They're not. The things being copied here were particular expressions. How could it be a parody and a sequel unless the original expression was copied?
Define "immaterial." How different must it be to be material? Do you have a quantifiable number?
Of course there's no quantifiable number. That's just not how these things work. There are certain tests that are applied. The district court explains that in the opinion. The finding of substantial similarity here was simple since Colting argued that his novel was a parody. By doing so, he ADMITTED it was substantially similar. It also didn't help his case that he referred to his book as a "sequel" right on the book's cover.
I read that as confirmation that a domain name might well be protected speech, but I don't read it as saying that a domain name is presumptively so.
Is there actually a duty on a judge issuing a warrant for the seizure of a domain name to consider whether the domain name is presumptively protected speech? If so, that's not clear. Everything, to me, sounds like that determination would be made later.
And so instead we're left with ambiguous words that result in lawyers and judges determining the value of art with regard to how material the differences are.
Yeah, that oughtta work out well....
How else could such a determination be made if not on a case-by-case basis?
How is anyone ignoring anything? What's being argued is that ICE's own intent was to take the site down using the domain seizure, regardless of whether it actually did or not, that is a clear attempt that subverts due process. It does clearly matter what the agent says, for that is the reason given and rubber stamped for approval in taking the domain names.
What about the other seizures where this agent said nothing?
It seemed like a serious blow to basic First Amendment freedoms, to have the US banning books that have significant unique expression.
It's not being banned for its original expressive speech, it's being banned for its infringing speech. Infringing speech is not protected by the First Amendment.
While the copying it contains is not literal, it is non-literal copying. The test for non-literal copying is whether or not it's substantially similar to the original. The district court held that it was substantially similar, and the court of appeal unanimously agreed.
So then you don't disagree with the premise of the post.
I think we all agree that there should be due process. The issue is whether or not the seizures violate due process.
The other issue is whether or not they violate the First Amendment. I'm not convinced either way on either issue.
They lump it in with things that are a threat to public health. They do it with the express purpose of legally treating the two the same way.
They are lumping together things that violate rights in intellectual property.
Read the report again. Read the recommendations. Do any of them have anything to do with materials that would "pose a real threat to consumer health and safety?" No, they do not. They are mostly recommendations to place liability onto third parties on the Internet.
Fake drugs do pose a threat to consumer health and safety. That's the point.
As far as placing some of the burden onto ISPs goes, perhaps that just makes sense. ISPs are in a better position to police this stuff.
So why do they even bring up health and safety? They do it strictly as a scare tactic. "Hey, if we don't go after Megaupload, your children will get sick and die!"
Domain names that read as words or phrases are presumptively protected speech. (I reserve my opinion on domain names composed of random-looking strings.)
Perhaps so, but has a court ever explicitly said that?
In an ex parte seizure proceeding, the court cannot look beyond the four corners of the affidavit. If you strike what the agent says, then there is nothing.
That is why the procedure is constitutionally deficient: “The separation of legitimate from illegitimate speech calls for more sensitive tools.” (Speiser v Randall (1958)).
So an agent can apply for a warrant for things that are not OK, and as long as he tells the judge it's OK, the judge will just agree? I should think the actual effect of the warrant would interest the judge more than that.
However, in the present cases, there is not even an accusation that the domain names infringe others' trademarks. The government cannot meet any burden at all to show that the domain names are outside the First Amendments' protection. The government hasn't even begun to argue that.
Isn't the accusation simply that the domain name was property used to commit crime, thus subject to seizure? I think they'd only have to show the domain name was outside the First Amendment's protection if it was presumptively protected in the first place.
Mike can we get an forth button titled ... "Idiot"
No need to be so rude. That makes you look bad.
I thought the censorship was of the content on the site. To me, that argument makes sense. However, Mike's argument appears to be that seizing the domain name is censorship of speech. That's fine, but you'd have to determine that the domain name was protected speech to begin with. Mike's argument is also that since the agent said the purpose of the seizures was to take down the speech on the sites, that's prior restraint. Mike seems to be ignoring his previous point that the speech on the site is not in fact taken down. I don't think you can just ignore the reality of the seizures like that. It doesn't matter what the agent says, it matters what the reality is.
So, in your opinion, are domain names presumptively protected speech? My read of the Second Circuit's language is that you can't say either way. That being the case, does a judge issuing a seizure warrant for a domain name have a duty to make a determination first as to whether the domain name is presumptively protected or not?
I posted the same passage about a month ago with a completely different spin on what I thought it meant. It's not that I'm biased. I just find the court's language confusing.
AJ, I'm disappointed that you've gone back to this argument. Agent Reynolds, in his affidavit, made it clear that the seizure was designed to take down the speech *on the site* not just the speech of the URL.
That's prior restraint.
I've pointed this out already in this thread, but what the agent says is meaningless. The actual effect of the seizure is what's important, and as you've pointed out before, the seizures do not in fact block the speech.
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Of course there's no quantifiable number. That's just not how these things work. There are certain tests that are applied. The district court explains that in the opinion. The finding of substantial similarity here was simple since Colting argued that his novel was a parody. By doing so, he ADMITTED it was substantially similar. It also didn't help his case that he referred to his book as a "sequel" right on the book's cover.
You can read the district court's opinion here: http://www.scribd.com/doc/17040458/Salinger-v-Colting-Opinion
And the Second Circuit's opinion here: http://www.scribd.com/doc/17040458/Salinger-v-Colting-Opinion
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Is there actually a duty on a judge issuing a warrant for the seizure of a domain name to consider whether the domain name is presumptively protected speech? If so, that's not clear. Everything, to me, sounds like that determination would be made later.
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Yeah, that oughtta work out well....
How else could such a determination be made if not on a case-by-case basis?
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We're talking about copying the expression, not the idea. The "basic plots" are safe, as they have always been.
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The idea is that otherwise you could escape liability for infringement by simply making immaterial changes to the original.
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What about the other seizures where this agent said nothing?
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It's not being banned for its original expressive speech, it's being banned for its infringing speech. Infringing speech is not protected by the First Amendment.
While the copying it contains is not literal, it is non-literal copying. The test for non-literal copying is whether or not it's substantially similar to the original. The district court held that it was substantially similar, and the court of appeal unanimously agreed.
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I think we all agree that there should be due process. The issue is whether or not the seizures violate due process.
The other issue is whether or not they violate the First Amendment. I'm not convinced either way on either issue.
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They are lumping together things that violate rights in intellectual property.
Read the report again. Read the recommendations. Do any of them have anything to do with materials that would "pose a real threat to consumer health and safety?" No, they do not. They are mostly recommendations to place liability onto third parties on the Internet.
Fake drugs do pose a threat to consumer health and safety. That's the point.
As far as placing some of the burden onto ISPs goes, perhaps that just makes sense. ISPs are in a better position to police this stuff.
So why do they even bring up health and safety? They do it strictly as a scare tactic. "Hey, if we don't go after Megaupload, your children will get sick and die!"
They're not saying that.
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Perhaps so, but has a court ever explicitly said that?
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That is why the procedure is constitutionally deficient: “The separation of legitimate from illegitimate speech calls for more sensitive tools.” (Speiser v Randall (1958)).
So an agent can apply for a warrant for things that are not OK, and as long as he tells the judge it's OK, the judge will just agree? I should think the actual effect of the warrant would interest the judge more than that.
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Isn't the accusation simply that the domain name was property used to commit crime, thus subject to seizure? I think they'd only have to show the domain name was outside the First Amendment's protection if it was presumptively protected in the first place.
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No need to be so rude. That makes you look bad.
I thought the censorship was of the content on the site. To me, that argument makes sense. However, Mike's argument appears to be that seizing the domain name is censorship of speech. That's fine, but you'd have to determine that the domain name was protected speech to begin with. Mike's argument is also that since the agent said the purpose of the seizures was to take down the speech on the sites, that's prior restraint. Mike seems to be ignoring his previous point that the speech on the site is not in fact taken down. I don't think you can just ignore the reality of the seizures like that. It doesn't matter what the agent says, it matters what the reality is.
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I'm having trouble wrapping my head around this.
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I posted the same passage about a month ago with a completely different spin on what I thought it meant. It's not that I'm biased. I just find the court's language confusing.
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Re: counterfeiting and law suits.
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That's prior restraint.
I've pointed this out already in this thread, but what the agent says is meaningless. The actual effect of the seizure is what's important, and as you've pointed out before, the seizures do not in fact block the speech.
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I get things wrong like anyone else, and I'm happy to admit a mistake when I've made one.
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