may charge, though that depends on a dozen and one other factors.
This might be the most moronic analogy I've ever seen on this site. Congrats, junior.
Congrats on not even being able to understand your own logic.
If property is solely a means to control value of property, then it's equally justifiable under your own argument in favour of copyright to ban any other chair makers other than the original from making one, as the production of a variety of other chairs either decreases value of the original chair, something the original creator apparently should have a means of controlling by restricting entirely independent individuals and creators from doing so, regardless of their own effort, materials and money used entirely separate from your own.
The intangible aspect is how many more he can choose to make at his discretion, which will affect its scarcity, and thus its value. Either way, he has control.
Price and value are 2 different things.
If someone makes copies without his permission it fundamentally changes the value of the property, and thus the property itself.
No it clearly doesn't. It may affect wider demand for new recreations of that item, but it does not change the original item at all. By the same token chair makers should get to exclude people in exactly the same way as copyright.
Wrong. On the back of every CD/DVD are the terms of what you can and can not legally do with it.
And people continue to do the things they're not supposed to en masse. Just because you have legal control does not mean you have effective control, without which the legal aspect becomes useless. See: prohibition
You also know there are clear prior restraint issues - ones you haven't been able to address without relying on misreadings of Arcara and an incredibly odd theory relying on Eldred that would make copyright immune from first amendment considerations.
Defamation can still be brought against employees. If you argue that ICE employees were not acting within the scope of employment, as Lofgren clearly suggests in ICE going beyond its mandate and not adhering to due process, the yes, I would imagine you can indeed sue for defamation.
I had no idea internet piracy had been killing the entertainment industries for 100 years. I guess AJ has so many years of case law behind him on domain seizures that this is why he's so confident.
Maybe one of these days he'll cite these cases, God knows I've heard enough about Arcara to last me a century.
On the post: Defending The Indefensible: Lawyers Who Love Loopholes Ignoring Serious Constitutional Issues In Domain Seizures
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Your argument keeps moving back to vague assertions, and never deals with the facts of the case. This indicates a weak argument, in particular assuming outright that direct criminal copyright infringement occurred here (the fact that one site was a glorified search engine implies at best contributory infringement) based solely on the accusation (the affidavit certainly isn't worth a damn as a basis for concluding this outright).
The only basis I've found in justifying any ex parte seizure has been that not granting the seizure would cause irreparable harm and that notification would allow for evidence to be destroyed. Neither of these are likely to have occurred, and in the latter, nor could it occur.
The seizures were not effective where it counts, as they weren't even effective on the basis of the ICE agents own reasoning.
Also:
Note the use of and, not or, along with probable cause referring to property being subject to forfeiture, not that probable cause is the standard for the seizure itself, unless there's a difference in legalese from what to me seems like the plain meaning. The only exception to Fourth Amendment would precisely be the standards already referenced.
On the post: Defending The Indefensible: Lawyers Who Love Loopholes Ignoring Serious Constitutional Issues In Domain Seizures
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Once again your argument is based on taking ICE's word upfront. We already know the primary purpose of sites like Dajaz1 was protected speech, with evidence used to support the idea of illegally distributing copyrighted material being false, and that the materials used to support the seizures were in fact authorised.
On the post: Defending The Indefensible: Lawyers Who Love Loopholes Ignoring Serious Constitutional Issues In Domain Seizures
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It's telling that you assume this to be true, considering we already know for a fact the evidence that forms the basis of probable cause in these seizures is shaky at best.
The intended result of the seizures is that the domain name seized is not used to commit further crimes. The plan is working perfectly.
If by perfectly, you mean sites who had their domains seized were back up quickly, doing exactly what they were doing that apparently was criminal copyright infringement. Once again you make an erroneous assumption.
On the post: Defending The Indefensible: Lawyers Who Love Loopholes Ignoring Serious Constitutional Issues In Domain Seizures
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On the post: Defending The Indefensible: Lawyers Who Love Loopholes Ignoring Serious Constitutional Issues In Domain Seizures
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Hmmmm, now for context, compare this to the reasoning given by the ICE agent to justify seizures, seeing as the AC's seem incapable of dealing with the actual specifics of this case:
Now try and argue that these specific domains were rightfully seized. Not that seizures in general happen, not that you only need to show probable cause (a laughable argument in context of these seizures), but that the reasoning for seizing the domains was sound.
On the post: Defending The Indefensible: Lawyers Who Love Loopholes Ignoring Serious Constitutional Issues In Domain Seizures
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On the post: Defending The Indefensible: Lawyers Who Love Loopholes Ignoring Serious Constitutional Issues In Domain Seizures
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On the post: Defending The Indefensible: Lawyers Who Love Loopholes Ignoring Serious Constitutional Issues In Domain Seizures
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On the post: Rep. Lofgren Again Explains How And Why Domain Seizures Violate The Law
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http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1558518
From the summary:
On the post: Rep. Lofgren Again Explains How And Why Domain Seizures Violate The Law
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http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1310726
On the post: Rep. Lofgren Again Explains How And Why Domain Seizures Violate The Law
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From that first page offered by them:
https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&a mp;doctype=cite&docid=23+Colum.-VLA+J.L.+%26+Arts+181&srctype=smi&srcid=3B15&key=6af f897c302e06f190fda2b4ecfa01f9
The very first example given is counterfeiting, not copyright infringement, and the opening of the article appears to reference such a degree of ease as specifically being a double edged sword, not something that should be held up or meets a genuine legal standard.
On the post: Inauspicious Start For Chris Dodd At MPAA; Starts Off With 'Infringement No Different Than Theft' Claim
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No you didn't. There is no connection between the change in demand of an item and a change in an item itself. There is no tangible change that occurs through others being able to create/duplicate their own version, only a difference in the price that the original owner may charge, though that depends on a dozen and one other factors.
Congrats on not even being able to understand your own logic.
If property is solely a means to control value of property, then it's equally justifiable under your own argument in favour of copyright to ban any other chair makers other than the original from making one, as the production of a variety of other chairs either decreases value of the original chair, something the original creator apparently should have a means of controlling by restricting entirely independent individuals and creators from doing so, regardless of their own effort, materials and money used entirely separate from your own.
On the post: Inauspicious Start For Chris Dodd At MPAA; Starts Off With 'Infringement No Different Than Theft' Claim
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Price and value are 2 different things.
No it clearly doesn't. It may affect wider demand for new recreations of that item, but it does not change the original item at all. By the same token chair makers should get to exclude people in exactly the same way as copyright.
And people continue to do the things they're not supposed to en masse. Just because you have legal control does not mean you have effective control, without which the legal aspect becomes useless. See: prohibition
http://en.wikipedia.org/wiki/Prohibition#Prohibition_in_the_United_States
On the post: Rep. Lofgren Again Explains How And Why Domain Seizures Violate The Law
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On the post: Rep. Lofgren Again Explains How And Why Domain Seizures Violate The Law
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On the post: Rep. Lofgren Again Explains How And Why Domain Seizures Violate The Law
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On the post: Rep. Lofgren Again Explains How And Why Domain Seizures Violate The Law
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Maybe one of these days he'll cite these cases, God knows I've heard enough about Arcara to last me a century.
On the post: Rep. Lofgren Again Explains How And Why Domain Seizures Violate The Law
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On the post: cc's Favorite Techdirt Posts Of The Week
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On the post: cc's Favorite Techdirt Posts Of The Week
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http://torrentfreak.com/internet-piracy-b oosts-anime-sales-study-concludes-110203/
http://www.spiegel.de/international/zeitgeist/0,1518,71 0976,00.html
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