Agent Reynolds made clear that his intention in seizing the domain was not to stop the speech of the domain name, but the speech of the site.
That's prior restraint.
I think that's just wrong, and you're hanging your hat on one sentence that you have already said you think is incorrect to begin with.
The court will look at the actual effect of the seizures, not to what the agent purports to be the effect of the seizures. The court's analysis will not turn on an incorrect claim. That makes no sense.
Besides, I believe the agent was only referring to one domain name, torrent-finder.com. What about all of the other domain names that were seized? He said nothing about those.
Weird. Hart's analysis seems to get weaker and weaker each time he digs in deeper and deeper. Disappointing. I enjoyed his earlier works, but now it feels like he staked out a position and has to defend it at all costs, even after he knows that he made mistakes.
That piece has so many mistakes I'm debating if it's even worth doing yet another rebuttal. Probably not.
But, just a tidbit: Hart plays the same trick you tried recently, where you say that the domain name seizure does not impact the speech of the site, which ignores that the entire argument for seizing these domains was based on the content of the sites. I can't see how you can have it both ways. You can't say "we're just seizing the domain, so that doesn't impact the speech on the site" at the same time that the very reason that DHS gave for seizing the domain was to pull down the content on the site.
I'm sorry, but Hart's analysis is an interesting exercise in advocating for one side, but I can't see it standing up in court at all, because it's quite easy to point out the holes in each one of his arguments.
I don't think Hart's arguments fall apart that easily. Either the seizure in fact impacts the speech on the site, or it does not. One sentence from a non-lawyer agent doesn't change a thing. I think you're hyper-focusing on that one thing and missing the bigger picture. The court won't care what the agent said so much as they'll care about the real impact of the seizures.
To explain a bit more... The court is saying that a domain name is neither presumptively protected speech, nor is it NOT presumptively speech. This may sound like a contradiction, but it's not. The other possibility is that it's not protected speech at all. What's the court makes perfectly clear is that under any possible scenario, a domain name is NEVER presumptively protected speech. The Supreme Court's First Amendment exception to Fourth Amendment seizures only applies to presumptively protected speech. Domain names don't qualify for the exception since they aren't presumptively protected speech. Simple really.
Seizing domain names is prior restraint. That's a violation of the First Amendment.
I found some Second Circuit language directly on point holding that domain names are not per se protected speech. In other words, domain names are not presumptively protected by the First Amendment (well, at least not in CT, VT, and NY). If that's the case, I don't see how it's possibly prior restraint.
Domain names and gTLDs per se are neither automatically entitled to nor excluded from the protections of the First Amendment, and the appropriate inquiry is one that fully addresses particular circumstances presented with respect to each domain name.
Name.Space Inc. v. Network Solutions Inc., 202 F.3d 573 (2nd Cir. 2000).
it is otherwise when materials presumptively protected by the First Amendment are involved
According to the Second Circuit, domain names are not presumptively protected by the First Amendment:
Domain names and gTLDs per se are neither automatically entitled to nor excluded from the protections of the First Amendment, and the appropriate inquiry is one that fully addresses particular circumstances presented with respect to each domain name.
Name.Space Inc. v. Network Solutions Inc., 202 F.3d 573 (2nd Cir. 2000).
That would indicate that the First Amendment exception does not apply to domain names, no? If that's right, then the "censorship" argument sort of breaks down, IMO.
Are you saying we need to undermine due process and the constitution to protect trademarks?
Of course not. Whether or not the seizures violates due process is up for debate. I'm curious to see which way the courts come down on the issue. Nothing would really surprise me.
What was careless about it? I did not conflate trademark and copyright in the headline.
Are you saying the companies protecting their trademarks are "censoring the internet"? I thought that phrase only applied to those protecting their copyrights.
You are trying to read something into that quote that's not there. He says that "these crooks are undermining the U.S. economy and jeopardizing public safety." Obviously the part about "jeopardizing public safety" is not referring to illegal file-sharing. That would be stupid. File-sharing would fall under the "undermining the U.S. economy" part of that sentence.
You can pick and choose which parts you read, and hide the areas where they conflate the two. I would suggest not doing that.
You wrote a whole article about the European Commission's report without yourself providing a single example from the report of this alleged conflation. I've produced evidence. You have not.
It doesn't say that *directly* of course. But it lumps them together, so that they can claim that these laws are needed "to protect people from dangerous counterfeit products," ignoring that the law will mainly be used on friends sharing music files that have no dangerous component whatsoever. That's not FUD. Just look at ICE. They've been supporting the seizure of music blogs by claiming -- falsely -- that "these crooks are... jeopardizing public safety." And please, drop the false FUD claims. You pick up on these phrases and then use them over and over again where they're not appropriate.
Your conclusion that the law "will mainly be used on friends sharing music" is completely baseless. You have offered no evidence of this. It's 100% faith-based FUD. And what's somebody from ICE got to do with the EC report? Nothing. More FUD. Sorry, Mike, I call it what I think it is.
No, that's simply not true. You don't lump together wildly different things under a single label because they're "both the same." Point is they're not the same. Not even close. Lumping them together is -- without question -- intellectually dishonest. You're better than that. Don't stoop to that level.
The only person claiming they are the same is you. The report itself never says that. Again, all FUD. Do you have any evidence that applies to this E.C. report?
They don't say that file-sharing is dangerous, they say that "certain of these goods posing a danger to consumers' health and safety." The certain goods being alluded to there are not the files being shared. Obviously.
And none of the quotes you've proffered shows that they are confusing fake drugs with file-sharing. They speak of "counterfeiting and piracy." That indicates that those are two different things. They speak of "for sale or download." That also speaks of two different things.
You guys seem really desperate in trying to pretend that the authors of this report don't know the difference between the two.
The point of the conflation is to falsely suggest that fans sharing music is as bad, say, as fake drugs or counterfeit airplane parts, when anyone who is being even close to intellectually honest has to admit that the impact of those two situations are entirely different.
I don't know, Mike. I just don't see it. I'm reading the report you are referencing in this article, and it seems clear to me that they understand the difference between counterfeit goods and file-sharing:
The multi-purpose nature of the Internet makes it easy to commit a wide variety of infringements of intellectual property rights. Goods infringing intellectual property rights are offered for sale on the Internet. Search engines often enable fraudsters to attract Internet users to their unlawful offers available for sale or download. File-sharing of copyright-protected content has become ubiquitous, partly because the development of legal offers of digital content has not been able to keep up with demand, especially on a cross-border basis, and has led many law-abiding citizens to commit massive infringements of copyright and related rights in the form of illegal up-loading and disseminating protected content. Many online sites are either hosting or facilitating the online distribution of protected works without the consent of the right holders. In this context, the limitations of the existing legal framework may need to be clearly assessed.
Where does it say fake drugs and airplane parts are as bad as file-sharing? It doesn't say that. I think that's just you spreading FUD.
The reason they're being lumped together is simply because they both involve intellectual property rights being violated on the internet. It's just not this nefarious master plan that you make it to be.
I'm thinking they sue the site, the original poster of the infringing material, and also anyone who responds to the original poster. They could throw in anyone who links to any of the posts for good measure. Hell, they could sue us for even talking about it. Who isn't a John Doe these days? :)
Very romantic aj. Now explain how one side reneged on their part of the deal (of letting works enter the public domain) by extending copyright over and over, ad infinitum, in order to lockdown society's right to their own culture and prevent anything from ever passing out of copyright.
I don't think it's romanticized. That's the way it is. I agree there is a great argument that copyright terms are too long (and it's not "ad infinitum," as I'm sure you know), but that doesn't change the fact that published works can be enjoyed and used now. While I'm sure we can do it better, that doesn't mean it's not working now. Only one part of it is being locked up, the particular expression, but I think you too easily dismiss its benefits.
Counterfeit law has nothing to do with IP law.
Counterfeit is imitation passed off as the real thing.
Counterfeit laws are supposed to be to protect the consumer, regularly misused we know, but it is still the supposed aim, not protecting the notional intellectual property involved in a bag or a t-shirt or whatever else is being counterfeited.
So you think counterfeiting laws should only protect consumers from the counterfeiters, but the companies whose goods are counterfeited should have no recourse?
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That's prior restraint.
I think that's just wrong, and you're hanging your hat on one sentence that you have already said you think is incorrect to begin with.
The court will look at the actual effect of the seizures, not to what the agent purports to be the effect of the seizures. The court's analysis will not turn on an incorrect claim. That makes no sense.
Besides, I believe the agent was only referring to one domain name, torrent-finder.com. What about all of the other domain names that were seized? He said nothing about those.
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That piece has so many mistakes I'm debating if it's even worth doing yet another rebuttal. Probably not.
But, just a tidbit: Hart plays the same trick you tried recently, where you say that the domain name seizure does not impact the speech of the site, which ignores that the entire argument for seizing these domains was based on the content of the sites. I can't see how you can have it both ways. You can't say "we're just seizing the domain, so that doesn't impact the speech on the site" at the same time that the very reason that DHS gave for seizing the domain was to pull down the content on the site.
I'm sorry, but Hart's analysis is an interesting exercise in advocating for one side, but I can't see it standing up in court at all, because it's quite easy to point out the holes in each one of his arguments.
I don't think Hart's arguments fall apart that easily. Either the seizure in fact impacts the speech on the site, or it does not. One sentence from a non-lawyer agent doesn't change a thing. I think you're hyper-focusing on that one thing and missing the bigger picture. The court won't care what the agent said so much as they'll care about the real impact of the seizures.
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Copyhype always has great legal analysis. :)
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I don't think that's tunnel vision at all.
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I found some Second Circuit language directly on point holding that domain names are not per se protected speech. In other words, domain names are not presumptively protected by the First Amendment (well, at least not in CT, VT, and NY). If that's the case, I don't see how it's possibly prior restraint.
Name.Space Inc. v. Network Solutions Inc., 202 F.3d 573 (2nd Cir. 2000).
Whatcha think?
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According to the Second Circuit, domain names are not presumptively protected by the First Amendment:
Name.Space Inc. v. Network Solutions Inc., 202 F.3d 573 (2nd Cir. 2000).
That would indicate that the First Amendment exception does not apply to domain names, no? If that's right, then the "censorship" argument sort of breaks down, IMO.
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Of course not. Whether or not the seizures violates due process is up for debate. I'm curious to see which way the courts come down on the issue. Nothing would really surprise me.
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Are you saying the companies protecting their trademarks are "censoring the internet"? I thought that phrase only applied to those protecting their copyrights.
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Seriously, what the heck does trying to stem the flow of fake products like golf clubs and sportswear have to do with the First Amendment?
For someone who is so vehemently against conflating trademark and copyright, you'd think Mike's headline would be far less careless.
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You guys seem really, really desperate here.
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You wrote a whole article about the European Commission's report without yourself providing a single example from the report of this alleged conflation. I've produced evidence. You have not.
It doesn't say that *directly* of course. But it lumps them together, so that they can claim that these laws are needed "to protect people from dangerous counterfeit products," ignoring that the law will mainly be used on friends sharing music files that have no dangerous component whatsoever. That's not FUD. Just look at ICE. They've been supporting the seizure of music blogs by claiming -- falsely -- that "these crooks are... jeopardizing public safety." And please, drop the false FUD claims. You pick up on these phrases and then use them over and over again where they're not appropriate.
Your conclusion that the law "will mainly be used on friends sharing music" is completely baseless. You have offered no evidence of this. It's 100% faith-based FUD. And what's somebody from ICE got to do with the EC report? Nothing. More FUD. Sorry, Mike, I call it what I think it is.
No, that's simply not true. You don't lump together wildly different things under a single label because they're "both the same." Point is they're not the same. Not even close. Lumping them together is -- without question -- intellectually dishonest. You're better than that. Don't stoop to that level.
The only person claiming they are the same is you. The report itself never says that. Again, all FUD. Do you have any evidence that applies to this E.C. report?
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And none of the quotes you've proffered shows that they are confusing fake drugs with file-sharing. They speak of "counterfeiting and piracy." That indicates that those are two different things. They speak of "for sale or download." That also speaks of two different things.
You guys seem really desperate in trying to pretend that the authors of this report don't know the difference between the two.
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I don't know, Mike. I just don't see it. I'm reading the report you are referencing in this article, and it seems clear to me that they understand the difference between counterfeit goods and file-sharing:
https://lqdn.co-ment.com/text/W2LVTwgJhhC/view/
Where does it say fake drugs and airplane parts are as bad as file-sharing? It doesn't say that. I think that's just you spreading FUD.
The reason they're being lumped together is simply because they both involve intellectual property rights being violated on the internet. It's just not this nefarious master plan that you make it to be.
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I don't think it's romanticized. That's the way it is. I agree there is a great argument that copyright terms are too long (and it's not "ad infinitum," as I'm sure you know), but that doesn't change the fact that published works can be enjoyed and used now. While I'm sure we can do it better, that doesn't mean it's not working now. Only one part of it is being locked up, the particular expression, but I think you too easily dismiss its benefits.
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Counterfeit is imitation passed off as the real thing.
Counterfeit laws are supposed to be to protect the consumer, regularly misused we know, but it is still the supposed aim, not protecting the notional intellectual property involved in a bag or a t-shirt or whatever else is being counterfeited.
So you think counterfeiting laws should only protect consumers from the counterfeiters, but the companies whose goods are counterfeited should have no recourse?
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