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No judge "ordered" the seizures. They didn't make a judicial determination of infringement, they merely rubber-stamped the seizures (literally, in Dajaz1's case). Just like the judges did in Fort Wayne.
The magistrate judge made a determination that there was probable cause that the domain name was forfeitable as instrumentality of crime, and thus the seizure warrant was issued. Fort Wayne involved the seizure of large quantities of books and films because there was probable cause to believe that they were obscene. Even though the seizure was couched as enforcement of a RICO law, ultimately it boiled down to a seizure of materials based on merely probable cause. This violated the Marcus v. Search Warrant line of cases that require extraordinary procedural safeguards when it's the seizure of allegedly obscene materials.
The reason those safeguards are needed is because of the problem with prior restraint. But with simple piracy, there is no issue with prior restraint:
Furthermore, it is well-settled law that the prior restraint doctrine is inapplicable in cases where one's proprietary interests are at stake, such as infringements of copyright or trademark. See e.g., Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184 (5th Cir.1979). In upholding a preliminary injunction in a case involving a potential copyright infringement, the Fifth Circuit noted that “[t]he first amendment is not a *931 license to trammel on legally recognized rights in intellectual property.” Id. at 1188 (citing Zacchini, 433 U.S. at 577, 97 S.Ct. 2849).
Bosley v. Wildwett.com, 310 F. Supp. 2d 914, 930-31 (N.D. Ohio 2004).
There is when the "instrumentality" is an avenue of expression, as domain names are.
It's not that simple. You have to look at the context. If you use a printing press to print and publish protected works, but you also use the press for criminal copyright infringement, then that press can be seized upon a showing of probable cause that it can be forfeited. The fact that you also use the press for protected activities doesn't mean you get the extraordinary procedural safeguards that apply when it's the seizure of quantities of materials. Protecting proprietary rights doesn't raise the same problems as occur when dealing with obscene (or similar) materials. It's not a restraint because there is no legal impediment to anyone publishing anything.
Arcara does not apply. It says so right in the language of the ruling. Additionally, the closure order in Arcara was not done ex parte.
Arcara says lots of things and stands for lots of things. Several doctrines are involved. I pointed out already how the footnote dismisses the prior restraint argument. That part certainly applies since the domain name forfeitures aren't prior restraints for the same reasons. It's not a licensing scheme, and it's not an injunction. The issue in Arcara was whether the bookstore could be forfeited at all, even after a trial on the merits, because of its status as an avenue of protected expression. Focusing on the ex parte/inter partes distinction misses the point. Since there wasn't any restraint of expressive materials (despite the fact that the bookstore would be closed), there was no reason to consider whether the procedural protections were adequate. It didn't pass prior restraint scrutiny because it was enforced post-trial. It passed muster because it wasn't even a restraint.
Avenues of expression are absolutely not "just like other instrumentalities of crime." If that were true, the adult bookstore in Fort Wayne could be shut down on probable cause of RICO violations.
But the Court made very clear that at bottom, even though the seizure of the books and films in Fort Wayne Books was couched in terms of the RICO statute, nevertheless it was a seizure of a large quantity of presumptively-protected materials based on merely probable cause. The fact that it was the RICO law and not an obscenity law being enforced didn't matter since either way the necessary extraordinary procedural safeguards hadn't been used. The jurisprudence on seizures of large quantities of allegedly obscene materials doesn't apply when it's copyright, because, as I have explained, prior restraint doesn't apply when it's simple piracy.
I was talking about the ones that were guilty of copyright infringement (and not e.g. trademark infringement). Also, since ICE and the DOJ outright lied before (claiming no sites were contesting the seizures), they're not a trustworthy source as far as I'm concerned.
But can you think of a single reason why the government wouldn't be getting default judgments? Your skepticism makes little sense to me. Do you know how easy it is to win when the other side doesn't even show up?
"Administrative prior restraint" was what the CDT court called it, so I'm pretty comfortable using the phrase.
It's only an administrative prior restraint if it's brought about by the administrative branch of government, i.e., the executive branch. These domain name seizures are judicial prior restraints, if they're prior restraints at all (which they're not). It is simply incorrect to refer to the domain name seizures as administrative prior restraints, since they're not administrative.
In essence, "prior restraint" now means "prior to a judicial determination," and probable cause is simply not enough for a judicial determination.
Probable cause being sufficient judicial determination is the rule, not the exception. The Fourth Amendment rule is that a judicial determination of probable cause is sufficient for a warrant to issue. If you want to impose an exceptional rule, like the one from the obscenity line of cases you rely on, then you have to show why those exceptions apply when it's copyright. They don't. As I quoted for you just above, when it's copyright (specifically simple piracy), there's no issue with prior restraint. To understand why, you should be looking at the ill prior restraint doctrine seeks to cure. Enforcement of proprietary rights is not pretext for censorship of First Amendment-protected expression.
If they would have meant that, they would have said it. And it's clear from the context - the end of that passage was "the imposition of the closure order has nothing to do with any expressive conduct at all" - that it's not what they meant.
They've said it so many times, and the prior restraint argument was so weak, that they relegated the issue to a dismissive footnote. As I said above, if you read up on prior restraint doctrine and become much more familiar with it, you will recognize what that footnote is saying. They're saying it's not a prior restraint because it's not a restraint at all, despite the fact that the bookstore will be closed and their relocation no doubt difficult.
Additionally, if they would have meant that they were talking about the O'Brien or Minneapolis Star standards, then they would have used those standards to determine the closure order's constitutionality. They did not.
The Court in Arcara explicitly mentioned both lines of cases and explained why neither was relevant to the forfeiture of the bookstore. Those are different tests--tests that have nothing to do with prior restraint. The O'Brien line of cases, the Minneapolis Star line of cases, and the Arcara line of cases are all different First Amendment scenarios. The Court in Arcara said O'Brien and Minneapolis didn't even apply. Even if they did apply, though, there's no reason to think that the Court would have found that forfeiture statute failed the tests therein.
Arcara does not say that "forfeiting a bookstore is not a prior restraint." It says that closing a building as part of "the enforcement of a public health regulation of general application" is not a prior restraint, even if that building happens to be a bookstore. Other examples the ruling gave were "Fire Code violations or health hazards from inadequate sewage treatment." On the other hand, according to Arcara, if any statute "single[s] out bookstores," it would require heightened First Amendment analysis.
Right. If First Amendment-protected activities are singled out, then the statute would get heightened scrutiny under the Minneapolis Star line of cases. But, the forfeiture statute didn't single out bookstores. Nor does the forfeiture statute with the domain name seizures, 18 U.S.C. 2323, single out First Amendment-protected activities. Minneapolis Star doesn't apply here either.
Copyright doesn't have to be a "content-based" restriction to get heightened First Amendment scrutiny. It only has to be a speech restriction. These seizures may not get strict scrutiny, but they do require some scrutiny, because not even allegedly unprotected speech was shut down. Even statutes unrelated to the suppression of speech must pass the O'Brien standard if they burden protected speech in the process.
That's not the O'Brien standard. O'Brien applies when the same activity has both a protected expressive element and a nonexpressive element. In that case, it was destroying a draft card. Although on its face, the law wasn't about regulating expression, it nevertheless punished conduct that had a protected expressive element. Be careful to notice the critical part of O'Brien that the Court in Arcara said made it distinguishable from the forfeiture statute there. It has to be a situation where the very same act is both protected and unprotected. The government can surely punish the destruction of a draft card for reasons that have nothing to do with protected expression. But people have a right to protest the war. Since the statute prohibited an act that was partially protected expression, the First Amendment demands heightened scrutiny of that statute. All this means is that the government interest has to be weighed against the burden imposed. Even the draft card-burning statute in O'Brien was upheld, despite its admitted effect on protected activity.
At the very least, the mere fact that they are a burden on speech makes Arcara inapplicable. Arcara applies to neither content-based restrictions, nor content-neutral restrictions. It does not even apply to conduct with both "speech" and "nonspeech" elements. It explicitly, in no uncertain terms, applies only to utterly nonexpressive conduct.
You keep saying Arcara is inapplicable, without specifying which part. As I mentioned, there's more than one First Amendment argument at play in that case. The prior restraint part of Arcara can apply to these forfeitures even if the O'Brien part doesn't. It's not an all-or-nothing thing. You're mixing it all up, instead of breaking it down into its constituent pieces.
I actually the argument that O'Brien applies to the forfeiture statute is the only good First Amendment argument you've got. But I don't think it's nearly as simple as you make it out to be. Even if we assume that, say, hyperlinking to an infringing work, is sufficiently imbued with protected expression so as to make the conduct presumptively protected by the First Amendment (a point I do not concede), there's no reason to think that the forfeiture statute wouldn't pass heightened scrutiny.
This is ridiculous, as the seizure affidavit explicitly says that the seizure was to "prevent third parties from continuing to access" the site. Additionally, if this were true, ICE would not have told Mozilla to block the MafiaaFire add-on, claiming it "circumvented a seizure order."
Seizing and forfeiting the property prevents others from using the property. That's part of the point. But no speech is being blocked--people are free to say whatever they want. There is no legal impediment.
Though I admit I'm not a lawyer, I'm in no way confused. I've been following free speech cases for about twenty-five years (I lived two counties over from Fort Wayne when that case was going on). Everyone was claiming "this time it's different" back then, too.
You are mixing up different First Amendment doctrines, including overbreadth, prior restraint, O'Brien, etc. That's OK, though. This stuff is complicated. I'm confused too.
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Which is unlawful prior restraint, in my opinion. No judge has declared these seizures lawful, so I guess we'll find out, assuming it ever gets that far.
You seem to be forgetting that it was judges who ordered these seizures in the first place, obviously believing them to be lawful. And given the fact that there's no special Fourth Amendment exception for when the seizure is for the purpose of forfeiting a tainted instrumentality, they had no reason to think the seizures unlawful. Just like closing the bookstore in Arcara was no restraint at all, even though it might be hard for the store to relocate, it's no restraint at all with the domain names. No one is being restrained from speaking. There is no injunction, no licensing scheme. People can say whatever they want. They just can't use that piece of tainted property. It is deodand, so to speak, offered to the gods. http://en.wikipedia.org/wiki/Deodand
It does, however, show that domain names are not simply "pieces of property." Both cases say pretty explicitly that they are avenues of expression.
They are avenues of expression, no doubt. So was the bookstore in Arcara, but it could be forfeited too.
Nor are they "tainted," since there was never anything other than probable cause (at best) that the websites were criminally infringing.
That's contradictory. All that is needed to seize it is probable cause, just like other instrumentalities of crime. If you admit that there's probable cause, then you admit that there is enough evidence that the property is tainted so as to justify its seizure so it can be forfeited later.
Incidentally, none of the copyright-infringing domain names have been forfeited, that I know of. Dajaz1 was returned, Rojadirecta is ongoing (and the judge dismissed the original complaint), and I don't believe forfeiture proceedings for any of the others have been started. I could be wrong.
I know one DOJ press release said that many had been not only seized but forfeited. That's no surprise. The government is getting default judgments, since so few are challenging the forfeitures.
The bookstore in Arcara could be shut down because the conduct which drew the legal remedy was not any form of expression (protected or otherwise); was not directed primarily at entities that engaged in expression (like websites); and did not require any advance determination that materials were unprotected. If any of those things are true, Arcara is inapplicable, and an appropriate First Amendment standard (e.g. O'Brien) must be used instead. In this case, all three conditions are not met.
You're mixing up the doctrines a bit. The bit about "the conduct which drew the legal remedy" refers to the O'Brien line of cases, and the bit about "was not directed primarily at entities that engaged in expression" refers to the Minneapolis Star line of cases. Neither of those lines of cases are used for prior restraint analysis. Prior restraint is a separate doctrine; it's a separate argument.
The bit about "did not require any advance determination that materials were unprotected" is from the footnote in Arcara, and as I mentioned above, refers to the two quintessential types of prior restraints--injunctions and licensing schemes. Advance determination refers to an advance determination by the censor in a licensing scheme.
You guys really need to stop with the Arcara bullshit. It unequivocably does not apply to these seizures, just as it would not apply to child pornography, libel, obscenity, trade secrets, national security, hate speech, or any other form of unprotected speech. No judge has ever ruled that it has.
Arcara stands for the proposition that if forfeiting a bookstore is not a prior restraint, then forfeiting a domain name isn't either. And then, of course, there are arguments both ways about whether the forfeiture statute gets heightened scrutiny under some other First Amendment test like in O'Brien. But Arcara is so dismissive of the argument that shutting down the bookstore is a prior restraint, that it puts the argument in a footnote, listing the two quintessential prior restraints and saying that neither was in play. Just like with the domain name seizures. It's one thing to argue that it's a prior restraint, but another to say that the statute gets heightened scrutiny because of some other doctrine. For clarity, you shouldn't mix up the two.
(As an aside: the bookstore in Arcara was not, in fact, shut down. The statute was found to be prior restraint under the New York State constitution.)
Right. But the New York constitution provides more protection the federal one. And under the federal Constitution, the one that matters with these forfeitures, shutting down the bookstore wasn't a prior restraint.
That sentence didn't parse. You're talking about forfeiture statutes in general, or this particular case?
I'm not sure what I was saying there. LOL!
Regardless - in general, when a seizure is based on a content-based restriction, it must past heightened First Amendment scrutiny. (Forfeiture happens after an adversarial hearing, so usually it does not.)
True, but copyright isn't a content-based restriction on speech--it doesn't get treated to strict scrutiny like statutes that prescribe/proscribe viewpoint or subject matter. I think understanding that is critical to understanding why the Court treats copyright differently. Sure, it's a burden on speech--by design, no less. But it's not a burden in the sense that it limits what people can say. It doesn't lock up the marketplace of ideas. In fact, it contributes to that marketplace as the engine of free expression. Other speech restrictions--the ones that get heightened scrutiny--don't encourage the creation of protected expression. Only copyright does that. Copyright is special as far as speech restrictions go because it's not other speech restrictions. Trying to clump it in with obscenity doesn't work because the two are completely different.
The reason this seizure wasn't constitutional does not have to do with the difference between content-based and content-neutral speech restrictions. It has to do with the fact that it was done ex parte, and the owners were denied any access to the court for over a year, before the domain was returned (without telling the owner or their lawyers). It has to do with the fact that none of the material on the site was criminally infringing (and there is no evidence that it was civilly infringing either). And regarding these seizures in general, it has to do with the fact that they are overbroad, blocking speech that is not even allegedly infringing.
But no speech is being blocked. There is restraint at all. Just like there was no restraint at all in Arcara. Once you accept that a domain name can be forfeited, your only hope of having it be a prior restraint is to argue that there's not enough process before the seizure takes place. As I've explained above, you don't get those extraordinary procedures when it's copyright.
Even the district court in the Pappert case, in the lengthy section I quoted above, went through the analysis to decide if the extraordinary procedures used in obscenity cases should be used when it's child pornography. The court wouldn't have gone through that analysis if the answer is always the same. And with copyright, the answer is that it's not a prior restraint to make an ex parte seizure of an instrumentality of criminal infringement. The reason is because it's an easy determination to make. It's objective.
I gave you a cite above of a court saying that prior restraint doesn't apply when it's copyright. The court spoke a little too broadly, because I agree, as you pointed out, there can be a prior restraint issue if there's fair use. But when it's simple piracy, you don't have those First Amendment concerns. There is no prior restraint issue.
No, I haven't denied it, nor did I suggest that they couldn't. I only pointed out - correctly - that when those "instrumantalities" are vehicles for protected speech, additional First Amendment safeguards are required, including a pre-seizure adversarial hearing.
That's an oversimplification. You don't get the preseizure hearing when it's copyright for all the reasons why copyright is a different restriction on speech than other restrictions such as obscenity laws or child pornography laws. Copyright doesn't block viewpoints or subject matter. It's not censorship. (Again, real censorship, not Techdirt's version of it.)
I don't understand your egotism, given that you're anonymous, and I have no reason to suspect either that you studied law, or studied these issues in depth. At the very least, I have done the second; and when I am confused, I ask one of my many lawyer or law student friends. So thanks for being patronizing, but I don't need your help.
Didn't mean to ruffle your feathers. It's clear though that you're confused about a lot of this. I'm sure if you heard someone talk that knew only some programming theory, but not a lot, that you would cringe a little too when they tried to explain the theory. It's not personal. And given your lack of legal training, it shouldn't be too surprising. I think it's cool that you're into this stuff too, even if you do have it all wrong. (Just kidding!) This is complicated stuff, and I'm glad to bounce my ideas off of you.
As further evidence that the cases do not constitute "obscenity doctrine," consider that they are also applicable to hate speech (R. A. V. v. St. Paul, Corry v. Stanford, etc) or defamation (Near v. Minnesota, etc). Essentially, for these cases to not apply to copyright, you are arguing far more than that deal with obscenity. You are arguing that copyright is categorically immune from First Amendment scrutiny. This is something that the Supreme Court explicitly said is false (Eldred v. Ashcroft).
That line about being "categorically immune" was referring to substantive copyright laws. The Court said that as long as the built-in First Amendment accommodations of fair use and the idea/expression dichotomy are intact, a substantive copyright law (like the CTEA or Section 514 of the URAA) gets no further First Amendment scrutiny. This forfeiture statute is not a substantive copyright law. It doesn't define the scope of the substantive copyright rights. So that test from Eldred doesn't apply here.
But that all misses the point. I'm saying that when it's simple piracy, there is no prior restraint issue. Instrumentalities of criminal copyright infringement can be seized upon a showing of probable cause and forfeited if the government proves its case by a preponderance of the evidence. There is no doubt that the domain names can be forfeited (Arcara establishes that). And you don't get the extraordinary procedures when it's copyright like you do when it's child pornography or obscenity. The reason is because it's simple to establish infringement, and there's no concern about enforcement turning into a censorship regime, which the ill that prior restraint doctrine seeks to cure by demanding more procedures when it's child pornography or obscenity (and some others). Copyright is about protecting proprietary interests, not a judgment about the content of the work that's being protected. Copyright is oblivious to the viewpoint or subject matter of the copyrighted work. You just don't have the same concern about censorship (real censorship, not the version Techdirt promotes).
One other thing. The "harmonization" of seizure laws took place in the PRO-IP Act of 2008. Nobody - not even PRO-IP's harshest critics - thought the new seizure laws could be used to sieze domain names or shut down websites. The general consensus was that the new seizure laws allowed seizing computers that were owned and operated by the primary infringers.
Thanks to the Internet, we can now look at the entire Congressional record online. And it is clear that the consensus is correct:
Sec. 202. Harmonization of Forfeiture Procedures for Intellectual Property Offenses. Section 202 harmonizes all forfeiture and restitution laws for intellectual property offenses by amending 18 U.S.C. Sec. 2318, 2319, 2319A, 2319B to bring these provisions substantially in line with 18 U.S.C. 2320, which was enacted into law last year. The new provisions contain additional safeguards, such as the requirement that property involved in the commission of an offense be owned or predominantly controlled by the violator, a co- conspirator, or an aider and abettor of the violation in order to be seized under the civil forfeiture provisions. The definition of aiding and abetting is taken from Central Bank of Denver, NA. v. First Interstate Bank of Denver, N.A. 29
[Footnote] Furthermore, such property is not subject to seizure unless a substantial connection between the property and the offense is proven. Use by a violator (or co-conspirator or aider or abetter) of commercially valuable digital communications or e-commerce services for, e.g., electronic mail or data storage, absent extraordinary circumstances, would not constitute predominant control of the servers and similar facilities used to provide the services. If, however, a computer were used by a violator (or co-conspirator or aider or abetter) primarily to store data used to further the infringement, the violator could be held to have substantially controlled the property and the computer would be subject to forfeiture. Another safeguard contained in this Act is the requirement that, for seizure under a criminal facilitation theory, the property be used to substantially facilitate the crime.
That passage doesn't say that it applies to Section 2323, which is the section the government is using as authority for the forfeitures. Those additional safeguards were intentionally left out of Section 2323. If Congress wanted to extend those safeguards to forfeitures commenced under Section 2323, it knew how to make it so. Congress chose not to. The legislative history you've cited doesn't apply here.
ICE is clearly going beyond the bounds of what Congress intended. And they are violating the First Amendment in order to do it. All at the behest of the major media industries.
Section 2323 says that "any property" can be forfeited if it's used to commit or facilitate criminal infringement. You've identified nothing which shows that Congress did not intend for domain names to be excluded from the extremely broad "any property" language Congress expressly chose to use in the statute without limitation.
It is very clear that this needs to stop, and right now.
I understand your disagreement with the soundness of the policy, but that doesn't mean it's unconstitutional.
This is a common refrain, except it's simply not true. Not all of the cases were obscenity cases, for one thing. For another, none of the rulings limited themselves to obscenity (or child pornography), but used the general term "speech."
When it's simple piracy, there is no free speech concern. To suppress the speech before a proper determination that it's unprotected is a prior restraint. There is a right to publish the speech, even though they may be sanctioned subsequently. None of that applies when it's simple piracy. No court has ever in over two centuries used the extraordinary procedural safeguards when it's simple piracy. The fact is, it's an easy-to-make, objective determination whether something is infringing. That determination can be made ex parte, and the Copyright Act even so expressly provides for such measures.
And it's also not true that it is "inapplicable" to copyright infringement. Plenty of copyright cases have denied preliminary injunctions because they conflicted with the First Amendment, or were overbroad (Suntrust v. Houghton Mifflin, OPG v. Diebold, New Era v. Henry Holt, Abend v. MCA, Silverstein v. Penguin Putnam, etc). Because of this, an injunction is a "harsh and drastic" discretionary remedy (Kass v. Arden-Mayfair, quoted in Universal v. Sony).
Yes, when there is a fair use argument, then the First Amendment is involved. But when it's simple piracy, there is no First Amendment concern.
And I dare you to find even one copyright case that held that blocking speech which was not even allegedly infringing was acceptable.
Arcara held that shutting down a bookstore was not a prior restraint, even though doing so would have an obvious effect on the protected speech and conduct that occurred there. As the Court explained there in the footnote, it's not a prior restraint because it's not a licensing scheme and it's not an injunction, and the bookstore owners are free to continue their protected activities elsewhere.
Nowhere in Arcara was this even hinted at. That passage was explicitly talking about "the closure order," not licensing or injunctions.
That footnote you're looking at is exactly about the two quintessential types of prior restraints. You would recognize that if you were more familiar with prior restraint doctrine.
We're talking about ex parte seizures, not forfeitures.
The seizure is how the court exercises dominion over the property so that it may be forfeited. The action that's filed is a forfeiture action. It is forfeiture that ultimately condemns the property. The seizure is how the court takes control of the property in the interim until final judgment is rendered. At the magic moment of forfeiture judgment, title passes to the government. (I believe it actually relates back to the date of the seizure, but I'm not sure about that.) Anyway, this whole action is forfeiture, and the seizure is just part of the procedure of forfeiture. When the thing being seized for forfeiture is an instrumentality of criminal infringement, you don't get special Fourth Amendment treatment. Probable cause is sufficient to seize an instrumentality of criminal infringement.
A sanction can only be "subsequent" if it follows after an adversarial process. I'll let CDT v. Pappert explain it to you:
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.
Hard to get much clearer than that.
Pappert was an administrative prior restraint. The domain name seizures, done by court order, are not. Administrative prior restraints are done by the executive branch of government. The domain name seizures are judicial, not administrative. So right there, Pappert is distinguishable since it was administrative. As the court in Pappert explains, the extraordinary procedures found in obscenity cases are also needed in child pornography cases:
Defendant argues that fewer procedural protections are required for the removal from circulation of child pornography, as compared with obscenity, because the child pornography determination is easier than *659 the obscenity determination. The Court rejects this argument.
This argument is based on defendant's position that Fort Wayne Books was distinguished in dicta by Camfield v. City of Oklahoma City, 248 F.3d 1214, 1227 (10th Cir.2001). According to the court in Camfield, “we do not necessarily agree with the implication that compliance with Fort Wayne Books is always required whenever the government seeks to remove suspected child pornography from public access.” Id. “Child pornography differs from obscenity in two important respects. First, child pornography is afforded even less constitutional protection than obscenity. Second, as courts have noted in the context of probable cause determinations, the difficulty encountered in determining whether material is obscene often is absent when determining whether material contains child pornography.” Id. For example, with child pornography a court does not have to assess whether the work, “taken on the whole, contains serious literary, artistic, political, or scientific value.” See New York v. Ferber, 458 U.S. 747, 761, 764, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). However, the Camfield court did not reach the issue because the child pornography statute examined in that case did require an examination of the artistic merit of the work as a whole, and the court held that the difficulty in making this assessment rendered compliance with Fort Wayne Books necessary. Id. at 1228. The court noted, however, that the appellant “does not cite, nor have we found, any cases which have held that the complete removal of suspected child pornography from public circulation without a prior adversarial hearing constitutes a prior restraint.” Id.
Camfield was decided before the Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). Ashcroft affects this Court's analysis of Camfield in two respects. First, the Supreme Court acknowledged in Ashcroft that virtual pornography is indistinguishable from real child pornography. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 254, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (“Experts, we are told, may have difficulty in saying whether the pictures were made by using real children or by using computer imaging.”). Second, the Court held that virtual child pornography can be protected speech. Both of these statements make a child pornography determination more difficult because a court now must assess whether the alleged child pornography is virtual. Pls.' Reply at 30–31. In a case decided after Ashcroft, the First Circuit affirmed a decision to vacate a conviction for possession of child pornography because the government did not present evidence proving that the child in the image was “not confabulated, but real.” United States v. Hilton, 363 F.3d 58, 64 (1st Cir.2004).
The actions taken by the OAG when it sought a court order demonstrate that the OAG understood the kind of evidence a court would require before suppression of presumptively protected material. The OAG consulted a doctor before obtaining the only court order issued under the Act to make certain the images subject to the order were child pornography. Defendant did not take any such precautions before issuing Informal Notices. FOF ¶ 88.
The Supreme Court's opinion in Ashcroft undercuts the Camfield court's assertion that an obscenity determination is more difficult than a child pornography determination. Based on the Court's guidance in Ashcroft and the measures taken by the OAG, this Court cannot conclude that fewer procedural protections are necessary before child pornography is removed from circulation than those that are required for obscenity. Moreover, even if *660 fewer protections were necessary, the ex parte, probable cause determination provided for in the Act is insufficient.
Ctr. For Democracy & Tech. v. Pappert, 337 F. Supp. 2d 606, 658-60 (E.D. Pa. 2004).
The domain name seizures aren't like the administrative restraints in Pappert. With the domain names, a piece of property tainted by past criminal acts is being seized and forfeited. Pappert doesn't negate such forfeitures. As the court in Pappert makes clear, since determination of child pornography is tricky just like determination of obscenity is, the extraordinary procedures are required. Such is not the case with simple piracy where the determination is simple and objective.
The website was singled out for "a strong social element." That social element is fully, 100% protected expression. It is selective enforcement penalizing protected speech. Whatever you want to call it, at the very least it raises significant First Amendment questions.
You have identified no subject matter and no viewpoint that is being singled out. Sorry.
Probable cause is not a sufficient basis. Fort Wayne Books v Indiana (1989):
“[W]ile the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved. Lo-Ji Sales, Inc. v. New York,(1979).
Emphasis added.
That's another line that sounds great for your side, but it's not applicable here either. First of all, expressive materials aren't being seized here. That case applies when allegedly obscene materials are themselves seized. The domain name seizures are seizures of instrumentalities of crime, not of expressive materials. Moreover, there are no heightened requirements for seizure of allegedly copyright-infringing materials or instrumentalities. The reason is because the same fears of prior restraint are not present when it's copyright. None of that language your side keeps pulling out from the obscenity line of cases applies when it's copyright. The fact is, probable cause is sufficient to seize infringing materials or instrumentalities of infringement. There is no Fourth Amendment exception for copyright like there is for obscenity.
“[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Schneider v State (1939).
I know the EFF and others love to pull out that quote, but unfortunately for you and them, it's not applicable here. Domain names aren't public places, which is what the Court is referring to there. Domain names are simply pieces of property.
Instead of just looking at the end of the sentence that you cherry-picked, why don't we look at the whole paragraph:
It is suggested that the Los Angeles and Worcester ordinances are valid because their operation is limited to streets and alleys and leaves persons free to distribute printed matter in other public places. But, as we have said, the streets are natural and proper places for the dissemination of information and opinion; and one is not to have the exercise of his liberty of expression in appropriate places **152 abridged on the plea that it may be exercised in some other place.
Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 163, 60 S. Ct. 146, 151-52, 84 L. Ed. 155 (1939).
It's clear that the issue there is whether an ordinance that prohibits pamphleteering on public streets and alleys violates the First Amendment. The Court is saying that it's no answer to say that they can just pamphleteer elsewhere. With the domain name seizures, a piece of property tainted by past crimes is being forfeited. The government is not restricting what physical, public locations are open for people to use for expressive conduct.
The issue in that Supreme Court case you're looking at would be analyzed today under the public forum and/or the time, place, manner restriction doctrines. Neither of those doctrines is applicable here. That quote sounds great, all pulled out of context and twisted as you (and others) are using it. But that argument is complete bunk. Sorry.
If the loss of a domain is such a trivial matter, then what is the point of seizing that domain in the first place? The domain itself is not infringing content, so there's really no point in seizing it unless doing so has an effect akin to shutting down the allegedly infringing website.
Actually, with civil in rem forfeiture, the court operates under the legal fiction that the domain name itself is conscious and culpable. The domain name itself is condemned. The purpose is chiefly remedial, although in part it's punitive as well. It serves to deter others from allowing their property to be used for crime. It's seized to abate a nuisance and to stop its continued use an instrumentality of crime.
Where has it been established that seizures leading to the suppression of constitutionally protected speech don't require an adversarial hearing in cases involving alleged copyright infringement?
What constitutionally-protected speech has been suppressed? There's no injunction, no licensing scheme. People are completely free to continue any speech they want. There is no restraint. They just can't used the condemned piece of property (the domain name) anymore. Moreover, prior restraint is not an issue when its simple piracy:
Furthermore, it is well-settled law that the prior restraint doctrine is inapplicable in cases where one's proprietary interests are at stake, such as infringements of copyright or trademark. See e.g., Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184 (5th Cir.1979). In upholding a preliminary injunction in a case involving a potential copyright infringement, the Fifth Circuit noted that “[t]he first amendment is not a *931 license to trammel on legally recognized rights in intellectual property.” Id. at 1188 (citing Zacchini, 433 U.S. at 577, 97 S.Ct. 2849).
Bosley v. Wildwett.com, 310 F. Supp. 2d 914, 930-31 (N.D. Ohio 2004).
The First Amendment doesn't protect property that being forfeited as an instrumentality of crime. When it's obscenity there are extraordinary procedural hurdles. When it's copyright there aren't these hurdles because prior restraint is not an issue. That's all that's happening here. You guys are pretending like the court has issued an injunction forbidding people from running a website. No judge has done that. All that's happened is that a tainted piece of property has been seized via court order. The fact that the property was also used for noncriminal, protected conduct is irrelevant.
What's ridiculous is for the government to seize the domain of a website containing protected speech when doing so isn't necessary in building a case against the website's operators. I understand the need for pretrial seizure in certain cases, but such a tool should be used as a scalpel instead of a hatchet. The government is wielding a hatchet.
When there is evidence to believe that a piece of property is being used for crime, that piece of property may be seized and forfeited. It's really as simple as that. The government has been forfeiting tainted property for centuries. Just because it's a domain name, it doesn't get special treatment. Sorry.
Nope. It's a great opinion for defendants with a strong fair use argument who are facing a nuisance infringement suit. The opinion is interesting procedurally too, since the court converted the Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment, but without giving the plaintiff the benefit of briefing the issues as such.
Not really, Rick. Seems like a nonstarter, and I'm allergic to zealous hippie types. I'm just LOLing at the thought that Mike can't possibly understand why anyone thinks he's pro-piracy when he lets people like you post on his blog. That just cracks me up no end. Carry on with your pirate friends. I'm going to watch a DVD I just paid money for. You wouldn't understand.
But searching the TD comments for info on how to become a priest and a saint in a religion dedicated to violating people's rights is peachy-keen. Got it. Maybe they'll make you a saint as well. LMFAO!!!!!!!!!!!!!
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The magistrate judge made a determination that there was probable cause that the domain name was forfeitable as instrumentality of crime, and thus the seizure warrant was issued. Fort Wayne involved the seizure of large quantities of books and films because there was probable cause to believe that they were obscene. Even though the seizure was couched as enforcement of a RICO law, ultimately it boiled down to a seizure of materials based on merely probable cause. This violated the Marcus v. Search Warrant line of cases that require extraordinary procedural safeguards when it's the seizure of allegedly obscene materials.
The reason those safeguards are needed is because of the problem with prior restraint. But with simple piracy, there is no issue with prior restraint:Bosley v. Wildwett.com, 310 F. Supp. 2d 914, 930-31 (N.D. Ohio 2004).
There is when the "instrumentality" is an avenue of expression, as domain names are.
It's not that simple. You have to look at the context. If you use a printing press to print and publish protected works, but you also use the press for criminal copyright infringement, then that press can be seized upon a showing of probable cause that it can be forfeited. The fact that you also use the press for protected activities doesn't mean you get the extraordinary procedural safeguards that apply when it's the seizure of quantities of materials. Protecting proprietary rights doesn't raise the same problems as occur when dealing with obscene (or similar) materials. It's not a restraint because there is no legal impediment to anyone publishing anything.
Arcara does not apply. It says so right in the language of the ruling. Additionally, the closure order in Arcara was not done ex parte.
Arcara says lots of things and stands for lots of things. Several doctrines are involved. I pointed out already how the footnote dismisses the prior restraint argument. That part certainly applies since the domain name forfeitures aren't prior restraints for the same reasons. It's not a licensing scheme, and it's not an injunction. The issue in Arcara was whether the bookstore could be forfeited at all, even after a trial on the merits, because of its status as an avenue of protected expression. Focusing on the ex parte/inter partes distinction misses the point. Since there wasn't any restraint of expressive materials (despite the fact that the bookstore would be closed), there was no reason to consider whether the procedural protections were adequate. It didn't pass prior restraint scrutiny because it was enforced post-trial. It passed muster because it wasn't even a restraint.
Avenues of expression are absolutely not "just like other instrumentalities of crime." If that were true, the adult bookstore in Fort Wayne could be shut down on probable cause of RICO violations.
But the Court made very clear that at bottom, even though the seizure of the books and films in Fort Wayne Books was couched in terms of the RICO statute, nevertheless it was a seizure of a large quantity of presumptively-protected materials based on merely probable cause. The fact that it was the RICO law and not an obscenity law being enforced didn't matter since either way the necessary extraordinary procedural safeguards hadn't been used. The jurisprudence on seizures of large quantities of allegedly obscene materials doesn't apply when it's copyright, because, as I have explained, prior restraint doesn't apply when it's simple piracy.
I was talking about the ones that were guilty of copyright infringement (and not e.g. trademark infringement). Also, since ICE and the DOJ outright lied before (claiming no sites were contesting the seizures), they're not a trustworthy source as far as I'm concerned.
But can you think of a single reason why the government wouldn't be getting default judgments? Your skepticism makes little sense to me. Do you know how easy it is to win when the other side doesn't even show up?
"Administrative prior restraint" was what the CDT court called it, so I'm pretty comfortable using the phrase.
It's only an administrative prior restraint if it's brought about by the administrative branch of government, i.e., the executive branch. These domain name seizures are judicial prior restraints, if they're prior restraints at all (which they're not). It is simply incorrect to refer to the domain name seizures as administrative prior restraints, since they're not administrative.
In essence, "prior restraint" now means "prior to a judicial determination," and probable cause is simply not enough for a judicial determination.
Probable cause being sufficient judicial determination is the rule, not the exception. The Fourth Amendment rule is that a judicial determination of probable cause is sufficient for a warrant to issue. If you want to impose an exceptional rule, like the one from the obscenity line of cases you rely on, then you have to show why those exceptions apply when it's copyright. They don't. As I quoted for you just above, when it's copyright (specifically simple piracy), there's no issue with prior restraint. To understand why, you should be looking at the ill prior restraint doctrine seeks to cure. Enforcement of proprietary rights is not pretext for censorship of First Amendment-protected expression.
If they would have meant that, they would have said it. And it's clear from the context - the end of that passage was "the imposition of the closure order has nothing to do with any expressive conduct at all" - that it's not what they meant.
They've said it so many times, and the prior restraint argument was so weak, that they relegated the issue to a dismissive footnote. As I said above, if you read up on prior restraint doctrine and become much more familiar with it, you will recognize what that footnote is saying. They're saying it's not a prior restraint because it's not a restraint at all, despite the fact that the bookstore will be closed and their relocation no doubt difficult.
Additionally, if they would have meant that they were talking about the O'Brien or Minneapolis Star standards, then they would have used those standards to determine the closure order's constitutionality. They did not.
The Court in Arcara explicitly mentioned both lines of cases and explained why neither was relevant to the forfeiture of the bookstore. Those are different tests--tests that have nothing to do with prior restraint. The O'Brien line of cases, the Minneapolis Star line of cases, and the Arcara line of cases are all different First Amendment scenarios. The Court in Arcara said O'Brien and Minneapolis didn't even apply. Even if they did apply, though, there's no reason to think that the Court would have found that forfeiture statute failed the tests therein.
Arcara does not say that "forfeiting a bookstore is not a prior restraint." It says that closing a building as part of "the enforcement of a public health regulation of general application" is not a prior restraint, even if that building happens to be a bookstore. Other examples the ruling gave were "Fire Code violations or health hazards from inadequate sewage treatment." On the other hand, according to Arcara, if any statute "single[s] out bookstores," it would require heightened First Amendment analysis.
Right. If First Amendment-protected activities are singled out, then the statute would get heightened scrutiny under the Minneapolis Star line of cases. But, the forfeiture statute didn't single out bookstores. Nor does the forfeiture statute with the domain name seizures, 18 U.S.C. 2323, single out First Amendment-protected activities. Minneapolis Star doesn't apply here either.
Copyright doesn't have to be a "content-based" restriction to get heightened First Amendment scrutiny. It only has to be a speech restriction. These seizures may not get strict scrutiny, but they do require some scrutiny, because not even allegedly unprotected speech was shut down. Even statutes unrelated to the suppression of speech must pass the O'Brien standard if they burden protected speech in the process.
That's not the O'Brien standard. O'Brien applies when the same activity has both a protected expressive element and a nonexpressive element. In that case, it was destroying a draft card. Although on its face, the law wasn't about regulating expression, it nevertheless punished conduct that had a protected expressive element. Be careful to notice the critical part of O'Brien that the Court in Arcara said made it distinguishable from the forfeiture statute there. It has to be a situation where the very same act is both protected and unprotected. The government can surely punish the destruction of a draft card for reasons that have nothing to do with protected expression. But people have a right to protest the war. Since the statute prohibited an act that was partially protected expression, the First Amendment demands heightened scrutiny of that statute. All this means is that the government interest has to be weighed against the burden imposed. Even the draft card-burning statute in O'Brien was upheld, despite its admitted effect on protected activity.
At the very least, the mere fact that they are a burden on speech makes Arcara inapplicable. Arcara applies to neither content-based restrictions, nor content-neutral restrictions. It does not even apply to conduct with both "speech" and "nonspeech" elements. It explicitly, in no uncertain terms, applies only to utterly nonexpressive conduct.
You keep saying Arcara is inapplicable, without specifying which part. As I mentioned, there's more than one First Amendment argument at play in that case. The prior restraint part of Arcara can apply to these forfeitures even if the O'Brien part doesn't. It's not an all-or-nothing thing. You're mixing it all up, instead of breaking it down into its constituent pieces.
I actually the argument that O'Brien applies to the forfeiture statute is the only good First Amendment argument you've got. But I don't think it's nearly as simple as you make it out to be. Even if we assume that, say, hyperlinking to an infringing work, is sufficiently imbued with protected expression so as to make the conduct presumptively protected by the First Amendment (a point I do not concede), there's no reason to think that the forfeiture statute wouldn't pass heightened scrutiny.
This is ridiculous, as the seizure affidavit explicitly says that the seizure was to "prevent third parties from continuing to access" the site. Additionally, if this were true, ICE would not have told Mozilla to block the MafiaaFire add-on, claiming it "circumvented a seizure order."
Seizing and forfeiting the property prevents others from using the property. That's part of the point. But no speech is being blocked--people are free to say whatever they want. There is no legal impediment.
Though I admit I'm not a lawyer, I'm in no way confused. I've been following free speech cases for about twenty-five years (I lived two counties over from Fort Wayne when that case was going on). Everyone was claiming "this time it's different" back then, too.
You are mixing up different First Amendment doctrines, including overbreadth, prior restraint, O'Brien, etc. That's OK, though. This stuff is complicated. I'm confused too.
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You seem to be forgetting that it was judges who ordered these seizures in the first place, obviously believing them to be lawful. And given the fact that there's no special Fourth Amendment exception for when the seizure is for the purpose of forfeiting a tainted instrumentality, they had no reason to think the seizures unlawful. Just like closing the bookstore in Arcara was no restraint at all, even though it might be hard for the store to relocate, it's no restraint at all with the domain names. No one is being restrained from speaking. There is no injunction, no licensing scheme. People can say whatever they want. They just can't use that piece of tainted property. It is deodand, so to speak, offered to the gods. http://en.wikipedia.org/wiki/Deodand
It does, however, show that domain names are not simply "pieces of property." Both cases say pretty explicitly that they are avenues of expression.
They are avenues of expression, no doubt. So was the bookstore in Arcara, but it could be forfeited too.
Nor are they "tainted," since there was never anything other than probable cause (at best) that the websites were criminally infringing.
That's contradictory. All that is needed to seize it is probable cause, just like other instrumentalities of crime. If you admit that there's probable cause, then you admit that there is enough evidence that the property is tainted so as to justify its seizure so it can be forfeited later.
Incidentally, none of the copyright-infringing domain names have been forfeited, that I know of. Dajaz1 was returned, Rojadirecta is ongoing (and the judge dismissed the original complaint), and I don't believe forfeiture proceedings for any of the others have been started. I could be wrong.
I know one DOJ press release said that many had been not only seized but forfeited. That's no surprise. The government is getting default judgments, since so few are challenging the forfeitures.
The bookstore in Arcara could be shut down because the conduct which drew the legal remedy was not any form of expression (protected or otherwise); was not directed primarily at entities that engaged in expression (like websites); and did not require any advance determination that materials were unprotected. If any of those things are true, Arcara is inapplicable, and an appropriate First Amendment standard (e.g. O'Brien) must be used instead. In this case, all three conditions are not met.
You're mixing up the doctrines a bit. The bit about "the conduct which drew the legal remedy" refers to the O'Brien line of cases, and the bit about "was not directed primarily at entities that engaged in expression" refers to the Minneapolis Star line of cases. Neither of those lines of cases are used for prior restraint analysis. Prior restraint is a separate doctrine; it's a separate argument.
The bit about "did not require any advance determination that materials were unprotected" is from the footnote in Arcara, and as I mentioned above, refers to the two quintessential types of prior restraints--injunctions and licensing schemes. Advance determination refers to an advance determination by the censor in a licensing scheme.
You guys really need to stop with the Arcara bullshit. It unequivocably does not apply to these seizures, just as it would not apply to child pornography, libel, obscenity, trade secrets, national security, hate speech, or any other form of unprotected speech. No judge has ever ruled that it has.
Arcara stands for the proposition that if forfeiting a bookstore is not a prior restraint, then forfeiting a domain name isn't either. And then, of course, there are arguments both ways about whether the forfeiture statute gets heightened scrutiny under some other First Amendment test like in O'Brien. But Arcara is so dismissive of the argument that shutting down the bookstore is a prior restraint, that it puts the argument in a footnote, listing the two quintessential prior restraints and saying that neither was in play. Just like with the domain name seizures. It's one thing to argue that it's a prior restraint, but another to say that the statute gets heightened scrutiny because of some other doctrine. For clarity, you shouldn't mix up the two.
(As an aside: the bookstore in Arcara was not, in fact, shut down. The statute was found to be prior restraint under the New York State constitution.)
Right. But the New York constitution provides more protection the federal one. And under the federal Constitution, the one that matters with these forfeitures, shutting down the bookstore wasn't a prior restraint.
That sentence didn't parse. You're talking about forfeiture statutes in general, or this particular case?
I'm not sure what I was saying there. LOL!
Regardless - in general, when a seizure is based on a content-based restriction, it must past heightened First Amendment scrutiny. (Forfeiture happens after an adversarial hearing, so usually it does not.)
True, but copyright isn't a content-based restriction on speech--it doesn't get treated to strict scrutiny like statutes that prescribe/proscribe viewpoint or subject matter. I think understanding that is critical to understanding why the Court treats copyright differently. Sure, it's a burden on speech--by design, no less. But it's not a burden in the sense that it limits what people can say. It doesn't lock up the marketplace of ideas. In fact, it contributes to that marketplace as the engine of free expression. Other speech restrictions--the ones that get heightened scrutiny--don't encourage the creation of protected expression. Only copyright does that. Copyright is special as far as speech restrictions go because it's not other speech restrictions. Trying to clump it in with obscenity doesn't work because the two are completely different.
The reason this seizure wasn't constitutional does not have to do with the difference between content-based and content-neutral speech restrictions. It has to do with the fact that it was done ex parte, and the owners were denied any access to the court for over a year, before the domain was returned (without telling the owner or their lawyers). It has to do with the fact that none of the material on the site was criminally infringing (and there is no evidence that it was civilly infringing either). And regarding these seizures in general, it has to do with the fact that they are overbroad, blocking speech that is not even allegedly infringing.
But no speech is being blocked. There is restraint at all. Just like there was no restraint at all in Arcara. Once you accept that a domain name can be forfeited, your only hope of having it be a prior restraint is to argue that there's not enough process before the seizure takes place. As I've explained above, you don't get those extraordinary procedures when it's copyright.
Even the district court in the Pappert case, in the lengthy section I quoted above, went through the analysis to decide if the extraordinary procedures used in obscenity cases should be used when it's child pornography. The court wouldn't have gone through that analysis if the answer is always the same. And with copyright, the answer is that it's not a prior restraint to make an ex parte seizure of an instrumentality of criminal infringement. The reason is because it's an easy determination to make. It's objective.
I gave you a cite above of a court saying that prior restraint doesn't apply when it's copyright. The court spoke a little too broadly, because I agree, as you pointed out, there can be a prior restraint issue if there's fair use. But when it's simple piracy, you don't have those First Amendment concerns. There is no prior restraint issue.
No, I haven't denied it, nor did I suggest that they couldn't. I only pointed out - correctly - that when those "instrumantalities" are vehicles for protected speech, additional First Amendment safeguards are required, including a pre-seizure adversarial hearing.
That's an oversimplification. You don't get the preseizure hearing when it's copyright for all the reasons why copyright is a different restriction on speech than other restrictions such as obscenity laws or child pornography laws. Copyright doesn't block viewpoints or subject matter. It's not censorship. (Again, real censorship, not Techdirt's version of it.)
I don't understand your egotism, given that you're anonymous, and I have no reason to suspect either that you studied law, or studied these issues in depth. At the very least, I have done the second; and when I am confused, I ask one of my many lawyer or law student friends. So thanks for being patronizing, but I don't need your help.
Didn't mean to ruffle your feathers. It's clear though that you're confused about a lot of this. I'm sure if you heard someone talk that knew only some programming theory, but not a lot, that you would cringe a little too when they tried to explain the theory. It's not personal. And given your lack of legal training, it shouldn't be too surprising. I think it's cool that you're into this stuff too, even if you do have it all wrong. (Just kidding!) This is complicated stuff, and I'm glad to bounce my ideas off of you.
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As further evidence that the cases do not constitute "obscenity doctrine," consider that they are also applicable to hate speech (R. A. V. v. St. Paul, Corry v. Stanford, etc) or defamation (Near v. Minnesota, etc). Essentially, for these cases to not apply to copyright, you are arguing far more than that deal with obscenity. You are arguing that copyright is categorically immune from First Amendment scrutiny. This is something that the Supreme Court explicitly said is false (Eldred v. Ashcroft).
That line about being "categorically immune" was referring to substantive copyright laws. The Court said that as long as the built-in First Amendment accommodations of fair use and the idea/expression dichotomy are intact, a substantive copyright law (like the CTEA or Section 514 of the URAA) gets no further First Amendment scrutiny. This forfeiture statute is not a substantive copyright law. It doesn't define the scope of the substantive copyright rights. So that test from Eldred doesn't apply here.
But that all misses the point. I'm saying that when it's simple piracy, there is no prior restraint issue. Instrumentalities of criminal copyright infringement can be seized upon a showing of probable cause and forfeited if the government proves its case by a preponderance of the evidence. There is no doubt that the domain names can be forfeited (Arcara establishes that). And you don't get the extraordinary procedures when it's copyright like you do when it's child pornography or obscenity. The reason is because it's simple to establish infringement, and there's no concern about enforcement turning into a censorship regime, which the ill that prior restraint doctrine seeks to cure by demanding more procedures when it's child pornography or obscenity (and some others). Copyright is about protecting proprietary interests, not a judgment about the content of the work that's being protected. Copyright is oblivious to the viewpoint or subject matter of the copyrighted work. You just don't have the same concern about censorship (real censorship, not the version Techdirt promotes).
One other thing. The "harmonization" of seizure laws took place in the PRO-IP Act of 2008. Nobody - not even PRO-IP's harshest critics - thought the new seizure laws could be used to sieze domain names or shut down websites. The general consensus was that the new seizure laws allowed seizing computers that were owned and operated by the primary infringers.
Thanks to the Internet, we can now look at the entire Congressional record online. And it is clear that the consensus is correct:
Sec. 202. Harmonization of Forfeiture Procedures for Intellectual Property Offenses. Section 202 harmonizes all forfeiture and restitution laws for intellectual property offenses by amending 18 U.S.C. Sec. 2318, 2319, 2319A, 2319B to bring these provisions substantially in line with 18 U.S.C. 2320, which was enacted into law last year. The new provisions contain additional safeguards, such as the requirement that property involved in the commission of an offense be owned or predominantly controlled by the violator, a co- conspirator, or an aider and abettor of the violation in order to be seized under the civil forfeiture provisions. The definition of aiding and abetting is taken from Central Bank of Denver, NA. v. First Interstate Bank of Denver, N.A. 29
[Footnote] Furthermore, such property is not subject to seizure unless a substantial connection between the property and the offense is proven. Use by a violator (or co-conspirator or aider or abetter) of commercially valuable digital communications or e-commerce services for, e.g., electronic mail or data storage, absent extraordinary circumstances, would not constitute predominant control of the servers and similar facilities used to provide the services. If, however, a computer were used by a violator (or co-conspirator or aider or abetter) primarily to store data used to further the infringement, the violator could be held to have substantially controlled the property and the computer would be subject to forfeiture. Another safeguard contained in this Act is the requirement that, for seizure under a criminal facilitation theory, the property be used to substantially facilitate the crime.
That passage doesn't say that it applies to Section 2323, which is the section the government is using as authority for the forfeitures. Those additional safeguards were intentionally left out of Section 2323. If Congress wanted to extend those safeguards to forfeitures commenced under Section 2323, it knew how to make it so. Congress chose not to. The legislative history you've cited doesn't apply here.
ICE is clearly going beyond the bounds of what Congress intended. And they are violating the First Amendment in order to do it. All at the behest of the major media industries.
Section 2323 says that "any property" can be forfeited if it's used to commit or facilitate criminal infringement. You've identified nothing which shows that Congress did not intend for domain names to be excluded from the extremely broad "any property" language Congress expressly chose to use in the statute without limitation.
It is very clear that this needs to stop, and right now.
I understand your disagreement with the soundness of the policy, but that doesn't mean it's unconstitutional.
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When it's simple piracy, there is no free speech concern. To suppress the speech before a proper determination that it's unprotected is a prior restraint. There is a right to publish the speech, even though they may be sanctioned subsequently. None of that applies when it's simple piracy. No court has ever in over two centuries used the extraordinary procedural safeguards when it's simple piracy. The fact is, it's an easy-to-make, objective determination whether something is infringing. That determination can be made ex parte, and the Copyright Act even so expressly provides for such measures.
And it's also not true that it is "inapplicable" to copyright infringement. Plenty of copyright cases have denied preliminary injunctions because they conflicted with the First Amendment, or were overbroad (Suntrust v. Houghton Mifflin, OPG v. Diebold, New Era v. Henry Holt, Abend v. MCA, Silverstein v. Penguin Putnam, etc). Because of this, an injunction is a "harsh and drastic" discretionary remedy (Kass v. Arden-Mayfair, quoted in Universal v. Sony).
Yes, when there is a fair use argument, then the First Amendment is involved. But when it's simple piracy, there is no First Amendment concern.
And I dare you to find even one copyright case that held that blocking speech which was not even allegedly infringing was acceptable.
Arcara held that shutting down a bookstore was not a prior restraint, even though doing so would have an obvious effect on the protected speech and conduct that occurred there. As the Court explained there in the footnote, it's not a prior restraint because it's not a licensing scheme and it's not an injunction, and the bookstore owners are free to continue their protected activities elsewhere.
Nowhere in Arcara was this even hinted at. That passage was explicitly talking about "the closure order," not licensing or injunctions.
That footnote you're looking at is exactly about the two quintessential types of prior restraints. You would recognize that if you were more familiar with prior restraint doctrine.
We're talking about ex parte seizures, not forfeitures.
The seizure is how the court exercises dominion over the property so that it may be forfeited. The action that's filed is a forfeiture action. It is forfeiture that ultimately condemns the property. The seizure is how the court takes control of the property in the interim until final judgment is rendered. At the magic moment of forfeiture judgment, title passes to the government. (I believe it actually relates back to the date of the seizure, but I'm not sure about that.) Anyway, this whole action is forfeiture, and the seizure is just part of the procedure of forfeiture. When the thing being seized for forfeiture is an instrumentality of criminal infringement, you don't get special Fourth Amendment treatment. Probable cause is sufficient to seize an instrumentality of criminal infringement.
A sanction can only be "subsequent" if it follows after an adversarial process. I'll let CDT v. Pappert explain it to you:
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.
Hard to get much clearer than that.
Pappert was an administrative prior restraint. The domain name seizures, done by court order, are not. Administrative prior restraints are done by the executive branch of government. The domain name seizures are judicial, not administrative. So right there, Pappert is distinguishable since it was administrative. As the court in Pappert explains, the extraordinary procedures found in obscenity cases are also needed in child pornography cases:Ctr. For Democracy & Tech. v. Pappert, 337 F. Supp. 2d 606, 658-60 (E.D. Pa. 2004).
The domain name seizures aren't like the administrative restraints in Pappert. With the domain names, a piece of property tainted by past criminal acts is being seized and forfeited. Pappert doesn't negate such forfeitures. As the court in Pappert makes clear, since determination of child pornography is tricky just like determination of obscenity is, the extraordinary procedures are required. Such is not the case with simple piracy where the determination is simple and objective.
The website was singled out for "a strong social element." That social element is fully, 100% protected expression. It is selective enforcement penalizing protected speech. Whatever you want to call it, at the very least it raises significant First Amendment questions.
You have identified no subject matter and no viewpoint that is being singled out. Sorry.
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“[W]ile the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved. Lo-Ji Sales, Inc. v. New York,(1979).
Emphasis added.
That's another line that sounds great for your side, but it's not applicable here either. First of all, expressive materials aren't being seized here. That case applies when allegedly obscene materials are themselves seized. The domain name seizures are seizures of instrumentalities of crime, not of expressive materials. Moreover, there are no heightened requirements for seizure of allegedly copyright-infringing materials or instrumentalities. The reason is because the same fears of prior restraint are not present when it's copyright. None of that language your side keeps pulling out from the obscenity line of cases applies when it's copyright. The fact is, probable cause is sufficient to seize infringing materials or instrumentalities of infringement. There is no Fourth Amendment exception for copyright like there is for obscenity.
On the post: Holder In The Hot Seat, Still Can't Explain Why DOJ Censored Hip Hop Blog
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I know the EFF and others love to pull out that quote, but unfortunately for you and them, it's not applicable here. Domain names aren't public places, which is what the Court is referring to there. Domain names are simply pieces of property.
Instead of just looking at the end of the sentence that you cherry-picked, why don't we look at the whole paragraph:Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 163, 60 S. Ct. 146, 151-52, 84 L. Ed. 155 (1939).
It's clear that the issue there is whether an ordinance that prohibits pamphleteering on public streets and alleys violates the First Amendment. The Court is saying that it's no answer to say that they can just pamphleteer elsewhere. With the domain name seizures, a piece of property tainted by past crimes is being forfeited. The government is not restricting what physical, public locations are open for people to use for expressive conduct.
The issue in that Supreme Court case you're looking at would be analyzed today under the public forum and/or the time, place, manner restriction doctrines. Neither of those doctrines is applicable here. That quote sounds great, all pulled out of context and twisted as you (and others) are using it. But that argument is complete bunk. Sorry.
On the post: Holder In The Hot Seat, Still Can't Explain Why DOJ Censored Hip Hop Blog
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Actually, with civil in rem forfeiture, the court operates under the legal fiction that the domain name itself is conscious and culpable. The domain name itself is condemned. The purpose is chiefly remedial, although in part it's punitive as well. It serves to deter others from allowing their property to be used for crime. It's seized to abate a nuisance and to stop its continued use an instrumentality of crime.
Where has it been established that seizures leading to the suppression of constitutionally protected speech don't require an adversarial hearing in cases involving alleged copyright infringement?
What constitutionally-protected speech has been suppressed? There's no injunction, no licensing scheme. People are completely free to continue any speech they want. There is no restraint. They just can't used the condemned piece of property (the domain name) anymore. Moreover, prior restraint is not an issue when its simple piracy:Bosley v. Wildwett.com, 310 F. Supp. 2d 914, 930-31 (N.D. Ohio 2004).
The First Amendment doesn't protect property that being forfeited as an instrumentality of crime. When it's obscenity there are extraordinary procedural hurdles. When it's copyright there aren't these hurdles because prior restraint is not an issue. That's all that's happening here. You guys are pretending like the court has issued an injunction forbidding people from running a website. No judge has done that. All that's happened is that a tainted piece of property has been seized via court order. The fact that the property was also used for noncriminal, protected conduct is irrelevant.
What's ridiculous is for the government to seize the domain of a website containing protected speech when doing so isn't necessary in building a case against the website's operators. I understand the need for pretrial seizure in certain cases, but such a tool should be used as a scalpel instead of a hatchet. The government is wielding a hatchet.
When there is evidence to believe that a piece of property is being used for crime, that piece of property may be seized and forfeited. It's really as simple as that. The government has been forfeiting tainted property for centuries. Just because it's a domain name, it doesn't get special treatment. Sorry.
On the post: A Big Victory For Fair Use Via South Park, What What (In The Butt), Numa Numa, Afro Ninja, Et Al.
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Unfortunately, it's the Techdirt Way to blame the whole system for one person's idiocy.
On the post: A Big Victory For Fair Use Via South Park, What What (In The Butt), Numa Numa, Afro Ninja, Et Al.
Re: Hey Copyright Maximalists
Nope. It's a great opinion for defendants with a strong fair use argument who are facing a nuisance infringement suit. The opinion is interesting procedurally too, since the court converted the Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment, but without giving the plaintiff the benefit of briefing the issues as such.
On the post: It Is Time To Stop Pretending To Endorse The Copyright Monopoly
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On the post: It Is Time To Stop Pretending To Endorse The Copyright Monopoly
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On the post: It Is Time To Stop Pretending To Endorse The Copyright Monopoly
Yeah, this site isn't pro-piracy. LMFAO!
On the post: Kopimism Approved As Official Religion In Sweden: File Sharing Now Protected Under Freedom Of Religion Laws?
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On the post: Kopimism Approved As Official Religion In Sweden: File Sharing Now Protected Under Freedom Of Religion Laws?
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On the post: Kopimism Approved As Official Religion In Sweden: File Sharing Now Protected Under Freedom Of Religion Laws?
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On the post: Kopimism Approved As Official Religion In Sweden: File Sharing Now Protected Under Freedom Of Religion Laws?
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On the post: Kopimism Approved As Official Religion In Sweden: File Sharing Now Protected Under Freedom Of Religion Laws?
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On the post: Kopimism Approved As Official Religion In Sweden: File Sharing Now Protected Under Freedom Of Religion Laws?
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On the post: Kopimism Approved As Official Religion In Sweden: File Sharing Now Protected Under Freedom Of Religion Laws?
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On the post: Kopimism Approved As Official Religion In Sweden: File Sharing Now Protected Under Freedom Of Religion Laws?
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