My comment's reference to criminal proceedings was taken from a memo distributed by the DOJ.
Gotcha. They're undoubtedly are criminal investigations tied to these seizures, and it'll be interesting to see how many criminal charges are actually filed.
Only a "temporary" injustice, huh? Would you mind if I "temporarily" beat you about the head with a large stick? I'll eventually stop, I promise.
Or maybe "temporary" will just be for a "limited time", like copyright, like life plus 70 years. Or maybe "forever minus a day". Yeah, temporary's just fine.
I don't really follow you. The site's operators can intervene immediately once the warrants are executed.
When a seizure if of evidence. That's not the case here. The purpose here is to deprive a person of something without trial. Whether that something is freedom, property, or something else, seizing it without trial most certainly does violate due process, despite what any corrupt judge may say.
It's not just evidence that can be seized, but also "instrumentalities" of crime. I imagine that's what these domain names would fall under.
Agreed. I wonder what the reaction is going to be.
Hopefully someone will challenge these proceedings on constitutional grounds and we get to watch it go up through the legal system. I don't think the constitutionality of these seizures changes whether COICA is law yet or not, so it's would be essentially a test of COICA for one of these seizures to go to court.
Re COICA: No one ever claimed "no such domain seizures would ever possibly come without a full trial first". I wonder how that smelled when you pulled it out of your ass...
I didn't really understand that comment either. Under COICA, as here, the *temporary* seizure warrant is issued ex parte. But once the domain name is seized, the person who registered the domain name is contacted and invited to intervene in the proceedings. Whether or not they do in fact intervene is their choice, but you cannot say they did not have an opportunity to make their case. In other words, there is a trial if the people behind the site want it. The *temporary* seizure warrant is not made *permanent* until after the adversary hearing is over.
Nobody ever said that the *temporary* seizures would not happen absent an adversary hearing, and I believe it is incorrect to suggest otherwise. That's simply not how COICA or these in rem proceedings work. What people have claimed, and what is true, is that the seizure does not become *permanent* until there is an adversary hearing.
I looked at the various links associated with this article and have to wonder what facts are not mentioned that would serve to explain the totality of this matter. Something is missing and I do not know what it is, other than to note that criminal complaints under the Lanham Act and the Copyright Act are apparently pending against the individuals associated with the sites, complaints that should already be known to each of the individuals.
This one has me scratching my head in the absence of such other information. Perhaps groups like the EFF will be able to fill in the blanks.
It does bear mentioning that COICA is not a law, but only a bill being considered within Congress. What does distinguish the provisions of the bill is the mandate for a lawsuit being filed and tried before a federal judge before any action can be taken.
I don't believe it's necessarily true that criminal complaints have been filed against any of the people behind the sites. In fact, I'd be surprised if they have.
What's happening here is a civil forfeiture proceeding against the domain name (the "res") itself, which is, of course, a case that is an adversary proceeding. The operators of the sites are not themselves a party to the case, but they most certainly have the right to intervene as a third party.
Here, the prosecutor takes probable cause to a federal judge who issues a seizure warrant allowing the domain name to be seized. From there notice is sent to the person who registered the domain name and they have so many days to intervene if they so wish.
Of course, prosecutors take probable cause to judges to get warrants all the time, and the person against whom the warrant is issued is given no warning. And of course, such proceedings do not violate due process of law.
These in rem proceedings are exactly the same type as called for in COICA. In one sense they're nothing new since trademark law has allowed in rem proceedings against domain names under the ACPA for over a decade. In another sense, their use by law enforcement is novel since the underlying "wrong" is presumably a criminal charge and not civil cybersquatting as under the ACPA. I don't think that changes the due process analysis though.
One thing's for sure, this is all very interesting to watch.
You know how these things "work themselves out"? It's because people stand up and point out how ridiculous the law is when you have a double standard like this.
You could certainly make the argument that there's a double standard. I think that we're just in a period of change, and these things will work themselves out.
I suspect the difference between jailbreaking an iPhone and modding an Xbox is that the latter is done for the sole purpose of allowing illegally copied games to be played.
Section 1201(a)(2) provides no person shall offer to the public any technology that is primarily designed to circumvent a technological measure that effectively controls access to a protected work, has only limited commercially significant purpose, and is marketed for use in circumventing a technological measure.
An Xbox mod is all three of those.
A jailbroken iPhone, on the other hand, has other uses like interoperability.
I haven't actually read the reasons why the Register of Copyrights thought jailbreaking iPhones was OK, though. I'll have to look it up.
Not exactly. Commercial use can mean more than trying to make money off of it. For example, in the Henley v. Devore case, the candidate's use of Henley's song was commercial even though he wasn't trying to make any money off of it. He was trying to gain the support of voters, and that made it commercial.
My point is that those factors may not mean what people think they mean. You should research and see how courts interpret and apply the factors before you try and do it yourself.
Yes, it was Reimerdes that I was thinking of. That case involved CSS protection on DVDs. The defendants argued that CSS is a weak cipher that does not "effectively control" access to the plaintiffs’ copyrighted works. The court said this is indefensible as a matter of law--a technological measure effectively controls access if its function is to control access. The defendant's construction would offer protection where none is needed, and it would withhold protection where it is needed the most.
On the post: Who Needs COICA When Homeland Security Gets To Seize Domain Names?
Re: Re: Re:
Gotcha. They're undoubtedly are criminal investigations tied to these seizures, and it'll be interesting to see how many criminal charges are actually filed.
On the post: Who Needs COICA When Homeland Security Gets To Seize Domain Names?
Re: Re: Re:
Or maybe "temporary" will just be for a "limited time", like copyright, like life plus 70 years. Or maybe "forever minus a day". Yeah, temporary's just fine.
I don't really follow you. The site's operators can intervene immediately once the warrants are executed.
On the post: Who Needs COICA When Homeland Security Gets To Seize Domain Names?
Re: Re: Re:
It's not just evidence that can be seized, but also "instrumentalities" of crime. I imagine that's what these domain names would fall under.
On the post: Who Needs COICA When Homeland Security Gets To Seize Domain Names?
Re: Re: Re:
Hopefully someone will challenge these proceedings on constitutional grounds and we get to watch it go up through the legal system. I don't think the constitutionality of these seizures changes whether COICA is law yet or not, so it's would be essentially a test of COICA for one of these seizures to go to court.
On the post: Who Needs COICA When Homeland Security Gets To Seize Domain Names?
Re:
I didn't really understand that comment either. Under COICA, as here, the *temporary* seizure warrant is issued ex parte. But once the domain name is seized, the person who registered the domain name is contacted and invited to intervene in the proceedings. Whether or not they do in fact intervene is their choice, but you cannot say they did not have an opportunity to make their case. In other words, there is a trial if the people behind the site want it. The *temporary* seizure warrant is not made *permanent* until after the adversary hearing is over.
Nobody ever said that the *temporary* seizures would not happen absent an adversary hearing, and I believe it is incorrect to suggest otherwise. That's simply not how COICA or these in rem proceedings work. What people have claimed, and what is true, is that the seizure does not become *permanent* until there is an adversary hearing.
On the post: Who Needs COICA When Homeland Security Gets To Seize Domain Names?
Re:
This one has me scratching my head in the absence of such other information. Perhaps groups like the EFF will be able to fill in the blanks.
It does bear mentioning that COICA is not a law, but only a bill being considered within Congress. What does distinguish the provisions of the bill is the mandate for a lawsuit being filed and tried before a federal judge before any action can be taken.
I don't believe it's necessarily true that criminal complaints have been filed against any of the people behind the sites. In fact, I'd be surprised if they have.
What's happening here is a civil forfeiture proceeding against the domain name (the "res") itself, which is, of course, a case that is an adversary proceeding. The operators of the sites are not themselves a party to the case, but they most certainly have the right to intervene as a third party.
Here, the prosecutor takes probable cause to a federal judge who issues a seizure warrant allowing the domain name to be seized. From there notice is sent to the person who registered the domain name and they have so many days to intervene if they so wish.
Of course, prosecutors take probable cause to judges to get warrants all the time, and the person against whom the warrant is issued is given no warning. And of course, such proceedings do not violate due process of law.
These in rem proceedings are exactly the same type as called for in COICA. In one sense they're nothing new since trademark law has allowed in rem proceedings against domain names under the ACPA for over a decade. In another sense, their use by law enforcement is novel since the underlying "wrong" is presumably a criminal charge and not civil cybersquatting as under the ACPA. I don't think that changes the due process analysis though.
One thing's for sure, this is all very interesting to watch.
On the post: Facebook Sues Faceporn, Apparently Believing It Owns The Words Face & Book
Re: Look and Feel
On the post: Jailbreaking Your iPhone? Legal! Jailbreaking Your Xbox? 3 Years In Jail!
Re: Re: Re: Re: Re: Re: Re: Re:
Well then by all means, Mike, give 'em hell.
On the post: Sony To Stop Making Cassette Walkmen (Yes, It Was Still Making Them...)
On the post: Universal Claiming Dancing Baby Video Not An Obvious Case Of Fair Use
Re: Re: Re: Re: Re: Re: Re: Re: Re: Nature of the Copyrighted Work
There is, of course, noncommercial use. My point is that the difference between commercial and noncommercial may not be what people think it is.
Before people go applying the four factors, they should learn how the factors are applied.
On the post: Jailbreaking Your iPhone? Legal! Jailbreaking Your Xbox? 3 Years In Jail!
Re: Re: Re: Re: Re: Re:
On the post: Universal Claiming Dancing Baby Video Not An Obvious Case Of Fair Use
Re: Re: Re: Re: Re: Re: Re: Nature of the Copyrighted Work
On the post: Jailbreaking Your iPhone? Legal! Jailbreaking Your Xbox? 3 Years In Jail!
Re: Re: Re: Re:
In the Reimerdes case, DeCSS was marketed primarily to circumvent CSS, and that was the problem.
Are these Xbox mods tools for circumvention or interoperability?
I think we both know the answer.
On the post: Jailbreaking Your iPhone? Legal! Jailbreaking Your Xbox? 3 Years In Jail!
Re: Re: Re: Re: Re:
On the post: Jailbreaking Your iPhone? Legal! Jailbreaking Your Xbox? 3 Years In Jail!
Re: Re: Re:
To see a case on point, check this out: http://scholar.google.com/scholar_case?case=4887310188384829978&hl=en&as_sdt=2&as_vis=1& amp;oi=scholarr
On the post: Jailbreaking Your iPhone? Legal! Jailbreaking Your Xbox? 3 Years In Jail!
Re: Re:
I suspect the difference between jailbreaking an iPhone and modding an Xbox is that the latter is done for the sole purpose of allowing illegally copied games to be played.
Section 1201(a)(2) provides no person shall offer to the public any technology that is primarily designed to circumvent a technological measure that effectively controls access to a protected work, has only limited commercially significant purpose, and is marketed for use in circumventing a technological measure.
An Xbox mod is all three of those.
A jailbroken iPhone, on the other hand, has other uses like interoperability.
I haven't actually read the reasons why the Register of Copyrights thought jailbreaking iPhones was OK, though. I'll have to look it up.
On the post: Universal Claiming Dancing Baby Video Not An Obvious Case Of Fair Use
Re: Re: Re: Nature of the Copyrighted Work
On the post: Universal Claiming Dancing Baby Video Not An Obvious Case Of Fair Use
Re: Re: Re: Re: Re: Nature of the Copyrighted Work
On the post: Universal Claiming Dancing Baby Video Not An Obvious Case Of Fair Use
Re: Re: Re: Nature of the Copyrighted Work
My point is that those factors may not mean what people think they mean. You should research and see how courts interpret and apply the factors before you try and do it yourself.
On the post: Jailbreaking Your iPhone? Legal! Jailbreaking Your Xbox? 3 Years In Jail!
Re: Re:
Next >>