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Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the Federal Communications Commission relating to the matter of preserving the open Internet and broadband industry practices (Report and Order FCC 10-201, adopted by the Commission on December 21, 2010), and such rule shall have no force or effect.
We strongly believe that the use is fair—indeed, that it is almost a paradigmatic case of fair use. A grainy black-and-white copy of a color photo, used to illustrate a news account about said photo, is the reason we have fair use. I had thought I was immune to feelings of surprise after covering these sorts of legal battles for years, but it turns out I still have the capacity to feel shock. The reaction around the Ars newsroom—and from our legal counsel—was absolute bafflement.
It's easy to blame Righthaven for this farce—and, let's be clear, we absolutely do—but no one forced venerable papers like the Denver Post to walk this road. Newspapers have been hard hit recently; it's easy to see why these might cling to anything that might keep them from plunging over the cliff, but this work with Righthaven embarrasses their brands, their missions, and their long history. It's beneath them. We hope they find a better path back to profitability.
Nevertheless, criticisms seem to return again and again to the same charges — No due process! Prior restraint! — as though repeating these words enough will magically make domain name seizures unconstitutional.
But it won’t.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The more realistic criticism is a far narrower one: do these seizures require that the hearing occurs before the domain name is seized. This is the criticism that Makarewicz raises. He states, “This right to prior notice and hearing is not a minor legal technicality. It is an indispensable aspect of due process. It is the only way an individual can protect himself from the Government arbitrarily or mistakenly depriving him of property before it happens.” He goes on to correctly point out that, despite this indispensable aspect, “Over the years, the courts have carved out certain limited exceptions to the pre-deprivation notice and hearing requirement.”
Makarewicz concludes that these exceptions aren’t present here; the seizures aren’t exempted from the requirement to provide a hearing before they occur. I disagree.
It may well be that in the case of a criminal proceeding in which the government may ultimately have rights in the property at issue, immediate protective measures must be taken in order to prevent dissipation or deterioration of the assets before the time for trial is reached.
There is probable cause to believe that the SUBJECT DOMAIN NAMES are subject to seizure and forfeiture, pursuant to 18 U.S.C. §§2323(a)(1)(A)-(B) as property used or intended to be used to commit or facilitate the commission of criminal infringement of copyrights in violation of 18 U.S.C. §2319.
For that very reason, prior restraint is very powerful as a magic word. So much so that the Supreme Court has addressed the need for caution. “The phrase “prior restraint” is not a self-wielding sword,” it said in Kingsley Books v. Brown. “Nor can it serve as a talismanic test.”
We tread here on First Amendment grounds. And nothing is more devastating to the rights that it guarantees than the power to restrain publication before even a hearing is held. This is prior restraint and censorship at its worst.
Whether a specific work is obscene or not is a legal determination, one that cannot be made by law enforcement officials, which is why courts have called for stronger procedural safeguards when obscene materials are seized. Factual, objective determinations, however, can be made by law enforcement officials. Thus, these procedural safeguards are not needed when items are seized for violating child pornography laws; law enforcement officials don’t need a judge to determine that something depicts a minor engaged in explicit sexual conduct.
We've already seen governments in other countries use questionable copyright claims to stifle the speech of critics. And it's not difficult to see how this could happen in the US as well -- especially given the recent domain seizures. Considering the vast number of perfectly legal sites seized, how hard would it be for political operatives to target critical sites using a similar "copyright" claim? Not hard at all. And that's why we protect our First Amendment rights quite strongly.
It is imperative that our laws account for changes in technology used by infringers. One recent technological change is the illegal streaming of content. Existing law provides felony penalties for willful copyright infringement, but felony penalties are predicated on the defendant either illegally reproducing or distributing the copyrighted work. Questions have arisen about whether streaming constitutes the distribution of copyrighted works (and thereby is a felony) and/or performance of those works (and thereby is a not a felony). These questions have impaired the criminal enforcement of copyright laws. To ensure that Federal copyright law keeps pace with infringers, and to ensure that DOJ and U.S. law enforcement agencies are able to effectively combat infringement involving new technology, the Administration recommends that Congress clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances.
The two sections that stand out as real wild cards here however are “in appropriate circumstances,” and “other similar new technology.” “Appropriate circumstances” raises an entire host of questions regarding what types of streams would carry felony penalties, not to mention questions about who would actually incur liability for a particular stream. Would liability be limited to the host itself, or would embedding the infringing stream also qualify? Likewise, “similar new technology” is completely ambiguous in its scope, and comes across as a catch-all grab to avoid the need for analyzing the infringement impact of future technologies.
The thing is, every time the government ratchets up IP laws in ways that don't match with the way most people view the world, the less respected those laws become. Rather than actually increasing enforcement, these moves decrease respect for those laws.
