Two weeks ago, I discussed some of the criticisms of domain name seizures in ICE Seizures Criticism: Magic Words. It was, in part, a response to those who argue the seizures are unconstitutional — among them US Representative Zoe Lofgren and attorney David Mackarewicz, who continued the discussion in his response, Supporters of DHS Domain Name Seizures Undervalue Important Constitutional Protections.

I made it a point to highlight the use of certain “magic words” in the debate — like “prior restraint” and “due process” — not, as Mackarewicz says, to “question the motives” of the seizures’ critics, but to bring to the forefront how they can be used in constitutional arguments.

Nobody wins popularity contests defending the constitutionality of a government action. It’s not hard to imagine a typical debate going like this:

“I think x is unconstitutional.”

“I disagree.”

“Why do you hate the constitution?”

Mackarewicz provides a perfect example of this right in the title of his response, claiming that supporters of these seizures “undervalue” constitutional protections. Presumably, this would include noted First Amendment advocate Floyd Abrams among those who undervalue the constitution, since he has concluded that COICA (which would use in rem forfeiture of domain names) does not run afoul of free speech protections.

Others are more blunt. Mike Masnick writes, “One of the really sickening things in the debate over the seizures of domains by the US government without due process and with no regard to prior restraint is the way some pro-copyright lawyers have tried to wave off these rather significant concerns,” citing my article as an example.

So you can see why constitutional arguments have special considerations different from other types of arguments. The temptation is always there to label those who don’t accept the argument that something is unconstitutional as foes of freedom.

Contrary to these accusations, I do value the Constitution and its protections against censorship and undue process. I can’t speak for others who believe the domain name seizures are constitutional — literally millions of Americans 1See the November 17, 2010 letter from nine unions representing over 3 million members to Senator Leahy in support of COICA; the Joint Statement Regarding ‘Combating Online Infringement and Counterfeits Act’ from four unions representing over 300,000 entertainment and media workers; and the January 18, 2011, letter from dozens of companies of all sizes supporting Operation in Our Sites for just three such statements of support. — but I imagine they value it too.

With that said, I want to respond specifically to some of the arguments raised by Makarewicz.

Due Process

It bears repeating what the due process issue is here: whether a hearing is needed prior to the seizure of domain names, alleged to facilitate copyright infringement, for the purpose of forfeiture, to give any claimants the opportunity to challenge the government’s probable cause determination. 2See US v. James Daniel Good Real Property, 510 US 43, 78 (1993): “At any hearing—adversary or not—the Government need only show probable cause that the property has been used to facilitate a drug offense in order to seize it; it will be unlikely that giving the property owner an opportunity to respond will affect the probable-cause determination.” There is little doubt that, assuming the process is constitutional, domain names can be forfeited, it’s just a question of what process is constitutional.

Makarewicz writes, “The most troubling issue has undoubtedly been the series of Government domain name seizures, through which the DHS takes the domain names of accused infringers without first giving the accused a chance to defend their site at a hearing.” Later, he refers, quite correctly, to the rule that “a Government taking prior to notice and a hearing is not the norm, but is limited to “extraordinary circumstances.” There are only a few recognized exceptions to the rule that requires notice and a hearing prior to a deprivation of property.

However, one of those exceptions is when the government seizes property for the purpose of forfeiture. The Supreme Court has plainly said this on more than one occasion in recent history. In her concurrence-dissent of US v. James Daniel Good Real Property, Justice O’Connor writes:

We have already held that seizure for purpose of forfeiture is one of those “extraordinary situations,” Fuentes v. Shevin, 407 U. S. 67, 82 (1972) (internal quotation marks omitted), in which the Due Process Clause does not require predeprivation notice and an opportunity to be heard. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 676-680 (1974). As we have recognized, Calero-Toledo “clearly indicates that due process does not require federal [agents] to conduct a hearing before seizing items subject to forfeiture.” United States v. $8,850, 461 U. S. 555, 562, n. 12 (1983); see also United States v. Von Neumann, 474 U. S. 242, 249, n. 7 (1986). Those cases reflect the commonsense notion that the property owner receives all the process that is due at the forfeiture hearing itself. (Emphasis added). 3510 US 43, 74 (1993).

Prior Restraint

As Floyd Abrams points out, “injunctions are a longstanding, constitutionally sanctioned way to remedy and prevent copyright violations.” Arguments that actions similar to seizure of domain names are prior restraints have been raised and answered by various courts already. 4See Dr. Seuss Enterprises v. Penguin Books, 109 F.3d 1394, n.11 (9th Cir. 1997); A & M Records v. Napster, 114 F.Supp.2d 896, 922-23 (ND Cali 2000); Universal City Studios v. Reimerdes, 82 F.Supp.2d 211, 224-27 (SDNY 2000).

But even if the seizure of a domain name could be considered a prior restraint, as Makarewicz argues, it doesn’t necessarily follow that a pre-seizure hearing is required.

When seizures raise First Amendment concerns, courts have only gone as far as to say that they require “rigorous procedural safeguards” to conform with the Constitution. 5Fort Wayne Books v. Indiana, 489 US 46, 62 (1989). For instance, in Roaden v. Kentucky, the Supreme Court held that the First Amendment, at a minimum, requires a warrant before seizing obscene materials. “The setting of the bookstore or the commercial theater, each presumptively under the protection of the First Amendment, invokes such Fourth Amendment warrant requirements because we examine what is “unreasonable” in the light of the values of freedom of expression,” said the Court. 6413 US 496, 504 (1973). But in a footnote, it added, “This does not mean an adversary proceeding is needed before seizure, since a warrant may be issued ex parte.7413 US at n.5.

That same year, in Heller v. New York, the Court reiterated the fact that seizures of expressive works do not always require an adversary proceeding prior to executing the warrant. “This Court has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized.” 8413 US 483, 488 (1973). It explained that its reversal of a Kansas State Court judgment ordering the seizure of 1,715 copies of 31 novels in A Quantity of Copies of Books v. Kansas, 9378 US 205 (1964). based in part on the lack of an adversary hearing on the matter, did not create a blanket rule. “In Mishkin v. New York,383 U. S. 502 (1966), this Court refused to review the legality of a seizure of books challenged under A Quantity of Books, supra If A Quantity of Books applied to all seizures of obscene material, there would have been no need for the Court to abstain from review in Mishkin, since the parties had conceded that there was no prior adversary hearing.” 10413 US 483, n.8.

The “classic” notion of a prior restraint involves some sort of licensing for publications or censor board to review whether certain items could be distributed to the public. That notion has been gradually broadened over the decades to include a range of government actions and laws that suppress speech before a final judicial determination that it is unprotected by the First Amendment.

Even so, while looking at prior restraint doctrine as courts and scholars have examined it, it seems to me that prior restraint still requires some kind of, well, restraint.

One common thread in these cases is that a prior restraint involves a prohibition on future expressive conduct. So, for example, the RICO forfeiture order examined by the Supreme Court in Alexander v. United States was not an improper restraint because it didn’t forbid the owner from any expressive conduct or require approval for any future expressive conduct. Said the Court, “the forfeiture order in this case imposes no legal impediment to—no prior restraint on—petitioner’s ability to engage in any expressive activity he chooses. He is perfectly free to open an adult bookstore or otherwise engage in the production and distribution of erotic materials.” 11509 US 544, 550-51 (1993).

In Vance v. Universal Amusement Co., the Court held that a Texas nuisance statute (specifically, the portion of the statute naming the “commercial exhibition of obscene material” as a prohibited use) could not be used to close down movie theaters. Any such injunction would effectively prohibit the “future exhibition of unnamed films.” 12445 US 308, 314 (1980).

Another thread you see in the prior restraint cases is that they involve the removal of speech from circulation.

  • But there is no doubt that an effective restraint—indeed the most effective restraint possible—was imposed prior to hearing on the circulation of the publications in this case, because all copies on which the police could lay their hands were physically removed from the newsstands and from the premises of the wholesale distributor. An opportunity comparable to that which the distributor in Kingsley Books might have had to circulate the publication despite the interim restraint and then raise the claim of nonobscenity by way of defense to a prosecution for doing so was never afforded these appellants because the copies they possessed were taken away. Their ability to circulate their publications was left to the chance of securing other copies, themselves subject to mass seizure under other such warrants. The public’s opportunity to obtain the publications was thus determined by the distributor’s readiness and ability to outwit the police by obtaining and selling other copies before they in turn could be seized. 13Marcus v. Search Warrant, 367 US 717, 736 (1961).
  • “It is our view that since the warrant here authorized the sheriff to seize all copies of the specified titles, and since P-K was not afforded a hearing on the question of the obscenity even of the seven novels before the warrant issued, the procedure was likewise constitutionally deficient. … A seizure of all copies of the named titles is indeed more repressive than an injunction preventing further sale of the books.” (Emphasis added). 14Quantity of Copies of Books v. Kansas, 378 US 205, 210 (1964).
  • “In this case, of course, the film was not subjected to any form of ‘final restraint,’ in the sense of being enjoined from exhibition or threatened with destruction. A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition.” 15Heller v. New York, 413 US 483, 490 (1973). “But seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film.” 16Id. at 492.
  • “Here, literally thousands of books and films were carried away and taken out of circulation by the pretrial order.” (Emphasis added). 17Fort Wayne Books v. Indiana, 489 US 46, 67 (1989).
  • “In each case the material seized fell arguably within First Amendment protection, and the taking brought to an abrupt halt an orderly and presumptively legitimate distribution or exhibition.” 18Roaden v. Kentucky, 413 US 496, 504 (1973).

Looking at the above and other cases involving prior restraints, it’s difficult to see how seizing the domain name of a website dedicated to infringement is a prior restraint without taking too many logical leaps. No one is prohibited from expressing themselves now or in the future. The content on the websites remains in circulation.

That’s not to say that a specific domain name seizure can’t be a prior restraint. If the government seizes a domain name for the purpose of suppressing speech on that site it doesn’t like, under the guise of copyright laws, child pornography laws, or any of the other laws where forfeiture of facilitating property is authorized, then yes, most likely that is an unconstitutional prior restraint.

But that situation can be dealt with if it ever arises. The possibility that a law can be abused doesn’t make it unconstitutional; otherwise, I don’t know if we’d have any laws left! The Supreme Court itself has weighed in on this subject. “The Constitution does not forbid the imposition of an otherwise permissible criminal sanction, such as forfeiture, merely because in some cases prosecutors may abuse the processes available to them … Cases involving particular abuses can be dealt with individually by the lower courts, when (and if) any such cases arise.” 19Caplin & Drysdale, Chartered v. US, 491 US 617 (1989).

Why Domain Name Seizures are Needed

One of the responses to this is to question why the domain names are seized at all if they are seemingly ineffective since the content remains online.

But they are effective. Remember, the domains are seized because they are property that facilitate criminal conduct —copyright infringement — occurring due to the sites. The domain name provides an easy to remember address that attracts more visitors to these sites. They allow better search engine optimization for the sites — in many cases pirate sites appear above sites offering the same content legitimately in search results. Most of these sites earn revenues from advertising — Brian McCarthy, arrested last month after his domain was seized, made $90,000 in three years off his site, and Torrent-Finder, seized last November, made over $15,000 in one year from only one of its advertising providers — so traffic and good search results are key to their success.

And the government has a legitimate interest in seizing domain names before a hearing. Seizure is needed to establish jurisdiction over the property for a forfeiture proceeding. Securing the exclusive rights of copyright holders is one of the enumerated powers of Congress listed in the Constitution, rights that the sites connected to the domain names are alleged to continually violate. While a domain name can’t be “destroyed” in the same sense as tangible property, a site owner can easily cancel the domain and get a new one if given a “heads up” by ICE, destroying the connection between the domain name and the site where the infringement is occurring. Finally, the infringement facilitated by the domain names causes irreparable and ongoing harm to copyright holders’ First Amendment rights, adding to the need for seizing without a pre-seizure hearing. 20See, for example, Salinger v. Colting, 607 F.3d 68, 81 (2nd Cir. 2010): “‘[t]he loss of First Amendment freedoms,’ and hence infringement of the right not to speak, ‘for even minimal periods of time, unquestionably constitutes irreparable injury’; also see my posts on Speech Interests of Creators and The Chilling Effect of Copyright Infringement.

Obviously, seizing domain names won’t eliminate piracy, but that was never their goal. Content industries have been dealing with one form of piracy or another as long as they’ve been around, so they know more than anyone that complete eradication is impossible. But the seizures do have an impact. They disrupt the operation of pirate sites, making it more difficult to engage in and profit off of infringement. And if a new version of COICA passes, the effect of the seizures will be even greater.

I don’t expect critics of the seizures to agree with the above. But they can express their disagreement without calling into question how much creators value constitutional freedoms — especially when they help fuel the “engine of free expression.”

To borrow some words of wisdom from the late Chief Justice Warren Burger, these critics “sound the alarm of repression.” But “to equate the free and robust exchange of ideas and political debate with” copyright infringement “demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a ‘misuse of the great guarantees of free speech and free press.'” 21Inspired by his opinion in Miller v. California, 413 US 15, 34 (1973).

References   [ + ]

1. See the November 17, 2010 letter from nine unions representing over 3 million members to Senator Leahy in support of COICA; the Joint Statement Regarding ‘Combating Online Infringement and Counterfeits Act’ from four unions representing over 300,000 entertainment and media workers; and the January 18, 2011, letter from dozens of companies of all sizes supporting Operation in Our Sites for just three such statements of support.
2. See US v. James Daniel Good Real Property, 510 US 43, 78 (1993): “At any hearing—adversary or not—the Government need only show probable cause that the property has been used to facilitate a drug offense in order to seize it; it will be unlikely that giving the property owner an opportunity to respond will affect the probable-cause determination.”
3. 510 US 43, 74 (1993).
4. See Dr. Seuss Enterprises v. Penguin Books, 109 F.3d 1394, n.11 (9th Cir. 1997); A & M Records v. Napster, 114 F.Supp.2d 896, 922-23 (ND Cali 2000); Universal City Studios v. Reimerdes, 82 F.Supp.2d 211, 224-27 (SDNY 2000).
5. Fort Wayne Books v. Indiana, 489 US 46, 62 (1989).
6. 413 US 496, 504 (1973).
7. 413 US at n.5.
8. 413 US 483, 488 (1973).
9. 378 US 205 (1964).
10. 413 US 483, n.8.
11. 509 US 544, 550-51 (1993).
12. 445 US 308, 314 (1980).
13. Marcus v. Search Warrant, 367 US 717, 736 (1961).
14. Quantity of Copies of Books v. Kansas, 378 US 205, 210 (1964).
15. Heller v. New York, 413 US 483, 490 (1973).
16. Id. at 492.
17. Fort Wayne Books v. Indiana, 489 US 46, 67 (1989).
18. Roaden v. Kentucky, 413 US 496, 504 (1973).
19. Caplin & Drysdale, Chartered v. US, 491 US 617 (1989).
20. See, for example, Salinger v. Colting, 607 F.3d 68, 81 (2nd Cir. 2010): “‘[t]he loss of First Amendment freedoms,’ and hence infringement of the right not to speak, ‘for even minimal periods of time, unquestionably constitutes irreparable injury’; also see my posts on Speech Interests of Creators and The Chilling Effect of Copyright Infringement.
21. Inspired by his opinion in Miller v. California, 413 US 15, 34 (1973).

37 Comments

  1. Brian McCarthy made $90,000 in five years, not three.

    Torrent-finder.info is up and runs about the same traffic. Funny, $15,000 is a lot less than minimum wage for running a Google type search site.

    And the Rojadirecta seizure really needs clarification as well.

    • Oh no! He only made 20,000 per year criminally infringing copyright, not 30,000! Where’s the due process? Wah wah!

      • Wow, I didn’t know they allowed children on this blog…

        It’s especially interesting to see one who wants to mock points without making any of his own.

        Good job there buddy. *Thumbs up*

        • They let you freepers on here, don’t they?

          • Great comeback that still has yet to address any points made and is only an ad hominem attack. I have nothing more to discuss with someone that only wants to antagonize, rather than debate.

          • “still has yet to address any points made”

            I’ll be happy to address a point if you actually make one.

    • My bad, it was actually around four years — 2007-Jan 2011 the site made $30,000 from one ad broker, 2009-2011 it made $60,000 from a second ad broker, and the warrant lists a third ad broker associated with the site but doesn’t specify the amount made. Like any warrant, this likely doesn’t make up the total amount of profits, just enough to establish that profits were indeed made.

      I don’t know what minimum wage has to do with anything. Again, the amount comes from the warrant, which wouldn’t list the total amount actually made. Anyway, it’s not “a lot less.” If you work 40 hours/wk, 52 weeks a year with no days off you’ll pull in $15,080 before taxes on minimum wage.

      What clarification for Rojadirecta do you need? Like the other domain names seized, it facilitated copyright infringement.

      • It’s quite debatable that US law should apply to a Spanish site.

        The problem is that the customers were never US citizens. So any supposed copyright infringement might have needed to go through say… Interpol or international channels instead of ICE. What has been discussed is that they’ve survived two lawsuits in their home country only to lose the (one) site to ICE agents. So how is it that this is supposedly a valid search if most Americans wouldn’t have found the site without ICE pointing a shining beacon to it?

  2. It’s definitely a canard that the goal is to “stop” or “eliminate” piracy. Just like there will always be the burnouts that sneak off to smoke weed or do other drugs, there will be a certain group of “those kids” that only steal music rather than pay for it.

    The goal is to make it a manageable issue. And thanks to law enforcement finally waking up, we’re on our way there.

    • “The goal is to make it a manageable issue. And thanks to law enforcement finally waking up, we’re on our way there.”

      They failed miserably

      • ha. Their gameplan is flying over your head apparently. The seizures have had the exact effect they hoped it would. You’ll understand why in the next few months.

        • ” The seizures have had the exact effect they hoped it would. ”

          Raising a bunch of concerns about our government running roughshod with ineffective policy?

          ” You’ll understand why in the next few months.”

          I’m well aware of COICA coming in to give ICE even more draconian rulership with a Republican Senate majority. I’m not particularly huge in politics, but when the largest contributor to his campaign are Time Warner and Walt Disney, there’s a problem.

          I would like to emphasize a point that seems rather prevalent here:

          The lack of a clear enforcement endgame contributes to these concerns. The moral framework of anti-piracy campaigns makes it difficult to articulate an acceptable level of piracy that would set a boundary against the erosion of civil liberties. In this environment, enforcement policies have a strong tendency to fail up. Measures that do little more than inconvenience pirates will tend to be portrayed as insufficient rather than misguided, creating pressure for stronger, more pervasive, more expensive enforcement. Although greater public
          capacity to enforce might, in theory, diminish the incentives for private involvement, we have found no examples of private-sector pullback from this role in any of the countries examined in this report. Indeed the opposite is often true: greater public-sector buy-in on enforcement signals compliance, which spurs greater private sector involvement and investment. Although industry association members have shown signs of balking at the high costs of enforcement, they have expanded efforts to shift costs to other actors, including governments and ISPs.

          That’s exactly what is happening here and all signs point to this as quite ineffective.

          • There’s no sign of anything here in the US being ineffective, because there hasn’t been any enforcement at all!!!

            You people need to stop thinking the internet is exempt from playing by the same rules everyone else plays by.

            There’s no “shifting the cost to government” of enforcement. When something goes from being a civil issue to a criminal enterprise, the government is SUPPOSED to enforce the law.

  3. There are some interesting historical lessons from Adrian Johns’ book ‘Piracy’. There is a close parallel between today’s debates about digital downloads and the pirating of sheet music in Britain around 1900. There had been a boom in the sale of pianos in the late 1800s, and people wanted sheet music to play on their pianos. There were a few large music publishers, but new technology (photolithography) meant that printed sheet music could be very quickly and cheaply copied, and back street pirates sold it for a fraction of the publishers’ prices, without of course paying any royalties, etc. The pirates and their defenders used much the same rhetoric against the ‘greedy monopolist publishers’ as we hear nowadays against the Big 4 labels. The publishers tried various legal (and sometimes illegal) methods to fight back, and at one stage even went on strike – refusing to publish any new music – until copyright was properly enforced. For several years none of these methods was very successful, until the publishers tried a new tactic. Instead of just pursuing copyright infringement, they gathered evidence against the organisers of the pirate operations and had them charged with criminal conspiracy. Some of the ringleaders were given prison sentences ‘with hard labour’, and it worked a treat! It’s amazing what the threat of breaking rocks on Dartmoor can do.

    • Nobody is arguing against the right to protect their copyrights. What is at issue is the presumption of guilt and summary seizeure of property (the domain name) without due process.

      • Search the articles on this blog and you’ll understand that there was due process.

        If you get your “facts” from pirate, er, I mean “tech” blogs, you’re going to end up very misinformed.

    • Nanker Phelge

      Except in this case, Eric Schmidt may be “sentenced” to serve as Commerce Secretary.

      As far as political donations, how come everyone looks at the donors to the backers of COICA but no one points out that the bill’s main opponent is from Silicon Valley – or that Google employees donated more money to Obama than those from any company except Microsoft and Goldman Sachs. This doesn’t mean the bill is good, of course. But lobbying works both ways.

  4. Many people argue against the right to protect copyright, or even the right for creators to have any copyright at all.

    The article makes clear that the seizure of property is a form of due process. That’s what in rem action is all about.

    “As we have recognized, Calero-Toledo “clearly indicates that due process does not require federal [agents] to conduct a hearing before seizing items subject to forfeiture.” United States v. $8,850, 461 U. S. 555, 562, n. 12 (1983); see also United States v. Von Neumann, 474 U. S. 242, 249, n. 7 (1986). Those cases reflect the commonsense notion that the property owner receives all the process that is due at the forfeiture hearing itself.”

    Terry can reprint this stuff until the end of time, and the anti-creator rights brigade will keep right on ignoring it and drinking their kool-aid.

  5. “There’s no sign of anything here in the US being ineffective, because there hasn’t been any enforcement at all!!!

    You people need to stop thinking the internet is exempt from playing by the same rules everyone else plays by.

    There’s no “shifting the cost to government” of enforcement. When something goes from being a civil issue to a criminal enterprise, the government is SUPPOSED to enforce the law.”

    A criminal enterprise?

    When did copyright infringement turn into a criminal enterprise?

    • Here’s what’s so troubling about Kent’s argument:

      He wants to say that shifting the civil case of copyright infringement into something that the government is pursuing is somehow kosher. So he’s going with an argument that truly makes no sense. “The government is supposed to enforce the law”, is damn near a morally bankrupt position because not all laws have the intended effects that people would want. The prime examples of bad laws would have to be Jim Crow or even slavery laws. Yes, it was enforced, but did it truly make the populace sympathetic to the old ways of doing business (namely holding slaves for cotton picking)?

      Also, I would question if there’s really been any profit from the copyright infringement. The $90K is fooling people into believing this is a “criminal enterprise”. It’s akin to saying somehow it’s a link to terrorism or other inane statements that go to justify prosecuting one person to the full extent of the law. For goodness sakes, he lived with his father! With all of the links, it’s beyond dumb to try to go after him for what amounts to pennies:

      90k / 4 = 22500

      Assume 12 months, $1875 for ads. If that’s truly a “criminal enterprise” such as an illegal drug ring, that’s pretty low profits for “illegal” activity.

      • ^^^ Wow, Jay. Can you divulge your job and how much you make? Because I know A LOT of people who would relish the idea of making $1875 a month. I’d take that job. $22,500 a year is FAR more than most “successful” artists and authors make.

        I mean Jesus Christ, most drug dealers on the street don’t pull in that kind of money, so I guess what they’re doing isn’t really criminal, right?

        • The average income in the US currently is $30,506. Without knowing his other finances, it’s quite difficult to say how much he profited off of a website with links.

          What I’m questioning is the “criminal enterprise” that is the one count of criminal copyright infringement. If that were true, he should be making far more than that.

          Also, anyone working at McDonald’s makes just about that in a year. Just for comparison, working at a restaurant is ~$20000 a year. I’m just using the math that Terry brought up to get the numbers. However, when I checked with Ars Technica it says he was doing it for 5 years. That puts it at even less money per year –> ~$18,000. So with the one count of copyright infringement, he’s to give up that money + $60,000 (assuming the $150,000 statutory damages, since no prosecutor will go to prove damages), which is rather egregious. Sure it sounds like a lot but average up your wages in a year and think about all of the other things that you have to pay for in a month. $60,000 seems like a huge amount if this was the only thing he did (which I highly doubt).

          I’m just pointing out that there needs to be more data to get a proper assessment of how profitable this was before we scream “piracy pays!”

          The only other person we can look at for this is Gilberto Sanchez.

          That should be quite an interesting verdict as well…

      • “The prime examples of bad laws would have to be Jim Crow ”

        Talk about using an “argument” that “doesn’t make any sense”.

        By your logic, a person could look at any law they don’t like and say “that’s a bad law IMO. So I don’t have to follow it and it’s ok that I don’t”.

        Except that’s not how things work here on Planet Earth.

        • Again, it’s an example of bad law. It also happens to be an extreme example, same as the 3/5th compromise from the Philadelphia Convention.

          And you’re stretching that a lot further than I intended. Laws aren’t inherently good or evil, but they can have unintended consequences for a society.

          • “they can have unintended consequences for a society.”

            And by unintended consequences, you mean people who are pilfering works at historical rates actually having to either pay for them or to face civil fines when they’re inevitably caught?

  6. (Note to self: 4 replies per post, you can no longer add anymore. It seems the blog rejects added posts for clarification)

    ““they can have unintended consequences for a society.”

    And by unintended consequences, you mean people who are pilfering works at historical rates actually having to either pay for them or to face civil fines when they’re inevitably caught?”

    Please explain. I’m discussing a streaming site that is implicated for criminal copyright infringement that is doing the exact same thing as Google, by pointing people to specific websites with (sports) data on it.
    Where are civil fines coming from if the person implicated is facing a prison sentence and statutory damages (read: a lot more than $90,000 in garnished wages) when economic harm can’t be established?

    “Wow, Jay. Can you divulge your job and how much you make? Because I know A LOT of people who would relish the idea of making $1875 a month. I’d take that job. $22,500 a year is FAR more than most “successful” artists and authors make.

    I mean Jesus Christ, most drug dealers on the street don’t pull in that kind of money, so I guess what they’re doing isn’t really criminal, right?”

    Average income in the US —> $30000. Before I scream “piracy is profitable”, I would say that you need to look at a helluva lot more than just the income to come to the conclusion that he’s “profited”. That’s Accounting 101. Most restaurant workers make ~$20000. Terry is saying it was four years, but most of the other sites I check out say it’s five. If it is five, then that puts the money at $18000/year, which means he had to have a second job (given the fact that he was caught living with his father at 30). Point is, anyone can look at the number and think it’s a lot at first glance. I’m just doubting it was profit as ICE seems to want to make the claim. And for a “criminal enterprise”, that’s some pretty crappy returns.

    Dana White is saying that the links are costing him revenue. Dana White made $450 million in PPV sales(2010). So if that’s possible, how much of 450 million is the site costing him, and could it really be more if the shift is for government to “enforce” on this site because MMA doesn’t want to compete with a free site?

    What I’m trying to find out is how a supposed number (Bryan’s profits) is actually affecting Dana’s numbers. People will say that since he got Bryan charged with CCI, it’s a win. I don’t think that’s the case. So we’ll see what happens if Bryan goes to court. Sadly, what may happen is he pleads guilty, similar to Gilberto Sanchez. That should be an interesting verdict to watch as well.

    • (Note to self: 4 replies per post, you can no longer add anymore. It seems the blog rejects added posts for clarification)

      For the record, I do very little “moderating” of comments. I do have a spam filter set up, though, and it holds comments with more than one link in a moderation queue. So those comments won’t show up immediately — I have to manually approve them, which may take a while depending on how often I check in throughout the day.

  7. On Planet Earth, profit is profit. It doesn’t matter if it’s $18,000 per year, or $1,000,000 per year.

    The pirate site which supposedly doesn’t make a profit because it’s not big bank makes more than the average artist does per year.

    The same yahoo who claims $18,000 per year is not profit is the same yahoo who elsewhere routinely argues that an artist who isn’t “starving” is not harmed by piracy. On Planet Jay, criminal enterprise is not criminal unless you’re really good at it and making the big bank.

    Most criminal enterprises – like all forms of stealing – don’t make the criminals rich. That does not mean their actions aren’t illegal. And for profit.

    $18,000 per year is OK profit for an artist, but apparently, not profit for a pirate.

    Dumbest paralogia ever.

    • “The pirate site which supposedly doesn’t make a profit because it’s not big bank makes more than the average artist does per year.”

      Did you not read the article about how UFC made $450 million dollars in a year? How this one site is hurting that profit really needs to be detailed.

      And let’s say this, $18,000 a year is not a lot when the average is $30000 for a comfortable living.
      So I’ll say this yet again: I’m questioning how Bryan is a criminal enterprise when he’s making less money with links than the “original copyright holders”. In this case, that is the UFC, who is using selective enforcement through the ICE to go after people a lot more likely to settle cases because they don’t have money for lawyers. In other words, selective enforcement of the law.

      Look at what the UFC did to Bryan, versus the more established Ustream, which they sue. One can defend themselves, the other has limited resources going against the government.

      Further, you absolutely ignored everything that I linked to in regards to Gilberto Sanchez in an earlier link to go on in a spiel about how supposedly this is about profit for an artist or a pirate. I was referring to the UFC incident. I have the links right there. There’s no “artist” in this part of the debate. The supposed “copyright holder” is a man who is hellbent on putting people in jail if they stream an event. Now what do you think that signifies if you go to a bar to watch MMA 999 and suddenly the cops decide to raid the bar for illegally streaming?

  8. Terry Hart’s post covered a lot of ground, but Jay only wants to talk about poor little Brian! The UFC was so mean! Brian only made $90,000 on content he had no right to profit from! How could this possibly hurt any multimillion dollar corporation?

    It means he stole $90,000. And it’s not OK to steal from anyone. Even when they’re rich.

    The law states you don’t have to make 1 penny for an act to be felony copyright violation. It matters that you take content you’re not entitled to take and distribute it. Just because you make less money than the people you rip off does not make you less of a thief.

    Poor, poor pitiful Brian. If only he hadn’t stolen the content in the first place, he wouldn’t be in this position. I don’t feel sorry for him, but you go right on ahead, if you feel you must.

    You have repeatedly made the argument on this blog that artists aren’t “starving”, even when you sneer at an artist living on someone’s couch as not being “homeless”. So you don’t like it that I bring up artists in a post about copyright? Wow. I had no idea that the whole point of this blog was to only address what you wanted to address when you want to address it. I “There’s no ‘artist’ in this part of the debate!” Because Jay doesn’t want to address it right now!

    You know who often doesn’t have money for lawyers? Artists. But who cares about them. Even if they have to live on someone’s couch, at least they’re not starving! There won’t be any chirpy comparisons of an artist’s income to the national average to show how damaging content theft would be!

    People like you encourage people to steal, and most creators have no defense against your ilk. Your defense of all things pro crook and the creeps who love them is tedious at best and morally retarded at worst.

    I don’t go to bars. But I love your attempt at scare tactics. That was…almost cute.

    “Laws aren’t inherently good or evil”. After complaining about what Jay considers to be bad law. And Jim Crow. Hilarious.

    So college student of you. And still the dumbest paralogia ever.

    The only thing I get from any of Jay’s post is that I wouldn’t trust this weasel with my wallet. Or anything else.

  9. I don’t care if he made $30,000 or $30. To profit by stealing the work of others is stealing, no matter how you slice it. Add to profits earned by the ad services. It’s all at the expense of the creator.

    • And what is going to happen:

      CCI has to be proven in court.

      He ran only links on his website. He may be protected by safe harbors. Dunno until the court case is seen through. I think people forget exactly what is at issue here. You have a blog post, you run a link and supposedly he’s a criminal because he negotiated for higher ad revenue. It’s like saying Triton Media is responsible for piracy because they ran ads on the 9 sites in the first takedown.

      ” It’s all at the expense of the creator.”

      Please look at the links posted. They show that it’s quite difficult to have one person with only links on a website can take on a monolith such as the UFC in regards to profit. The “creator” of this content is a conglomerate with various channels of distribution. They have far more resources than Bryan did. If anything, using copyright law to say that he should go to jail on just links seems to be an extreme punishment.

  10. Well would you Look at this…

    Predictions:
    John Morton comes out to take down the website of these programmers.
    Complaint filed against the programmers.
    Possible search and seizure?

    What’s going to happen in the next volley?

  11. Hilarious.

    My real name is Traci Fields. I post under Traci. Right there, it’ my name. I use it all the time. What’s yours?

    NO, I am not DavidB, and I bet a check of IP’s would clear that right up.

    Anti-creator rights, and paranoid, too. Why, there can’t be two people on the internet that disagree with you! It must be the same head of a hydra, pretending to be many, out to get you!

    What a loony.

    Now go back to your padded cell where you can imagine a big bad copyright policemen coming to get you. And they are all really DavidB.

  12. Carmon Stolberg

    Was it by some means saved or do I want retype the total point?