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Court: Domain Seizures Don't Violate Free Speech

Soulskill posted more than 3 years ago | from the that-was-fast dept.

United States 96

Since last year we've been following the story of how domains are being seized by the U.S. government for allegedly facilitating online piracy. The seizures received a legal challenge back in June from the owners of one such site, and now a U.S. federal court has returned a ruling in the matter: "District Court Judge Paul Crotty decided to deny Puerto 80's request, which means the domain will remain in the hands of the U.S. Government. The Judge argues that seizing Rojadirecta's .com and .org domains does not violate the First Amendment of the Constitution. 'Puerto 80's First Amendment argument fails,' the Judge writes. 'Puerto 80 alleges that, in seizing the domain names, the Government has suppressed the content in the "forums" on its websites, which may be accessed by clicking a link in the upper left of the home page. The main purpose of the Rojadirecta websites, however, is to catalog links to the copyrighted athletic events — any argument to the contrary is clearly disingenuous.' The judge further ruled that the claimed 32% decline in traffic and the subsequent harm to Puerto 80s business is not an issue as visitors can still access the site through foreign domains. Puerto 80's argument, that users may not be aware of these alternatives, was simply waived."

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A comment......... (1)

del_diablo (1747634) | more than 3 years ago | (#37000342)

I somehow doubt that the SD article actually states what we want to know. Anybody actually read the article?

Re:A comment......... (0)

Anonymous Coward | more than 3 years ago | (#37000370)

Why the hell would anyone read the article?

Re:A comment......... (3, Insightful)

sortadan (786274) | more than 3 years ago | (#37000674)

I read enough to get my blood boiling as this topic always does.
[rant]
For all the world ICE looks like a puppet for the RIAA / MPAA and operates with little to no oversight or recourse for those they choose to target. It should be front page news that domains are being seized with nothing more than a bit of false/misleading testimony from an ICE agent, and a signature from a judge that knows nothing about the inter-webs and the magical tubes that are stealing things. All this is going to do is make honest businesses fear having their domain and servers under US jurisdiction.
Hosting with we-dare.net or other offshore locations is going to become par for the course for small upstart companies ("engines of the economy") until they get acquired by google or microsoft and have an army of lobbyist, lawyers and a patent trove to fend off the bull shit that now stands between a good idea and the marketplace in the US.
[/rant]
It gives me hope that people like Sen. Wyden [senate.gov] are out there fighting the good fight though...

Re:A comment......... (1)

PhreakOfTime (588141) | more than 3 years ago | (#37000660)

Oh, I don't know. TFS states all you really need to know

visitors can still access the site through foreign domains

What else do you think is important? That the idiocracy that is the US has only publicized this site MORE by taking this site down, and then in the rash of publicity saying... it's all good you can still watch all this illegal stuff over HERE.

Personally, I did not know about this site until now, and simply doing a google search for the company name, returns ALL of the 'foreign domains', some of which are nothing more than IP addresses.

Streisand effect much?

Re:A comment......... (1)

EdIII (1114411) | more than 3 years ago | (#37001858)

It does not make any sense though.

Free speech so far has not been extended to include the idea that preventing you from having a "soap box" in cyberspace to "speak" to others is protected behavior. The judge is technically correct. Puerto Rico also has a different relationship than any other foreign country, because it is in a state of "flux". They are technically US citizens, but denied the full rights of a US citizen, and still have not resolved whether to become an independent country or the 51st state.

What does not make any sense either, is that idea that the US government can seize domains only works as long as the DNS falls entirely under their control... which it does.

So why are they limiting themselves to .com, .org, .us, etc?

The whole purpose was a corrupt bypass of judicial processes and a complete disregard for the sovereignty of other nations in order to promulgate and enforce the views of the copyright extremists in the US corporation/government complex.

For the judge to say, "just visit it at these foreign domains" is contradictory to those goals. I can't imagine the real corporate entities that are being "harmed" by the infringing distribution of their televised athletic sports are satisfied that *any* domain can still access the copyrighted content.

This is not a good example to argue about US control over domains, because the behavior is very strange and nonsensical from the US, the legal arguments are wrong because Puerto Rico is not a full foreign country or a full fledged state, and nobody is making legal arguments that the US does not, and should not, have unilateral control over DNS worldwide and is disregarding sovereignty, which also would not work for Puerto Rico either.

If this was Brazil or Spain, we could be all over this. It's Puerto Rico. Half the citizenship and twice the bullshit.

Re:A comment......... (0)

Anonymous Coward | more than 3 years ago | (#37003216)

And thanks to the territorial clause, it's all legal from the US point.

Re:A comment......... (1)

AK Marc (707885) | more than 3 years ago | (#37016340)

"You still have the freedom to travel, so if you can travel to a foreign country and say this, then the US has not abridged your freedom of speech" does not make a compelling argument that laws directly abridging freedom of speech don't abridge freedom of speech so long as freedom to travel and such aren't abridged. And from where I sit, that's what the judge found. Baning the speech in the US didn't ban the speech, thus the speech (though banned by law and government action) was not banned. That's just silly.

Big shock: Govt court rules in Govt favor (4, Insightful)

hsmith (818216) | more than 3 years ago | (#37000376)

Color me surprised that the Government sides in its own favor in its own cases.

Re:Big shock: Govt court rules in Govt favor (1)

luis_a_espinal (1810296) | more than 3 years ago | (#37000646)

Color me surprised that the Government sides in its own favor in its own cases.

I'd actually go out of a limb and suggest that maybe this below is a the root of the decision, not a by-default mechanism to judge to the government's favor (feel free to argue that this is not the case):

The main purpose of the Rojadirecta websites, however, is to catalog links to the copyrighted athletic events — any argument to the contrary is clearly disingenuous.'

Also, there have been numerous occasions where the supreme court has ruled against the government. But don't let these details bother you (after all, YOU know that is is true, and yet you wish to ignore it in order to make such a silly statement.)

Re:Big shock: Govt court rules in Govt favor (1)

blair1q (305137) | more than 3 years ago | (#37000896)

Can I color you ignorant of the fact that the government is three branches, and the Judiciary sides with only itself and has no skin in the game?

The judge may have made a political decision, but those things go against the government as much as for it. In this case, though, the judge was not blindly finding for the government, he was blindly following the law.

This perp did a crime, and he's trying to get out of it by saying that putting him in jail means the public can't see his subversive tattoos, so the 1st Amendment should set him free.

Fuck him. Oh, okay, the judge did just that.

Re:Big shock: Govt court rules in Govt favor (1)

Chaonici (1913646) | more than 3 years ago | (#37000920)

> This perp did a crime

Feel free to tell us which US law Rojadirecta breaks when it links to other sites.

Re:Big shock: Govt court rules in Govt favor (1)

Americano (920576) | more than 3 years ago | (#37001134)

According to the takedown notice posted at one seized site: "This domain name has been seized by ICE - Homeland Security Investigations, pursuant to a seizure warrant issued by a United States District Court under the authority of 18 U.S.C. Sections 981 and 2323."

It goes on to quote, "Willful copyright infringement is a federal crime that carries penalties for first time offenders of up to five years in federal prison, a $250,000 fine, forfeiture and restitution (17 U.S.C. Section 506, 18 U.S.C. Section 2319). Intentionally and knowingly trafficking in counterfeit goods is a federal crime that carries penalties for first time offenders of up to ten years in federal prison, a $2,000,000 fine, forfeiture and restitution (18 U.S.C. Section 2320)."

So, there you go. There's the US Laws it appears the seized sites have violated. I'm sure you'll look them up now in an attempt to understand how the laws are being applied here, rather than insist that it's an arbitrary seizure that falls outside the purview of any existing laws. You may disagree with these laws, and find them odious, but they are laws, nonetheless.

Re:Big shock: Govt court rules in Govt favor (3, Informative)

Chaonici (1913646) | more than 3 years ago | (#37001296)

Correction: Those are the laws the sites are alleged to have violated. No court has yet ruled that Rojadirecta broke any laws.

Anyway, I would contest your implied assertion that linking is copyright infringement. Rojadirecta does not host copyrighted content, it links to sites that may do so.

Re:Big shock: Govt court rules in Govt favor (1)

mijelh (1111411) | more than 3 years ago | (#37007928)

No court has yet ruled that Rojadirecta broke any laws

Actually a Spanish court ruled that rojadirecta didn't break any -Spanish- law.

Re:Big shock: Govt court rules in Govt favor (1)

skr95062 (2046934) | more than 3 years ago | (#37002522)

So are you saying that this is OK?

Where is the due process? That inconvenient thing that is in the constitution that ICE and others seem to forget about. Not that they really care, if the Obummer administration had it's way the constitution would be gone, which would resolve a bunch of their problems.

Aside from that, since when does US Law apply to a person or persons or in this case a company that is not located in the US?

This company is located in Spain and as I recall what they are doing does not violate Spanish law.

I also remember not that long ago a US judge specifically ruled that linking to something did not violate copyright law

The Obummer administration has sunken to even new lows with this. I am not surprised by any of this. Obummer has to keep his bosses in Hollywierd happy else he won't get any campaign money from them for the next election.

Yep the US government the best government money can buy!

Re:Big shock: Govt court rules in Govt favor (1)

blair1q (305137) | more than 3 years ago | (#37002696)

This is the due process. The court has enjoined the defendant from engaging in his criminal activity while it adjudicates his guilt. You don't get to keep punching the cop after he arrests you for punching him.

Re:Big shock: Govt court rules in Govt favor (1)

skr95062 (2046934) | more than 3 years ago | (#37002912)

Yes, you do.

However I would not advise doing that as you are gong to get a horrific beat down once he gets the cuffs on you. In addition to more charges.

There has not been a trial. They just want their property back, which is what this was about. ICE took the domain without due process, they have not been criminally charged with anything yet.

Re:Big shock: Govt court rules in Govt favor (1)

AK Marc (707885) | more than 3 years ago | (#37016392)

You don't get to keep punching the cop after he arrests you for punching him.

The cop will escalate the violence until you are unable to punch anyone, the cop included. However, if you hit a cop, the government (the cop, in that example) has probable cause that you have committed a crime and are continuing to do so. With linking to a site being declared a crime (when it should have been a tort at best, why are we criminalizing what's essentially a contract violation?), there isn't even certainty that it is a crime. There should be a ruling that he broke the law before his assets are seized. At the very least, there should be case law laying out the circumstances under which such actions can be taken for copyright infringement.

Re:Big shock: Govt court rules in Govt favor (1)

mijelh (1111411) | more than 3 years ago | (#37007902)

Also, they were already acquitted in Spain.

The message is clear: (5, Informative)

Anonymous Coward | more than 3 years ago | (#37000390)

DO NOT register your domains in US.

There is another way: (1)

MyFirstNameIsPaul (1552283) | more than 3 years ago | (#37000510)

Use an alternative to DNS, such as Namecoin. [bluishcoder.co.nz] It's only a matter of time before RIAA/MPAA make their way to controlling the entire DNS.

Re:There is another way: (0)

jojoba_oil (1071932) | more than 3 years ago | (#37000640)

Oh yeah. That'll work. I'm sure I'll be able to use that for DNS just like I can use Bitcons to pay my bills.

(Oops! Did I forget the i in Bitcon?)

Names expire after 12000 blocks unless renewed with an update

So... not that it'll ever happen, but what happens when there are more than 12000 namecoin top level "domains"? That's a pretty short-sighted limit...

Re:There is another way: (1)

MyFirstNameIsPaul (1552283) | more than 3 years ago | (#37000710)

The BitCoin software is nothing more than an open source project. It can be used for things that have nothing to do with paying anyone, as in this example where it is used to secure domains. As far as the 12000 limit goes, I find it hard to believe the developers went so far as to create the system without considering how to handle such issues. Perhaps you should contact them and ask them? What I like about Namecoin is that it is completely decentralized.

Re:There is another way: (1)

subreality (157447) | more than 3 years ago | (#37001340)

There are an unlimited number of domains. They expire 12,000 blocks after the last renewal (so you have to continue spending resources to maintain a name, just like you have to keep paying money to maintain a .com), but there can be multiple renewals per block.

You can check over here to see recent transactions (of which there are usually several per block): http://explorer.dot-bit.org/ [dot-bit.org]

Re:The message is clear: (0)

im_thatoneguy (819432) | more than 3 years ago | (#37000644)

Or, like... don't break the law.

Re:The message is clear: (2)

Iamthecheese (1264298) | more than 3 years ago | (#37000694)

That's right! No one in authority in the US has never, ever manipulated laws because a lobbyist gave them money. Furthermore no one in authority has ever harmed a non-lawbreaker.

Re:The message is clear: (0)

im_thatoneguy (819432) | more than 3 years ago | (#37000932)

That's right! No one in authority in the US has never, ever manipulated laws because a lobbyist gave them money. Furthermore no one in authority has ever harmed a non-lawbreaker.

So we shouldn't have any laws then because they *might* be unjust or because law enforcement could potentially overstep their authority?

This site broke the law. They got shut down. They happened to have a forum. If you have a church in a meth lab you can't claim freedom of religion when the building is seized.

Re:The message is clear: (3, Informative)

Chaonici (1913646) | more than 3 years ago | (#37001026)

> So we shouldn't have any laws then because they *might* be unjust or because law enforcement could potentially overstep their authority?

We shouldn't have unjust laws. We should have measures in place to prevent and punish abuse of power by the government.

> This site broke the law.

Which law?

> They got shut down.

No, they didn't. The site isn't hosted in the US, and is legal in the country in which it's hosted. The US domain registrars revoked their .com and .org domains.

> They happened to have a forum. If you have a church in a meth lab you can't claim freedom of religion when the building is seized.

Feel free to tell us which law Rojadirecta breaks when they link to other sites. Then feel free to tell us why US laws should apply to a Spanish website.

Re:The message is clear: (0)

Anonymous Coward | more than 3 years ago | (#37002490)

Feel free to tell us which law Rojadirecta breaks when they link to other sites.

I got nothing.

Then feel free to tell us why US laws should apply to a Spanish website.

Well, I can play devil's advocate here:

US laws don't apply to the Spanish website, which is still running. They apply to the US domain rojadirecta.com. (gTLDs with US registrars are arguably under US jurisdiction.) Don't want the magnificent benefits of US law enforcement? Go register your domain in a ccTLD from some shithole country where they have no respect for Imag^H^H^Hntellectual Property. But don't come crying to us when your corporation can't make money off someone's work 100 years after they're dead and gone!

Re:The message is clear: (1)

Anthony Mouse (1927662) | more than 3 years ago | (#37004264)

They apply to the US domain rojadirecta.com. (gTLDs with US registrars are arguably under US jurisdiction.)

Let's consider the telephone analogy. You're saying that if I live in Puerto Rico and I have a cell phone with AT&T, the fact that AT&T is a US company allows the US government to seize my phone number if I conduct business in Puerto Rico using my phone which is perfectly legal there but illegal in the US. Does that sound right to you?

And that's before the more convincing argument, which is the turn-the-tables argument: Is this really how you want the world to work? US companies would have to abide by the laws of any countries where any of their domain registrars, phone companies, software developers, etc. do business: UK defamation laws, French "moral rights", German censorship of anything they consider propaganda, and let's not even get started on China and Russia. No one wants that.

On top of that, as a result of legitimate businesses not wanting to be subjected to every country in the world's laws, you would end up with a fragmented internet. Each country would have their own registrars, ISPs, etc. and no one would subscribe to one outside of their own country for fear of being subjected to the laws of countries where the service provider does business. And that destroys the enforcement mechanism. So you create fragmentation, prevent US companies from competing abroad since their customers are afraid of being subjected to US laws, seize domains without due process and with a high risk of mistake, and all the while there is no enforcement benefit in doing so.

Re:The message is clear: (1)

black soap (2201626) | more than 3 years ago | (#37020790)

They apply to the US domain rojadirecta.com. (gTLDs with US registrars are arguably under US jurisdiction.)

Let's consider the telephone analogy. You're saying that if I live in Puerto Rico and I have a cell phone with AT&T, the fact that AT&T is a US company allows the US government to seize my phone number if I conduct business in Puerto Rico using my phone which is perfectly legal there but illegal in the US.

You do realize that Puerto Rico is a territory of the USA, right?

Re:The message is clear: (0)

Anonymous Coward | more than 3 years ago | (#37001222)

This site broke the law. They got shut down.

I didn't RTFA but TFS seems to say the site is still up. The problem for me here is that if the site broke the law, then it should go through due process and be shut down. OTOH if there's not enough to shut the site down there shouldn't be enough to seize the domain name. What is troublesome to me is the idea that because the site can still be accessed by other means the judge stated seizing the domain name doesn't violate free speech. I can understand that
If you leave the site running there is no validation for seizing the domain name other than circumventing due process.

Re:The message is clear: (3, Interesting)

Chaonici (1913646) | more than 3 years ago | (#37000704)

Feel free to tell us which law Rojadirecta breaks when they link to other websites.

Re:The message is clear: (1)

Xtifr (1323) | more than 3 years ago | (#37002660)

Contributory copyright infringement, the same thing that got Grokster.

Re:The message is clear: (1)

Stray7Xi (698337) | more than 3 years ago | (#37009806)

Contributory copyright infringement is not anywhere in copyright law. It is something the courts made up.

Re:The message is clear: (2)

Eponymous Hero (2090636) | more than 3 years ago | (#37000726)

hahahahahaha you must be new here. and by here i don't mean slashdot, i mean the world. welcome to life! if you can manage not to break any laws, and not kill yourself, you still get last place. sucks, don't it?

Re:The message is clear: (1)

Hatta (162192) | more than 3 years ago | (#37000876)

What law is violated when posting links?

Re:The message is clear: (2)

mijelh (1111411) | more than 3 years ago | (#37007950)

Or, like... don't break the law

That may or may not be true, as there have been no trial (apart from one in Spain where there were acquitted).

Re:The message is clear: (1)

mijelh (1111411) | more than 3 years ago | (#37007964)

they*

Where, then? (0)

Anonymous Coward | more than 3 years ago | (#37000776)

Let me know when you find a country that:

a) Won't bow to US political/economic/military pressure
b) Isn't worse than the US when it comes to tyranny

Sure, you can register your domain in Iran and avoid the jackboots of the **AA, but what are you getting in return?

Not very surprising (3, Informative)

aaaaaaargh! (1150173) | more than 3 years ago | (#37000398)

Avoid .com domains, and if you're really successful also avoid doing business with the US altogether because of the patent trolls. Then you should be (mostly) fine for some time. Oh...I forgot...and don't link to anything you haven't written yourself...ever!

Re:Not very surprising (1)

alphatel (1450715) | more than 3 years ago | (#37000454)

If you are a US corp with TM/Patent/Copyrights, use .com and stay in the US. If you are anything else, fear the reaper!

Re:Not very surprising (1)

jcfandino (2196932) | more than 3 years ago | (#37002200)

Oh...I forgot...and don't link to anything you haven't written yourself...ever!

Slashdot editors: hear this man's advice!

The law may be an ass... (0)

mbone (558574) | more than 3 years ago | (#37000402)

but this judge seems like an actual idiot.

Re:The law may be an ass... (1)

MozeeToby (1163751) | more than 3 years ago | (#37000462)

It was a poor argument from the get go. Saying that their free speech rights are impeded because people might have trouble finding the site or have trouble accessing the forums is a bit of a stretch.

If you're going to claim first amendment go ahead and claim it right on the subject at hand: Is saying "There's free stuff over there!" protected by the first amendment? Obviously there are arguments to make in both directions along those lines, I just think that if you think the law is crap you should argue against how crappy the law is and not try to squeak by on a technicality.

Re:The law may be an ass... (1)

cheekyjohnson (1873388) | more than 3 years ago | (#37000484)

Is saying "There's free stuff over there!" protected by the first amendment?

Well, if we're only talking about the first amendment here (which seems to be ignored often), I'd say so. It certainly doesn't mention otherwise.

Re:The law may be an ass... (2)

oh_my_080980980 (773867) | more than 3 years ago | (#37000538)

Ahem from the article:

"the Judge concludes that the drop in visitor traffic due to their seizure does not establish a substantial hardship, and therefore no reason exists to return the domain.

This line of reasoning goes directly against previous rulings in First Amendment cases. As the EFF points out, in two earlier Supreme Court decisions it was concluded that having alternatives available does not mean that freedom of speech isn’t violated.

According to the EFF, the peculiarities of the ruling don’t end there.

“As if misapplying the relevant substantive First Amendment analysis wasn’t bad enough, the court failed to even address the fatal procedural First Amendment flaws inherent in the seizure process: namely, that a mere finding of ‘probable cause’ does not and cannot justify a prior restraint. How the court believes that the seizure satisfies the First Amendment in this regard is a mystery,” they write."

Re:The law may be an ass... (1)

Zelucifer (740431) | more than 3 years ago | (#37002362)

You might want to consider reading up on the First Amendment. Not being able to restrict speech is a very big part of free speech. Restraining speech before it occurs, or regulating where it can occur is a dangerous, immoral thing.

On the subject of the law being "crap". The law isn't crap, the gross violation of the law that ICE used to seize these domains is the "crap". Every single possible constitutional protection we have in regards to free speech, search and seizure, was violated and then this judge for wholly unimaginably, illogical reasons. This ruling flies directly in the face of SCOTUS precedent and outright ignores many of the issues brought up by the involved parties.

Re:The law may be an ass... (2)

skr95062 (2046934) | more than 3 years ago | (#37002626)

It was a poor argument from the get go. Saying that their free speech rights are impeded because people might have trouble finding the site or have trouble accessing the forums is a bit of a stretch.

That is correct. What they should have argued is that the seizure violated the 5th amendment, specifically the due process clause "No person shall... be deprived of life, liberty, or property, without due process of law." ICE has deprived them of their property, a domain name is property, without due process.

The Supreme Court disagrees (5, Informative)

Chaonici (1913646) | more than 3 years ago | (#37000416)

According to the EFF [eff.org] :

The fact that you can get information via a second route does not mean that there is no speech problem with shutting down the first one. In a 1939 case, Schneider v. New Jersey, for example, the Supreme Court held that

one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised elsewhere.

It repeated this basic tenet some forty years later in Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.:

We are aware of no general principle that freedom of speech may be abridged when the speakerâ(TM)s listeners could come by his message by some other means....

I'm glad I'm not the only one who believes that this ruling is questionable, and is one step closer to a World Wide Web that is completely at the mercy of copyright holders.

Re:The Supreme Court disagrees (2)

cHiphead (17854) | more than 3 years ago | (#37000498)

The ruling looks a lot like copyright trumping the First Amendment.

Re:The Supreme Court disagrees (2)

Shaterri (253660) | more than 3 years ago | (#37000734)

Isn't this effectively the core purpose of copyright law? A hundred years of precedent suggest that my free speech rights don't extend to, for instance, performing my own stage production of Spiderman for all the world to see, or for writing and selling (or giving away) my word-for-word version of "Arguing With Idiots", and I'm not sure why anyone would expect results in the digital world to be any different.

Re:The Supreme Court disagrees (1)

Xeranar (2029624) | more than 3 years ago | (#37004280)

Yes, yes it is the core purpose of copyright law because the freedom of speech is designed to allow people to speak out against more powerful entities whether they are governmental or private in nature. It doesn't allow you to post a billboard with the pass code to the bank vault at the first national bank. It doesn't allow you to post material that can be profited from either because otherwise our literary world would fall pray to cheap copies as it did PRIOR to copyright protection. Many authors saw no profit from their book sales prior to the invention of copyright because any diligent print shop could print it without paying the author as long as they had a typesetter and a copy of the book.

Cheap printing made copyrights a necessity. Just as now the internet has to deal with it being an easy duplication system. Last time I checked copyright holders have rights over their works being copied and this judge ruled fairly. If the value of the website was lost and proven to not be a copyright violator (which is laughable at this point, they're completely guilty) then they could sue for lost profits but otherwise it makes no sense. Judges are told to follow the spirit, the naysayers here are trying to play semantics and go the slippery slope route to try and prove some overstep when in reality this is a clear concise opinion that is aimed solely at this case so is highly unlikely to make case law unless these cases become more prevalent.

Re:The Supreme Court disagrees (1)

Anthony Mouse (1927662) | more than 3 years ago | (#37004358)

You're confusing copyright with copyright enforcement. Copyright is to some extent in conflict with the first amendment, but there are a bunch of things built into it that try to keep it from actually conflicting: The idea/expression dichotomy, fair use, etc.

And just because copyright itself, i.e. verbatim copying of others' expression, doesn't violate the first amendment doesn't mean that copyright enforcement mechanisms get a free pass. For example, the government obviously can't prohibit all anonymous speech for the sake of copyright enforcement, because anonymous speech is protected by the first amendment. It seems obvious to me that they also shouldn't be allowed to impede anyone's speech merely on an accusation by the government or a copyright holder before the prospective speaker is given any opportunity to present a defense, in the same way that they can't when a speaker is accused of e.g. defamation.

Re:The Supreme Court disagrees (1)

JesseMcDonald (536341) | more than 3 years ago | (#37000746)

That's not very surprising, since copyright was originally seen as a violation of the first amendment. It was only allowed in combination with the exceptions known as Fair Use. (Which, IMHO, do not significantly change the equation. The only reasonable interpretation of "Congress shall make no law ... abridging the freedom of speech" is that speech—i.e., communication, of whatever form or complexity—can never be a violation of the law by itself. Copyright obviously violates that by making some forms communication illegal without prior permission.)

1st Amendment changes the copyright clause (1)

Compaqt (1758360) | more than 3 years ago | (#37014320)

Thanks for mentioning this. Here's some more info for folks on that argument:

The power that allows Congress to have a copyright law is in the original Constitution.

But, after that, the Constitution was amended with the Bill of Rights. The First Amendment [google.com] ("Congress shall make no law ... abridging the freedom of speech") effectively nullifies the copyright clause.

Note: Even though the amendment rescinding Prohibition specifically mentioned the Prohibition amendment, there are a bunch of other famous/infamous clauses (like the 3/5 clause [wikipedia.org] ) which were superseded but weren't specifically mentioned in the superseding amendment.

This is the argument, though probably most people don't agree with it.

Re:The Supreme Court disagrees (0)

Anonymous Coward | more than 3 years ago | (#37000906)

that's unpossible. the first amendment repealed the copyright clause.

Re:The Supreme Court disagrees (-1)

Anonymous Coward | more than 3 years ago | (#37000536)

I'm glad I'm not the only one who believes that this ruling is questionable, and is one step closer to a World that is completely at the mercy of copyright holders.

FIFY.

Re:The Supreme Court disagrees (0)

Anonymous Coward | more than 3 years ago | (#37000612)

I'm glad I'm not the only one who believes that this ruling is questionable, and is one step closer to a World Wide Web that is completely at the mercy of rich copyright holders.

FTFY.

Re:The Supreme Court disagrees (0)

Anonymous Coward | more than 3 years ago | (#37000720)

I'm glad I'm not the only one who believes that this ruling is questionable, and is one step closer to a World that is completely at the mercy of major corporations.

Final Fix.

Re:The Supreme Court disagrees (1)

blair1q (305137) | more than 3 years ago | (#37000916)

Except that this isn't a 1st-Amendment case, and the 1st-Amendment argument wasn't enough to stop the case it is from proceeding.

You cant claim that taking away your megaphone and putting you in jail violates your 1st-Amendment rights, but you can't expect it to set you free when you were using your speech to distract from the jewelry-store robbery your accomplices were committing.

Re:The Supreme Court disagrees (1)

Chaonici (1913646) | more than 3 years ago | (#37000968)

Rojadirecta does not host copyrighted content. It links to other sites that may do so. If you believe that linking to sites that may host copyrighted material is illegal, then you can introduce some support for this position. Otherwise, this is most definitely a First Amendment issue because the government denied Rojadirecta an avenue for expressing itself.

Re:The Supreme Court disagrees (1)

blair1q (305137) | more than 3 years ago | (#37024860)

The law seems to cover being an aggregator for the purpose of assisting copyright violation.

Shutting that down is not a first-Amendment violation, even if it also hosts a free-speech forum. If it was shut down for hosting a free-speech forum, that would be a first-Amendment violation.

What defendant should have done is said that being a link aggregator is a free-speech issue. That is the fight he should be having, and how to defend himself against what the law appears to say. Then he'd be doing some good. But what he did was try to be tricky about it, and found out the courts know how to tell tricky from valid, and how to sever one action from another, and how not to care what non-criminal assets and rights you lose in addition to your criminal assets and activities. The courts' attitude is, if you wanted to remain broadly free, you shouldn't have broken the law however narrowly.

Not really a free speech ruling (4, Informative)

Saxerman (253676) | more than 3 years ago | (#37000430)

The actual ruling here is on a specific provision of the law where a seized domain owner to petition the courts to have the domains returned.

(Relevant part of the code here: http://www.law.cornell.edu/uscode/18/983.html [cornell.edu] )

The judge is merely ruling here that this provision doesn't meet the requirements of this specific provision.

The Judge continues, "Although some discussion may take place in the forums, the fact that visitors must now go to other websites to partake in the same discussions is clearly not the kind of substantial hardship that Congress intended to ameliorate in enacting 983. See 145 Cong. Rec. H4854-02 (daily ed. June 24, 1999) (statement of Rep. Hyde) (“Individuals lives and livelihoods should not be in peril during the course of a legal challenge to a seizure.”). Puerto 80 may certainly argue this First Amendment issue in its upcoming motion to dismiss, but the First Amendment considerations discussed here certainly do not establish the kind of substantial hardship required to prevail on this petition."

Re:Not really a free speech ruling (2)

cHiphead (17854) | more than 3 years ago | (#37000546)

Where in the First Amendment does it allow the law to abridge freedom of speech provided there is no 'substantial hardship'?

Re:Not really a free speech ruling (2)

cheekyjohnson (1873388) | more than 3 years ago | (#37000630)

It's an invisible addition that can be used whenever it is convenient, of course!

Re:Not really a free speech ruling (1)

countertrolling (1585477) | more than 3 years ago | (#37000840)

Probably in the same part that allows the law to abridge 'commercial' and 'obscene' speech.. It's written with invisible ink that only a judge can see..

Re:Not really a free speech ruling (4, Informative)

Saxerman (253676) | more than 3 years ago | (#37000848)

I'm not saying this isn't a free speech issue. I think these ICE domain seizures are total bullshit.

I'm merely pointing out that the part in the rules which says you can declare something a violation on First Amendment grounds hasn't happened yet. This is a ruling on a petition which is covered by the same rules that ICE used to seize the domains in the first place. And that section of law declares that after the domain Nazis seize your domains, you get to file this petition to declare the seizure bogus.

In the petition, you can appeal to the judge on several different grounds. The specific part of law they're claiming in their petition is that they that they're suffering an undue financial hardship. On those grounds the judge says he's denying the petition and letting the case move forward.

They haven't yet reach the part in the court drama where they get to ask the judge to throw out the case on First Amendment grounds. It's still coming up after the next few commercials.

that's not justice. (0)

Anonymous Coward | more than 3 years ago | (#37000464)

that's BULLSHIT.

Why do we even pretend we have rights at all anymore. They strip them away anytime it's convienent anyway.

I need a new country... er... planet...

Re:that's not justice. (1)

Eponymous Hero (2090636) | more than 3 years ago | (#37000740)

suddenly those heaven's gate nutters don't look so crazy after all, huh?

Bredth of the ruling (2)

DarkOx (621550) | more than 3 years ago | (#37000468)

It appears from what the judge wrote that he considered the content being hosted at the domain when he determined seizing the domain did not violate the first amendment.

IANAL but it almost seems like the take away here is that a bunch of links are not protected speech, it seems to leave open the possibility seizing a domain might violate an individuals freedom of speech.

Had the domain pointed to a web server hosting pages about white supremacy, jihad, golf or similar it might have been protected. I am not sure what impact this ruling will have at all.

Nope, not even that logically consistent... (2)

jeko (179919) | more than 3 years ago | (#37000672)

Read the decision. The ruling is that this is not a violation of this individual's free speech because the information being presented is for mere business, rather than political, purposes.

Now contrast that with "Citizens United" and other recent court rulings that have held corporate commercial speech is absolutely protected by the First Amendment.

Now take a look at the recent unprecendented wave of corporate donations and junkets being flooded into the judiciary, including the Supreme Court. For the first time in history, we have Supreme Court justices openly accepting small fortunes [dailykos.com] from various interests that appeared before them.

We've got an awful lot of corruption to clean up in the judiciary before we can expect to get fair and logical decisions out of them again.

The U.S. is currently closed for maintenance (3, Funny)

monk (1958) | more than 3 years ago | (#37000478)

please route around it.

IANAL (0)

Anonymous Coward | more than 3 years ago | (#37000482)

Ok so it is swatted down on the basis of free speech...but didn't these people still pay for their domain name? Are they implying that it's still ok to seize property you own without a warrant?

Re:IANAL (1)

Eponymous Hero (2090636) | more than 3 years ago | (#37000774)

do you really own something that you have to pay a yearly fee to possess? argument does not apply to homes and cars; property tax and registration are not fees to own, but to maintain. seems like the victim could respond to this decision by filing a lawsuit against ICE for tortious interference.

Re:IANAL (0)

Anonymous Coward | more than 3 years ago | (#37002834)

do you really own something that you have to pay a yearly fee to possess?

But can they really perform a "seizure" if it's _not_ property? I'm not sure what precedent there is for seizing non-property, but the nearest old-school equivalent I can think is "siezing" your membership in a club or something, which is ludicrous on its face.

Oh come on (1)

fysdt (1597143) | more than 3 years ago | (#37000532)

How can forcefully seizing a domain name, which is not criminal in any way, not be a violation of freedom of speech.

Re:Oh come on (2, Insightful)

mcmonkey (96054) | more than 3 years ago | (#37000642)

How can forcefully seizing a domain name, which is not criminal in any way, not be a violation of freedom of speech.

Easy. The motivation for seizing the domain was not speech.

If I take my manifesto and print it on the side of my car, and then go out and run red lights and ignore all sorts of traffic regulations, plow through a couple farmers markets, when I get pulled over and my car taken away, I can't plead freedom of speech.

Perhaps if I otherwise obey the rules of the road and it's obvious I'm getting pulled over strictly for the words written on my car, then I can make that case.

I don't know all the gritty details of this case of domain seizure. I'm not going to posit whether the seizure was right or wrong. But I think it's clear what prompted the seizure is not "speech."

And no. Just because something can be spoken or put on a t-shirt does not make it speech. I am free to stand on a street corner and speak a series of 1s and 0s that when encoded in a computer can be interpreted as video. That does not mean linking to a copyrighted video for which I do not have the copy right is protected by free speech.

(Now if I linked to an audio file of me speaking those 1s and 0s, and just happened to include information on how to encode that audio of me speaking in to a playable video file, then you have an interesting case.)

There may be many reasons for this seizure to be wrong or illegal or unprecedented. But Free Speech doesn't seem to be one of them.

Re:Oh come on (2)

Chaonici (1913646) | more than 3 years ago | (#37000682)

> The motivation for seizing the domain was not speech.

Of course it was. Rojadirecta does not host any copyrighted content; it merely links to other sites that do. Until a court ruling explicitly says otherwise, linking is protected speech. By seizing its domain names, the US government was preventing people from accessing Rojadirecta's website, and therefore denying Rojadirecta their right to free speech.

Re:Oh come on (1)

whoever57 (658626) | more than 3 years ago | (#37000730)

Until a court ruling explicitly says otherwise, linking is protected speech

Ummm. 2600?

Re:Oh come on (1)

Chaonici (1913646) | more than 3 years ago | (#37000988)

Welp, there's another reason to hate the DMCA. Thanks for that.

Re:Oh come on (1)

iamwahoo2 (594922) | more than 3 years ago | (#37001298)

The bill of rights was intentionally written in plain English so that people like you could not argue that the word "speech" does not mean "speech". Clearly they underestimated you.

Re:Oh come on (1)

misexistentialist (1537887) | more than 3 years ago | (#37001732)

I am free to stand on a street corner and speak a series of 1s and 0s that when encoded in a computer can be interpreted as video. That does not mean linking to a copyrighted video for which I do not have the copy right is protected by free speech.

So posting the video is OK, but linking is bad because it is like driving through a farmers' market? And not everything spoken is speech, unless it can be interpreted by a computer in which case it is? I think we could clarify things by just admitting that the courts recognize copyrights to supersede free speech.

Re:Oh come on (1)

LWATCDR (28044) | more than 3 years ago | (#37000866)

Do you want a bunch of famous actors and actresses to campaign for you? Got the Democrats.
You want big donations from Comcast and Sony? Got the Republicans.

It is simple you see famous actors, actresses, directors, and producers are special creative people that are better than the likes of you and me and must be protected. Why are you complaining? Don't you want to give them your money and freedom to make sure you can see Transformers 5?

Okey dokey (1)

Anonymous Coward | more than 3 years ago | (#37000572)

Let's take away this judge's phone number. He won't suffer any substantial hardship, because he can just tell everyone to use his new number.

Re:Okey dokey (0)

Anonymous Coward | more than 3 years ago | (#37000678)

Let's take away this judge's house. He won't suffer any substantial hardship, because he can just buy a new one with his bribe money.

biz84tch (-1)

Anonymous Coward | more than 3 years ago | (#37000764)

backwards. To 7he stand4rds should

Censors never admit that they are censors. (1)

MacGyver2210 (1053110) | more than 3 years ago | (#37000818)

The Judge argues that seizing Rojadirecta’s .com and .org domains does not violate the First Amendment of the Constitution.

This could be true, if the ability wasn't abused. Unfortunately, it is already being abused for things like taking down perceived 'hacking' sites and sites supporting the freedom of information, such as those touting WikiLeaks or pro-Manning sites. I have no reason to believe this ability won't be abused until it *IS* a violation of the 1st amendment. At that time, it will already be too late, and the US will no longer be a safe place to talk or use the Internet.

How about instead of taking down copyright violators - a crime which doesn't hurt anyone(least of all the people who think they're being stolen from) - you stop the top politicians who insist on embezzling countless millions in campaign funds, and directing other public funding to corporate contributors? The people you *should* be arresting, those 1% that are gradually ruining the lives of 95%+ of us, are the fat-cat CEOs, Representatives, and Senators - and their Old White Guy buddies.

Fuck this country, I'm leaving. Enjoy your martial law and Corporatocracy.

Is to catalog not a protected speech activity? (0)

Anonymous Coward | more than 3 years ago | (#37000820)

According to the /. article the judge's argument for his ruling turns around rojadireta's cataloguing activity. For this the First Amendment question is whether publishing catalogs is protected free speech.

There is also a legal question of if cataloguing, itself, may be interdicted, and another if catalog delivery vehicles, the means used to convey catalog content to recipients, may legally be siezed by government authorities. Internet domains are the internet world equivalents to newspapers, newspaper boxes, newspaper dellivery systems, and to missionaries who pamphlet on streetcorners, too.

May the government sieze these? For example the trucks, vans and bicycles of newspaper deliverers? May they sieze newspapers, themselves, for example, to prevent distributions of a literary supplement, because the supplement catalogs book titles and bookstore locations, on a theory that the cataloguing of those may alert shoplifters and direct them where they may go to find to steal? Is an assertion that such siezures will prevent a percentage of the shoplifting of the catalogued titles the publication of the catalog may contribute to legally sufficient to justify siezures of catalogs?

Is there a difference between paper published and electronically published and electronically distributed copyrighted content in this regard? Are Apple's i-music domains, which catlaog copyrighted music, siezable on the precedent this case (if established by affirmation in appeal) may set?

First Amendment? (1)

MaerD (954222) | more than 3 years ago | (#37000842)

Maybe I'm missing something.. but doesn't it seem like the First is the last amendment you'd want to argue in this case? What about the fourth? Or the Due Process clause of the 14th?

I mean, nobody involved in the site has been actually charged with a crime.. so isn't the idea that the domain was being used to support a crime invalid? If you want to take it, you need to press charges.

Re:First Amendment? (0)

Anonymous Coward | more than 3 years ago | (#37001314)

Well, I hate the implications for the First Amendment in the rational.

"We are allowing the wholesale banning of all books and materials not supporting the current majority rule party in the U.S. Nope, not violating First Amendment. You just can't read it, buy it, have it, own it, speak of it, or think of it here. Feel free to step across the nearest land border or go a few miles out to see. Oh, you need a passport to leave the country? Well, That takes majority party authorization on a case by case basis. Same for a license to step foot on a water craft."

Judicial Activism (0)

Anonymous Coward | more than 3 years ago | (#37000872)

In other news, the same judge says gagging the mouths of anti-government activists is not a violation of their 1st Amendment rights because the said activists still have the option of using pencil and paper. Any claim to the contrary is disingenuous.

his next job (0)

WillyWanker (1502057) | more than 3 years ago | (#37001066)

Should be on the Supreme Court. He clearly has demonstrated that he's 100% pro-corporate mafia and anti-First Amendment. He'd be a perfect fit for SCOTUS, don't ya think?

I really wonder how much the entertainment mafia pays these judges to casually ignore decades of judicial precedent as well as our Bill of Rights?

We are screwed (2)

nurb432 (527695) | more than 3 years ago | (#37002378)

When the time comes that squelching speech doesn't violate it in the eyes of the federal courts, we have no rights at all and only 'privileges' given out, and removed, at their whim.

Difference between USA & Belarus (1)

luk3Z (1009143) | more than 3 years ago | (#37004466)

OK let's compare internet freedom: Belarus government block the site, USA government seizing domain.

Sold out. (2)

unity100 (970058) | more than 3 years ago | (#37004628)

Appalling to see how sold out, buyable the justice system is, in america.

but whaddya know - it couldnt end up in any other way, when you put everything to sale for the highest bidder, in a systme like capitalism.

actually it is still much better than what it could - if the 'free marketers' got full swing back in its development, we could have private army, private judiciary, private police by now.
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