Is there really a First Amendment issue here? A content-neutral statute would only be subjected to rational basis review. I don't see how this could possibly fail that test.
See U.S. v. O'Brien and Universal City Studios v. Reimerdes.
"Breaking the backbone of the entire Internet"? That seems like an overstatement. What differences should someone like me who doesn't pirate stuff be worried about?
Exactly, if they do nothing, they're fucked, because they will be implicated. So the only remaining option is to become copyright cops by compulsion. When you are notified, you must act on it (despite any actual evidence) to avoid being added as an accomplice.
But how does the PROTECT IP Act change things? A plaintiff can already sue a defendant for regular old infringement. The defendant in such a lawsuit could be claimed to have gained knowledge of the infringement, and if the defendant does nothing about it, a plaintiff later on could claim that they lost their safe harbor.
I don't see how the PROTECT IP Act affects safe harbors in some special way. I don't see how this "guts" them.
Specifically, the bill notes that "nothing in this Act" and "no order issued" can be used as evidence to knock out a safe harbor, but that leaves a massive loophole: allegations about the sites can still be used as evidence for "red flag" violations under the DMCA. So, for example, a rightsholder could use the PROTECT IP Act to make allegations against a site, and then claim that service providers now have red flag knowledge. It wouldn't be exempted because the Act only exempts actual court orders or the Act itself... the allegations are not exempted, and could be claimed as a sign of infringement, upon which service providers would be expected to act.
I disagree. In an action under the PROTECT IP Act the defendant is put on notice of the infringement. Whether or not that defendant down the road could lose his 512 safe harbors would depend on what he did with that knowledge. This is no different than any other defendant. The safe harbors are completely intact and the defendant is still protected by them.
Right. The safe harbors under 512 are still intact, by my read anyway. I'm sure there's an argument that they've been "gutted." I'm just wondering what it is.
They put in what Wyden wanted, yet the bitching continues.
It is strange. I think it makes clear that the complaints are going to come no matter what. Without the constitutional heart strings to pluck, the troops will have to regroup. ;)
I should add that ex parte seizures are still possible in a regular in personam action, however the rules are different than they are with a seizure pursuant to an in rem forfeiture, which is what the seizures have been to date. In an in rem forfeiture, they have to show that the domain names are property used to commit or facilitate criminal copyright infringement. The ex parte seizures here would fall under Section 503 of the Copyright Act, and I don't think a domain name would fall under "articles by means of which such copies or phonorecords may be reproduced" as the statute allows to be seized. In other words, there wouldn't be any ex parte seizures of domain names in the in personam actions. Instead, there'd be preliminary injunctions, but those would be issued only after the domain name owner has had a chance to have a say.
Oh, one area where the law backs down is that it no longer focuses on seizing domains. That is, it no longer talks about requiring registrars and registers to be subject to this law. But the reason they've done so is because they say that Homeland Security's successful domain seizing means that such powers would be redundant...
Here's my take on that. They took the part out that allowed for in rem forfeitures as a first course of action. They are claiming that leaving it in would be redundant since they already have this power. However, the next section about in personam jurisdiction makes clear that a regular civil suit against the owner of the domain name must be filed first. This means that they can't start out with an in rem forfeiture, i.e., they can't just seize the domain name first. While they would still ostensibly have the in rem forfeiture power under the forfeiture statutes, this new Act would supersede that power under the doctrine of lex specialis. This special statute concerning only sites dedicated to infringement would take precedence over the general forfeiture statutes. This means that the defendant will be able to challenge the claims against him before the domain name gets taken down. In other words, your Due Process and First Amendment concerns are no longer an issue. I think you should be celebrating.
I get that you don't like the personal right of action, but there already are personal rights of action. And keep in mind those actions are in personam before they can be in rem. This is really no different than the procedures under the ACPA that have existed for over a decade. Even with the personal right of action, Due Process and the First Amendment are still satisfied. Again, a reason to celebrate.
The bill claims it includes "safeguards," but those "safeguards" are that after the court order has been issued and all the third party service providers (payment process, ad networks, ISPs, search engines) have been required to block service to the site, the site can "petition the court to suspend or vacate the order." That seems a bit late in the process, doesn't it?
But the order cannot come until after a regular civil suit has been filed against the owner of the domain name. The safeguards give the domain name owners more remedies, like if for whatever reason they defaulted in the district court. This is a good thing.
That's what it all sounds like to me. Without seeing the actual text, it's hard to say for sure though.
I think you guys should be celebrating the fact that your whining about COICA and Operation in Our Sites got them to change the Act as far as its due process provisions go.
I think maybe you missed a biggie on pp. 7-8. The plaintiff must attempt to bring an in personam action against the owner of the domain name before bringing an in rem action against the domain name itself. For me, this fixes the due process problem.
Thanks, AJ. I'm going on vacation next week, and while I've got some downtime I'm planning on scouring PACER to see what kind of arguments defendants in the individual USCG lawsuits have been making. I'm curious if anyone's going down this road.
I'm going to have to throw my theory back out there, especially as we see more and more defendants joined together in one case. The basis for joining all of these defendants together was because they were all members of the same swarm. USCG is claiming that each peer is a seed, and that every downloader is an uploader. In other words, USCG is saying that the defendants acted in concert and were joint tortfeasors.
The Copyright Act allows for only one award of damages if any two defendants in a suit are liable jointly and severally. USCG is essentially arguing that ALL of the defendants are liable jointly and severally. If that's the case, then all the plaintiff could collect in a mass infringement case is one award of damages, or $150,000 max. This means that if USCG proceeded against all 23,322 defendants in one suit, the most any one of them could be liable for is 1/23,322 of $150,000, or about $6.43 each.
Of course, USCG does not pursue a suit against all the defendants in one suit. Instead, they are dismissing defendants without prejudice and then suing them individually for an entire award of damages each. I don't think is right. If the most USCG could get from each defendant is $6.43 if they were sued in one suit, then why does USCG get to ask for $150,000 from each defendant if it thereafter files individual suits?
The caselaw I've read about joint tortfeasor liability suggests it doesn't work this way.
In a footnote, Judge Wood points to a footnote in a copyright case out of Maryland:
The Court construes “the action” as including all claims that could have been brought in a single case. Otherwise, a Plaintiff could multiply statutory damage awards through the device of filing separate lawsuits against joint infringers.
Bouchat v. Champion Products, Inc., 327 F. Supp. 2d 537, 554 (D. Md. 2003) aff'd on other grounds sub nom. Bouchat v. Bon-Ton Dept. Stores, Inc., 506 F.3d 315 (4th Cir. 2007).
And that's exactly the problem. USCG is seeking to "multiply statutory damage awards through the device of filing separate lawsuits against joint infringers." I don't think it works like that.
I believe that even though USCG is filing separate suits against individual defendants, they are stuck with what they're pleading in the mass infringement lawsuits--that the defendants are jointly and severally liable. In other words, if they split this suit up and sued all 23,322 defendants separately, they should only be entitled to receive $6.43 from each defendant.
In fact, I think that those who have settled are likely to be entitled to a refund if what they paid was greater than what their pro-rata share would have been. So if someone settles for $2,500, they are entitled to a refund of all but $6.43.
As USCG is now suing several (dozens I believe) individuals, perhaps we'll see some arguments along these lines come out. I don't see how they can have it both ways. The defendants can't be joint tortfeasors for the purposes of joinder, but then not joint tortfeasors for the purposes of damages, right? I'm sure my reasoning is flawed though... Comments? Insights?
Interesting. That makes sense. Although an intent to enforce something in court is still not necessary to form a contract.
I agree with that.
I thought this part was interesting:
Further, even an agreement which is intended to affect the legal relations of the parties does not necessarily amount to a contract in the strict sense of the term. For instance, a conveyance of land or a gift of a chattel, though involving an agreement, is ... not a contract; because its primary legal operation is to effect a transfer of property, and not to create an obligation.”
In my state, such donations are in fact considered to be contracts, even though there is no reciprocal obligation. My state follows the civil law tradition and not the common law tradition, though, so perhaps the other states view this differently.
I don't think that terminology/distinction between a "contract" and an "agreement" is shared by the majority of English speakers. Certainly not by courts.
You don't need to anticipate legal action to form a binding contract.
I was thinking the same thing, but then I looked up "agreement" in Black's:
agreement. (15c) 1. A mutual understanding between two or more persons about their relative rights and duties regarding past or future performances; a manifestation of mutual assent by two or more persons. 2. The parties' actual bargain as found in their language or by implication from other circumstances, including course of dealing, usage of trade, and course of performance. UCC § 1–201(3).
“The term ‘agreement,’ although frequently used as synonymous with the word ‘contract,’ is really an expression of greater breadth of meaning and less technicality. Every contract is an agreement; but not every agreement is a contract. In its colloquial sense, the term ‘agreement’ would include any arrangement between two or more persons intended to affect their relations (whether legal or otherwise) to each other. An accepted invitation to dinner, for example, would be an agreement in this sense; but it would not be a contract, because it would neither be intended to create, nor would it in fact create, any legal obligation between the parties to it. Further, even an agreement which is intended to affect the legal relations of the parties does not necessarily amount to a contract in the strict sense of the term. For instance, a conveyance of land or a gift of a chattel, though involving an agreement, is ... not a contract; because its primary legal operation is to effect a transfer of property, and not to create an obligation.” 2 Stephen's Commentaries on the Laws of England 5 (L. Crispin Warmington ed., 21st ed. 1950).
“An agreement, as the courts have said, ‘is nothing more than a manifestation of mutual assent’ by two or more parties legally competent persons to one another. Agreement is in some respects a broader term than contract, or even than bargain or promise. It covers executed sales, gifts, and other transfers of property.” Samuel Williston, A Treatise on the Law of Contracts § 2, at 6 (Walter H.E. Jaeger ed., 3d ed. 1957).
I have no idea if what Nina had was in fact a contract, but apparently there is a difference between a contract and an agreement, just as she said.
On the post: Senator Wyden & Zoe Lofgren Not Impressed By PROTECT IP Or Feds' Responses To Questions About Domain Seizures
See U.S. v. O'Brien and Universal City Studios v. Reimerdes.
On the post: The Senators Who Say Merely Linking To Certain Sites Should Be A Felony
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On the post: The Senators Who Say Merely Linking To Certain Sites Should Be A Felony
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On the post: PROTECT IP Would Gut Parts Of The DMCA's Safe Harbors [Updated]
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But how does the PROTECT IP Act change things? A plaintiff can already sue a defendant for regular old infringement. The defendant in such a lawsuit could be claimed to have gained knowledge of the infringement, and if the defendant does nothing about it, a plaintiff later on could claim that they lost their safe harbor.
I don't see how the PROTECT IP Act affects safe harbors in some special way. I don't see how this "guts" them.
On the post: PROTECT IP Would Gut Parts Of The DMCA's Safe Harbors [Updated]
I disagree. In an action under the PROTECT IP Act the defendant is put on notice of the infringement. Whether or not that defendant down the road could lose his 512 safe harbors would depend on what he did with that knowledge. This is no different than any other defendant. The safe harbors are completely intact and the defendant is still protected by them.
On the post: PROTECT IP Would Gut Parts Of The DMCA's Safe Harbors [Updated]
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On the post: PROTECT IP Would Gut Parts Of The DMCA's Safe Harbors [Updated]
Which 512 safe harbors would it "gut" and how would it do so? You didn't really explain your headline, and I'm not following you.
On the post: Son Of COICA: PROTECT IP Act Will Allow For Broad Censorship Powers, Even Granted To Copyright Holders
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It is strange. I think it makes clear that the complaints are going to come no matter what. Without the constitutional heart strings to pluck, the troops will have to regroup. ;)
On the post: Son Of COICA: PROTECT IP Act Will Allow For Broad Censorship Powers, Even Granted To Copyright Holders
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On the post: Son Of COICA: PROTECT IP Act Will Allow For Broad Censorship Powers, Even Granted To Copyright Holders
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On the post: Son Of COICA: PROTECT IP Act Will Allow For Broad Censorship Powers, Even Granted To Copyright Holders
Here's my take on that. They took the part out that allowed for in rem forfeitures as a first course of action. They are claiming that leaving it in would be redundant since they already have this power. However, the next section about in personam jurisdiction makes clear that a regular civil suit against the owner of the domain name must be filed first. This means that they can't start out with an in rem forfeiture, i.e., they can't just seize the domain name first. While they would still ostensibly have the in rem forfeiture power under the forfeiture statutes, this new Act would supersede that power under the doctrine of lex specialis. This special statute concerning only sites dedicated to infringement would take precedence over the general forfeiture statutes. This means that the defendant will be able to challenge the claims against him before the domain name gets taken down. In other words, your Due Process and First Amendment concerns are no longer an issue. I think you should be celebrating.
I get that you don't like the personal right of action, but there already are personal rights of action. And keep in mind those actions are in personam before they can be in rem. This is really no different than the procedures under the ACPA that have existed for over a decade. Even with the personal right of action, Due Process and the First Amendment are still satisfied. Again, a reason to celebrate.
The bill claims it includes "safeguards," but those "safeguards" are that after the court order has been issued and all the third party service providers (payment process, ad networks, ISPs, search engines) have been required to block service to the site, the site can "petition the court to suspend or vacate the order." That seems a bit late in the process, doesn't it?
But the order cannot come until after a regular civil suit has been filed against the owner of the domain name. The safeguards give the domain name owners more remedies, like if for whatever reason they defaulted in the district court. This is a good thing.
That's what it all sounds like to me. Without seeing the actual text, it's hard to say for sure though.
On the post: Son Of COICA: PROTECT IP Act Will Allow For Broad Censorship Powers, Even Granted To Copyright Holders
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On the post: Son Of COICA: PROTECT IP Act Will Allow For Broad Censorship Powers, Even Granted To Copyright Holders
On the post: Judge Allows US Copyright Group To Shakedown 23,322 IP Addresses For Downloading The Expendables
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On the post: Judge Allows US Copyright Group To Shakedown 23,322 IP Addresses For Downloading The Expendables
The Copyright Act allows for only one award of damages if any two defendants in a suit are liable jointly and severally. USCG is essentially arguing that ALL of the defendants are liable jointly and severally. If that's the case, then all the plaintiff could collect in a mass infringement case is one award of damages, or $150,000 max. This means that if USCG proceeded against all 23,322 defendants in one suit, the most any one of them could be liable for is 1/23,322 of $150,000, or about $6.43 each.
Of course, USCG does not pursue a suit against all the defendants in one suit. Instead, they are dismissing defendants without prejudice and then suing them individually for an entire award of damages each. I don't think is right. If the most USCG could get from each defendant is $6.43 if they were sued in one suit, then why does USCG get to ask for $150,000 from each defendant if it thereafter files individual suits?
The caselaw I've read about joint tortfeasor liability suggests it doesn't work this way.
These damages issues have come up in a few recent rulings by Judge Kimba Wood (she is a cougar--google her) in the LimeWire litigation: http://www.scribd.com/doc/51594494/Arista-v-Limewire-Order-Doc-602 and http://www.loeb.com/files/Publication/2448934a-e3dd-44d4-b6df-d5b719548f08/Presentation/PublicationA ttachment/87330698-36f1-4de8-acea-d9481ba525ca/Arista%20Records%20v%20Lime%20Wire%20SDNY%20April%207 %202011.pdf
In a footnote, Judge Wood points to a footnote in a copyright case out of Maryland:Bouchat v. Champion Products, Inc., 327 F. Supp. 2d 537, 554 (D. Md. 2003) aff'd on other grounds sub nom. Bouchat v. Bon-Ton Dept. Stores, Inc., 506 F.3d 315 (4th Cir. 2007).
And that's exactly the problem. USCG is seeking to "multiply statutory damage awards through the device of filing separate lawsuits against joint infringers." I don't think it works like that.
I believe that even though USCG is filing separate suits against individual defendants, they are stuck with what they're pleading in the mass infringement lawsuits--that the defendants are jointly and severally liable. In other words, if they split this suit up and sued all 23,322 defendants separately, they should only be entitled to receive $6.43 from each defendant.
In fact, I think that those who have settled are likely to be entitled to a refund if what they paid was greater than what their pro-rata share would have been. So if someone settles for $2,500, they are entitled to a refund of all but $6.43.
As USCG is now suing several (dozens I believe) individuals, perhaps we'll see some arguments along these lines come out. I don't see how they can have it both ways. The defendants can't be joint tortfeasors for the purposes of joinder, but then not joint tortfeasors for the purposes of damages, right? I'm sure my reasoning is flawed though... Comments? Insights?
On the post: Judge Allows US Copyright Group To Shakedown 23,322 IP Addresses For Downloading The Expendables
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On the post: When Copyright And Contracts Can Get In The Way Of Art
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I agree with that.
I thought this part was interesting:In my state, such donations are in fact considered to be contracts, even though there is no reciprocal obligation. My state follows the civil law tradition and not the common law tradition, though, so perhaps the other states view this differently.
On the post: When Copyright And Contracts Can Get In The Way Of Art
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You don't need to anticipate legal action to form a binding contract.
I was thinking the same thing, but then I looked up "agreement" in Black's:I have no idea if what Nina had was in fact a contract, but apparently there is a difference between a contract and an agreement, just as she said.
On the post: AC/DC Says Their Songs Will Never Be Available For Download; Rest Of Internet Laughs
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Good one!
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