Last post before I spend 16 hours doing homework...
You think that a court issuing an injunction is not state action?
You asked for cases where the government was not the censor, by which I thought you meant "the one who chose the speech to be censored." That was the plaintiffs, and the plaintiffs were all private parties, not the government.
You said earlier that "The First Amendment has no relevance here unless the copyright owner *IS* the state." The cases I quoted showed that you are wrong. The First Amendment is relevant as long as the plaintiffs are acting under the color of law. They do not have to be acting on behalf of the state.
If the issue was whether the licensing scheme was procedurally deficient such that it was a prior restraint, then it was a procedural First Amendment challenge.
Yes, but that's not what it was about. The Court found that the licensing scheme was merely a "front" for state censorship. It was unconstitutional "on its face," not due to the procedures implemented - in fact, they never got into procedural issues at all. At least, that's how I read the case.
The whole reason Seltzer and Mike discuss the DMCA compelling the private actor to take down the content is because they need the private actor to be a state actor for the prior restraint doctrine to apply.
Passing the "state actor" test, as it is usually applied (i.e. the actor is a private citizen, but is acting on behalf of the state), is unnecessary when the action is specified by statute. In that case, the First Amendment violator is not the private actor, but the state, by enacting the statute.
I'll repeat what I said earlier: If a law against unprotected speech allows the suppression of protected speech, then that law is unconstitutional, even if it regards private actions. That was the entire point of the passage from New York Times v. Sullivan. It is also what Mike has been saying all along: not that the ISPs violated the First Amendment, but that the state is violating the First Amendment, because statutes enacted by the state bypass due process and do not provide penalties for censoring protected speech.
Your response was, "I never suggested otherwise." Yet, you've done nothing but suggest otherwise throughout this entire thread.
I'll make it simple. Both copyright holders and ISPs are only acting because it is what the statute specifies. The DMCA is not a private contract between parties, it is a federal law. ISP's do not take down materials because they have a private contract with the copyright holders, but because they are threatened with legal consequences if they don't.
When the copyright holder issues a DMCA takedown notice, they are acting under the color of law. When a service provider receives that notice, they are coerced by the state into taking down the content. It may be the case that neither party meet the very high bar required to be a "state actor," but that does not mean that the state does not cause their behavior. The state caused their behavior by enacting the statute that they are following. And that means that the statute must pass Constitutional muster.
Otherwise, we would have situations like the "thought experiment" I posted above (where the law allows anyone to censor anyone else), and there would be no First Amendment issues whatsoever.
The only way you would be right is if the DMCA has no legal force whatsoever. That is clearly not true.
The whole reason a state actor is needed is because the text of the First Amendment itself says that it limits what “Congress” can do.
And if the DMCA was not a law enacted by Congress, you would be 100% right. But because the DMCA is a law passed by Congress, the DMCA cannot abridge the freedom of speech.
If free speech was abridged due to a law passed by Congress, then that law is invalid under the First Amendment. Whether the abridgement was done by an actor representing the state, or by a private citizen simply following that law, makes no difference whatsoever to the Constitutional validity of the law itself. None of what you have quoted suggests otherwise.
Even without the DMCA, a website that receives notice of infringing content on its system would be motivated to take it down.
Wow, I guess you are suggesting that the DMCA has no legal force whatsoever. That's utterly ridiculous.
But, even if you were right, then both the ISPs, and the people who put up the allegedly infringing content, have far, far more procedural protections than is granted in the DMCA. The ISPs would not have to take down content without a court-ordered injunction. Such injunctions would not issue prior to an adversarial hearing, during which the alleged infringer could raise the affirmative defenses - fair use, authorization, de minimis, etc - that are constitutionally required by the First Amendment. And, most importantly for this discussion, the copyright holder could face sanctions for bringing a lawsuit in bad faith.
None of this happens under the DMCA.
Such a statute would be unconstitutional, of course.
Not according to your reasoning, it's not. After all, the state isn't the one deciding what speech to censor. They're not making the choice to bring sanctions against people who fail to censor. The censors do not rise to the level of state actors in this scenario, so according to you, everything would be A-OK according to the Constitution.
And, by the way, this is exactly what the DMCA is allowing right now. At least the DMCA according to Judge Stearns.
Any copyright holder - which can be anyone, since copyright is automatic - can censor anyone else, for any reason they like. The only requirement is that they think the censored speech contains some portion of their work. Could it be de minimis? Sure. Could it be fair use? Absolutely. Does it actually have to contain any part the copyright holder's work? Nope, so long as it's possible that the copyright holder could think it might contain part of their work.
Can copyright holders selectively target whose speech they take down? Sure. Can they do it to shut up a political opponent? Absolutely. Can they do it to silence criticism? No problem. Can they censor purely out of spite? Yep.
The consequences for doing any of the above? None whatsoever.
Does an ISP have to take it down? If they want to retain safe harbors, they do. Otherwise, they're operating under the continuous threat of lengthy and expensive lawsuits, a single one of which would destroy them even if they win. What happens if they err on the side of caution, and take down too much, or simply cut off the user altogether? Nothing - by law, they are immune from any consequences.
Does someone whose work has been censored have any recourse? Not much. They can file a counter-notice, which means that their work will "only" be censored for two weeks. Of course, if they do that, their full identities will be recorded, and they're forced to agree to be sued in the United States. Other than that, they have absolutely no recourse against the person who sent the takedown notice, nor the ISP who followed it.
The statute makes it difficult to speak, but trivial to censor. And it does so without any of the traditional procedural bulwarks that ring about free expression. That opposes both the text and the spirit of the First Amendment.
...If you agree with Judge Stearns' interpretation of the DMCA, which I do not.
I’m trying to discuss the prior restraint doctrine, as I’ve said several times.
You don't get to choose the topic of discussion. You can go off on tangents, but I have no obligation to follow you.
The court is the censor. The court is the state actor.
The injunction is sought by the plaintiffs. The court is acting on behalf of a private party, not on behalf of the state itself. Exactly as in copyright cases, and exactly as in the instant case.
It was a substantive First Amendment challenge to intentional infliction of emotional distress under Virginia law.
The challenge didn't render any Virginia statute unconstitutional. It rendered the verdict unconstitutional. In fact, there is no Virginia statute to challenge; the emotional distress standard arises entirely from tort case law, not state statutes.
The issue there was whether the City’s licensing scheme was a prior restraint.
I wasn't making a point about "state actors." My point was that it was a substantive, rather than procedural, challenge. And it was a substantive challenge.
I’m focusing on prior restraint because Mike is arguing that the recipient of a DMCA takedown notice is imposing a prior restraint.
Except he's not. You really should stop lying about this. He's arguing (along with others) that the law is unconstitutional under the First Amendment. He's never argued that the DMCA magically transforms ISP's into state actors, or some such nonsense.
They involve the government, or I should say a state actor, because without one there can be no prior restraint.
I am aware of no case, ever, that suggests this is true. It certainly contradicts the language of the First Amendment, which does not require a state actor, only that Congress make a law that abridges freedom of speech. There is no requirement that the decision about what specific speech to abridge come from the state.
Certainly, the law (hence the government) is an actor in the DMCA system, because ISP's (&etc) face the near-certainty of legal sanctions if they don't comply. It is the only reason that they do comply. The fact that the notices are not official court orders didn't fly with Pennsylvania's "informal notices," nor with Rhode Island's "informal sanctions," and it doesn't fly here.
I posted this thought experiment above, and I'll put it to you now. Suppose that Congress passed a law that allowed every private citizen to demand the removal of any speech that they didn't like, for any reason whatsoever. Anyone who didn't censor the speech would face the possibility of legal sanctions.
Do you honestly believe that Congress would not be in violation of the First Amendment? Because that is the only conclusion that is consistent with your claims.
But even granting your interpretation, that means this court is in violation of the First Amendment. After all, they are a state actor, and they are allowing the censorship of wholly protected material, by a plaintiff who they admit is abusing the law.
If the judge is (as he believes) enforcing the laws made by Congress, then Congress has made a law abridging the freedom of speech, and it has now been enforced by the court. Both are state actors, even by your weaselly definition, so the First Amendment is absolutely in play.
Yes, the larger principle being that the more difficult it is to separate protected from unprotected speech, the greater the procedural safeguards.
No, the larger principle being that protected speech not be abridged when unprotected speech is regulated. The court cases make this absolutely, 100% clear, so if you still disagree, you are speaking some version of English that nobody else speaks.
Yes, a law that regulates speech can be a prior restraint, even where the line is not dim and uncertain. But you're missing the point which is that when the line is not dim and uncertain, then there's no need for those extraordinary procedural safeguards.
Hogwash. The extraordinary procedural safeguards can still be necessary to, for example, protect against overbreadth or selective prosecution. Or any other situation where procedural safeguards are insufficient to protect free speech when unlawful speech is regulated.
There are many older opinions where the courts say that the determination of child pornography is simple such that extraordinary procedural safeguards are not needed. There are also more recent cases that say the safeguards are needed because the Supreme Court has said that simulated child pornography is protected, and it's getting more difficult to tell the difference as technology makes it more realistic.
And there are other cases, where the court ruled that particular safeguards are insufficient, regardless of the ease of determination. Cases like CDT v. Pappert. The court ruled that the law was unconstitutional for both subtantive and procedural prior restraint reasons. Here's the entire prior restraint section:
The Act and Informal Notice process are not prior restraints in the traditional sense. They do not prevent speech from reaching the market place but remove material already available on the Internet from circulation. Alexander v. United States, 509 U.S. 544 (1993) ("The term ‘prior restraint' describes orders forbidding certain communications that are issued before the communications occur.") However, they are administrative prior restraints as that term has been interpreted by the Supreme Court. According to the Court, "only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." Freedman v. Maryland, 380 U.S. 51, 58 (U.S. 1965). Thus, if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint. The Court used the term to describe a Rhode Island Commission's practice of sending letters to book distributors that asked the distributors to remove books from circulation in Bantam Books v. Sullivan, 372 U.S. 58 (1962) and a procedure that allowed courts to order pre-trial 90 seizure of films alleged to be obscene in Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 51-52 (1989).
In Bantam Books, the Court ruled on a regulatory scheme implemented by the state of Rhode Island. The state created the Rhode Island Commission to Encourage Morality in Youth, and this commission sent book distributors letters informing them that books they were distributing were "objectionable" and asking them to "cooperate" by removing this material from book stores. Id. at 61-63. The letters also stated that "the Attorney General will act for us in the case of non-compliance." Id. at 63. In response, plaintiffs stopped further circulation of copies and "instructed field men to visit retailers and to pick up all unsold copies." Although these materials were already in circulation, the Court referred to this system as a "prior administrative restraint" and ruled it was unconstitutional because there was not "an almost immediate judicial determination of the validity of the restraint" and the publisher or distributor was not entitled to notice and a hearing.
In Fort Wayne Books v. Indiana, 489 U.S. 46 (1989), the Court held that a finding of probable cause by a state court was not sufficient to allow seizure of material "presumptively protected by the First Amendment." "While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing." Id. at 63. Like Bantam Books, the materials in Fort Wayne were already in circulation. They were removed from circulation by a state court order. According to the Court, "our cases firmly hold that mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation." Ft. Wayne Books v. Indiana, 489 U.S. 46, 66 (1989).
Based on the decision in Bantam Books and Fort Wayne Books, this Court concludes the procedural protections provided by the Act are inadequate. These cases require a court to make a final determination that material is child pornography after an adversary hearing before the material is completely removed from circulation. Under the Act, a judge is only required to make a finding of probable cause, he can make this determination ex parte, and there is no requirement that the publisher or distributor receive notice or an opportunity to be heard. FOF ¶¶ 51-54, 80- 82.
Additionally, as argued by plaintiffs, the Act allows for an unconstitutional prior restraint because it prevents future content from being displayed at a URL based on the fact that the URL contained illegal content in the past. Pls.' Mot. at 25-26. Plaintiffs compare this burden to the permanent ban on the publication of a newspaper with a certain title, Near v. Minnesota, 283 U.S. 697 (1931), or a permanent injunction against showing films at a movie theater, Vance v. Universal Amusement Co., 445 U.S. 308 (1980). In Near, the Court examined a statute that provided for a permanent injunction against a "malicious, scandalous, and defamatory newspaper, magazine or other periodical." Near, 283 U.S. at 701-702. Near involved a county attorney who obtained an injunction against the publishers of a newspaper called "The Saturday Press" under a statute preventing them from "publishing, circulating, or having in their possession any future editions of said The Saturday Press." Id. at 705. The statute at issue in Near was held to be unconstitutional because it permitted censorship of future publications based on material published in the past. See Universal Amusement Co. v. Vance, 404 F. Supp. 33, 44 (S.D. Tex. 1975) ("In both [Near and Vance] the state made the mistake of prohibiting future conduct after a finding of undesirable present conduct.").
There are some similarities between a newspaper and a web site. Just as the content of a newspaper changes without changing the title of the publication, the content identified by a URL can change without the URL itself changing. FOF 24. In fact, it is possible that the owner or publisher of material on a web site identified by a URL can change without the URL changing. Plaintiffs demonstrated this by purchasing the http://www.littleangels.tv/tr URL and converting the alleged child pornography web site into a web site dedicated to a description of this case. FOF 196. Moreover, an individual can purchase the rights to a URL and have no way to learn that the URL has been blocked by an ISP in response to an Informal Notice or court order. FOF 196. Despite the fact that the content at a URL can change frequently, the Act does not provide for any review of the material at a URL and, other than a verification that the site was still blocked thirty days after the initial Informal Notice, the OAG did not review the content at any blocked URLs. FOF 191-92. Moreover, other than the instances in which complaints were made about blocked innocent content, ISPs have continued to maintain their blocking action. Specifically, WorldCom, Comcast, AOL, and Verizon all testified that they routinely maintain the blocks implemented in response to Informal Notices or, with respect to World Com, the court order. FOF 193.
Defendant argues that it is not necessary to hold an adversary hearing before material is removed from circulation because the criminal trial that must be held before an ISP can be convicted will provide the procedural due process required by the First Amendment. Def.'s Supp. Mem. at 10. The Court rejects this argument. A similar argument was rejected by the Supreme Court in Freedman v. Maryland, 380 U.S. 51 (1965), an obscenity case. In that case, the Court held that a statute that required a theater owner to receive a license before exhibiting a film was unconstitutional because the statute did not, inter alia, "assure a prompt final judicial decision" that the film was obscene. Id. at 59-60. The Act does not provide for any review of a judge's ex parte determination that a web site contains child pornography.
Defendant misses the mark when he focuses on the fact that criminal liability will not be imposed until after a criminal trial. The Court's First Amendment analysis must focus on when speech is suppressed and, under the Act, speech is suppressed when the court order is issued. Under the First Amendment, more procedures are necessary before speech can be suppressed than are required before an individual can be arrested. Although evidence of probable cause is sufficient to make an arrest, Fort Wayne holds that a finding of probable cause is not sufficient to completely remove a publication from circulation. As explained by the Seventh Circuit, "[w]hile at first glance it may seem odd to require more judicial protection for the liberty of one's books than for one's body, the distinction reflects this country's great concern with the chilling effect on protected speech brought on by a government seizure." United States v. Moore, 215 F.3d 681, 685 (7th Cir. 2000).
The fact that an ISP can challenge a judge's child pornography determination in a criminal prosecution does not save the Act. Only one ISP, WorldCom, challenged an Informal Notice and then promptly complied with a court order obtained by the OAG. An ISP has little incentive to challenge the suppression of a web site with which it has no business relationship. As stated by the Supreme Court, a statute that suppresses speech "must be tested by its operation and effect." Near v. Minnesota, 283 U.S. 697, 708 (1931). The operation and effect of this Act is that speech will be suppressed when a court order is issued, and the procedural protections provided by the Act before the order can issue are insufficient to avoid constitutional infirmity.
Notice that not once in that entire section do they examine the issue of how "dim and uncertain" the line is between child pornography and protected speech. They do so later, in a separate procedural analysis, but has no bearing on the above prior restraint analysis. They conclude: "Moreover, even if fewer protections were necessary, the ex parte, probable cause determination provided for in the Act is insufficient." The Act would be unconstitutional even if the line was bright and certain.
So, you're wrong. Procedures are insufficient, no matter what, "if material protected by the First Amendment is removed from circulation." It's not the "dim and uncertain" line that triggers these protections, it's the First Amendment requirement that protected expression should never be abridged.
Naturally, I would never suggest otherwise.
Except when you did suggest it, by claiming that a First Amendment violation requires a "state actor."
That still has nothing to do with prior restraint.
It has everything to do with whether this case makes the DMCA a "violation of the First Amendment," which is the topic.
I addressed this in the post just above.
No, you didn't. You simply lied (again) about what Mike and Prof. Seltzer say. Your claim is that they are "arguing prior restraint by the recipient of a DMCA takedown notice." They are not, and nobody in their right mind would think that they were.
If there were no such thing as the DMCA or secondary copyright liability, then you would have a point. They could take down whatever they want, and there would be no First Amendment issue. But the fact that they are coerced into doing so by law, passed by Congress, makes it a First Amendment issue.
According to this judge's interpretation of the DMCA, the force of law allows censorship of wholly protected speech for any reason whatsoever, so long as you do it under the guise of protecting your copyright. That is, without a doubt, a First Amendment violation. If the judge is right, then the DMCA is unconstituitonal. Of course, I don't think he's right.
Can you find any prior restraint cases where the censor was not the government, i.e., a state actor?
Sure thing:
In this case, we have found that to the extent Suntrust suffers injury from TWDG's putative infringement of its copyright in GWTW, such harm can adequately be remedied through an award of monetary damages. Moreover, under the present state of the record, it appears that a viable fair use defense is available. Thus, the issuance of the injunction was at odds with the shared principles of the First Amendment and the copyright law, acting as a prior restraint on speech because the public had not had access to Randall's ideas or viewpoint in the form of expression that she chose.
Rather, we need only point out that the injunction, as written, has now lost its underlying rationale. [...] Consequently the injunction, as written, now amounts to an overly broad prior restraint upon speech, lacking plausible justification.
The modified order of injunction prohibits contact between Vrasic and Leibel and, among other things, enjoins Vrasic "[f]rom using the name or likeness of LEIBEL for commercial purposes"; "[f]rom using the words 'Lorne' together with 'Leibel' for any commercial purpose"; and "[f]rom publishing, selling, licensing, or leasing, or offering to publish, sell, license, or lease" her book "as previously published," allowing her to publish a work only "so long as the work does not use the words 'Lorne' and/or 'Leibel,' alone or in any combination." While lodging no challenge to the order's "no contact" provisions, Vrasic insists the injunction must be reversed to the extent it enjoins her speech. We agree. [...]
Second, a temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns. [...] Accordingly, the modified temporary injunction is hereby reversed in its entirety, save that portion of the order enjoining Vrasic from contacting Leibel.
Respondent real estate broker applied for and obtained from the Illinois courts an injunction enjoining petitioners from distributing any literature in the City of Westchester, on the ground that their leaflets, critical of respondent's alleged "blockbusting" and "panic peddling" activities in the Austin area of Chicago, invaded respondent's right of privacy, and were coercive and intimidating, rather than informative, thus not being entitled to First Amendment protection.
Held: Respondent has not met the heavy burden of justifying the imposition of the prior restraint of petitioners' peaceful distribution of informational literature of the nature disclosed by this record.
I'm sure you can find a lot more if you use the Googler.
We're talking about prior restraint, not substantive challenges to statutes such as Sullivan, Falwell, and the like.
The Falwell case was not a substantive challenge to any statute.
And keep in mind that substantive challenges to statutes are also prior restraint: "For these reasons, the ordinance, on its face, imposes an unconstitutional prior restraint upon the enjoyment of First Amendment freedoms..." (Staub v. City of Baxley). There are other substantive challenges that are explicitly called "prior restraint" if you want to look for them.
In any case, substantive First Amendment challenges make the law just as unconstitutional as procedural prior restraint, so I have no idea why you're only focusing on the latter.
But to answer your question, the reason prior restraint cases so often involve the government, is because they're the ones with the most power to do it. For example, in civil cases, adversarial proceedings almost always occur before any speech is enjoined or expressive articles are seized. That's not true as often in criminal cases, and it's why procedural safeguards are doubly important in those cases.
The Court there is explicitly talking about obscenity, where the line between protected and unprotected speech is dim and uncertain.
The "dim and uncertain" line was specifically about obscenity. But the rest was not. It was about the tools needed to protect free speech in general, and about how obscenity in particular was "but a special instance of the larger principle."
Again, the harder it is to separate protected from unprotected speech, the more rigorous the procedural safeguards.
This is correct...
And vice versa.
...but this is wrong.
That the line is "dim and uncertain" is one factor in determining whether procedural safeguards are needed. But it is not the only one, and in fact it is not even the primary one. The safeguards are needed so that protected speech is not abridged when attempting to regulate (or under the guise of regulating) unprotected speech. Even when the line is not "dim and uncertain," laws that regulate speech can be prior restraint if they regulate protected speech as a consequence. And even laws which ostensibly do not regulate speech at all (such as a tax on ink) may be prior restraint.
In any case, Mike never said that fair use in all cases was an easier determination to make than a determination of obscenity. It is certainly a harder determination to make than child pornography, for instance, and laws that ostensibly prohibit child pornography have often been declared unconstitutional prior restraint.
The issue before the court here is whether the sender of a DMCA takedown notice has to consider fair use. He doesn't. Just because Congress can’t infringe upon fair use, which is protected expression, it doesn’t follow that Congress must require the sender of a DMCA takedown notice to consider fair use.
Not only can Congress not infringe upon protected expression, they cannot pass a law that results in infringement upon protected expression. If a law against unprotected speech allows the suppression of protected speech, then that law is unconstitutional, even if it regards private actions:
We may dispose at the outset of two grounds asserted to insulate the judgment of the Alabama courts from constitutional scrutiny. The first is the proposition relied on by the State Supreme Court--that "The Fourteenth Amendment is directed against State action, and not private action." That proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute.
I never said this case had anything to do with regular piracy.
Then you shouldn't have brought it up. Either it's a red herring, or you're making the fallacy of the excluded middle. Either way, you're just derailing the conversation.
You’re looking there at cases where the issue was whether the First Amendment shielded p2p file-sharers from having their anonymity revealed through subpoenas to their ISPs. That’s got nothing to do with prior restraint
It certainly has to do with the First Amendment. It is the First Amendment that protects the right to anonymous speech, so if those p2p file-sharers did not have any First Amendment protections, then the court would not have to consider whether they had the right to anonymous speech. They do, so the courts did.
Any time there are laws that impact free speech rights, there must be some kind of determination whether the laws are constitutional under the First Amendment. That determination may not (and often does not) come out in the speaker's favor, but the determination must be made.
Mike specifically argues this in the link he himself provided in the article above:
Saying that someone is "compelled to do [something] by the government" is not arguing that they are "a government actor." By your definition, the booksellers in the Bantam case, and the newspaper in Near, would be "government actors." I've never heard anyone argue this, ever. Mike certainly wasn't, nor was Professor Seltzer in the paper Mike quoted.
The actual wording of the First Amendment supports that this is a First Amendment issue even if the government isn't named in the case
That is entirely correct. Being unconstitutional under the First Amendment requires only two things: 1. that a law abridge freedom of speech, and 2. that the law be passed by Congress. The Fourteenth Amendment's Due Process Clause extends this to state laws as well.
The government does not have to be a party in the case; they only have to create the law.
In fact, most of the landmark First Amendment cases (New York Times Co. v. Sullivan, Hustler Magazine v. Falwell, etc.) involved libel, which is also a dispute between private parties. If the original poster was correct, the First Amendment would not apply in libel cases, either, which is clearly not true.
It is solely a private matter between the copyright owner and the accused infringer. The First Amendment has no relevance here unless the copyright owner *IS* the state.
Interesting. So, let's say that Congress passes a law that allows for any private party to censor the speech of any other private party, for any reason, under penalty of civil and criminal fines.
Do you honestly believe that the First Amendment would not apply in these cases?
Of course it would. If censorship is "carried on under color of [...] law" and that it "may entail depriving the adult public of access to constitutionally protected material" (as Justice Harlan put it in his concurrence in Bantam), that censorship is unconstitutional.
There only has to be that extra process when the line between protected and unprotected speech is dim and uncertain.
This should surprise nobody, but you're totally misreading the case law. Here is the origin of that quote, put in context:
Thus, the Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line. It is characteristic of the freedoms of expression in general that they are vulnerable to gravely damaging, yet barely visible, encroachments. Our insistence that regulations of obscenity scrupulously embody the most rigorous procedural safeguards, Smith v. California, 361 U. S. 147; Marcus v. Search Warrant, supra, is therefore but a special instance of the larger principle that the freedoms of expression must be ringed about with adequate bulwarks. See, e.g., Thornhill v. Alabama, 310, U.S. 88; Winters v. New York, 333 U. S. 507; NAACP v. Button, 371 U. S. 415.
"[T]he line between speech unconditionally guaranteed and speech which may legitimately be regulated... is finely drawn.... The separation of legitimate from illegitimate speech calls for... sensitive tools...." Speiser v. Randall, 357 U. S. 513, 357 U. S. 525.
The court is not saying that there are First Amendment concerns only if the line is dim and uncertain. On the contrary, they are saying that the line is always dim and uncertain, and separating illigitimate speech always calls for sensitive tools.
That's why you're so wrong when you say this: The funny thing is, since you think that the line between fair use and infringement is easily discernible, that cuts against your argument that there needs to be more process.
If the use is clearly fair use, then any law made by Congress that allows for stifling fair use is clearly unconstitutional. If the fair use is obvious - as in this case - then Congress is absolutely not allowed to pass any law that infringes upon it.
If you were right, then the government would be allowed to infringe on any speech it likes - so long as that speech is "easily discernable" as protected expression. Such a claim is oxymoronic, and I'm being generous with the "oxy" part.
That's why the judge's ruling here is so problematic. He claims that having to take fair use into account would be "at odds with Congress's express intent." But if the use is clearly fair use, then it doesn't matter what Congress's intent is. Because fair use is protected expression, Congress is absolutely not allowed to infringe on fair use, no matter what their intent.
That's not the case with regular piracy.
First of all, this case had absolutely nothing to do with "regular piracy." Any moron in a hurry could see that this is clearly fair use, that the copyright owner granted an implied license to post the picture on the blog, and that the DMCA request served no other purpose than to stifle criticism. It is slam-dunk protected expression.
Second of all, even if this were "regular piracy," you would be wrong. Wholesale piracy does, indeed, involve some elements of protected expression:
Copyright infringement, per se, is clearly not speech entitled to First Amendment protection. But there are some creative aspects of downloading music or making it available to others to copy: the value judgment of what is worthy of being copied; the association of one recording with another by placing them together in the same library; the self-expressive act of identification with a particular recording; the affirmation of joining others listening to the same recording or expressing the same idea. Thus, while the aspect of a file-sharer's act that is infringing is not entitled to First Amendment protection, other aspects of it are. [...]
Other forms of speech also receive such intermediate valuation. [...] The Court need not, and does not, express a view as to the proper place of file-sharing in the speech hierarchy; it is enough for present purposes to determine that it has some First Amendment value.
Arguably, however, a file sharer is making a statement by downloading and making available to others copyrighted music without charge and without license to do so. Alternatively, the file sharer may be expressing himself or herself through the music selected and made available to others. Although this is not "political expression" entitled to the "broadest protection" of the First Amendment, McIntyre, 514 U.S. at 346, 115 S.Ct. 1511 (quoting Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)),[5] the file sharer's speech is still entitled to "some level of First Amendment protection." Verizon, 257 F.Supp.2d at 260, rev'd on other grounds, Recording Indus. Ass'n of America, Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C.Cir.2003).
I conclude, accordingly, that the use of P2P file copying networks to download, distribute, or make sound recordings available qualifies as speech entitled to First Amendment protection.
Those First Amendment protections are limited, but they certainly exist, and "that extra process" (or some sort of "extra process") needs to happen in piracy cases too.
But none of this matters since the recipient of a DMCA notice is not a government actor
Nobody - not Mike, not the plaintiffs - was arguing that the recipient of a DMCA notice is "a government actor." They were, and are, arguing that it is unconstitutional for Congress to pass a law that allows the sender of the DMCA notice to block legitimate speech. The lawsuit was against Crosley-Corcoran, not against either of the ISP's that shut Tuteur's website down. And she was able to do it solely because of statutes created by Congress.
If this judge's ruling is correct, then Congress was acting outside of its mandate when it created statutes that allowed this sort of behavior. It's one of the reasons I think the judge's ruling is wrong.
Re: Google Hails Age of Cyber War & Digital Revolution
That article lays out long-term connections with WH and State Dept, not just a website hack.
Ha. If anyone actually has doubts about whether Truthstream Media is a loony conspiracy site, just read the other articles. Like this one:
Herein, the masterful decoder Vigilant Citizen breaks down the most occultic part of Kubrick’s final masterpiece – and one that many believe got him killed – an obvious, but important nod to the secret rituals of the elite powerbrokers who rule our world.
Probably Prenda's greatest strength, and what enabled them to pull the scams that they did for so long before being caught, was the fact that the cases were being filed all over the country, with different judges, different courts, different lawyers... in short, the 'dots' were all over the place, and it was very hard to connect them all and get an idea as to how big their operation really was, and a single lawyer in one of the cases opposing them can only do so much.
I agree completely. This is their legal version of "security by obscurity."
The "poor ol' possibly-maybe-threatened-in-the-future me" is a complete red herring.
What, apart from the problem that people going about their daily lives typically infringe on copyright to the tune of millions of dollars each day? Or that startups are held back from creating new services and products involving online content for fear that they will get sued? Or the problem that scholars are worried they will be taken to court if they carry out text and data mining on academic papers?
Your mistake is thinking that the AHEDA believes these are "problems." From their point of view, these are potential income streams.
I also love the idiocy of this statement from Bush:
any policy proposal that says you need to litigate is flawed.
Re: Re: Re: Re: Re: Re: Re: NOT IN CONTROVERSY WHILE MONEY IS ROLLING IN!
The overwhelming consensus, both with developers and business owners, is that current copyright (and patent) law is crazy and harmful, on the whole.
To be fair, most of the criticism from my prof is about patents. Maybe that's because his work history is with hardware (he's one of those guys that started out in assembly language).
Coders in general know that copyright is bad, for one fundamental reason: all of them use open source tools, and know that the programming world would completely collapse without them.
Re: Re: Re: Re: Re: NOT IN CONTROVERSY WHILE MONEY IS ROLLING IN!
I've heard from numerous developers who simply moved on to do something else.
Really? Because I have a lot of friends who are programmers, including game developers, and am studying for my Bachelors in CS.
And I have never heard of one person who has done such a thing.
In fact, all the ones I know view IP as something that does more harm than good. For example, my professor in my computer architecture class - the head of the CS department, and someone who developed hardware drivers at Motorola for over 30 years - is one of the biggest IP critics I've ever known.
Nobody is arguing that calling it "infringement" makes it "less wrong".
Actually, I certainly argue that (though not because that's what it's called).
There is nothing unethical about copyright infringement, just as there is nothing unethical about checking a book out of the public library. The primary effect of infringement is to create abundance from scarcity - like the loaves and fishes parable in the Bible.
Of course, laws against infringement may be necessary - in that they ostensibly serve a purpose that is more ethical than infringement. In fact, the ultimate purpose of copyright (again, ostensibly) is to perform exactly the same act as infringement: to create abundance from scarcity - by subsidizing those who can provide that abundance.
Of course, "ostensibly" is the big gotcha there. If laws do in fact only do this "ostensibly," and not in actuality, then the laws are unethical.
As the Supreme Court phrased it in Twentieth Century Music Corp. v. Aiken, copyright "must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts." That is the good that Copyright does, and it is the only good that copyright does.
If some acts of infringement can "serve the cause of promoting broad public availability" better than copyright, then preventing that infringement is unethical. If that infringement is not legalized under the law, then the law itself is unethical.
The Supreme Court does not equate infringement with theft.
That sentence by Breyer does not support your argument, because:
1. It from one judge's concurring opinion (not the full court's opinion), and was dicta even in the context of that concurrence;
2. He was clearly stating that it was "an unlawful taking of property" under the current statutes. (The very next sentence is a bunch of references to the copyright statutes.) He did not say, nor did he even imply, that the two were the same, much less morally equivalent.
3. Whether the two are the same is not even remotely relevant to his concurring opinion. The entire reason he wrote it was to voice his opinion on whether the court should re-examine (and perhaps overturn) the Sony "fair use" decision, something he was clearly against.
4. Breyer is well versed in copyright cases, and so must certainly be aware of the Dowling opinion. That opinion said explicitly that copyright infringement is not theft - for precisely the reason you're saying is unimportant ("the original is not lost"). Breyer did not give even a whiff of a hint that he was interested in overturning that decision, which is the law to this day.
But of course, you know this, because you've said this before, and tons of commenters (including myself) have pointed out that you're wrong.
Which means, big surprise, that you're just lying.
to provide a list of works that are not in the public domain and should not be available on a website for free.
In addition to the problems That One Guy gave, there are even more fundamental problems with this idea.
1. That same content can have multiple filenames, MD5 hashes, or file formats. Even if that content is found and taken down, it is trivial for users to create another form of the same content that won't be spotted.
2. Content that seems like it should be on that list, might not be. For example, the comments above discussed "The Lone Ranger." Even if the filename matches, how is a content provider supposed to know what version of The Lone Ranger is on their servers?
3. The above problems rear their head even with wholesale duplication of entire pieces of content. It doesn't even address content that is only part of an infringing work (a scene from a movie, say).
4. Even if that content is found to unequivocally be on the list, that still doesn't make it infringing. It could still be fair use, or covered under any of the other legal exemptions to copyright infringement.
Only the copyright holder can tell if it is her work being infringed upon; only the copyright holder can tell if the work is not authorized; and even the copyright holder herself cannot tell if unauthorized reproduction is actually copyright infringement.
Taking these decisions out of the copyright holder's hands, and putting them into the hands of service providers, is a horrible idea.
Re: Wrong from start: Copyright Isn't A Business Model
Ladies and gentlemen, I think OOTB has finally done it.
He's posted a comment where every single sentence is factually wrong. Not just twisting words, or massaging the facts - but unequivocally, absolutely, factually wrong.
It's like he deliberately tried to pack in as many lies as possible using the fewest words.
At this point, I'm starting to suspect that he's some sort of double agent for the anti-copyright side. Nobody could possibly be that ignorant.
Re: Re: @ "Make up your god damn minds. We're starting to look like idiots around here."
You've made the mistake of casual analysis
Exactly. If you really want to be insulting and debate straw men, you'll have to do a lot better than that. OOTB offers up some excellent suggestions. I've outlined some of them below.
So, you should outright lie and say that "give it away and pray" is the only business model Techdirt has ever advocated.
Misrepresent the argument through oversimplification
Example #2: It is a basic fact of free market economics that when the marginal cost to produce a good drops to zero, its price will also drop to zero. So, rather than focus on selling infinite goods, you would be better off selling goods that are rivalrous and exclusive - whether those be physical goods, access to the artist, or the labor itself.
But that is an argument that is nuanced and intelligent, so instead you should misrepresent it as "musicians selling T-shirts."
Present the defense of legal rights as the defense of specific, bad actors
This one was famously used to smear the ACLU when they defended the free speech rights of white supremacists. But it works just as well here.
For quite a while, commenters on Techdirt (including myself) have raised grave concerns about the ex parte seizures that were intended to block entire websites. This is because it is well-settled First Amendment law that when you are blocking unprotected speech, the government must use the least restrictive means to do it, so that protected speech isn't blocked as well.
But that argument actually makes sense, so you should lie, and say that Techdirt is claiming that the "Pirate Bay is free speech."
As another example, the Supreme Court in Sony ruled that courts must take into account whether a device or service made by a third party "is capable of commercially significant noninfringing uses." This ties into the significant questions raised about third-party liability in copyright cases, and whether a content-neutral service provider can or should be found liable for the acts of its users.
But you want to deflect from the whole argument, so you should lie and say that Tachdirt claims that "Megaupload has mostly legitimate non-infringing content."
Now, there are additional fallacious tactics that can be used to misrepresent or smear the arguments made, but that OOTB didn't cover in this particular post. A fairly widespread tactic is to use ad hominem attacks (claiming Mike is "pro-piracy," saying that he produces nothing worth reading, and so forth). And you can ignore all the arguments that conclusive prove you wrong, as OOTB consistently does, and dismiss the people who make them as "fanboys" who "drank the Techdirt kool-aid."
But the above suggestions are a good start. Take OOTB's advice, and you too can be an uninformed, lying douchebag, just like him!
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
Re:
You think that a court issuing an injunction is not state action?
You asked for cases where the government was not the censor, by which I thought you meant "the one who chose the speech to be censored." That was the plaintiffs, and the plaintiffs were all private parties, not the government.
You said earlier that "The First Amendment has no relevance here unless the copyright owner *IS* the state." The cases I quoted showed that you are wrong. The First Amendment is relevant as long as the plaintiffs are acting under the color of law. They do not have to be acting on behalf of the state.
If the issue was whether the licensing scheme was procedurally deficient such that it was a prior restraint, then it was a procedural First Amendment challenge.
Yes, but that's not what it was about. The Court found that the licensing scheme was merely a "front" for state censorship. It was unconstitutional "on its face," not due to the procedures implemented - in fact, they never got into procedural issues at all. At least, that's how I read the case.
The whole reason Seltzer and Mike discuss the DMCA compelling the private actor to take down the content is because they need the private actor to be a state actor for the prior restraint doctrine to apply.
Passing the "state actor" test, as it is usually applied (i.e. the actor is a private citizen, but is acting on behalf of the state), is unnecessary when the action is specified by statute. In that case, the First Amendment violator is not the private actor, but the state, by enacting the statute.
I'll repeat what I said earlier: If a law against unprotected speech allows the suppression of protected speech, then that law is unconstitutional, even if it regards private actions. That was the entire point of the passage from New York Times v. Sullivan. It is also what Mike has been saying all along: not that the ISPs violated the First Amendment, but that the state is violating the First Amendment, because statutes enacted by the state bypass due process and do not provide penalties for censoring protected speech.
Your response was, "I never suggested otherwise." Yet, you've done nothing but suggest otherwise throughout this entire thread.
I'll make it simple. Both copyright holders and ISPs are only acting because it is what the statute specifies. The DMCA is not a private contract between parties, it is a federal law. ISP's do not take down materials because they have a private contract with the copyright holders, but because they are threatened with legal consequences if they don't.
When the copyright holder issues a DMCA takedown notice, they are acting under the color of law. When a service provider receives that notice, they are coerced by the state into taking down the content. It may be the case that neither party meet the very high bar required to be a "state actor," but that does not mean that the state does not cause their behavior. The state caused their behavior by enacting the statute that they are following. And that means that the statute must pass Constitutional muster.
Otherwise, we would have situations like the "thought experiment" I posted above (where the law allows anyone to censor anyone else), and there would be no First Amendment issues whatsoever.
The only way you would be right is if the DMCA has no legal force whatsoever. That is clearly not true.
The whole reason a state actor is needed is because the text of the First Amendment itself says that it limits what “Congress” can do.
And if the DMCA was not a law enacted by Congress, you would be 100% right. But because the DMCA is a law passed by Congress, the DMCA cannot abridge the freedom of speech.
If free speech was abridged due to a law passed by Congress, then that law is invalid under the First Amendment. Whether the abridgement was done by an actor representing the state, or by a private citizen simply following that law, makes no difference whatsoever to the Constitutional validity of the law itself. None of what you have quoted suggests otherwise.
Even without the DMCA, a website that receives notice of infringing content on its system would be motivated to take it down.
Wow, I guess you are suggesting that the DMCA has no legal force whatsoever. That's utterly ridiculous.
But, even if you were right, then both the ISPs, and the people who put up the allegedly infringing content, have far, far more procedural protections than is granted in the DMCA. The ISPs would not have to take down content without a court-ordered injunction. Such injunctions would not issue prior to an adversarial hearing, during which the alleged infringer could raise the affirmative defenses - fair use, authorization, de minimis, etc - that are constitutionally required by the First Amendment. And, most importantly for this discussion, the copyright holder could face sanctions for bringing a lawsuit in bad faith.
None of this happens under the DMCA.
Such a statute would be unconstitutional, of course.
Not according to your reasoning, it's not. After all, the state isn't the one deciding what speech to censor. They're not making the choice to bring sanctions against people who fail to censor. The censors do not rise to the level of state actors in this scenario, so according to you, everything would be A-OK according to the Constitution.
And, by the way, this is exactly what the DMCA is allowing right now. At least the DMCA according to Judge Stearns.
Any copyright holder - which can be anyone, since copyright is automatic - can censor anyone else, for any reason they like. The only requirement is that they think the censored speech contains some portion of their work. Could it be de minimis? Sure. Could it be fair use? Absolutely. Does it actually have to contain any part the copyright holder's work? Nope, so long as it's possible that the copyright holder could think it might contain part of their work.
Can copyright holders selectively target whose speech they take down? Sure. Can they do it to shut up a political opponent? Absolutely. Can they do it to silence criticism? No problem. Can they censor purely out of spite? Yep.
The consequences for doing any of the above? None whatsoever.
Does an ISP have to take it down? If they want to retain safe harbors, they do. Otherwise, they're operating under the continuous threat of lengthy and expensive lawsuits, a single one of which would destroy them even if they win. What happens if they err on the side of caution, and take down too much, or simply cut off the user altogether? Nothing - by law, they are immune from any consequences.
Does someone whose work has been censored have any recourse? Not much. They can file a counter-notice, which means that their work will "only" be censored for two weeks. Of course, if they do that, their full identities will be recorded, and they're forced to agree to be sued in the United States. Other than that, they have absolutely no recourse against the person who sent the takedown notice, nor the ISP who followed it.
The statute makes it difficult to speak, but trivial to censor. And it does so without any of the traditional procedural bulwarks that ring about free expression. That opposes both the text and the spirit of the First Amendment.
...If you agree with Judge Stearns' interpretation of the DMCA, which I do not.
I’m trying to discuss the prior restraint doctrine, as I’ve said several times.
You don't get to choose the topic of discussion. You can go off on tangents, but I have no obligation to follow you.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
Re:
The injunction is sought by the plaintiffs. The court is acting on behalf of a private party, not on behalf of the state itself. Exactly as in copyright cases, and exactly as in the instant case.
It was a substantive First Amendment challenge to intentional infliction of emotional distress under Virginia law.
The challenge didn't render any Virginia statute unconstitutional. It rendered the verdict unconstitutional. In fact, there is no Virginia statute to challenge; the emotional distress standard arises entirely from tort case law, not state statutes.
The issue there was whether the City’s licensing scheme was a prior restraint.
I wasn't making a point about "state actors." My point was that it was a substantive, rather than procedural, challenge. And it was a substantive challenge.
I’m focusing on prior restraint because Mike is arguing that the recipient of a DMCA takedown notice is imposing a prior restraint.
Except he's not. You really should stop lying about this. He's arguing (along with others) that the law is unconstitutional under the First Amendment. He's never argued that the DMCA magically transforms ISP's into state actors, or some such nonsense.
They involve the government, or I should say a state actor, because without one there can be no prior restraint.
I am aware of no case, ever, that suggests this is true. It certainly contradicts the language of the First Amendment, which does not require a state actor, only that Congress make a law that abridges freedom of speech. There is no requirement that the decision about what specific speech to abridge come from the state.
Certainly, the law (hence the government) is an actor in the DMCA system, because ISP's (&etc) face the near-certainty of legal sanctions if they don't comply. It is the only reason that they do comply. The fact that the notices are not official court orders didn't fly with Pennsylvania's "informal notices," nor with Rhode Island's "informal sanctions," and it doesn't fly here.
I posted this thought experiment above, and I'll put it to you now. Suppose that Congress passed a law that allowed every private citizen to demand the removal of any speech that they didn't like, for any reason whatsoever. Anyone who didn't censor the speech would face the possibility of legal sanctions.
Do you honestly believe that Congress would not be in violation of the First Amendment? Because that is the only conclusion that is consistent with your claims.
But even granting your interpretation, that means this court is in violation of the First Amendment. After all, they are a state actor, and they are allowing the censorship of wholly protected material, by a plaintiff who they admit is abusing the law.
If the judge is (as he believes) enforcing the laws made by Congress, then Congress has made a law abridging the freedom of speech, and it has now been enforced by the court. Both are state actors, even by your weaselly definition, so the First Amendment is absolutely in play.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
Re:
No, the larger principle being that protected speech not be abridged when unprotected speech is regulated. The court cases make this absolutely, 100% clear, so if you still disagree, you are speaking some version of English that nobody else speaks.
Yes, a law that regulates speech can be a prior restraint, even where the line is not dim and uncertain. But you're missing the point which is that when the line is not dim and uncertain, then there's no need for those extraordinary procedural safeguards.
Hogwash. The extraordinary procedural safeguards can still be necessary to, for example, protect against overbreadth or selective prosecution. Or any other situation where procedural safeguards are insufficient to protect free speech when unlawful speech is regulated.
There are many older opinions where the courts say that the determination of child pornography is simple such that extraordinary procedural safeguards are not needed. There are also more recent cases that say the safeguards are needed because the Supreme Court has said that simulated child pornography is protected, and it's getting more difficult to tell the difference as technology makes it more realistic.
And there are other cases, where the court ruled that particular safeguards are insufficient, regardless of the ease of determination. Cases like CDT v. Pappert. The court ruled that the law was unconstitutional for both subtantive and procedural prior restraint reasons. Here's the entire prior restraint section:
Notice that not once in that entire section do they examine the issue of how "dim and uncertain" the line is between child pornography and protected speech. They do so later, in a separate procedural analysis, but has no bearing on the above prior restraint analysis. They conclude: "Moreover, even if fewer protections were necessary, the ex parte, probable cause determination provided for in the Act is insufficient." The Act would be unconstitutional even if the line was bright and certain.
So, you're wrong. Procedures are insufficient, no matter what, "if material protected by the First Amendment is removed from circulation." It's not the "dim and uncertain" line that triggers these protections, it's the First Amendment requirement that protected expression should never be abridged.
Naturally, I would never suggest otherwise.
Except when you did suggest it, by claiming that a First Amendment violation requires a "state actor."
That still has nothing to do with prior restraint.
It has everything to do with whether this case makes the DMCA a "violation of the First Amendment," which is the topic.
I addressed this in the post just above.
No, you didn't. You simply lied (again) about what Mike and Prof. Seltzer say. Your claim is that they are "arguing prior restraint by the recipient of a DMCA takedown notice." They are not, and nobody in their right mind would think that they were.
If there were no such thing as the DMCA or secondary copyright liability, then you would have a point. They could take down whatever they want, and there would be no First Amendment issue. But the fact that they are coerced into doing so by law, passed by Congress, makes it a First Amendment issue.
According to this judge's interpretation of the DMCA, the force of law allows censorship of wholly protected speech for any reason whatsoever, so long as you do it under the guise of protecting your copyright. That is, without a doubt, a First Amendment violation. If the judge is right, then the DMCA is unconstituitonal. Of course, I don't think he's right.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
Re:
Sure thing:
- Suntrust v. Houghton Mifflin
- Tory v. Cochran
- Dibon Solutions V. Nanda
- Vrasic v. Leibel
- Organization for a Better Austin v. Keefe
I'm sure you can find a lot more if you use the Googler.
We're talking about prior restraint, not substantive challenges to statutes such as Sullivan, Falwell, and the like.
The Falwell case was not a substantive challenge to any statute.
And keep in mind that substantive challenges to statutes are also prior restraint: "For these reasons, the ordinance, on its face, imposes an unconstitutional prior restraint upon the enjoyment of First Amendment freedoms..." (Staub v. City of Baxley). There are other substantive challenges that are explicitly called "prior restraint" if you want to look for them.
In any case, substantive First Amendment challenges make the law just as unconstitutional as procedural prior restraint, so I have no idea why you're only focusing on the latter.
But to answer your question, the reason prior restraint cases so often involve the government, is because they're the ones with the most power to do it. For example, in civil cases, adversarial proceedings almost always occur before any speech is enjoined or expressive articles are seized. That's not true as often in criminal cases, and it's why procedural safeguards are doubly important in those cases.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
Re:
The "dim and uncertain" line was specifically about obscenity. But the rest was not. It was about the tools needed to protect free speech in general, and about how obscenity in particular was "but a special instance of the larger principle."
Again, the harder it is to separate protected from unprotected speech, the more rigorous the procedural safeguards.
This is correct...
And vice versa.
...but this is wrong.
That the line is "dim and uncertain" is one factor in determining whether procedural safeguards are needed. But it is not the only one, and in fact it is not even the primary one. The safeguards are needed so that protected speech is not abridged when attempting to regulate (or under the guise of regulating) unprotected speech. Even when the line is not "dim and uncertain," laws that regulate speech can be prior restraint if they regulate protected speech as a consequence. And even laws which ostensibly do not regulate speech at all (such as a tax on ink) may be prior restraint.
In any case, Mike never said that fair use in all cases was an easier determination to make than a determination of obscenity. It is certainly a harder determination to make than child pornography, for instance, and laws that ostensibly prohibit child pornography have often been declared unconstitutional prior restraint.
The issue before the court here is whether the sender of a DMCA takedown notice has to consider fair use. He doesn't. Just because Congress can’t infringe upon fair use, which is protected expression, it doesn’t follow that Congress must require the sender of a DMCA takedown notice to consider fair use.
Not only can Congress not infringe upon protected expression, they cannot pass a law that results in infringement upon protected expression. If a law against unprotected speech allows the suppression of protected speech, then that law is unconstitutional, even if it regards private actions:
- New York Times v. Sullivan
I never said this case had anything to do with regular piracy.
Then you shouldn't have brought it up. Either it's a red herring, or you're making the fallacy of the excluded middle. Either way, you're just derailing the conversation.
You’re looking there at cases where the issue was whether the First Amendment shielded p2p file-sharers from having their anonymity revealed through subpoenas to their ISPs. That’s got nothing to do with prior restraint
It certainly has to do with the First Amendment. It is the First Amendment that protects the right to anonymous speech, so if those p2p file-sharers did not have any First Amendment protections, then the court would not have to consider whether they had the right to anonymous speech. They do, so the courts did.
Any time there are laws that impact free speech rights, there must be some kind of determination whether the laws are constitutional under the First Amendment. That determination may not (and often does not) come out in the speaker's favor, but the determination must be made.
Mike specifically argues this in the link he himself provided in the article above:
Saying that someone is "compelled to do [something] by the government" is not arguing that they are "a government actor." By your definition, the booksellers in the Bantam case, and the newspaper in Near, would be "government actors." I've never heard anyone argue this, ever. Mike certainly wasn't, nor was Professor Seltzer in the paper Mike quoted.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
Re: Re: Re: Re: Re:
That is entirely correct. Being unconstitutional under the First Amendment requires only two things: 1. that a law abridge freedom of speech, and 2. that the law be passed by Congress. The Fourteenth Amendment's Due Process Clause extends this to state laws as well.
The government does not have to be a party in the case; they only have to create the law.
In fact, most of the landmark First Amendment cases (New York Times Co. v. Sullivan, Hustler Magazine v. Falwell, etc.) involved libel, which is also a dispute between private parties. If the original poster was correct, the First Amendment would not apply in libel cases, either, which is clearly not true.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
Re: Re: Re:
Interesting. So, let's say that Congress passes a law that allows for any private party to censor the speech of any other private party, for any reason, under penalty of civil and criminal fines.
Do you honestly believe that the First Amendment would not apply in these cases?
Of course it would. If censorship is "carried on under color of [...] law" and that it "may entail depriving the adult public of access to constitutionally protected material" (as Justice Harlan put it in his concurrence in Bantam), that censorship is unconstitutional.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
Re: Re: Re:
This should surprise nobody, but you're totally misreading the case law. Here is the origin of that quote, put in context:
- Bantam Books v. Sullivan
The court is not saying that there are First Amendment concerns only if the line is dim and uncertain. On the contrary, they are saying that the line is always dim and uncertain, and separating illigitimate speech always calls for sensitive tools.
That's why you're so wrong when you say this: The funny thing is, since you think that the line between fair use and infringement is easily discernible, that cuts against your argument that there needs to be more process.
If the use is clearly fair use, then any law made by Congress that allows for stifling fair use is clearly unconstitutional. If the fair use is obvious - as in this case - then Congress is absolutely not allowed to pass any law that infringes upon it.
If you were right, then the government would be allowed to infringe on any speech it likes - so long as that speech is "easily discernable" as protected expression. Such a claim is oxymoronic, and I'm being generous with the "oxy" part.
That's why the judge's ruling here is so problematic. He claims that having to take fair use into account would be "at odds with Congress's express intent." But if the use is clearly fair use, then it doesn't matter what Congress's intent is. Because fair use is protected expression, Congress is absolutely not allowed to infringe on fair use, no matter what their intent.
That's not the case with regular piracy.
First of all, this case had absolutely nothing to do with "regular piracy." Any moron in a hurry could see that this is clearly fair use, that the copyright owner granted an implied license to post the picture on the blog, and that the DMCA request served no other purpose than to stifle criticism. It is slam-dunk protected expression.
Second of all, even if this were "regular piracy," you would be wrong. Wholesale piracy does, indeed, involve some elements of protected expression:
- London-Sire v. Does
- Sony v. Does
Those First Amendment protections are limited, but they certainly exist, and "that extra process" (or some sort of "extra process") needs to happen in piracy cases too.
But none of this matters since the recipient of a DMCA notice is not a government actor
Nobody - not Mike, not the plaintiffs - was arguing that the recipient of a DMCA notice is "a government actor." They were, and are, arguing that it is unconstitutional for Congress to pass a law that allows the sender of the DMCA notice to block legitimate speech. The lawsuit was against Crosley-Corcoran, not against either of the ISP's that shut Tuteur's website down. And she was able to do it solely because of statutes created by Congress.
If this judge's ruling is correct, then Congress was acting outside of its mandate when it created statutes that allowed this sort of behavior. It's one of the reasons I think the judge's ruling is wrong.
On the post: Syrian Electronic Army 'Hack' Of The NYTimes Was The Exact Remedy MPAA Demanded With SOPA
Re: Google Hails Age of Cyber War & Digital Revolution
Ha. If anyone actually has doubts about whether Truthstream Media is a loony conspiracy site, just read the other articles. Like this one:
- The Kubrick Code: Did Final Film ‘Eyes Wide Shut’ Expose Elite Satanic Cult?
Just by citing sources like that as credible, you've automatically proven that you are not to be taken seriously.
On the post: Prenda Lawyer Would Like Future Documents Sealed Because Techdirt Commenters Said Mean Stuff About Him
Re: Tantrum throwing or strategic filing?
I agree completely. This is their legal version of "security by obscurity."
The "poor ol' possibly-maybe-threatened-in-the-future me" is a complete red herring.
On the post: Telco Astroturfing Or Elaborate Double-Reverse Sabotage Fakeout? You Decide
Re: Godwin's Law
Your attempt at Goodwin-ing this thread has outed you as an agent provocateur.
Obviously, it was the Jews. I mean, they're behind everything.
On the post: Australian Copyright Industry Says Proposal To Bring In Fair Use Is 'Solution For Problem That Doesn't Exist'
What problems?
Your mistake is thinking that the AHEDA believes these are "problems." From their point of view, these are potential income streams.
I also love the idiocy of this statement from Bush:
What, pray tell, are they doing now?
On the post: Time Warner CEO Says Having Game Of Thrones As 'Most Pirated' Is 'Better Than An Emmy'
Re: Re: Re: Re: Re:
Well, we're hardly the first to make this comparison:
Jesus Christ, Pirate
Piracy: Jesus Did It (image)
...I saw another article which I actually thought was funnier, but I can't find it now.
On the post: Time Warner CEO Says Having Game Of Thrones As 'Most Pirated' Is 'Better Than An Emmy'
Re: Re: Re: Re: Re: Re: Re: NOT IN CONTROVERSY WHILE MONEY IS ROLLING IN!
To be fair, most of the criticism from my prof is about patents. Maybe that's because his work history is with hardware (he's one of those guys that started out in assembly language).
Coders in general know that copyright is bad, for one fundamental reason: all of them use open source tools, and know that the programming world would completely collapse without them.
On the post: Time Warner CEO Says Having Game Of Thrones As 'Most Pirated' Is 'Better Than An Emmy'
Re: Re: Re: Re: Re: NOT IN CONTROVERSY WHILE MONEY IS ROLLING IN!
Really? Because I have a lot of friends who are programmers, including game developers, and am studying for my Bachelors in CS.
And I have never heard of one person who has done such a thing.
In fact, all the ones I know view IP as something that does more harm than good. For example, my professor in my computer architecture class - the head of the CS department, and someone who developed hardware drivers at Motorola for over 30 years - is one of the biggest IP critics I've ever known.
On the post: Time Warner CEO Says Having Game Of Thrones As 'Most Pirated' Is 'Better Than An Emmy'
Re: Re: Re:
Actually, I certainly argue that (though not because that's what it's called).
There is nothing unethical about copyright infringement, just as there is nothing unethical about checking a book out of the public library. The primary effect of infringement is to create abundance from scarcity - like the loaves and fishes parable in the Bible.
Of course, laws against infringement may be necessary - in that they ostensibly serve a purpose that is more ethical than infringement. In fact, the ultimate purpose of copyright (again, ostensibly) is to perform exactly the same act as infringement: to create abundance from scarcity - by subsidizing those who can provide that abundance.
Of course, "ostensibly" is the big gotcha there. If laws do in fact only do this "ostensibly," and not in actuality, then the laws are unethical.
As the Supreme Court phrased it in Twentieth Century Music Corp. v. Aiken, copyright "must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts." That is the good that Copyright does, and it is the only good that copyright does.
If some acts of infringement can "serve the cause of promoting broad public availability" better than copyright, then preventing that infringement is unethical. If that infringement is not legalized under the law, then the law itself is unethical.
On the post: Time Warner CEO Says Having Game Of Thrones As 'Most Pirated' Is 'Better Than An Emmy'
Re: Re: Re: Re:
The Supreme Court does not equate infringement with theft.
That sentence by Breyer does not support your argument, because:
1. It from one judge's concurring opinion (not the full court's opinion), and was dicta even in the context of that concurrence;
2. He was clearly stating that it was "an unlawful taking of property" under the current statutes. (The very next sentence is a bunch of references to the copyright statutes.) He did not say, nor did he even imply, that the two were the same, much less morally equivalent.
3. Whether the two are the same is not even remotely relevant to his concurring opinion. The entire reason he wrote it was to voice his opinion on whether the court should re-examine (and perhaps overturn) the Sony "fair use" decision, something he was clearly against.
4. Breyer is well versed in copyright cases, and so must certainly be aware of the Dowling opinion. That opinion said explicitly that copyright infringement is not theft - for precisely the reason you're saying is unimportant ("the original is not lost"). Breyer did not give even a whiff of a hint that he was interested in overturning that decision, which is the law to this day.
But of course, you know this, because you've said this before, and tons of commenters (including myself) have pointed out that you're wrong.
Which means, big surprise, that you're just lying.
On the post: Dear Hollywood: Giving Identical Scripts To Congress Reveals That You're Feeding Them Talking Points
Re:
In addition to the problems That One Guy gave, there are even more fundamental problems with this idea.
1. That same content can have multiple filenames, MD5 hashes, or file formats. Even if that content is found and taken down, it is trivial for users to create another form of the same content that won't be spotted.
2. Content that seems like it should be on that list, might not be. For example, the comments above discussed "The Lone Ranger." Even if the filename matches, how is a content provider supposed to know what version of The Lone Ranger is on their servers?
3. The above problems rear their head even with wholesale duplication of entire pieces of content. It doesn't even address content that is only part of an infringing work (a scene from a movie, say).
4. Even if that content is found to unequivocally be on the list, that still doesn't make it infringing. It could still be fair use, or covered under any of the other legal exemptions to copyright infringement.
Only the copyright holder can tell if it is her work being infringed upon; only the copyright holder can tell if the work is not authorized; and even the copyright holder herself cannot tell if unauthorized reproduction is actually copyright infringement.
Taking these decisions out of the copyright holder's hands, and putting them into the hands of service providers, is a horrible idea.
On the post: Two Key Points: Copyright Isn't The Only Business Model; And When Done Wrong Makes Other Models More Difficult
Re: Wrong from start: Copyright Isn't A Business Model
He's posted a comment where every single sentence is factually wrong. Not just twisting words, or massaging the facts - but unequivocally, absolutely, factually wrong.
It's like he deliberately tried to pack in as many lies as possible using the fewest words.
At this point, I'm starting to suspect that he's some sort of double agent for the anti-copyright side. Nobody could possibly be that ignorant.
On the post: Piracy Doesn't Create A Loss To 'The Economy,' But To A Particular Industry
Re: Re: @ "Make up your god damn minds. We're starting to look like idiots around here."
Exactly. If you really want to be insulting and debate straw men, you'll have to do a lot better than that. OOTB offers up some excellent suggestions. I've outlined some of them below.
Misrepresent criticism as advocacy
"Give it away and pray" is a phrase that Techdirt uses as a criticism. It is Techdirt's primary example of what not to do when creating a business model.
So, you should outright lie and say that "give it away and pray" is the only business model Techdirt has ever advocated.
Misrepresent the argument through oversimplification
Example #2: It is a basic fact of free market economics that when the marginal cost to produce a good drops to zero, its price will also drop to zero. So, rather than focus on selling infinite goods, you would be better off selling goods that are rivalrous and exclusive - whether those be physical goods, access to the artist, or the labor itself.
But that is an argument that is nuanced and intelligent, so instead you should misrepresent it as "musicians selling T-shirts."
Present the defense of legal rights as the defense of specific, bad actors
This one was famously used to smear the ACLU when they defended the free speech rights of white supremacists. But it works just as well here.
For quite a while, commenters on Techdirt (including myself) have raised grave concerns about the ex parte seizures that were intended to block entire websites. This is because it is well-settled First Amendment law that when you are blocking unprotected speech, the government must use the least restrictive means to do it, so that protected speech isn't blocked as well.
But that argument actually makes sense, so you should lie, and say that Techdirt is claiming that the "Pirate Bay is free speech."
As another example, the Supreme Court in Sony ruled that courts must take into account whether a device or service made by a third party "is capable of commercially significant noninfringing uses." This ties into the significant questions raised about third-party liability in copyright cases, and whether a content-neutral service provider can or should be found liable for the acts of its users.
But you want to deflect from the whole argument, so you should lie and say that Tachdirt claims that "Megaupload has mostly legitimate non-infringing content."
Now, there are additional fallacious tactics that can be used to misrepresent or smear the arguments made, but that OOTB didn't cover in this particular post. A fairly widespread tactic is to use ad hominem attacks (claiming Mike is "pro-piracy," saying that he produces nothing worth reading, and so forth). And you can ignore all the arguments that conclusive prove you wrong, as OOTB consistently does, and dismiss the people who make them as "fanboys" who "drank the Techdirt kool-aid."
But the above suggestions are a good start. Take OOTB's advice, and you too can be an uninformed, lying douchebag, just like him!
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