Every year, the major movie studios and record labels send out tens of thousands of warnings to Internet users who are suspected of sharing their content using BitTorrent. These infringement notices are meant to inform users of their wrongdoings, and to convince the recipients to never download anything again.
The process works as follows. The copyright holders hire companies such as BayTSP and MediaSentry to track down people who share certain titles on BitTorrent and other file-sharing networks. These companies then join the swarm and request files from others. When someone shares a piece of the file with them, they log the IP-address, look up the ISP and send out an infringement notice automatically.
Most of the notices are sent out to the larger ISPs who are then asked to forward them to the customers in question . . . .
Here's what I don't get... the ISPs are complaining about the IP lookups in the mass infringement cases. Time Warner, for example, told a judge they can only lookup 28 IP addresses a month total for two cases combined. Another big ISP (I can't remember which), told a judge it costs them $120 per lookup. If that's the case, how is it that the ISPs can do "tens of thousands" of lookups for these automatically-generated infringement notices, but when faced with a court order to do the same, it's too big a burden?
In the future, you might want to try doing research before coming to your conclusions.
I knew the basics, I just didn't know the relevant caselaw. Now I know both. At least I did research, as opposed to many others who simply put forth their erroneous beliefs as fact. But hey, call me out and put me down, not them.
The "snore" part was in reference to that poster's silly attitude. Apparently you don't seem to think there's anything wrong with his attitude, but from me, it gets a "snore."
The Supreme Court in Cox v. State of Louisiana, 379 U.S. 559 (1965), weighed in on the constitutionality of a statute that disallowed picketing near courthouses:
There can be no question that a State has a legitimate interest in protecting its judicial system from the pressures which picketing near a courthouse might create. Since we are committed to a government of laws and not of men, it is of the utmost importance that the administration of justice be absolutely fair and orderly. This Court has recognized that the unhindered and untrammeled functioning of our courts is part of the very foundation of our constitutional democracy. See Wood v. Georgia, 370 U.S. 375, 383, 82 S.Ct. 1364, 1369, 8 L.Ed.2d 569. The constitutional safeguards relating to the integrity of the criminal process attend every stage of a criminal proceeding, starting with arrest and culminating with a trial ‘in a courtroom presided over by a judge.’ Rideau v. Louisiana, 373 U.S. 723, 727, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663. There can be no doubt that they embrace the fundamental conception of a fair trial, and that they exclude influence or domination by either a hostile or friendly mob. There is no room at any stage of judicial proceedings for such intervention; mob law is the very antithesis of due process. See Frank v. Mangum, 237 U.S. 309, 347, 35 S.Ct. 582, 595, 59 L.Ed. 969. (Holmes, J., dissenting). A State may adopt safeguards necessary and appropriate to assure that the administration of justice at all stages is free from outside control and influence. A narrowly drawn statute such as the one under review is obviously a safeguard both necessary and appropriate to vindicate the State's interest in assuring justice under law.
Nor does such a statute infringe upon the constitutionally protected rights of free speech and free assembly. The conduct which is the subject of this statute-picketing and parading-is subject to regulation even though intertwined with expression and association. The examples are many of the application by this Court of the principle that certain forms of conduct mixed with speech may be regulated or prohibited. The most classic of these was pointed out long ago by Mr. Justice Holmes: ‘The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.’ Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470. A man may be punished for encouraging the commission of a crime, Fox v. Washington, 236 U.S. 273, 35 S.Ct. 383, 59 L.Ed. 573, or for uttering ‘fighting words,’ Chaplinsky v. New Hampshire,315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031. This principle has been applied to picketing and parading in labor disputes. See Hughes v. Superior Court,339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985; Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Building Service Employees, etc. v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045. But cf. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093. These authorities make it clear, as the Court said in Giboney, that ‘it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.’ Giboney v. Empire Storage & Ice Co., supra, 336 U.S. at 502, 69 S.Ct. at 691. ***
We hold that this statute on its face is a valid law dealing with conduct subject to regulation so as to vindicate important interests of society and that the fact that free speech is intermingled with such conduct does not bring with it constitutional protection.
You lawyers out there correct me if I'm wrong, but if the Supreme Court says that a statute prohibiting picketing next to the courthouse is constitutional, then a judge's order prohibiting similar conduct would also be constitutional. That's my take anyway.
I found a case from the Alaska Supreme Court coincidentally involving this same FIJA group. It's Turney v. State, 936 P.2d 533 (1997).
In that case the defendant, Turney, was charged with jury tampering for handing out pamphlets and telling jurors their "rights" near the courthouse in Fairbanks. Turney argued that Alaska's jury tampering statute was overbroad because it criminalized protected speech. The court rejected the overbreadth argument, noting that:
[I]t is the intent to influence the outcome that is critical. Whether such statements violate the statute turns on the intent of the utterer; a misguided or erroneous suggestion does not violate the statute absent the prohibited criminal intent. ***
Speech aimed at influencing the juror's conduct as a juror, i.e., the juror's execution of the responsibilities imposed by the trial court in a particular case, is not constitutionally protected. Justice Frankfurter noted that: "In securing freedom of speech, the Constitution hardly meant to create the right to influence judges or juries. That is no more freedom of speech than stuffing a ballot box is an exercise of the right to vote." Pennekamp v. Florida, 328 U.S. 331, 366, 66 S.Ct. 1029, 1047, 90 L.Ed. 1295 (1946) (Frankfurter, J., concurring).
Other courts that have looked at the issue have also recognized that utterances involved in the obstruction of justice are not protected by the First Amendment. In rejecting an overbreadth and vagueness habeas challenge to a witness tampering statute, the federal district court in New Hampshire held that the defendant's interest in communicating with a potential witness with the intent to tamper was “minuscule” and outside the scope of First Amendment protection. Kilgus v. Cunningham, 602 F.Supp. 735, 739-40 (D.N.H.), aff'd, 782 F.2d 1025 (1st Cir.1985). The Florida Court of Appeals similarly concluded that “[e]fforts to influence a grand jury in its deliberations respecting specific matters under investigation by it are not shielded by the constitutional guarantee of free speech.” Dawkins v. State, 208 So.2d 119, 122 (Fla.App.), cert. denied, 393 U.S. 854, 89 S.Ct. 101, 21 L.Ed.2d 123 (1968). In concluding that the presence of spectators wearing “Women Against Rape” buttons at a rape trial deprived the defendant of a fair trial, the Ninth Circuit noted that “[w]here fair trial rights are at significant risk ... the first amendment rights of trial attendees can and must be curtailed at the courthouse door.” Norris v. Risley, 918 F.2d 828, 831 (9th Cir.1990).
We conclude that because AS 11.56.590 is narrowly drawn and proscribes only speech intended to influence a juror in his or her capacity as a juror in a particular case, it does not reach speech protected by the First Amendment, and thus is not impermissibly overbroad.
I had to look "bailiwick" up. Nicely done. I think the crux here is that the pamphlets were being handed out to people who were in fact prospective jurors for the specific purpose of influencing them. If the judge was trying to prevent activity that only might affect prospective jurors, I'd agree that that would be prior restraint. But as it is, I think it's debatable.
The judge cites Florida Statutes 918.12 which states:
918.12 Tampering with jurors.—Any person who influences the judgment or decision of any grand or petit juror on any matter, question, cause, or proceeding which may be pending, or which may by law be brought, before him or her as such juror, with intent to obstruct the administration of justice, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
So he's going with a jury tampering argument.
He also quotes a Florida appellate court case, Nobles v. State, 769 So.2d 1063 (2000). In that case, the trial court had held that the crime of jury tampering could be proven by evidence that a defendant attempted to influence a prospective juror. The appellate court affirmed, holding that:
We conclude that section 918.12 prohibits an attempt to influence a member of the jury venire as well as a member of the jury panel ultimately selected to try the case. . . . Section 918.12, Florida Statutes expressly prohibits an attempt to threaten or influence any person who has been summoned for jury duty and might be called upon to serve on a jury.
The appellate court quotes a Florida Supreme Court case, Baumgartner v. Joughin, 105 Fla. 335 (1932), where it was held that:
[W]hatever tends to obstruct the due administration of justice in the courts, by bringing undue influences or temptations or corruption to bear upon those who are likely to be selected for duty on juries, is an act calculated to obstruct the fair and impartial trial of jury cases in the courts, and as such, is a direct obstruction to the proper administration of justice which is punishable as a contempt.
Tampering with a member of a general jury panel, or with members of a jury panel selected to try a case, or with prospective jurors before they are sworn, is universally regarded as a contempt of court to the same extent as tampering with jurors actually sitting in the trial of a case.
So to me, the issue is simply whether preventing a person from tampering with prospective jurors violates that person's First Amendment rights. I think the judge has a great compelling interest argument that he can prevent such activity.
I just realized that this court is the Ninth Circuit... of Florida. LOL! That doesn't change the analysis since the Supreme Court has made clear there is no right to nullification, but I thought I'd clear up my mistake.
I wasn't disagreeing with the "lawyers and judges can't change that" part. I was disagreeing with the parts that came before that. I stand by my statement that it simply is not true, and I've offered plenty of evidence to back it up. You've offered no evidence for your position.
I think that even if the pamphlet is incorrect in identifying nullification as a right rather than a power, it would receive the same First Amendment protection. Perhaps the judge did overstep his power, I don't really know. I do think that there are good arguments on either side, and I do think Mike was dead-on in saying this raises First Amendment issues. To have a more informed opinion than that, I'd have to do some research.
Having the power to do something does not mean having the de facto right. There simply is no right. There is no contradiction. The word "right" has a very specific meaning. You're twisting that meaning, not me, and not the courts.
The fact that juries can do this and nobody can stop them does not negate the compelling interest test. Nor is it accurate to say that the jury is "allowed to do" it. Being able to do something is different from being allowed to do it.
Not at all. Each sentence from that quote comes from a different case, and each sentence is an accurate statement of that specific point from that case. That's how you craft legal arguments. You build from different points in different cases. There's nothing "twisting" about it as nothing is quoted out of context and nothing is purported to stand for something it doesn't.
It's more than a right, it's an obligation in some cases. Sometimes the law ignores basic human rights or even tries to usurp them, yet they remain, and a human being has the right and obligation to be fair and do what is right. Lawyers and judges can't change that.
This is just simply not true. There is without question no right to nullification. And as the quotes I provided demonstrate, there is in fact the affirmative duty not to nullify.
Sometimes AJ sounds like he thinks he's studying to be G*d rather than just another lawyer.
I'm not really sure how you think my pointing out what the law in fact actually is makes me sound like God. I'm simply reciting facts.
Snore. It's not truthful information since there's no right to nullification. There is only a power. For reasons why nullification is a compelling state interest, see the really long quote I posted from the Second Circuit.
It says jury nullification is legal, but the jury is not entitled to jury nullification instructions meaning they must know they have that right before hand since the courts don't like that law and are less likely to have it mentioned even going so far as to try and actively prevent it.
It says: "Although the jury has the power of nullification, the jury has no right to engage in nullification." If you have no right to do something, but you do it anyway, then are you not doing something legal. In other words, jury nullification is not legal.
What kind of student of the law make such a gross misrepresentation?
I'm the kind of law student that gets very good marks on exams and that judges entrust to do research for them. I made no "gross misrepresentation" that I can see. If I'm wrong, I'll gladly admit it, but I don't see it.
I do not believe it was wrong. I believe it remains accurate, and that the banning of such pamphlets is clearly prior restraint. There is no compelling interest in stopping people from their right to free speech.
Once again we see that you seem to consider the First Amendment some sort of "lesser" amendment to the laws you prefer.
I wasn't referring to their right to say it, I was referring to what they were saying. There is no right for jury nullification, so those people are not "informing a juror of their rights as a juror" as you claimed. Whether or not it's prior restraint is debatable, but that's a different matter. If you change your statement to "informing a juror of their POWER as a juror," I'd agree with you. But it's not a right.
I should also mention: All of the case law from the past 100 years has come from circuit courts, or state Supreme Courts. As far as I know, the U.S. Supreme Court has yet to weigh in on the matter. So, it's quite a contentious issue.
As to your claim that the Supreme Court has not weighed in on the matter, that's not correct either. I've found Supreme Court language that unequivocally shows there is no right to nullification.
As the Court said in Dunn v. U.S., 284 U.S. 390 (1932):
The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.
In other words, the U.S. Supreme Court explicitly says that there is no right for a jury to exercise its power of nullification.
The Court repeated the same in Standefer v. U.S., 447 U.S. 10 (1980):
The absence of these remedial procedures in criminal cases permits juries to acquit out of compassion or compromise or because of “their assumption of a power which they had no right to exercise, but to which they were disposed through lenity."
Do not misconstrue the use of the word "permit" in that quote. In context, the Court is pointing out that nothing can stop it, not that it is a right per se.
Again, you shouldn't rely on wikipedia to make your legal arguments.
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Ding. Ding. Ding. It gets really old.
To me, it looked like you were dismissing an argument that you would have a difficult time rebuking on factual basis.
Are you kidding me?
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I knew the basics, I just didn't know the relevant caselaw. Now I know both. At least I did research, as opposed to many others who simply put forth their erroneous beliefs as fact. But hey, call me out and put me down, not them.
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On the post: Judge Bans Handing (Factual) Pamphlets To Jurors; Raising First Amendment Issues
In that case the defendant, Turney, was charged with jury tampering for handing out pamphlets and telling jurors their "rights" near the courthouse in Fairbanks. Turney argued that Alaska's jury tampering statute was overbroad because it criminalized protected speech. The court rejected the overbreadth argument, noting that:
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The judge cites Florida Statutes 918.12 which states: So he's going with a jury tampering argument.
He also quotes a Florida appellate court case, Nobles v. State, 769 So.2d 1063 (2000). In that case, the trial court had held that the crime of jury tampering could be proven by evidence that a defendant attempted to influence a prospective juror. The appellate court affirmed, holding that:The appellate court quotes a Florida Supreme Court case, Baumgartner v. Joughin, 105 Fla. 335 (1932), where it was held that:So to me, the issue is simply whether preventing a person from tampering with prospective jurors violates that person's First Amendment rights. I think the judge has a great compelling interest argument that he can prevent such activity.
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That is the essence of the AC.
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The fact that juries can do this and nobody can stop them does not negate the compelling interest test. Nor is it accurate to say that the jury is "allowed to do" it. Being able to do something is different from being allowed to do it.
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This is just simply not true. There is without question no right to nullification. And as the quotes I provided demonstrate, there is in fact the affirmative duty not to nullify.
Sometimes AJ sounds like he thinks he's studying to be G*d rather than just another lawyer.
I'm not really sure how you think my pointing out what the law in fact actually is makes me sound like God. I'm simply reciting facts.
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It says jury nullification is legal, but the jury is not entitled to jury nullification instructions meaning they must know they have that right before hand since the courts don't like that law and are less likely to have it mentioned even going so far as to try and actively prevent it.
It says: "Although the jury has the power of nullification, the jury has no right to engage in nullification." If you have no right to do something, but you do it anyway, then are you not doing something legal. In other words, jury nullification is not legal.
What kind of student of the law make such a gross misrepresentation?
I'm the kind of law student that gets very good marks on exams and that judges entrust to do research for them. I made no "gross misrepresentation" that I can see. If I'm wrong, I'll gladly admit it, but I don't see it.
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Once again we see that you seem to consider the First Amendment some sort of "lesser" amendment to the laws you prefer.
I wasn't referring to their right to say it, I was referring to what they were saying. There is no right for jury nullification, so those people are not "informing a juror of their rights as a juror" as you claimed. Whether or not it's prior restraint is debatable, but that's a different matter. If you change your statement to "informing a juror of their POWER as a juror," I'd agree with you. But it's not a right.
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As to your claim that the Supreme Court has not weighed in on the matter, that's not correct either. I've found Supreme Court language that unequivocally shows there is no right to nullification.
As the Court said in Dunn v. U.S., 284 U.S. 390 (1932): In other words, the U.S. Supreme Court explicitly says that there is no right for a jury to exercise its power of nullification.
The Court repeated the same in Standefer v. U.S., 447 U.S. 10 (1980): Do not misconstrue the use of the word "permit" in that quote. In context, the Court is pointing out that nothing can stop it, not that it is a right per se.
Again, you shouldn't rely on wikipedia to make your legal arguments.
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