No! And you were doing so well. If that were true, then copyright laws would have to pass strict scrutiny.
[...]
Copyright laws, in general, are neither content-based nor content-neutral. Just like the closure statute in Arcara.
Eldred never argued this. It is clear your basis for this argument would suggest copyright law is immune from First Amendment issues. Not only does Eldred directly contradict this, the basis from which they conclude this is precisely because of (but not limited to) already existing protections like fair use and idea/expression dichotomies. Prior restraint is precisely a standard based on protecting First Amendment concerns where seizures fall heavily on or are aimed at expressive content, PRECISELY THE KIND THAT ARCARA SPECIFICALLY REFERENCES IT DOES NOT APPLY TO as cited above multiple times and cited hundreds of times in the past.
A review of a law extension where Congress argues there isn't a First Amendment issue because of already existing protections is completely different from a seizure that outright ignores such existing protections like prior restraint. Congress clearly did not argue that copyright was categorically immune from such scrutiny.
Nope. In fact, I pointed out the language in Eldred that stated they are only subject to First Amendment scrutiny when they alter the traditional contours of copyright protection. Section 506(b) does not alter this contour, as I stated above.
Who said it did? What has been argued is that these particular seizures by ICE undermine due process, particularly because the evidence they've used to justify said seizures cannot be reasonably concluded as a basis for probable cause when they are evidently wrong, not to mention the problem in using a rights holders testimony in general where it's clear even rights holders themselves have been unable to reliably identify infringing material.
Karl said the seizures had to conform to O'Brien. He gave no basis for this statement,
AFAIK, he has done so multiple times, you merely choose to ignore it every time.
nor did he explain how seizures that occurred before O'Brien was handed down had to conform to a standard that didn't exist yet.
Are you serious? You do realise that legal standards do not go back to infinite, that at some point courts have to create new standards for a variety of reasons - changes in law, points brought up that weren't considered or were initially ignored, new situations that hadn't been encountered and so on.
A standard relating to an activity being created at X point does not mean that activity didn't occur before such a standard was created, only that the court changed its opinion or had to create a new standard relating to new and changed circumstances. It's meaningless to say "But seizures occurred before O'Brien" on its own as if that proves anything. This argument is based purely on trying to inject an uncertainty that you can stretch as being a non-credibility into the argument.
Maybe if you showed criminal copyright cases where the O'Brien standard didn't apply that would prove your point, but I doubt you'll do that. You've deliberately chosen a very high standard - that all cases must conform to O'Brien - to delay or to deter research by others, as you can then keep insinuating there must be some that don't. Actually cite one yourself, then maybe the discussion can move forward.
Nor does he explain why a statute that isn't content-neutral has to adhere to a standard that only applies to content-neutral statutes. Nor can he. Because this has no relevance, it's a complete red herring. Eldred was about reviewing an extension of an existing law and involved what standard that this extension should be reviewed under, which because of safeguards like fair use and idea/expression dichotomies they argued it did not require further scrutiny after it seemed they found the limited times argument unconvincing (at least in the majority).
It never argues that all actions undertaken under copyright law are not beholden to such standards like prior restraint, which would clearly mean copyright could ignore the first amendment. Eldred seems clear that if CTEA had removed or disregarded first amendment protections, then it would have come under such scrutiny, and it is clear ICE has done so in these cases, from the non-evidence of songs sent as promotional material to defamation of 84,000 sites as child pornography.
The reason is because copyright laws promote free expression rather than impinge on it.
...So long as it also contains "built-in safeguards" like fair use for when copyright does bear heavily on speech.
Your narrow focus on the whole content-neutral argument is incredibly limited and completely misses why copyright can in any way be compatible with free speech. Fair use and idea/expression dichotomies as limitations on copyright contribute greatly to it not being unconstitutional, as Eldred clearly points out at great length. Eldred did not argue that fundamentally all copyright laws are content-neutral nor that they are immune from first amendment challenges, precisely what you're arguing here.
This has absolutely no relevance to seizures that deliberately ignore such considerations on the basis of shaky "he says she says" evidence.
And you still didn't explain how it is that ex parte seizures in criminal copyright cases has been going on since 1909, since well before O'Brien.
Who said they weren't? Why do you keep making crap up about what people said?
Even if a subdomain is being used for child porn, does that mean the entire domain name could be seized like this? That actually sounds like prior restraint to me.
It would help if you actually defined what you meant by content neutral or not, and what relevance that has. If you actually mean whether it was related to restricting the distribution of expression like books, websites or blogs, then no, Arcara specifically states the statute was not aimed at that in any way, and there was no evidence presented that this was a cover for the government to stop the distribution of such materials. This plainly differs in a situation involving copyright, that is inherently about limiting the distribution of expressive materials, including sites whose primary purpose was protected expression.
It'd be nice if you could specifically quote where Arcara says it was an action against expressive activity, and where it says there are no cases where even actions against non-expressive activity can be deemed prior restraint.
And please point out where anyone said seizures cannot happen at all in copyright cases.
And? Who said ex parte seizures under copyright law cannot happen at all? Maybe Karl himself can clarify further, but this quote from Karl you yourself quoted:
These seizures go well beyond the seizures normally (but sparingly) allowed in copyright and trademark law.
Once again, you rely on pretending someone has said something they haven't and ignoring important details and context. In response to being corrected on your factually incorrect claims that Arcara said first amendment issues did not have to be considered at all, you change topic. In response to factually incorrect claims that these seizures fall heavily on non-expressive activity being corrected including the very evidence justifying these seizures being shaky at best, you change topic.
P.S. Didn't seizures such as the specific ones Lofgren specifically referenced sound like prior restraint to you, assuming you are Average_Joe?
You made that last sentence (your conclusion) up. Citation needed.
I like how you're able to ignore plain language English. You know what Karl said is true, and even I corrected you on this previously.
Eldred v Ashcroft argued that copyright law was constitutional because of first amendment accommodations, and that the particular changes being made did not change the "traditional contours" of copyright, though this will be made clear why your assertion that these seizures do not alter "traditional contours" later...
221*221 The CTEA, in contrast, does not oblige anyone to reproduce another's speech against the carrier's will. Instead, it protects authors' original expression from unrestricted exploitation. Protection of that order does not raise the free speech concerns present when the government compels or burdens the communication of particular facts or ideas. The First Amendment securely protects the freedom to make— or decline to make—one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them. We recognize that the D. C. Circuit spoke too broadly when it declared copyrights "categorically immune from challenges under the First Amendment." 239 F. 3d, at 375. But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary. See Harper & Row, 471 U. S., at 560; cf. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522 (1987).[24]
This statement of yours is absolutely ridiculous:
Nonsense. These are seizures of the instrumentalities of criminal infringement. Such seizures will almost always affect noninfringing expression. Arcara tells us that doesn't matter.
From Arcara itself:
United States v. O'Brien, supra, has no relevance to a statute directed at imposing sanctions on nonexpressive activity, and the sexual activities carried on in this case manifest absolutely no element of protected expression. The closure statute is directed at unlawful conduct having nothing to do with books or other expressive activity.
[...]
Yet we have not traditionally subjected every criminal and civil sanction imposed through legal process to "least restrictive means" scrutiny simply because each particular remedy will have some effect on the First Amendment activities of those subject to sanction. Rather, we have subjected such restrictions to scrutiny only where it was conduct with a significant expressive element that drew the legal remedy in the first place, as in O'Brien, 3 or where a statute based on a [478 U.S. 697, 707] nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity, as in Minneapolis Star. This case involves neither situation, and we conclude the First Amendment is not implicated by the enforcement of a public health regulation of general application against the physical premises in which respondents happen to sell books.
Not only did Arcara specifically state that prostitution was not expressive activity in any way, it specifically acknowledges instances of prior restraint when activity that is not in itself expressive falls heavily on expressive activity.
You keep being corrected on this. By now you're pointlessly going round in circles, relying on "You're not a lawyer!" and selective quotation to make your points. Not to mention your attempt at being anonymous solely so you can avoid being caught out on such pointless trolling and recycling of arguments already proven to be false. It is clear that:
1) Arcara specifically states the statute was not aimed at even expressive activity generally.
2)Arcara specifically acknowledges instances of prior restraint even when non-expressive activity is being affected if it falls heavily on expressive activity.
3) It's already known that infringement can be/is expressive activity
4) We already know the seizures have affected blogs whose primary purpose was protected, expressive activity on the basis of flimsy evidence - evidence that turned out to be authorised, not infringing, uses of songs as promotional material by labels.
Second, the closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited -- indeed, the imposition of the closure order has nothing to do with any expressive conduct at all.
[...]
The closure statute is directed at unlawful conduct having nothing to do with books or other expressive activity.
Piracy via wholesale copying is also easily objectively determined. If a website is offering the latest Harry Potter movie for download, all the agent investigating has to do is ask the rights holder if they authorized this particular distribution or not.
Not only is that clearly a bright line rule you just discussed and asserted as something very easily applied and determined (the very definition of a bright line rule), it is as a matter of fact wrong.
Not only has Viacom itself mistakenly identified clips that it had uploaded to Youtube as being infringing, so too in this very case has it been found that files used to prove probable cause of infringement are not actually infringing at all, with authority not even belonging to the claimed rights holders.
So not only did you assert a bright line rule to decide if a work is infringing, you asserted a bright line rule that in practice already does not work.
Which completely undermines ICE's reasoning to seize the domains, based exactly on the idea that doing so would block access to the sites. With no reasonable argument that ICE seized the domains for stopping evidence from being destroyed, the sensible conclusion to me is ICE relying on ignorance or trying to create a loop hole that will allow them to seize domains with as little checks and balances as possible, perfectly demonstrated by the defamation of 84,000 sites as being child pornography.
Not to mention the very seizures included songs that were indeed authorised, despite the agent asking what evidently appeared to be the perfect people to ask were also wrong in providing such an easy, clear cut objective analysis.
And before the DMCA when did they explicitly protect or enforce DRM? And please back up the assertion that without copyright law, DRM would cease to exist. Considering examples like Sony rootkit which go far beyond what copyright law allows, it's pretty obvious DRM would not only exist when backed by law.
DRM is just a process by which rights granted under copyright are sold.
DRM is a technical measure to restrict the usage of something. That's it. It can and has been used to enforce a number of restrictions that bare little relation to any rights that could be deemed reasonably granted by copyright.
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Logo by Nina
That would be enough of a smell for Mike to go nuclear on a pro-copyright group. Why not ask the same questions about anti-copyright groups?
Because 2 second Google searches clearly showed that such relationships do not have any indication of suspicious activity? Because everyone involved has been pretty up front about their relationships to each other? Perhaps because Nina is already well known here to both Techdirt readers and Mike?
How about your questions being pointless inferring and shit stirring in an attempt to make some vague point that contradicts clear evidence like now RIAA employees changing bills in the middle of the night against artists favour and the general suspicion that should arise from private companies wanting even greater copyright protection than we already have. Is that a good enough answer to your pointless attention seeking?
What is it with your analogy obsession? Are you only able to make arguments by completely changing the context and relying on skipping various details?
On the post: cc's Favorite Techdirt Posts Of The Week
Re: Irony
Talking about irony...
On the post: cc's Favorite Techdirt Posts Of The Week
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http://piracy.ssrc.org/
http://www.ic.gc.ca/eic/site/ippd-dppi.nsf/eng/h_ip01456.html
http://www.youtube.com/watch?v=Y4VsTm3TPj4
http://www.youtube.com/watch?v=zL2FOrx41N0
On the post: RIAA Not Happy With Rep. Lofgren Calling Out ICE For Web Censorship
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On the post: RIAA Not Happy With Rep. Lofgren Calling Out ICE For Web Censorship
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Eldred never argued this. It is clear your basis for this argument would suggest copyright law is immune from First Amendment issues. Not only does Eldred directly contradict this, the basis from which they conclude this is precisely because of (but not limited to) already existing protections like fair use and idea/expression dichotomies. Prior restraint is precisely a standard based on protecting First Amendment concerns where seizures fall heavily on or are aimed at expressive content, PRECISELY THE KIND THAT ARCARA SPECIFICALLY REFERENCES IT DOES NOT APPLY TO as cited above multiple times and cited hundreds of times in the past.
A review of a law extension where Congress argues there isn't a First Amendment issue because of already existing protections is completely different from a seizure that outright ignores such existing protections like prior restraint. Congress clearly did not argue that copyright was categorically immune from such scrutiny.
On the post: RIAA Not Happy With Rep. Lofgren Calling Out ICE For Web Censorship
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Who said it did? What has been argued is that these particular seizures by ICE undermine due process, particularly because the evidence they've used to justify said seizures cannot be reasonably concluded as a basis for probable cause when they are evidently wrong, not to mention the problem in using a rights holders testimony in general where it's clear even rights holders themselves have been unable to reliably identify infringing material.
AFAIK, he has done so multiple times, you merely choose to ignore it every time.
Are you serious? You do realise that legal standards do not go back to infinite, that at some point courts have to create new standards for a variety of reasons - changes in law, points brought up that weren't considered or were initially ignored, new situations that hadn't been encountered and so on.
A standard relating to an activity being created at X point does not mean that activity didn't occur before such a standard was created, only that the court changed its opinion or had to create a new standard relating to new and changed circumstances. It's meaningless to say "But seizures occurred before O'Brien" on its own as if that proves anything. This argument is based purely on trying to inject an uncertainty that you can stretch as being a non-credibility into the argument.
Maybe if you showed criminal copyright cases where the O'Brien standard didn't apply that would prove your point, but I doubt you'll do that. You've deliberately chosen a very high standard - that all cases must conform to O'Brien - to delay or to deter research by others, as you can then keep insinuating there must be some that don't. Actually cite one yourself, then maybe the discussion can move forward.
Nor does he explain why a statute that isn't content-neutral has to adhere to a standard that only applies to content-neutral statutes. Nor can he.
Because this has no relevance, it's a complete red herring. Eldred was about reviewing an extension of an existing law and involved what standard that this extension should be reviewed under, which because of safeguards like fair use and idea/expression dichotomies they argued it did not require further scrutiny after it seemed they found the limited times argument unconvincing (at least in the majority).
It never argues that all actions undertaken under copyright law are not beholden to such standards like prior restraint, which would clearly mean copyright could ignore the first amendment. Eldred seems clear that if CTEA had removed or disregarded first amendment protections, then it would have come under such scrutiny, and it is clear ICE has done so in these cases, from the non-evidence of songs sent as promotional material to defamation of 84,000 sites as child pornography.
On the post: RIAA Not Happy With Rep. Lofgren Calling Out ICE For Web Censorship
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...So long as it also contains "built-in safeguards" like fair use for when copyright does bear heavily on speech.
Your narrow focus on the whole content-neutral argument is incredibly limited and completely misses why copyright can in any way be compatible with free speech. Fair use and idea/expression dichotomies as limitations on copyright contribute greatly to it not being unconstitutional, as Eldred clearly points out at great length. Eldred did not argue that fundamentally all copyright laws are content-neutral nor that they are immune from first amendment challenges, precisely what you're arguing here.
This has absolutely no relevance to seizures that deliberately ignore such considerations on the basis of shaky "he says she says" evidence.
Who said they weren't? Why do you keep making crap up about what people said?
On the post: RIAA Not Happy With Rep. Lofgren Calling Out ICE For Web Censorship
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http://www.techdirt.com/articles/20110215/01092813096/did-homeland-security-seize-then-unse ize-dynamic-dns-domain.shtml#c496
On the post: RIAA Not Happy With Rep. Lofgren Calling Out ICE For Web Censorship
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http://www.techdirt.com/articles/20110215/01092813096/did-homeland-security-seize-then -unseize-dynamic-dns-domain.shtml#c496
On the post: RIAA Not Happy With Rep. Lofgren Calling Out ICE For Web Censorship
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It'd be nice if you could specifically quote where Arcara says it was an action against expressive activity, and where it says there are no cases where even actions against non-expressive activity can be deemed prior restraint.
And please point out where anyone said seizures cannot happen at all in copyright cases.
On the post: RIAA Not Happy With Rep. Lofgren Calling Out ICE For Web Censorship
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Once again, you rely on pretending someone has said something they haven't and ignoring important details and context. In response to being corrected on your factually incorrect claims that Arcara said first amendment issues did not have to be considered at all, you change topic. In response to factually incorrect claims that these seizures fall heavily on non-expressive activity being corrected including the very evidence justifying these seizures being shaky at best, you change topic.
P.S. Didn't seizures such as the specific ones Lofgren specifically referenced sound like prior restraint to you, assuming you are Average_Joe?
On the post: RIAA Not Happy With Rep. Lofgren Calling Out ICE For Web Censorship
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I like how you're able to ignore plain language English. You know what Karl said is true, and even I corrected you on this previously.
Eldred v Ashcroft argued that copyright law was constitutional because of first amendment accommodations, and that the particular changes being made did not change the "traditional contours" of copyright, though this will be made clear why your assertion that these seizures do not alter "traditional contours" later...
This statement of yours is absolutely ridiculous:
From Arcara itself:
Not only did Arcara specifically state that prostitution was not expressive activity in any way, it specifically acknowledges instances of prior restraint when activity that is not in itself expressive falls heavily on expressive activity.
You keep being corrected on this. By now you're pointlessly going round in circles, relying on "You're not a lawyer!" and selective quotation to make your points. Not to mention your attempt at being anonymous solely so you can avoid being caught out on such pointless trolling and recycling of arguments already proven to be false. It is clear that:
1) Arcara specifically states the statute was not aimed at even expressive activity generally.
2)Arcara specifically acknowledges instances of prior restraint even when non-expressive activity is being affected if it falls heavily on expressive activity.
3) It's already known that infringement can be/is expressive activity
4) We already know the seizures have affected blogs whose primary purpose was protected, expressive activity on the basis of flimsy evidence - evidence that turned out to be authorised, not infringing, uses of songs as promotional material by labels.
P.S. Where's your argument that copyright limits speech now?
On the post: RIAA Not Happy With Rep. Lofgren Calling Out ICE For Web Censorship
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On the post: RIAA Not Happy With Rep. Lofgren Calling Out ICE For Web Censorship
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I think it's you who needs to elaborate on such claims.
On the post: RIAA Not Happy With Rep. Lofgren Calling Out ICE For Web Censorship
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You explicitly stated:
Not only is that clearly a bright line rule you just discussed and asserted as something very easily applied and determined (the very definition of a bright line rule), it is as a matter of fact wrong.
Not only has Viacom itself mistakenly identified clips that it had uploaded to Youtube as being infringing, so too in this very case has it been found that files used to prove probable cause of infringement are not actually infringing at all, with authority not even belonging to the claimed rights holders.
So not only did you assert a bright line rule to decide if a work is infringing, you asserted a bright line rule that in practice already does not work.
On the post: RIAA Not Happy With Rep. Lofgren Calling Out ICE For Web Censorship
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On the post: RIAA Not Happy With Rep. Lofgren Calling Out ICE For Web Censorship
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Not to mention the very seizures included songs that were indeed authorised, despite the agent asking what evidently appeared to be the perfect people to ask were also wrong in providing such an easy, clear cut objective analysis.
Quite simply, you're incorrect.
On the post: Librarians And Readers Against DRM [Updated]
Re: Re: Re: Re: Re: Who I am
DRM is a technical measure to restrict the usage of something. That's it. It can and has been used to enforce a number of restrictions that bare little relation to any rights that could be deemed reasonably granted by copyright.
On the post: Librarians And Readers Against DRM [Updated]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Logo by Nina
Because 2 second Google searches clearly showed that such relationships do not have any indication of suspicious activity? Because everyone involved has been pretty up front about their relationships to each other? Perhaps because Nina is already well known here to both Techdirt readers and Mike?
How about your questions being pointless inferring and shit stirring in an attempt to make some vague point that contradicts clear evidence like now RIAA employees changing bills in the middle of the night against artists favour and the general suspicion that should arise from private companies wanting even greater copyright protection than we already have. Is that a good enough answer to your pointless attention seeking?
On the post: Librarians And Readers Against DRM [Updated]
Re: Re: Re: Who I am
Then explain how DRM existed before the DMCA.
On the post: RIAA Not Happy With Rep. Lofgren Calling Out ICE For Web Censorship
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