Almost none of the above is accurate. It's really too bad that you keep repeating it.
I'm repeating it because I believe it is an accurate statement of the law.
The seizure of the domain name takes down with it protected content in many cases, and First Amendment case law is quite clear that putting place things that block such content is considered prior restraint.
The idea that the impact on expressive speech "is only incidental" is flat out wrong. Taking down full blog posts that contain plenty of non-infringing content goes way beyond what copyright law allows, and AJ should know this.
Seizing the domain name does affect potentially protected speech, incidentally, but the target of the seizure is not that potentially protected speech. That's what makes it "incidental." The real issue is whether or not such an incidental effect on potentially protected speech is permissible. I know you don't agree, but the Supreme Court's language in Arcara v. Cloud Books is controlling:
It is true that the closure order in this case would require respondents to move their bookselling business to another location. 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, or where a statute based on a 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.
Arcara v. Cloud Books, 478 U.S. 697, 706-07 (1986)
Since the conduct that was drew the legal remedy in the first place wasn't expressive, the First Amendment is not a bar.
There are currently means within the law to specifically target only the infringing content, and to do so in a way that each side gets to present their case. Homeland Security chose to ignore these things, and there are an awful lot of folks out there who believe DHS's actions clearly violate the law in very serious ways.
Terry Hart and I are the only ones I know of who think these seizures are legal, if you don't count the DOJ and the judge who signed off on them. I'm anxious for a court to decide the constitutionality of one of these cases on the merits, as I'm sure you are.
AJ uses a neat, but dangerous sleight of hand, in which he claims the domain is not speech (only the site is speech) but then claims that the domain is property used in a crime, even though it *might* be the site, not the domain.
The domain name can be seized because it's property used to commit a crime on the site. I really don't understand what the confusion is with this point.
But again, there's the issue. These sites, and their domains, are often in other sovereign nations. So again, technically speaking, it's an act of war.
The domain name is not "in other sovereign nations." It's right here in the U.S. That's how a U.S. court is able to order its seizure. And it's not "technically speaking . . . an act of war." Give me a break. If a Columbian-owned speed boat full of cocaine was seized in the Port of Los Angeles, would you consider that an act of war? Of course not. Foreign-owned property used to commit crimes gets seized by the U.S. all the time.
I don't believe that's correct. I believe you are (unintentionally?) confusing "the site" with "the domain name."
No, I'm not. The domain name can be seized because the site it points to is being used to commit a crime.
This is a problem. You seem to switch back and forth quite frequently. When someone points out that this is a prior restraint issue, you claim it's not because "the site" was not seized, only the domain. Yet, when you defend the seizure because it's "property used to commit criminal infringement" you are relying on evidence of "the site" but not "the domain."
I don't think you can have it both ways.
I'm not trying to have anything both ways. The domain name is property used to commit a crime, and that crime occurs on the site. I'm not really sure what the confusion is. How could a domain name by itself be criminal? It's only criminal in the full context.
Key phrase: Congress shall make no law
This means that it's ILLEGAL to make a law that affects free speech AT ALL; even if that affectation is incidental, it's still illegal.
You're certainly not the first to argue that all copyright laws must be unconstitutional because they abridge the First Amendment. I'll spare you the caselaw, but suffice it to say that the Supreme Court thinks that argument is absurd. Don't you think the Copyright Act would have shot down as unconstitutional sometime in the past 220 years if that was the case? Logic is your friend.
The issue is whether or not it's prior restraint to seize these domain names without a prior adversary hearing. The Court in Fort Wayne Books said that a preseizure hearing on whether or not certain books were obscene was needed since the books are presumptively protected speech. Here, the thing being seized is a domain name, and domain names are not presumptively protected speech. These seizures are targeted at infringement, not obscenity, and any effect the seizures have on expressive speech is only incidental. Thus, the First Amendment does not bar the seizures.
The legal basis for the seizures is explained on pp. 43-45. Under 18 U.S.C. 2323(a)(1)(B), "any property used, or intended to be used, in any manner or part to commit or facilitate the commission of" criminal copyright infringement under 17 U.S.C. 506 can be seized and forfeited.
I agree with Mike that a site that only links to or embeds infringing videos is not themselves the direct infringer... but that simply doesn't matter here. The only issue is whether or not the sites are being used to commit criminal infringement. The direct infringer, i.e., the principal criminal, would be the person who runs the site that is being linked to. That does not change the fact that these sites are property used to commit criminal infringement.
If the feds were going to prosecute the operators of these sites, I believe it would be on an accomplice or conspirator theory. However, what theory the operators of these sites could be prosecuted under simply does not matter. It's all a big red herring.
As to the other claims... all red herrings.
Whether or not unauthorized streaming in fact harms the rights holders is irrelevant to the issue of probable cause. MSNBC allows people to embed clips, not the live stream. A site's claim that it is legal is not relevant, nor is the site's actual legality in other countries. Fort Wayne Books doesn't apply since there the seizure of works was based on the message being conveyed in the works. Here, that's not what's happening. Copyright cases simply do not operate the same as obscenity cases.
Really? As an attorney, you would generally advise your clients to ignore inquiries from a US Senator?
It's grandstanding. Wyden already knows he's not getting an answer, and Morton and Holder already know they're not giving an answer. Happens all the time.
Re: Re: Re: Response to: average_joe on Feb 3rd, 2011 @ 10:49am
Actually, they do have a duty to answer. They answer to not only the president but to Congress as well. Are you really that much of a moron?
No need for the name calling. They have no duty to answer this letter. That's not how it works with the Cabinet. When Congress wants answers, they have hearings.
Actually, he is pretty selective in his application of the law. I love this little gem from his past:
On November 10, 2005, Wyden was one of five Senate Democrats who joined 44 Republicans in voting "yes" on Amendment no. 2516, brought to the floor by Republican senator Lindsey Graham, which ruled that enemy combatants did not have the right to Habeas Corpus. (from wikipedia)
Seems that the senator isn't all strong on habeas corpus after all. Sort of shows the level of grandstanding he is willing to go to.
Let's write a letter to him demanding an explanation and then give that letter to the press.
I would like to know the answers to the questions he's asking. As a law abiding American citizen, I'd like to know where I stand, legally speaking. I always thought I could count on due process, and I'd wager that not even you could discount some of the questionable impetus for several of these seizures.
Those are the ones that worry me most.
They are good questions. We'll get the answers in a court of law, I imagine, or not at all. We won't get Holder's and Morton's response to this letter because I doubt they'll be writing one.
On the post: Full Affidavit On Latest Seizures Again Suggests Homeland Security Is Twisting The Law
Re: Re: Re: Re:
That's the problem.
The domain name is used to get to the site where the crime is committed. It's property used to facilitate the crime.
On the post: Full Affidavit On Latest Seizures Again Suggests Homeland Security Is Twisting The Law
Re: Re: Re: Question @ Joe
I'm repeating it because I believe it is an accurate statement of the law.
The seizure of the domain name takes down with it protected content in many cases, and First Amendment case law is quite clear that putting place things that block such content is considered prior restraint.
The idea that the impact on expressive speech "is only incidental" is flat out wrong. Taking down full blog posts that contain plenty of non-infringing content goes way beyond what copyright law allows, and AJ should know this.
Seizing the domain name does affect potentially protected speech, incidentally, but the target of the seizure is not that potentially protected speech. That's what makes it "incidental." The real issue is whether or not such an incidental effect on potentially protected speech is permissible. I know you don't agree, but the Supreme Court's language in Arcara v. Cloud Books is controlling:
Arcara v. Cloud Books, 478 U.S. 697, 706-07 (1986)
Since the conduct that was drew the legal remedy in the first place wasn't expressive, the First Amendment is not a bar.
There are currently means within the law to specifically target only the infringing content, and to do so in a way that each side gets to present their case. Homeland Security chose to ignore these things, and there are an awful lot of folks out there who believe DHS's actions clearly violate the law in very serious ways.
Terry Hart and I are the only ones I know of who think these seizures are legal, if you don't count the DOJ and the judge who signed off on them. I'm anxious for a court to decide the constitutionality of one of these cases on the merits, as I'm sure you are.
AJ uses a neat, but dangerous sleight of hand, in which he claims the domain is not speech (only the site is speech) but then claims that the domain is property used in a crime, even though it *might* be the site, not the domain.
The domain name can be seized because it's property used to commit a crime on the site. I really don't understand what the confusion is with this point.
On the post: Full Affidavit On Latest Seizures Again Suggests Homeland Security Is Twisting The Law
Re: Re:
The domain name is not "in other sovereign nations." It's right here in the U.S. That's how a U.S. court is able to order its seizure. And it's not "technically speaking . . . an act of war." Give me a break. If a Columbian-owned speed boat full of cocaine was seized in the Port of Los Angeles, would you consider that an act of war? Of course not. Foreign-owned property used to commit crimes gets seized by the U.S. all the time.
On the post: Full Affidavit On Latest Seizures Again Suggests Homeland Security Is Twisting The Law
Re: Re:
No, I'm not. The domain name can be seized because the site it points to is being used to commit a crime.
This is a problem. You seem to switch back and forth quite frequently. When someone points out that this is a prior restraint issue, you claim it's not because "the site" was not seized, only the domain. Yet, when you defend the seizure because it's "property used to commit criminal infringement" you are relying on evidence of "the site" but not "the domain."
I don't think you can have it both ways.
I'm not trying to have anything both ways. The domain name is property used to commit a crime, and that crime occurs on the site. I'm not really sure what the confusion is. How could a domain name by itself be criminal? It's only criminal in the full context.
On the post: Full Affidavit On Latest Seizures Again Suggests Homeland Security Is Twisting The Law
Re: Re: Re: Question @ Joe
This means that it's ILLEGAL to make a law that affects free speech AT ALL; even if that affectation is incidental, it's still illegal.
You're certainly not the first to argue that all copyright laws must be unconstitutional because they abridge the First Amendment. I'll spare you the caselaw, but suffice it to say that the Supreme Court thinks that argument is absurd. Don't you think the Copyright Act would have shot down as unconstitutional sometime in the past 220 years if that was the case? Logic is your friend.
On the post: Full Affidavit On Latest Seizures Again Suggests Homeland Security Is Twisting The Law
Re: Re:
What I quoted, and what the affidavit quoted, is 2323(a), which deals with civil forfeitures.
You are quoting 2323(b), which deals with criminal forfeitures.
2323(a) is the right place to be looking since these are civil forfeitures.
On the post: Full Affidavit On Latest Seizures Again Suggests Homeland Security Is Twisting The Law
Re: Re:
On the post: Full Affidavit On Latest Seizures Again Suggests Homeland Security Is Twisting The Law
Re: Question @ Joe
It's a great question. Terry Hart explains it very well on Copyhype: http://www.copyhype.com/2011/01/domain-name-seizures-dont-violate-first-amendment/
The issue is whether or not it's prior restraint to seize these domain names without a prior adversary hearing. The Court in Fort Wayne Books said that a preseizure hearing on whether or not certain books were obscene was needed since the books are presumptively protected speech. Here, the thing being seized is a domain name, and domain names are not presumptively protected speech. These seizures are targeted at infringement, not obscenity, and any effect the seizures have on expressive speech is only incidental. Thus, the First Amendment does not bar the seizures.
On the post: Full Affidavit On Latest Seizures Again Suggests Homeland Security Is Twisting The Law
Re: Re:
On the post: Full Affidavit On Latest Seizures Again Suggests Homeland Security Is Twisting The Law
I agree with Mike that a site that only links to or embeds infringing videos is not themselves the direct infringer... but that simply doesn't matter here. The only issue is whether or not the sites are being used to commit criminal infringement. The direct infringer, i.e., the principal criminal, would be the person who runs the site that is being linked to. That does not change the fact that these sites are property used to commit criminal infringement.
If the feds were going to prosecute the operators of these sites, I believe it would be on an accomplice or conspirator theory. However, what theory the operators of these sites could be prosecuted under simply does not matter. It's all a big red herring.
As to the other claims... all red herrings.
Whether or not unauthorized streaming in fact harms the rights holders is irrelevant to the issue of probable cause. MSNBC allows people to embed clips, not the live stream. A site's claim that it is legal is not relevant, nor is the site's actual legality in other countries. Fort Wayne Books doesn't apply since there the seizure of works was based on the message being conveyed in the works. Here, that's not what's happening. Copyright cases simply do not operate the same as obscenity cases.
On the post: Senator Wyden Asks WTF Is Up With Homeland Security Domain Seizures
Re: Re:
It's grandstanding. Wyden already knows he's not getting an answer, and Morton and Holder already know they're not giving an answer. Happens all the time.
On the post: Senator Wyden Asks WTF Is Up With Homeland Security Domain Seizures
Re: Re: Re: Response to: average_joe on Feb 3rd, 2011 @ 10:49am
No need for the name calling. They have no duty to answer this letter. That's not how it works with the Cabinet. When Congress wants answers, they have hearings.
On the post: Senator Wyden Asks WTF Is Up With Homeland Security Domain Seizures
Re: Re: Re: Response to: average_joe on Feb 3rd, 2011 @ 10:49am
On the post: How Would US Politicians Respond If Spain Seized Domains Of American Companies?
Re: Re: Re: Re: Re: Re: Re:
You take that back! :)
On the post: Senator Wyden Asks WTF Is Up With Homeland Security Domain Seizures
Re: Re: Re: Re:
"Show me on the doll where the 'techdirt minions' touched you." LOL!
On the post: Senator Wyden Asks WTF Is Up With Homeland Security Domain Seizures
Re: Re: Re:
On November 10, 2005, Wyden was one of five Senate Democrats who joined 44 Republicans in voting "yes" on Amendment no. 2516, brought to the floor by Republican senator Lindsey Graham, which ruled that enemy combatants did not have the right to Habeas Corpus. (from wikipedia)
Seems that the senator isn't all strong on habeas corpus after all. Sort of shows the level of grandstanding he is willing to go to.
Let's write a letter to him demanding an explanation and then give that letter to the press.
On the post: Senator Wyden Asks WTF Is Up With Homeland Security Domain Seizures
Re: Re:
But, ever since people here gave you thorough intellectual beating, you resorted to just being a troll, and a bad one.
Sad...
When did I get a "thorough intellectual beating"? You'd think I'd remember that.
On the post: Senator Wyden Asks WTF Is Up With Homeland Security Domain Seizures
Re: Re: Re: Re: Response to: average_joe on Feb 3rd, 2011 @ 10:49am
On the post: Senator Wyden Asks WTF Is Up With Homeland Security Domain Seizures
Re: Re: Re: Response to: average_joe on Feb 3rd, 2011 @ 10:49am
If he really wants those two to answer his questions, he can subpoena them to testify before one of his committees.
On the post: Senator Wyden Asks WTF Is Up With Homeland Security Domain Seizures
Re: Re:
Those are the ones that worry me most.
They are good questions. We'll get the answers in a court of law, I imagine, or not at all. We won't get Holder's and Morton's response to this letter because I doubt they'll be writing one.
Next >>