I'm arguing that if you accept that increased rates of file sharing shows that RIAA suits don't hinder file sharing, you should accept that increased production of creative works shows that copyright protection does not hinder production creative works.
I shouldn't, because I/we have a fundamentally different premise in each one that changes the logical steps afterwards. One being an action that has relatively little chance of the majority of individuals that partake in it being caught and less so as time goes on (increase in participants, better technology to obfuscate participants, limited time and money to prosecute), and one that they actively want to engage in for a variety of reasons, vs a legal right automatically granted to anyone that creates, and is used and misused in a variety of ways.
In trying to present a series of logical steps we accept in one case that we must accept in another, you neglect the fundamental difference in premise in each case.
First, lack of evidence to the contrary is not the same as evidence in the affirmative.
Continued inability to provide evidence in the affirmative of file sharing being significantly curbed, whilst the only evidence we have showing consistent, continued increase does however, make for a very, very weak argument otherwise.
This directly contrary to the evidence that production has increased if you take the "increased rates of Y activity during X activity = X activity did not hinder Y activity" logic to be valid.
I don't, there are a number of reasons why such activity can increase, primarily technological development that makes it significantly easier for any kind of content to be created. You're arguing that if we believe that file sharing has not been significantly hindered then we must also believe that copyright must be responsible for the majority of created works in that they're the same basic logic - however, the latter has a significantly bigger step, in that you must believe it be responsible for, not merely a lack of hindrance to.
This is very different, in that it involves a question of premise (the underlying assumption and presence/lack of evidence to support it), not just logical steps. We believe different things in each instance because of different underlying assumptions about the nature of each.
This is taken as evidence that filesharing suits don't hurt filesharing.
because there is a lack of distinct evidence that those suits do have any significant affect.
Yet, when production of copyright protectiable works increases despite increasing copyright protection, this is not taken as evidence that copyright protection doesn't hinder creative production.
That wasn't the point of the post, the point was to show up the logic that if there is 99% of something (illegal file sharing), that justifies ignoring the 1% of the opposite (legitimate file sharing). If 99% of creativity is done without copyright needed as an incentive, then we can ignore the 1% and ditch copyright by the same token.
That's not what's actually being suggested or argued, merely presented to show up a piece of logic that can easily be used against those that use it as an easy means of supporting something without deeper argument or evidence.
He was the one who tried to coin the term "Masnick Effect" which I was mainly referring to, combined with referring to Mike as Masnick or "The Masnick". It's a regular term and way of speaking used seemingly in a disparaging way, combined with previous troll memes like bootstrapping, "it must be Friday" and a bunch of others.
The higher revenue at the lower price point brought about a realization about “price erosion”. The notion that “App Store price erosion is bad for developers” could be a backwards way of looking at things. What is generally referred to as price erosion occurs because developers are optimizing their revenue. If a game earns 50% more revenue at a lower price point, it’s a pure win situation as the developer makes more money AND more people get to enjoy the game. And if those two things are true, does it really matter what the sale price is? If we all charged double for our games we might all earn more money, but we could also end up earning less money because people would buy much fewer apps.
Maybe when you learn that in reality we do not live in a perfect middle mans world where putting something out in public is not the same as giving the public any kind of right or ability to use something even when you've sold it to them.
Maybe that'll be the same day you learn that we do not have choice or control over every aspect of what we do, particularly anything put out publicly, and that playing along with someones delusion that DRM and 95 year copyrights are necessary is something that'll always be detrimental to society.
The shark was jumped when file sharing was labelled theft and subsequently file sharers are now all thieves who never support artists and want everything for free.
As a side note, FreedomBox has been funded via Kickstarter. It took 5 days to raise $60,000, with over half raised in only 2, and this is with a 30 day period to allow for funding.
You see, that's just it. If a hotel is being used for crime, then the entire hotel can be seized and forfeited--and not for the purpose of preserving the evidence. The forfeiture is to take away the criminals' tools.
That's all these domain name seizures are doing--they're taking away the criminals' tools. Whether the crime is infringement or child pornography makes no difference. Criminals' tools are subject to seizure and forfeiture.
Except we're not merely removing the tools as they're used by criminals, we're removing the tools as they're used by a disproportionately large amount of innocent users without a process to properly account for that. As a poster argued above, this is far less akin to closing the specific building for evidence gathering reasons, but closing every building operated by said business. Imagine McDonalds having every store shut down for health and safety violations of one branch with no findings or evidence of any company wide problems or violations before hand. Again, if we're going to argue that mooo.com may lose the right to let out its domains for 84,000 sites, then that same thing applies to ICANN - that's giving you a significant power over the web and the ability to seize and attempt to limit or remove access to sites, particularly if you want to do so under the cover that some (a very small minority, particularly compared to legal users) domains are used for child porn or copyright infringement.
ICE has not alleged that mooo.com as a whole is directly involved or implicit in what's happened at these sites, and in recognising this mistake, have apparently admitted this was not their intention, and that's the problem. They are taking a gung ho approach with little checks and balances beyond "This is what we think they're doing, please let us seize away", which in turn brings up the ever contentious first amendment considerations in not making sure what they're doing is properly limited and targeted to the specific crime at hand, and unfairly damaging a significant proportion of people both in service and reputation.
This is far, far, far broader than any run of the mill seizures. Ridiculously so, in fact.
1) I would imagine a hotel could be reasonably closed for a period time for the classic evidence gathering reasons, particularly if you suspect the hotel to be involved (knows about and hides such acts). This is not necessary in the case of these websites, unless you're maybe trying to charge that mooo.com was itself involved, which ICE does not appear to be alleging at all, as recognized by them in admitting they only wanted 10 sites, not the provider as a whole.
2) That same basic reasoning applies just as much to .com, .co.uk, etc. If ICANN is going to let people use .com for child porn, maybe they should lose the right to use such domains at all. 84,000 is certainly not a small number of sites to have the use of their domains taken from them, the majority of which appear undoubtedly to be legal, under the principle that 10 are used for child porn, especially if we're talking about the idea that it's feasible for the likes of mooo.com alone to be able to effectively monitor its domains for such use - and we're talking about a domain provider that must serve tens of thousands of sites here, not merely a single particular site with content like Youtube, Rapidshare etc.
The probable cause was that certain subdomains were engaging in child pornography. No one, I repeat, no one is saying that all 84,000 sites were engaged in child pornography.
Then why would you possibly think it could go either way in regards to taking 84,000 sites for 10?
And why would you think it wouldn't be possible to target only those sites?
Arcara was brought agains something not considered protected expression.
Arcara specifically states that not only was the action brought against unprotected expression, but it was an activity that was not expressive at all, but did specifically acknowledge instances involving action against non-expressive activity that were deemed prior restraint. The 2 are not mutually exclusive, why you'd think so I have no idea.
If you can't even summarize the main point of Arcara correctly, you've got no business attempting to debate it.
I summed it up perfectly well, and with significant quotations above to back it up. For someone intent on misreading, misrepresenting and outright ignoring various parts of Arcara and its reasoning, you seem awfully keen on personal attacks regarding my ability to understand and debate it.
Thanks for all the fish Joe (I'll just go ahead and assume it's you again for now).
Copyright infringement has no element of protected expression.
How many times do I have to say that?
Not even once, as no one has argued otherwise. Once again, for someone happy to claim others are ignoring things, you're happy to ignore what I said (to satisfy first amendment considerations expression being impacted by seizure/closure or other restrictions must be subject to hearing/trial to determine if it's protected expression or falls heavily on protected expression) in favour of what you wish I had said (that copyright infringement is protected expression).
All you've done is assert me as being wrong, never having shown proof otherwise. Not only have you deliberately left out important reasoning from Arcara, you've seen quite fit to argue that prior restraint does not exist, something no one else has even thought of arguing, particularly considering Arcara is carefully argued to explicitly not remove prior restraint.
Every time this case comes up, I have to walk you guys through it...
And every time you get it wrong, lost in some woods somewhere crying for help..."Infringement! Infringement!"
Stopping unprotected expressive activity; exactly what copyright infringement is.
To determine that an expressive activity is unprotected expressive activity, it needs to have gone through a trial first, thanks to the fact that some forms of infringement are protected activity, and the sites taken down may (in fact, we know for some of them) have a significant element that is protected.
No, you missed a step. There is reasonable suspicion of copyright infringement (obviously), an illegal act, which does not possess any element of protected expression, and thus does not trigger any First Amendment protection.
The mere suspicion of copyright infringement does not remove the need for first amendment consideration. The entire definition of prior restraint is not considering this before you close or take something down merely because you have suspicion - if suspicion alone were enough to remove that responsibility, there'd be no point in having the concept of prior restraint. Almost every action like this proceeds on the basis of suspicion, that's obvious of any accusation or initial action, what we're interested in is that we don't close or take down shops/sites/whatever based on mere suspicion. that these things get determined with a proper, fair hearing.
1) Arcara was an action brought against what was deemed non-expressive activity
2) Copyright infringment is an expressive activity, to decide which whether that infringement is protected or not under the first amendment must go through trial, as some forms of infringement are protected under fair use
3) Even in the event that the expressive activity is not protected, and even in the event where the activity isn't expressive at all (tax on ink), if the measures fall heavily on expressive, protected activity, then said measures must be struck down to the minimum necessary (thus some form of trial must happen to determine this)
4) None of the above has happened - the seizures have occurred without first amendment considerations where there is expressive activity, some of which will be protected
5) Ergo, Arcara does not apply, and the seizures are prior restraint.
In Arcara, it is argued that due to the fact that the closure was being ordered on the basis of stopping non-expressive activity, no first amendment considerations were triggered, and that in closing the store the restriction of particular materials being distributed was not what was being attempted.
Here we have expressive activities - protected or not - that are being targeted, along with a whole bunch of other, presumably protected expressive activities going on at the same time. This triggers first amendment considerations through the simple fact that what is being brought against them involves expressive elements where a first amendment defence can be raised, and to decide whether said speech is protected or what is being done is overly broad you need to go through some form of hearing/trial.
Who said it was protected speech? Only that when the issue involves speech or puts pressure on otherwise protected speech, Arcara does not apply.
I quoted a bunch of stuff that precisely says that - it does not need to be protected speech that is being affected, the simple fact being that you decide whether said speech is protected, whether too much pressure is put on and whether the measures are overly broad or not through some form of trial or hearing. Not only does Arcara not apply in those instances, but even in Arcara they got a chance for such arguments to be brought up before the store was closed.
But it's not prostitution till it's been proven to be such.
It doesn't have to be, it must merely be the original charge against them. Arcara specifically states that if the charge being brought against them is not something considered related to expression, then said process does not apply unless proven otherwise:
The closure statute is directed at unlawful conduct having nothing to do with books or other expressive activity.
However, charges of copyright infringement do involve elements of expression, and may involve protected expression due to the inherent ambiguities in Fair Use. Pointed out earlier in the thread:
We recognize that the D. C. Circuit spoke too broadly when it declared copyrights "categorically immune from challenges under the First Amendment."
As was also pointed out earlier, Arcara specifically states that something like a tax on ink may also be prior restraint:
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, [Footnote 3] 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.
[...]
For the same reason, we must reject the Court of Appeals' reasoning analogizing the closure order sought in this case to an unconstitutional prior restraint under Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931). The closure order sought in this case differs from a prior restraint in two significant respects. First, the order would impose no restraint at all on the dissemination of particular materials, since respondents are free to carry on their bookselling business at another location, even if such locations are difficult to find. 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.
For someone happy to claim others are lyers, we seem to be the only ones willing to actually quote Arcara accurately.
The dissent asserts that we have previously struck down "[g]enerally applicable statutes that purport to regulate nonspeech . . . if they unduly penalize speech, political or otherwise." Post at 478 U. S. 709. This is obviously a correct statement of holdings which are not relevant here. In each of the cases cited by the dissent, the "nonspeech" which drew sanctions was intimately related to expressive conduct protected under the First Amendment. See Grayned v. City of Rockford, 408 U. S. 104 (1972) (demonstration results in prosecution under anti-noise ordinance); Marsh v. Alabama, 326 U. S. 501 (1946) (trespass in order to distribute religious literature); Cantwell v. Connecticut, 310 U. S. 296 (1940) (breach of peace prosecution based upon distribution of religious literature). Here, however, the "nonspeech" conduct subject to a general regulation bears absolutely no connection to any expressive activity.
On the post: The Amount Of Content Created In Spite Of Copyright Is Staggering
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I shouldn't, because I/we have a fundamentally different premise in each one that changes the logical steps afterwards. One being an action that has relatively little chance of the majority of individuals that partake in it being caught and less so as time goes on (increase in participants, better technology to obfuscate participants, limited time and money to prosecute), and one that they actively want to engage in for a variety of reasons, vs a legal right automatically granted to anyone that creates, and is used and misused in a variety of ways.
In trying to present a series of logical steps we accept in one case that we must accept in another, you neglect the fundamental difference in premise in each case.
On the post: The Amount Of Content Created In Spite Of Copyright Is Staggering
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Continued inability to provide evidence in the affirmative of file sharing being significantly curbed, whilst the only evidence we have showing consistent, continued increase does however, make for a very, very weak argument otherwise.
I don't, there are a number of reasons why such activity can increase, primarily technological development that makes it significantly easier for any kind of content to be created. You're arguing that if we believe that file sharing has not been significantly hindered then we must also believe that copyright must be responsible for the majority of created works in that they're the same basic logic - however, the latter has a significantly bigger step, in that you must believe it be responsible for, not merely a lack of hindrance to.
This is very different, in that it involves a question of premise (the underlying assumption and presence/lack of evidence to support it), not just logical steps. We believe different things in each instance because of different underlying assumptions about the nature of each.
On the post: The Amount Of Content Created In Spite Of Copyright Is Staggering
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because there is a lack of distinct evidence that those suits do have any significant affect.
That wasn't the point of the post, the point was to show up the logic that if there is 99% of something (illegal file sharing), that justifies ignoring the 1% of the opposite (legitimate file sharing). If 99% of creativity is done without copyright needed as an incentive, then we can ignore the 1% and ditch copyright by the same token.
That's not what's actually being suggested or argued, merely presented to show up a piece of logic that can easily be used against those that use it as an easy means of supporting something without deeper argument or evidence.
On the post: The Amount Of Content Created In Spite Of Copyright Is Staggering
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On the post: The Amount Of Content Created In Spite Of Copyright Is Staggering
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Wow, that was easy.
On the post: The Amount Of Content Created In Spite Of Copyright Is Staggering
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On the post: Maybe Super Cheap Video Games Are Helping, Not Destroying, The Video Game Industry
Re: not so sure
http://2dboy.com/2011/02/08/ipad-launch/
On the post: Sometimes 'Piracy' And Freedom Look Remarkably Similar
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Maybe that'll be the same day you learn that we do not have choice or control over every aspect of what we do, particularly anything put out publicly, and that playing along with someones delusion that DRM and 95 year copyrights are necessary is something that'll always be detrimental to society.
On the post: Sometimes 'Piracy' And Freedom Look Remarkably Similar
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On the post: Sometimes 'Piracy' And Freedom Look Remarkably Similar
http://www.kickstarter.com/projects/721744279/push-the-freedombox-foundation-from-0-to-6 0-in-30
I guess people care about freedom a lot, even if some may decry it as piracy...
On the post: ICE Finally Admits It Totally Screwed Up; Next Time, Perhaps It'll Try Due Process
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Except we're not merely removing the tools as they're used by criminals, we're removing the tools as they're used by a disproportionately large amount of innocent users without a process to properly account for that. As a poster argued above, this is far less akin to closing the specific building for evidence gathering reasons, but closing every building operated by said business. Imagine McDonalds having every store shut down for health and safety violations of one branch with no findings or evidence of any company wide problems or violations before hand. Again, if we're going to argue that mooo.com may lose the right to let out its domains for 84,000 sites, then that same thing applies to ICANN - that's giving you a significant power over the web and the ability to seize and attempt to limit or remove access to sites, particularly if you want to do so under the cover that some (a very small minority, particularly compared to legal users) domains are used for child porn or copyright infringement.
ICE has not alleged that mooo.com as a whole is directly involved or implicit in what's happened at these sites, and in recognising this mistake, have apparently admitted this was not their intention, and that's the problem. They are taking a gung ho approach with little checks and balances beyond "This is what we think they're doing, please let us seize away", which in turn brings up the ever contentious first amendment considerations in not making sure what they're doing is properly limited and targeted to the specific crime at hand, and unfairly damaging a significant proportion of people both in service and reputation.
This is far, far, far broader than any run of the mill seizures. Ridiculously so, in fact.
On the post: ICE Finally Admits It Totally Screwed Up; Next Time, Perhaps It'll Try Due Process
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1) I would imagine a hotel could be reasonably closed for a period time for the classic evidence gathering reasons, particularly if you suspect the hotel to be involved (knows about and hides such acts). This is not necessary in the case of these websites, unless you're maybe trying to charge that mooo.com was itself involved, which ICE does not appear to be alleging at all, as recognized by them in admitting they only wanted 10 sites, not the provider as a whole.
2) That same basic reasoning applies just as much to .com, .co.uk, etc. If ICANN is going to let people use .com for child porn, maybe they should lose the right to use such domains at all. 84,000 is certainly not a small number of sites to have the use of their domains taken from them, the majority of which appear undoubtedly to be legal, under the principle that 10 are used for child porn, especially if we're talking about the idea that it's feasible for the likes of mooo.com alone to be able to effectively monitor its domains for such use - and we're talking about a domain provider that must serve tens of thousands of sites here, not merely a single particular site with content like Youtube, Rapidshare etc.
On the post: ICE Finally Admits It Totally Screwed Up; Next Time, Perhaps It'll Try Due Process
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Then why would you possibly think it could go either way in regards to taking 84,000 sites for 10?
And why would you think it wouldn't be possible to target only those sites?
On the post: Once Again, Why Homeland Security's Domain Name Seizures Are Almost Certainly Not Legal
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Arcara specifically states that not only was the action brought against unprotected expression, but it was an activity that was not expressive at all, but did specifically acknowledge instances involving action against non-expressive activity that were deemed prior restraint. The 2 are not mutually exclusive, why you'd think so I have no idea.
I summed it up perfectly well, and with significant quotations above to back it up. For someone intent on misreading, misrepresenting and outright ignoring various parts of Arcara and its reasoning, you seem awfully keen on personal attacks regarding my ability to understand and debate it.
Thanks for all the fish Joe (I'll just go ahead and assume it's you again for now).
On the post: Once Again, Why Homeland Security's Domain Name Seizures Are Almost Certainly Not Legal
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Not even once, as no one has argued otherwise. Once again, for someone happy to claim others are ignoring things, you're happy to ignore what I said (to satisfy first amendment considerations expression being impacted by seizure/closure or other restrictions must be subject to hearing/trial to determine if it's protected expression or falls heavily on protected expression) in favour of what you wish I had said (that copyright infringement is protected expression).
All you've done is assert me as being wrong, never having shown proof otherwise. Not only have you deliberately left out important reasoning from Arcara, you've seen quite fit to argue that prior restraint does not exist, something no one else has even thought of arguing, particularly considering Arcara is carefully argued to explicitly not remove prior restraint.
On the post: Once Again, Why Homeland Security's Domain Name Seizures Are Almost Certainly Not Legal
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And every time you get it wrong, lost in some woods somewhere crying for help..."Infringement! Infringement!"
To determine that an expressive activity is unprotected expressive activity, it needs to have gone through a trial first, thanks to the fact that some forms of infringement are protected activity, and the sites taken down may (in fact, we know for some of them) have a significant element that is protected.
No, you missed a step. There is reasonable suspicion of copyright infringement (obviously), an illegal act, which does not possess any element of protected expression, and thus does not trigger any First Amendment protection.
The mere suspicion of copyright infringement does not remove the need for first amendment consideration. The entire definition of prior restraint is not considering this before you close or take something down merely because you have suspicion - if suspicion alone were enough to remove that responsibility, there'd be no point in having the concept of prior restraint. Almost every action like this proceeds on the basis of suspicion, that's obvious of any accusation or initial action, what we're interested in is that we don't close or take down shops/sites/whatever based on mere suspicion. that these things get determined with a proper, fair hearing.
On the post: Once Again, Why Homeland Security's Domain Name Seizures Are Almost Certainly Not Legal
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1) Arcara was an action brought against what was deemed non-expressive activity
2) Copyright infringment is an expressive activity, to decide which whether that infringement is protected or not under the first amendment must go through trial, as some forms of infringement are protected under fair use
3) Even in the event that the expressive activity is not protected, and even in the event where the activity isn't expressive at all (tax on ink), if the measures fall heavily on expressive, protected activity, then said measures must be struck down to the minimum necessary (thus some form of trial must happen to determine this)
4) None of the above has happened - the seizures have occurred without first amendment considerations where there is expressive activity, some of which will be protected
5) Ergo, Arcara does not apply, and the seizures are prior restraint.
On the post: Once Again, Why Homeland Security's Domain Name Seizures Are Almost Certainly Not Legal
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Danke Shoen
In Arcara, it is argued that due to the fact that the closure was being ordered on the basis of stopping non-expressive activity, no first amendment considerations were triggered, and that in closing the store the restriction of particular materials being distributed was not what was being attempted.
Here we have expressive activities - protected or not - that are being targeted, along with a whole bunch of other, presumably protected expressive activities going on at the same time. This triggers first amendment considerations through the simple fact that what is being brought against them involves expressive elements where a first amendment defence can be raised, and to decide whether said speech is protected or what is being done is overly broad you need to go through some form of hearing/trial.
On the post: Once Again, Why Homeland Security's Domain Name Seizures Are Almost Certainly Not Legal
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I quoted a bunch of stuff that precisely says that - it does not need to be protected speech that is being affected, the simple fact being that you decide whether said speech is protected, whether too much pressure is put on and whether the measures are overly broad or not through some form of trial or hearing. Not only does Arcara not apply in those instances, but even in Arcara they got a chance for such arguments to be brought up before the store was closed.
On the post: Once Again, Why Homeland Security's Domain Name Seizures Are Almost Certainly Not Legal
Re: Re: Re: Re: Re: Re: Re: Re: Danke Shoen
It doesn't have to be, it must merely be the original charge against them. Arcara specifically states that if the charge being brought against them is not something considered related to expression, then said process does not apply unless proven otherwise:
However, charges of copyright infringement do involve elements of expression, and may involve protected expression due to the inherent ambiguities in Fair Use. Pointed out earlier in the thread:
As was also pointed out earlier, Arcara specifically states that something like a tax on ink may also be prior restraint:
For someone happy to claim others are lyers, we seem to be the only ones willing to actually quote Arcara accurately.
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