The defense is raised in the forfeiture action, so there is a defense. But the point there was that even if the defense proves successful, it doesn't mean that it was necessarily constitutionally protected speech.
Nobody's saying that all copyright laws are automatically exempt from any scrutiny. They would have to pass rational basis scrutiny, which is the minimum scrutiny. I don't think any law gets no scrutiny. Nobody's arguing that. The seizure statute easily passes rational basis. Arcara applies because the conduct at issue is criminal infringement, and that has no element of protected expression.
Of course it does. Copyright law lays out a whole slew of limitations on copyright (17 USC 107-122 and 512), all of which are legitimate defenses to criminal infringement as well. That's not even including the "it was authorized" defense, which dajaz1 and OnSmash will certainly (and legitimately) raise.
Let's put it this way. Suppose a defense is successfully raised. Would the government have restrained protected expression? Yes, absolutely, it would have.
Not necessarily.
Most cases alleging outright piracy, as well as most claims that the defendant has exceeded the boundaries of its license, would fall within this category. In this situation, the defendant's conduct is not constitutionally protected speech, even if the defendant ultimately proves that it's not a copyright infringement.
Apparently the government is handling this under 18 USC 46 Sec. 983:
(i) Except as provided in clauses (ii) through (v), in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute, with respect to which the Government is required to send written notice to interested parties, such notice shall be sent in a manner to achieve proper notice as soon as practicable, and in no case more than 60 days after the date of the seizure.
(ii) No notice is required if, before the 60-day period expires, the Government files a civil judicial forfeiture action against the property and provides notice of that action as required by law.
As indicated in the filings, notice was posted two weeks after the seizures.
Assuming that ICE did in fact file a civil judicial forfeiture action against the property, the rules would be covered by the Supplemental Rules for Certain Admiralty and Maritime Claims. Specifically, that would be Rule G, in which case Rule G(4)(b) applies:
(b) Notice to Known Potential Claimants. (i) Direct Notice Required. The government must send notice of the action and a copy of the complaint to any person who reasonably appears to be a potential claimant on the facts known to the government before the end of the time for filing a claim under Rule G(5)(a)(ii)(B).
You do realize that notice of the seizure is different than notice of the forfeiture action, right? The seizure notice was given two weeks after the seizure. This section is about notice of the forfeiture action.
The notice that's required in that section is the notice for the forfeiture action, the one filed June 17th. Do you have any evidence that Puerto 80 was not directly notified of that action? It seems unlikely that notice wasn't given to Puerto 80 considering the government was in talks with them.
So, yes, direct notice is required.
And you haven't shown it wasn't given, and there's every reason to think it was given.
Now, the time frame for these things is fairly long. The government has 60 days to file a civil judicial forfeiture action; then "a reasonable time after filing the complaint" after the forfeiture action, to provide notice by publication on their website; then 60 days after the notice by publication.
It says they have 60 days to give notice of the seizure, not 60 days to file the forfeiture action. They gave notice two weeks after the seizure, well within the 60 days allotted.
Still, to my knowledge, none of the sites were ever contacted in this manner; they were never told "the name of the government attorney to be served with the claim and answer," or the deadline, or even the venue. That certainly didn't happen in this case; Rojadirecta had to hunt them down over several weeks, "but was unable to engage with the government until it notified the U.S. Attorney’s Office of its intent to seek a temporary restraining order and file a petition for immediate return of the seized domain names" - many weeks after it had sent ICE a letter requesting the domain names be returned under 983(f).
The government posted public notice of the seizures two weeks after they occurred. Puerto 80 went in and filled out the claims form seven weeks after the seizures. That started the clock ticking for the government to file the forfeiture action within 90 days, which they did. Not even Puerto 80 is arguing what you're arguing.
I would also like to point out that ICE did not file a civil forfeiture action, until after Rojadirecta filed Seized Asset Claim Forms on March 22nd. In fact, I believe that they have not actually filed civil forfeiture actions in most of these cases. That would mean that direct notice would be required within 60 days, and that hasn't happened.
Again, you simply misunderstand the 60 days thing. Nor do you have any evidence that public notice wasn't given after every single seizure. It simply doesn't say that the forfeiture complaint has to be filed in 60 days. In fact, if you read 983(a)(1)(A)(2) it contemplates that the government may not have filed the action within 60 days. You're confusing posting notice of the seizure with filing the forfeiture complaint and giving notice of that.
Obviously I can't be sure - because the site owners aren't sure either, as ICE never notified them, and they have no idea what has been filed and what hasn't.
There is no evidence that the government didn't post adequate notice in every single seizure. Why wouldn't they post the notice? Makes no sense. The one case where we now know for sure shows that they followed the rules.
I t's not exactly clear to me that Lowcountry wasn't injured somehow via Eiser. It probably doesn't matter though since damages don't appear to be available for UPL under the Court's invitation for only declaratory judgment actions.
That West Virginia case cites other jurisdictions:
Our research indicates that in cases from a number of jurisdictions, courts have recognized the right of plaintiffs to predicate claims for damages and other relief upon allegations of the unauthorized practice of law by a defendant. See, e.g., Armstrong v. Brown Service Funeral Home West Chapel, 700 So.2d 1379 (Ala.Civ.App.1997) (claims for damages and class action relief for unauthorized practice held cognizable); American Abstract and Title Co. v. Rice, 186 S.W.3d 705, 2004 WL 1354273 (Ark. June 17, 2004) (unfair trade practices and class action claims cognizable, existence of State Bar Committee on unauthorized practice did not oust trial court of jurisdiction); accord, Speights v. Stewart Title Guaranty Co., 186 S.W.3d 715, 2004 WL 1354279 (Ark. June 17, 2004); Herman v. Prudence Mutual Casualty Company, 41 Ill.2d 468, 244 N.E.2d 809 (1969) (plaintiff could seek injunctive relief against unauthorized practice); Kim v. Desert Document Services, 101 Wash.App. 1043, 2000 WL 987005 (Div. 1 2000) (unpublished) (plaintiffs could bring private action asserting unauthorized practice of law), review denied, 142 Wash.2d 1026, 21 P.3d 1149 (Wash.2001); J.H. Marshall & Associates v. Burleson, 313 A.2d 587 (D.C.1973) (individual plaintiff had standing to seek injunction against unauthorized practice of law); Dressel v. Ameribank, 468 Mich. 557, 664 N.W.2d 151 (2003) (plaintiffs asserted class action claim for unauthorized practice); accord, Perkins v. CTX Mortgage Co., 137 Wash.2d 93, 969 P.2d 93 (1999); but compare Reliable Collection Agency, Ltd. v. Cole, 59 Haw. 503, 584 P.2d 107 (1978) (statute prohibiting unauthorized practice of law did not confer standing).
McMahon v. Advanced Title Services Co. of W. Virginia, 216 W. Va. 413, 417 (2004).
Footnote 78 from the Nevada case I cited says that many states do have a private right of action for UPL, and that there is a cognizable injury:
See, e.g., McMahon v. Advanced Title Services Co., 216 W.Va. 413, 607 S.E.2d 519, 524 (2004) (noting that many jurisdictions recognize a private right of action for the unauthorized practice of law, and holding that “a party who has suffered or may likely suffer a legally cognizable injury, wrong, or other actionable violation of his or her personal legal rights and interests as a proximate result of the unlawful and unauthorized practice of law by another has standing to assert a claim alleging such actual or threatened unlawful and unauthorized practice and seeking relief appropriate to the injury, wrong, or violation”); see also Paso Builders, Inc. v. Hebard, 83 Nev. 165, 172, 426 P.2d 731, 736 (1967) (recognizing that whether or not a claim for negligence per se based on the unauthorized practice of law is viable in Nevada was of no import when the conduct complained of did not proximately cause any damage).
Here's what the petition cites for bringing the action in South Carolina:
Finally, we recognize that other situations will arise which will require this Court to determine whether the conduct at issue involves the unauthorized practice of law. We urge any interested individual who becomes aware of such conduct to bring a declaratory judgment action in this Court's original jurisdiction to determine the validity of the conduct. We hope by this provision to strike a proper balance between the legal profession and other professionals which will ensure the public's protection from the harms caused by the unauthorized practice of law.
In re Unauthorized Practice of Law Rules Proposed by S. Carolina Bar, 309 S.C. 304, 307 (1992).
So that confirms that the invitation by the Court is for a declaratory judgment. I don't see how there's no injury though. Since the petitioners were the target of this purported UPL, wouldn't they be injured since they had to defend the illegal suit and that costs money?
It appears there is no private right of action in Nevada:
First, although Nevada has not yet recognized a private cause of action for the unauthorized practice of law, other jurisdictions have recognized such a claim.78 Luckett's complaint **51 alleges that Doumani “(lied) to me in telling me that he is a(CA) practicing lawyer,” and also gave Luckett legal advice concerning a pending Nevada Eighth Judicial District Court case. Luckett did not, however, assert that Doumani is not an attorney or that he falsely claimed to be licensed in Nevada, but only that the California State Bar has no record of Doumani as a California-licensed attorney. *74 And as noted above, he later stated that Doumani is a California-licensed attorney. Further, Luckett did not allege that any legal advice given by Doumani proximately caused, or was likely to cause, any damage to Luckett. In addition, although Luckett asserted that the advice was given on the La Concha Motel's premises, and that the Motel served as a “front ... for this scam,” the Motel could be held liable directly for the unauthorized practice of law only under a theory of respondeat superior, in which case the underlying cause of action must exist.79 Thus, whether or not Doumani is a licensed attorney, Luckett failed to state a claim for the unlawful practice of law.
Jordan v. State ex rel. Dept. of Motor Vehicles & Pub. Safety, 121 Nev. 44, 73-74 (2005).
So I guess the claim has to be brought by the state bar or something like that. It seems to me that the UPL claim is just to get Righthaven to stop practicing law. Damages would come under some other theory, like a RICO action as you say. I don't really know though. I've only been reading about what constitutes UPL, not what it means if it is UPL.
Why do you think Rojadirecta is not even making this argument if it's the right argument? I suspect you're misreading 983. I'll read through it though to see just what it says.
Would damages be an option, or is injunctive relief all you can get in a UPL action? It seems to me that a finding of UPL would lead to damages under other tort theories, like fraud or civil conspiracy. Or do those turn on the standing/ownership issue? I don't really have a clue how this all works.
Whether or not there's a private right of action for UPL depends on state law. I know South Carolina has one, and in fact Righthaven is being sued there in the state Supreme Court for UPL. I'm not sure about Colorado and Nevada. I'll look it up.
I think Stephens Media and MediaNews Group are probably jointly and severally liable with Righthaven whether Righthaven goes under or not. I think a significant battle will be fought over whether the media groups are on the hook. I suspect they'll lose that fight.
He is, but Righthaven isn't a law firm. He's potentially assisting Righthaven to commit UPL, and that's a no no. It doesn't matter if he's a lawyer or not.
I have to wonder too what Mangano is thinking. He's now on notice that what he's doing with Righthaven is possibly the unauthorized practice of law. If all the accusations of it to date didn't bring the point home, certainly Judge Hunt's words yesterday should have done the trick. But still, Mangano filed a new complaint the day before yesterday against Mostofi. After what the judge said yesterday, I'll be amazed if he files another one without first settling this issue. Filing complaints after a judge tells you it's probably the unauthorized practice of law sounds like a bad plan career-wise.
As far as the sanctions goes, I've said all along that I think Righthaven should be sanctioned for making misrepresentations to the court. Judge Hunt ruled that Righthaven intentionally misled him, and I believe the judge. I don't think Judge Hunt has a lot of experience with copyright law, but I trust that the man knows when he's been lied to.
I think of it this way: The standing issue turns on ownership of the underlying copyrights. That's the front end of the contract between Righthaven and their assignor. The unauthorized practice of law issue turns on the back end deal, where Righthaven splits the profits with their assignor. It doesn't matter if Righthaven has standing on the front end since the back end is illegal. No amount of changing their contracts will fix this unless they cut out the back end profit sharing, which they obviously won't do since that's the whole point.
I've made my position known in other threads. I think it probably is unauthorized practice of law and that Righthaven is about to be totally shut down by a ruling to that effect. I also think that Righthaven's employers are probably going to be on the hook by the time this is all through. And I think the checks they write will be big ones. Nonetheless, I still think the standing and fair use rulings have been wrong.
Let me guess, future inclusion on the TSA's grope list? Being blacklisted from whitehouse dinner parties. Being put on the future rogue site list right after the EFF and CC.
On the post: Feds Respond To Rojadirecta's Challenge To Domain Seizures: If We Give It Back, They'll Infringe Again
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Nobody's saying that all copyright laws are automatically exempt from any scrutiny. They would have to pass rational basis scrutiny, which is the minimum scrutiny. I don't think any law gets no scrutiny. Nobody's arguing that. The seizure statute easily passes rational basis. Arcara applies because the conduct at issue is criminal infringement, and that has no element of protected expression.
On the post: Feds Respond To Rojadirecta's Challenge To Domain Seizures: If We Give It Back, They'll Infringe Again
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Let's put it this way. Suppose a defense is successfully raised. Would the government have restrained protected expression? Yes, absolutely, it would have.
Not necessarily.http://www2.law.ucla.edu/volokh/copyinj.htm#IVC
On the post: Feds Respond To Rojadirecta's Challenge To Domain Seizures: If We Give It Back, They'll Infringe Again
Re: Re: Re: Re: Re: Re: Re:
(i) Except as provided in clauses (ii) through (v), in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute, with respect to which the Government is required to send written notice to interested parties, such notice shall be sent in a manner to achieve proper notice as soon as practicable, and in no case more than 60 days after the date of the seizure.
(ii) No notice is required if, before the 60-day period expires, the Government files a civil judicial forfeiture action against the property and provides notice of that action as required by law.
As indicated in the filings, notice was posted two weeks after the seizures.
Assuming that ICE did in fact file a civil judicial forfeiture action against the property, the rules would be covered by the Supplemental Rules for Certain Admiralty and Maritime Claims. Specifically, that would be Rule G, in which case Rule G(4)(b) applies:
(b) Notice to Known Potential Claimants. (i) Direct Notice Required. The government must send notice of the action and a copy of the complaint to any person who reasonably appears to be a potential claimant on the facts known to the government before the end of the time for filing a claim under Rule G(5)(a)(ii)(B).
You do realize that notice of the seizure is different than notice of the forfeiture action, right? The seizure notice was given two weeks after the seizure. This section is about notice of the forfeiture action.
There is no question that the government "did in fact file a civil judicial forfeiture action against the property." I posted a link to the forfeiture complaint above. It was filed June 17th: http://www.scribd.com/doc/59833516/Complaint-for-forfeiture-Rojadirecta-com
The notice that's required in that section is the notice for the forfeiture action, the one filed June 17th. Do you have any evidence that Puerto 80 was not directly notified of that action? It seems unlikely that notice wasn't given to Puerto 80 considering the government was in talks with them.
So, yes, direct notice is required.
And you haven't shown it wasn't given, and there's every reason to think it was given.
Now, the time frame for these things is fairly long. The government has 60 days to file a civil judicial forfeiture action; then "a reasonable time after filing the complaint" after the forfeiture action, to provide notice by publication on their website; then 60 days after the notice by publication.
It says they have 60 days to give notice of the seizure, not 60 days to file the forfeiture action. They gave notice two weeks after the seizure, well within the 60 days allotted.
Still, to my knowledge, none of the sites were ever contacted in this manner; they were never told "the name of the government attorney to be served with the claim and answer," or the deadline, or even the venue. That certainly didn't happen in this case; Rojadirecta had to hunt them down over several weeks, "but was unable to engage with the government until it notified the U.S. Attorney’s Office of its intent to seek a temporary restraining order and file a petition for immediate return of the seized domain names" - many weeks after it had sent ICE a letter requesting the domain names be returned under 983(f).
The government posted public notice of the seizures two weeks after they occurred. Puerto 80 went in and filled out the claims form seven weeks after the seizures. That started the clock ticking for the government to file the forfeiture action within 90 days, which they did. Not even Puerto 80 is arguing what you're arguing.
I would also like to point out that ICE did not file a civil forfeiture action, until after Rojadirecta filed Seized Asset Claim Forms on March 22nd. In fact, I believe that they have not actually filed civil forfeiture actions in most of these cases. That would mean that direct notice would be required within 60 days, and that hasn't happened.
Again, you simply misunderstand the 60 days thing. Nor do you have any evidence that public notice wasn't given after every single seizure. It simply doesn't say that the forfeiture complaint has to be filed in 60 days. In fact, if you read 983(a)(1)(A)(2) it contemplates that the government may not have filed the action within 60 days. You're confusing posting notice of the seizure with filing the forfeiture complaint and giving notice of that.
Obviously I can't be sure - because the site owners aren't sure either, as ICE never notified them, and they have no idea what has been filed and what hasn't.
There is no evidence that the government didn't post adequate notice in every single seizure. Why wouldn't they post the notice? Makes no sense. The one case where we now know for sure shows that they followed the rules.
On the post: Another Day, And Another Smackdown For Righthaven: Told To Pay Up For Misleading The Court
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: But wait...
I t's not exactly clear to me that Lowcountry wasn't injured somehow via Eiser. It probably doesn't matter though since damages don't appear to be available for UPL under the Court's invitation for only declaratory judgment actions.
On the post: Another Day, And Another Smackdown For Righthaven: Told To Pay Up For Misleading The Court
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: But wait...
On the post: Another Day, And Another Smackdown For Righthaven: Told To Pay Up For Misleading The Court
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: But wait...
On the post: Another Day, And Another Smackdown For Righthaven: Told To Pay Up For Misleading The Court
Re: Re: Re: Re: Re: Re: Re: Re: Re: But wait...
So that confirms that the invitation by the Court is for a declaratory judgment. I don't see how there's no injury though. Since the petitioners were the target of this purported UPL, wouldn't they be injured since they had to defend the illegal suit and that costs money?
It appears there is no private right of action in Nevada:Jordan v. State ex rel. Dept. of Motor Vehicles & Pub. Safety, 121 Nev. 44, 73-74 (2005).
So I guess the claim has to be brought by the state bar or something like that. It seems to me that the UPL claim is just to get Righthaven to stop practicing law. Damages would come under some other theory, like a RICO action as you say. I don't really know though. I've only been reading about what constitutes UPL, not what it means if it is UPL.
On the post: Another Day, And Another Smackdown For Righthaven: Told To Pay Up For Misleading The Court
Re: Re: Re: Re: Re: But wait...
I don't really know if they have an action against Mangano and Gibson personally, or just Righthaven. Good question.
On the post: Another Day, And Another Smackdown For Righthaven: Told To Pay Up For Misleading The Court
Re: Re: Re: But wait...
On the post: Feds Respond To Rojadirecta's Challenge To Domain Seizures: If We Give It Back, They'll Infringe Again
Re: Re: Re: Re: Re: Re: Re:
On the post: Another Day, And Another Smackdown For Righthaven: Told To Pay Up For Misleading The Court
Re: Re: Re: Re: Re: Re: Re: But wait...
On the post: Another Day, And Another Smackdown For Righthaven: Told To Pay Up For Misleading The Court
Re: Re: Re: Re: Re: But wait...
On the post: Another Day, And Another Smackdown For Righthaven: Told To Pay Up For Misleading The Court
Re: Punishment will be far more than $5000
On the post: Another Day, And Another Smackdown For Righthaven: Told To Pay Up For Misleading The Court
Re: Re: Re: But wait...
On the post: Another Day, And Another Smackdown For Righthaven: Told To Pay Up For Misleading The Court
Re: But wait...
On the post: Another Day, And Another Smackdown For Righthaven: Told To Pay Up For Misleading The Court
Re: But wait...
On the post: Another Day, And Another Smackdown For Righthaven: Told To Pay Up For Misleading The Court
Re: But wait...
On the post: Another Day, And Another Smackdown For Righthaven: Told To Pay Up For Misleading The Court
Re: But wait...
On the post: Another Day, And Another Smackdown For Righthaven: Told To Pay Up For Misleading The Court
Re: But wait...
On the post: Managing IP Magazine Recognizes That Those Who Are Critical Of Intellectual Property Are Important To The Conversation
Re: Re:
LMAO!
Next >>