They're also a function of general issues of due process. Depriving people of their property before a fair trial, or even a fair hearing, or even any notice, is extremely disfavored regardless of the substantive law being applied.
It may be disfavored, but the Court has said that the forfeiture procedures are constitutional in general. Couple that with a lengthy history of ex parte seizures in copyright cases, and I'm not convinced that these seizures are unconstitutional. One thing the critics can't point to is authority that says in a copyright case there must be a preseizure, adversarial hearing before a seizure. To me, that speaks volumes.
I had the pleasure of reading your paper. Great job! It's very well written and researched, and I find your arguments about why the seizures are contrary to the cooperative spirit of the DMCA and why perhaps they are a bad idea (and ineffective) to be persuasive. However, I'm not convinced you demonstrated that the seizures are unconstitutional. I wanted to read your paper before responding the substance of your post.
Thanks for the comments on the paper. I hope you did take time to read it, as I do go into some detail as to why the analogy to obscenity is appropriate, how even the procedural safeguards common in copyright cases would call for greater safeguards here. And the law is evolving in this area, as the Salinger case identifies and Lemley and Volokh noted in their influential article on point over ten years ago.
I'm not sure you really demonstrated that there are mandatory, minimum procedural safeguards common in copyright cases that aren't being met here. Your focus seemed to be on injunctions in civil cases, not ex parte seizures in criminal cases. I'm familiar with the writings of Lemley and Volokh. While they make great points about things could/should be, that doesn't really support your argument for how things actually are with ex parte seizures in copyright cases.
I missed that on Copyhype. Thanks for the link. I see he was echoing what I was saying above about copyright laws generally not be subject to heightened scrutiny. The always-excellent Terry Hart does a great job of explaining how copyright works in the First Amendment context.
And thanks for the link to your blog. I enjoyed looking around, and I've added it to my list of "must read" copyright blogs. I'm not sure your response to Hart hit the mark. You say: "And thus any regulation of speech that depends on regulating the exact words used should invite strict scrutiny, be it embraced in a viewpoint judgment or not." Maybe it should be subject to strict scrutiny, as much of the doctrine you cite agrees, however the jurisprudence is clear that such heightened scrutiny is not necessary in the copyright context. The reason is, as Hart points out, that copyright has its own built-in First Amendment safety valves.
I would love to examine this issue purely under copyright, but the law is novel. A probable-cause, ex parte standard for the removal of expressive material in the name of copyright is, as far as I can tell, unprecedented.
In fact, I believe that the lack of reported cases of such seizures is not because they are so rare, but in fact it is because they are so commonplace and routine that few cases merit reporting.
But the analogy to obscenity (I think) is a completely reasonable one. Both obscenity and infringement examine the legality of speech entirely on the basis of its content. Both deal with content that, if they are not found to be illegal, is fully protected under the First Amendment. And both deal in dim lines and uncertainties. There are easy cases in both, sure, but there are many where reasonable minds (and reasonable judges) will split. So the procedural safeguards we adopt in obscenity should apply with copyright infringement as well, even though neither obscene speech nor infringing speech will be saved by crying "First Amendment."
I follow your argument about how the procedural safeguards used in obscenity cases could be applied to copyright cases. I think the analogy misses the fact that obscenity and copyright are treated differently under the First Amendment. Not just substantively, but procedurally as well.
The closest thing copyright had up until this point is the Rule 65(b) TRO, and that requires more procedure than is followed in civil forfeiture proceedings. A magistrate judge's only concern in examining a forfeiture warrant is whether there is sufficient probable cause stated. In a TRO, a court has to be persuaded that the hardships command that the court not wait until communication is established with the defending party.
I agree that the TRO standard offers more due process, but I'm not convinced that the ex parte seizure/civil forfeiture procedure offers inadequate process.
The idea that "obscenity works different" than copyright is fairly empty, as there is nothing in the opinions I cited that suggests that the concerns about taking the speech out of circulation or seizure of expressive material without a warrant is limited to allegedly obscene works. The court spoke of speech more broadly than that.
My understanding of the jurisprudence is that obscenity does in fact work differently than copyright in a way that's relevant to the issue of due process. The procedural safeguards needed are in fact different.
The whole Eldred argument (both raised for and against my claim) is not really appropriate. That was looking at substantive First Amendment issues and their scrutiny, not anything regarding the correlating procedural concerns.
But the procedural concerns are a function of the substantive First Amendment issues. As the Court in Eldred pointed out, copyright laws are not immune from First Amendment scrutiny. However, the procedural safeguards necessary are different with copyright laws because copyright has its own safety valves--the idea/expression dichotomy and fair use. The reason the safeguards used in obscenity cases are not necessary in the copyright context is because of these safety valves. I think Eldred is very important in understanding the constitutionality of these seizures.
This is a bit scattershot, and for that I apologize. I do encourage you to read the paper, as I address many of these concerns you're raising directly.
Does anyone have a reliable count of the number of DNS seizures to date where the website owners are physically located in the United States (not the registrars, but the actual site owners)?
If some are actually located in the US, does anyone have the names of those sites?
I think charges have been filed in two cases. The majority of the sites and servers were overseas, so that explains the lack of charges. They've said that more charges of domestic people will be forthcoming, and they've also said they're seizing servers in some cases. I imagine with most of the sites it's not a simple matter to bring charges and to make an arrest.
Maybe, but to be honest, I'm not sure I buy the idea that anyone's stalling to begin with. I know that in some of the cases complaints have been filed and notice given. Those owners could have challenged the seizures, but apparently chose not to. I highly doubt that ICE or the DOJ is afraid of being challenged on these seizures. I could be wrong, sure, but I'm really skeptical about it.
There's the seizure warrant, and then there's the complaint. The complaint comes after the warrant. How much later? Depends. Keep in mind that the government's theory is that this is property used to commit a crime. Imagine if you owned a gun that the government thought was used in a murder. They could get a warrant and seize the gun. Could you go running to court to get the gun back? Not right away, I don't think. The court would give the government a reasonable amount of time to keep the gun.
I don't think they ever have to file criminal charges, if that's what you mean. They just have to file the civil complaint against the property in a reasonable time. What's reasonable depends on the facts of the case. I think judges are quite deferential to the government in such matters.
Coolio. Thanks for the reply. Sorry if I sounded "snarky" as your friend put it. This is an issue that I'm interested in too. I wrote a paper last semester about the constitutionality of DOMA (Defense of Marriage Act) and executive duty (highest grade in my class--pats self on back). I wasn't really pleased with the paper, so I'm keeping it to myself.
Now I'm turning my sights to the constitutionality of these seizures. I've been thinking about it and doing some research since the seizures started, but I'll be doing my "real" research starting next week after my vacation is over. I'm taking a class this summer on Due Process, and in the fall I'm taking a First Amendment class. That should help with my paper. I should be done by Christmas--hopefully it'll be one I want to publish, or at least release into the wild. I'll send you a copy. ;)
And I'm sure I'll read your paper later today--looking forward to it. Watching "Avatar" with my boys now... Take it easy.
I'm no expert on procedure by any means, but is this really that mysterious? It's property that's been seized by a warrant issued on probable cause. The government can sit on the property while the criminal activity is being investigated. Eventually, i.e., in a reasonable time, the forfeiture proceedings must be brought, and notice is published. The Federal Rules govern: http://www.law.cornell.edu/rules/frcp/RuleG.htm
I don't think the owners can bring suit so much as they must wait for the government to file a complaint first. That's my understanding at least. I haven't really researched this issue, so please correct me if I'm wrong. It's certainly an interesting issue, and I'm as anxious for the courts to look at these seizures as the next person.
Re: Re: First Amendment doesn't apply to copyright?
The First Amendment works differently with obscenity than it does with copyright. That was my point. I'm not saying there's a "copyright exception." I'm simply saying that analyzing a copyright issue by analogy to obscenity doctrine seems strange to me. Why not look at copyright doctrine if you're analyzing a copyright issue?
As far as the TRO goes, I'm not sure that works either. These are seizures of property used to commit crimes. It's not a TRO and it's not a civil matter--the underlying issue is criminal. The standard is probable cause.
I still haven't read his paper yet, but I will soon.
Come to think of it, I believe the petitioners in Eldred argued that it was a content-neutral regulation worthy of intermediate scrutiny. They didn't even argue that it was a content-based regulation necessitating strict scrutiny, as the author of the paper here is arguing. As far as I know, no court has held that copyright laws are content-based. If the author of the paper got this basic point wrong, it really calls into question his entire analysis, IMO.
Copyright laws are subject to heightened scrutiny. Fair use is substantive, and "inducement to infringment" style laws are subjected to very hostile scrutiny by judges.
The Supreme Court made clear in Eldred v. Ashcroft that copyright laws are only subjected to rational basis scrutiny, and great deference is given to Congress's enactment of such laws.
But it's okay how ICE pretends it's a foregone conclusion that these seizures are constitutional?
I'd hope that erring on the side of caution when it comes to constitutional rights would be best practice, but...sigh.
You bring up an interesting point. Congress enacted a statute allowing for the instrumentalities of criminal copyright infringement to be seized. ICE is exercising the power that Congress gave them. How could ICE know whether or not seizing domain names is constitutional? The courts typically don't give advisory opinions. Sometimes the only way to find out is to do it, thus creating an actual case that a court could look at.
I hope somebody challenges these seizures soon, and I hope they have excellent lawyers making their case. I'd love to see the courts address this.
I think it cures some of the biggest constitutional complaints, namely due process and free speech. Obviously Mike and others still have concerns. I enjoy hearing Mike's policy reasons for why he thinks it's a bad idea. His legal arguments, not so much, but I find his bigger picture arguments to be persuasive at times.
I look forward to reading the whole PDF to see exactly what his arguments are and what support he's found for them. Looking at the snippets you've quoted, I'm skeptical.
It is clear that it would not, if adjudicated as infringing. Instead, the question is whether the in rem seizure of pure speech, done because it may be infringing, violates the procedural safeguards instituted by the First Amendment.
I'm quite curious what authority he cites for this. The caselaw and doctrine I've read suggests that the First Amendment procedural safeguards work differently in the copyright context than they do elsewhere.
Instead, a magistrate judge determined that there was a sufficient probability that it may be infringing, and used that alone to take the website down. Courts would not tolerate such a cursory review in all other areas of free speech law.
Right, courts would not tolerate such a cursory review in other contexts. Who cares? What about in THIS context? You know, the one we're talking about. Again, copyright works differently than other types of speech-affecting laws.
The First Amendment embodies certain procedural safeguards to help prevent free speech from being accidentally silenced while unprotected speech is enjoined. An analogy to obscenity doctrine can provide useful guidance.
Is an analogy to obscenity doctrine really helpful here? Why not look to actual copyright doctrine and jurisprudence? Again, obscenity works differently than copyright.
Prior restraints are considered the “most serious and least tolerable infringement on First Amendment rights,” and bear a “heavy presumption” against validity. Any effort to remove speech from circulation before the speech is adjudicated as unlawful can work an unconstitutional prior restraint, even when imposed after the speech is published. To that end, courts have recognized that seizure of expressive works requires special procedural considerations.
Again, I think he's trying to pigeonhole obscenity doctrine into the copyright context. I'll have to read his full paper to see how he addresses actual copyright doctrine. I know that prior restraint works differently when it's copyright.
Needless to say, these safeguards were not followed in Operation In Our Sites. The seizures here were not done to preserve evidence, as nothing tangible was taken into custody, and it would be illogical to claim that there was any risk that a defendant would “flee” with their domain name and thus deprive the court of evidence.
I'm curious what support he has for the idea that such seizures must be for the purpose of preserving evidence. That's a claim that's been thoroughly debunked in the techdirt comments before. Seizures done pursuant to in rem forfeitures may be done for reasons other than preserving evidence.
One of the popular explanations from Hart and one particular commenter on our site is that there is no First Amendment issue here because the seizure of the domains are not because of the domain's expressive nature, but merely because they are "property" used to facilitate infringement. Sellars punctures that claim deftly:
I'm on the edge of my seat...
Critics also argue that First Amendment analysis is inappropriate because the websites were not seized because of their expressive content, but because they are “property” used to facilitate crimes. This has intuitive appeal. After all, we do not use the First Amendment to stop the closure of a bar that violates liquor laws, even though bars are often places where members of the public gather to debate the issues of the day.
The problem with this argument is it unfairly characterizes the law at issue. Copyright forfeiture is not a content-neutral law allowing for the seizure of any property used in crime. The law providing for forfeiture in copyright cases expressly incorporates substantive copyright law. Copyright itself is a content-based form of regulation: it determines the legality or illegality of speech on the basis of how the speech is expressed. To equate content based laws with content-neutral laws does not conform with First Amendment doctrine. These websites were not seized here because their domain name offended copyright. It was the speech on the website, allegedly telling people where and how to find infringing content, that was the crux of the forfeiture. The object of the domain name seizure was to constructively remove this offending speech. The analysis of illegality here begins and ends with an examination of the speech for its content.
I got all excited for nothing, it seems. If "copyright itself is a content-based form of regulation," then why aren't copyright laws subject to heightened scrutiny? They aren't. The reason is because they are not content-based. Maybe they should be--that's a different matter--but under the current jurisprudence, they are not.
Secondly, he notes that Operation In Our Sites should follow existing standards for the seizure of speech as laid out in existing case law. Specifically, he points to the standards put forth in Freedman v. Maryland.
And that's an obscenity case, not a copyright case. Again, he appears to be trying to analyze this like it's an obscenity case.
Interesting find, Mike. Thanks for posting it. I look forward to giving his paper my full attention later on.
It had been a while since Homeland Security's ICE group stomped on anyone's free speech and due process rights, so it seems they had to just run out and illegally seize a bunch more websites this weekend, once again without any notice or adversarial hearings as required by the Constitution and the case law on the matter.
I love how you pretend that it's a foregone conclusion that these seizures are unconstitutional. You full well know that it's not so black-and-white and that no court has ever ruled either way. Yet you continue to assert that it's all perfectly clear. Strange that. I'd say I don't get it, but I think I do.
I'm up at my summer home, trying to "bust" as many bass out of the lake as I can. Thanks for asking. ;)
I'm glad the standing issue will soon be resolved. We have both the Colorado court and the Nevada court addressing the issue. It will be interesting to see if both courts reach the same conclusion.
I read Righthaven's arguments in the Democratic Underground case on the standing issue, and I think they did a decent job of explaining things. However, I thought the analysis was a little thin, and I think that they should have backed up more of their arguments with citations and authority.
As I've stated before, I think both sides have good arguments, and I think it's a gray area--this could go either way.
On the post: Why Operation In Our Sites Is Illegal And Needs To Be Fixed ASAP
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It may be disfavored, but the Court has said that the forfeiture procedures are constitutional in general. Couple that with a lengthy history of ex parte seizures in copyright cases, and I'm not convinced that these seizures are unconstitutional. One thing the critics can't point to is authority that says in a copyright case there must be a preseizure, adversarial hearing before a seizure. To me, that speaks volumes.
On the post: Judge: Hangover 2 Can Still Be Released; But Tattoo Artist May Prevail In The End
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Really? My first thought was that this was an obvious parody and fair use.
On the post: Why Operation In Our Sites Is Illegal And Needs To Be Fixed ASAP
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Thanks for the comments on the paper. I hope you did take time to read it, as I do go into some detail as to why the analogy to obscenity is appropriate, how even the procedural safeguards common in copyright cases would call for greater safeguards here. And the law is evolving in this area, as the Salinger case identifies and Lemley and Volokh noted in their influential article on point over ten years ago.
I'm not sure you really demonstrated that there are mandatory, minimum procedural safeguards common in copyright cases that aren't being met here. Your focus seemed to be on injunctions in civil cases, not ex parte seizures in criminal cases. I'm familiar with the writings of Lemley and Volokh. While they make great points about things could/should be, that doesn't really support your argument for how things actually are with ex parte seizures in copyright cases.
(By the way, Terry Hart posted a very similar critique to my paper here: http://www.copyhype.com/2011/05/the-free-speech-critique-of-copyright-mistake/ I posted a response here: https://andyontheroad.wordpress.com/2011/05/20/hart-response/)
I missed that on Copyhype. Thanks for the link. I see he was echoing what I was saying above about copyright laws generally not be subject to heightened scrutiny. The always-excellent Terry Hart does a great job of explaining how copyright works in the First Amendment context.
And thanks for the link to your blog. I enjoyed looking around, and I've added it to my list of "must read" copyright blogs. I'm not sure your response to Hart hit the mark. You say: "And thus any regulation of speech that depends on regulating the exact words used should invite strict scrutiny, be it embraced in a viewpoint judgment or not." Maybe it should be subject to strict scrutiny, as much of the doctrine you cite agrees, however the jurisprudence is clear that such heightened scrutiny is not necessary in the copyright context. The reason is, as Hart points out, that copyright has its own built-in First Amendment safety valves.
I would love to examine this issue purely under copyright, but the law is novel. A probable-cause, ex parte standard for the removal of expressive material in the name of copyright is, as far as I can tell, unprecedented.
My research into the matter leads me to believe that ex parte seizures in copyright infringement cases has been happening regularly for over a century. See for example, the Supreme Court Copyright Practice Rules from 1909: http://ipmall.info/hosted_resources/lipa/copyrights/United%20States%20Supreme%20Court%20Copyright%20 Practice%20Rules%20_1909.pdf
In fact, I believe that the lack of reported cases of such seizures is not because they are so rare, but in fact it is because they are so commonplace and routine that few cases merit reporting.
But the analogy to obscenity (I think) is a completely reasonable one. Both obscenity and infringement examine the legality of speech entirely on the basis of its content. Both deal with content that, if they are not found to be illegal, is fully protected under the First Amendment. And both deal in dim lines and uncertainties. There are easy cases in both, sure, but there are many where reasonable minds (and reasonable judges) will split. So the procedural safeguards we adopt in obscenity should apply with copyright infringement as well, even though neither obscene speech nor infringing speech will be saved by crying "First Amendment."
I follow your argument about how the procedural safeguards used in obscenity cases could be applied to copyright cases. I think the analogy misses the fact that obscenity and copyright are treated differently under the First Amendment. Not just substantively, but procedurally as well.
The closest thing copyright had up until this point is the Rule 65(b) TRO, and that requires more procedure than is followed in civil forfeiture proceedings. A magistrate judge's only concern in examining a forfeiture warrant is whether there is sufficient probable cause stated. In a TRO, a court has to be persuaded that the hardships command that the court not wait until communication is established with the defending party.
I agree that the TRO standard offers more due process, but I'm not convinced that the ex parte seizure/civil forfeiture procedure offers inadequate process.
The idea that "obscenity works different" than copyright is fairly empty, as there is nothing in the opinions I cited that suggests that the concerns about taking the speech out of circulation or seizure of expressive material without a warrant is limited to allegedly obscene works. The court spoke of speech more broadly than that.
My understanding of the jurisprudence is that obscenity does in fact work differently than copyright in a way that's relevant to the issue of due process. The procedural safeguards needed are in fact different.
The whole Eldred argument (both raised for and against my claim) is not really appropriate. That was looking at substantive First Amendment issues and their scrutiny, not anything regarding the correlating procedural concerns.
But the procedural concerns are a function of the substantive First Amendment issues. As the Court in Eldred pointed out, copyright laws are not immune from First Amendment scrutiny. However, the procedural safeguards necessary are different with copyright laws because copyright has its own safety valves--the idea/expression dichotomy and fair use. The reason the safeguards used in obscenity cases are not necessary in the copyright context is because of these safety valves. I think Eldred is very important in understanding the constitutionality of these seizures.
This is a bit scattershot, and for that I apologize. I do encourage you to read the paper, as I address many of these concerns you're raising directly.
No worries. I've enjoyed the chat.
On the post: Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling
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If some are actually located in the US, does anyone have the names of those sites?
According to ICE, as of last month there were 120 seized domain names (100 of them for trademark violations) with 100 of them out of China: http://www.scribd.com/doc/55446034/ICE-Answers
On the post: Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling
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I don't know if Mike covered this letter or not. It's a good read.
On the post: Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling
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On the post: Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling
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On the post: Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling
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On the post: Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling
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On the post: Why Operation In Our Sites Is Illegal And Needs To Be Fixed ASAP
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Now I'm turning my sights to the constitutionality of these seizures. I've been thinking about it and doing some research since the seizures started, but I'll be doing my "real" research starting next week after my vacation is over. I'm taking a class this summer on Due Process, and in the fall I'm taking a First Amendment class. That should help with my paper. I should be done by Christmas--hopefully it'll be one I want to publish, or at least release into the wild. I'll send you a copy. ;)
And I'm sure I'll read your paper later today--looking forward to it. Watching "Avatar" with my boys now... Take it easy.
On the post: Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling
I don't think the owners can bring suit so much as they must wait for the government to file a complaint first. That's my understanding at least. I haven't really researched this issue, so please correct me if I'm wrong. It's certainly an interesting issue, and I'm as anxious for the courts to look at these seizures as the next person.
On the post: Why Operation In Our Sites Is Illegal And Needs To Be Fixed ASAP
Re: Re: First Amendment doesn't apply to copyright?
As far as the TRO goes, I'm not sure that works either. These are seizures of property used to commit crimes. It's not a TRO and it's not a civil matter--the underlying issue is criminal. The standard is probable cause.
I still haven't read his paper yet, but I will soon.
On the post: Why Operation In Our Sites Is Illegal And Needs To Be Fixed ASAP
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On the post: Why Operation In Our Sites Is Illegal And Needs To Be Fixed ASAP
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On the post: Why Operation In Our Sites Is Illegal And Needs To Be Fixed ASAP
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The Supreme Court made clear in Eldred v. Ashcroft that copyright laws are only subjected to rational basis scrutiny, and great deference is given to Congress's enactment of such laws.
On the post: Here We Go Again: Operation In Our Sites Round 4 Kicks Off With More Domains Illegally Seized
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I'd hope that erring on the side of caution when it comes to constitutional rights would be best practice, but...sigh.
You bring up an interesting point. Congress enacted a statute allowing for the instrumentalities of criminal copyright infringement to be seized. ICE is exercising the power that Congress gave them. How could ICE know whether or not seizing domain names is constitutional? The courts typically don't give advisory opinions. Sometimes the only way to find out is to do it, thus creating an actual case that a court could look at.
I hope somebody challenges these seizures soon, and I hope they have excellent lawyers making their case. I'd love to see the courts address this.
On the post: Why Operation In Our Sites Is Illegal And Needs To Be Fixed ASAP
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On the post: Why Operation In Our Sites Is Illegal And Needs To Be Fixed ASAP
It is clear that it would not, if adjudicated as infringing. Instead, the question is whether the in rem seizure of pure speech, done because it may be infringing, violates the procedural safeguards instituted by the First Amendment.
I'm quite curious what authority he cites for this. The caselaw and doctrine I've read suggests that the First Amendment procedural safeguards work differently in the copyright context than they do elsewhere.
Instead, a magistrate judge determined that there was a sufficient probability that it may be infringing, and used that alone to take the website down. Courts would not tolerate such a cursory review in all other areas of free speech law.
Right, courts would not tolerate such a cursory review in other contexts. Who cares? What about in THIS context? You know, the one we're talking about. Again, copyright works differently than other types of speech-affecting laws.
The First Amendment embodies certain procedural safeguards to help prevent free speech from being accidentally silenced while unprotected speech is enjoined. An analogy to obscenity doctrine can provide useful guidance.
Is an analogy to obscenity doctrine really helpful here? Why not look to actual copyright doctrine and jurisprudence? Again, obscenity works differently than copyright.
Prior restraints are considered the “most serious and least tolerable infringement on First Amendment rights,” and bear a “heavy presumption” against validity. Any effort to remove speech from circulation before the speech is adjudicated as unlawful can work an unconstitutional prior restraint, even when imposed after the speech is published. To that end, courts have recognized that seizure of expressive works requires special procedural considerations.
Again, I think he's trying to pigeonhole obscenity doctrine into the copyright context. I'll have to read his full paper to see how he addresses actual copyright doctrine. I know that prior restraint works differently when it's copyright.
Needless to say, these safeguards were not followed in Operation In Our Sites. The seizures here were not done to preserve evidence, as nothing tangible was taken into custody, and it would be illogical to claim that there was any risk that a defendant would “flee” with their domain name and thus deprive the court of evidence.
I'm curious what support he has for the idea that such seizures must be for the purpose of preserving evidence. That's a claim that's been thoroughly debunked in the techdirt comments before. Seizures done pursuant to in rem forfeitures may be done for reasons other than preserving evidence.
One of the popular explanations from Hart and one particular commenter on our site is that there is no First Amendment issue here because the seizure of the domains are not because of the domain's expressive nature, but merely because they are "property" used to facilitate infringement. Sellars punctures that claim deftly:
I'm on the edge of my seat...
Critics also argue that First Amendment analysis is inappropriate because the websites were not seized because of their expressive content, but because they are “property” used to facilitate crimes. This has intuitive appeal. After all, we do not use the First Amendment to stop the closure of a bar that violates liquor laws, even though bars are often places where members of the public gather to debate the issues of the day.
The problem with this argument is it unfairly characterizes the law at issue. Copyright forfeiture is not a content-neutral law allowing for the seizure of any property used in crime. The law providing for forfeiture in copyright cases expressly incorporates substantive copyright law. Copyright itself is a content-based form of regulation: it determines the legality or illegality of speech on the basis of how the speech is expressed. To equate content based laws with content-neutral laws does not conform with First Amendment doctrine. These websites were not seized here because their domain name offended copyright. It was the speech on the website, allegedly telling people where and how to find infringing content, that was the crux of the forfeiture. The object of the domain name seizure was to constructively remove this offending speech. The analysis of illegality here begins and ends with an examination of the speech for its content.
I got all excited for nothing, it seems. If "copyright itself is a content-based form of regulation," then why aren't copyright laws subject to heightened scrutiny? They aren't. The reason is because they are not content-based. Maybe they should be--that's a different matter--but under the current jurisprudence, they are not.
Secondly, he notes that Operation In Our Sites should follow existing standards for the seizure of speech as laid out in existing case law. Specifically, he points to the standards put forth in Freedman v. Maryland.
And that's an obscenity case, not a copyright case. Again, he appears to be trying to analyze this like it's an obscenity case.
Interesting find, Mike. Thanks for posting it. I look forward to giving his paper my full attention later on.
On the post: Here We Go Again: Operation In Our Sites Round 4 Kicks Off With More Domains Illegally Seized
I love how you pretend that it's a foregone conclusion that these seizures are unconstitutional. You full well know that it's not so black-and-white and that no court has ever ruled either way. Yet you continue to assert that it's all perfectly clear. Strange that. I'd say I don't get it, but I think I do.
On the post: Colorado Judge Puts All Righthaven Cases On Hold
Re: Wonder Where FudBuster Is In All This...
I'm glad the standing issue will soon be resolved. We have both the Colorado court and the Nevada court addressing the issue. It will be interesting to see if both courts reach the same conclusion.
I read Righthaven's arguments in the Democratic Underground case on the standing issue, and I think they did a decent job of explaining things. However, I thought the analysis was a little thin, and I think that they should have backed up more of their arguments with citations and authority.
As I've stated before, I think both sides have good arguments, and I think it's a gray area--this could go either way.
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