

Judge says domain name loss is not a "substantial hardship" - canistr
http://arstechnica.com/tech-policy/news/2011/08/judge-says-domain-name-loss-is-not-a-substantial-hardship.ars

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lotharbot
Ignoring the various free speech issues and focusing on the headline:
remember, "substantial hardship" is a technical term.

It means "a demonstrated economic, technological, legal, or other type of
hardship to the person requesting the variance or waiver." [0] Of particular
note, it only seems to come up in the case of requesting a _waiver_ or other
sort of _legal exception_. An example usage might be a homeless person getting
a waiver for a court filing fee, because coming up with the money would be a
hurdle he probably couldn't clear.

In this particular case, the company in question is requesting the _expedited_
return of a seized domain, _while legal proceedings are still going on_. In
order to secure such a ruling, they would need to show that not having the
domain for the duration of the trial would actually be _crippling_ , not
merely inconvenient. (Having not been in the courtroom, I don't know how well
they argued this point, but apparently the judge didn't buy it.)

[0]
[http://www.kleinfeldlaw.com/Publications/Articles/Variances%...](http://www.kleinfeldlaw.com/Publications/Articles/Variances%20from%20Permitting%20StandardsUnreasonable%20Unfair%20and%20Unintended%20Results.aspx)
and in other places; the usage seems to be fairly consistent

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cabalamat
The purpose of the domain seizures was to disrupt -- ideally, to shut down --
websites that the US copyright industries didn't like. Causing them
substantial hardship was the entire purpose of the seizure, and to argue that
the seizure didn't cause that is purely dishonest.

~~~
nextparadigms
Exactly. If he's saying it shouldn't be a big deal to get back up at another
address, then why is he allowing ICE to seize it in the first place, and
what's the point of his ruling?

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vaksel
which is bs, since losing a domain also makes you lose all the thousands of
links going to it...would he expect the same of Google? After all, they also
own Google.org, so they can just let everyone know to go there instead.

why am I not surprised that the judge is 70 years old:

<http://en.wikipedia.org/wiki/Paul_A._Crotty>

~~~
eli
No reason to go ad hominem on the judge.

Seems like it's more a disagreement on the legal definition of "substantial"

~~~
jemfinch
_Ad Hominem_ is a logical fallacy. Unless the OP was saying "The judge is
wrong _because_ he's seventy years old" he was not committing _ad hominem_ ,
just commenting on a (possibly irrelevant) quality of the judge.

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catshirt
that's _exactly_ what he was saying.

~~~
starwed
Nope. He argued that the judge was wrong, and then suggested that it was the
judge's age that caused him to make an error.

What he didn't do is to use the judge's age in support of the first argument
-- that would have been _ad hominem_.

<http://plover.net/~bonds/adhominem.html>

~~~
catshirt
he did: " _[suggest] that it was the judge's age that caused him to make an
error_ "

he didnt: " _[use] the judge's age in support of the first argument_ "

forgive me; perhaps you could clarify the difference?

~~~
Dylan16807
It was a side note and not part of the argument.

~~~
jcc80
Is this a first year philosophy class? Reminds me of kids in law school. Ad
hom this, straw man that...pointless discussion. We can all go look up the
definitions if we want & decide for ourselves. Let it go & discussion the
actual issue.

Fact is having a second means to communicate (a .me or whatever address)
doesn't mean speech isn't an issue here.

[http://www.thedomains.com/2011/08/05/federal-court-rules-
dom...](http://www.thedomains.com/2011/08/05/federal-court-rules-domain-
seizures-do-not-violate-free-speech-loss-of-domain-is-not-a-substantial-
hardship/)

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pavel_lishin
> Rojadirecta can use its "large Internet presence"

Isn't its large internet presence largely rojadirecta.com ?

I wonder how this judge would feel if the US government suddenly "seized" his
home address and telephone number; it's the nearest personal equivalent I can
think of.

~~~
uptown
The Supreme Court already has laws on the books allowing that very thing to
occur. While its unlikely to happen to this judge, it has happened. One of the
more recent judgements determined that property could be seized even when it's
not being converted to public property.

<http://en.wikipedia.org/wiki/Eminent_domain>

~~~
a-priori
The difference is that with eminent domain you must be compensated at a fair
market rate. In this case, the property is simply seized.

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gst
"Under federal law, the owner of seized property can seek its return if the
government's continuing to hold it would cause a "substantial hardship" to its
owner."

So the US can seize my laptop or large quantities of my monetary savings and I
have no legal right to get those things back?

~~~
eli
Google "civil forfeiture" -- scary stuff. You can get it back, but the onus is
on you to stake a valid claim.

~~~
code_duck
Sometimes they'll strike a deal with the rightful owner outside of court -
essentially holding the property for ransom.

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btilly
And this is what happens when a judge who does not understand the internet or
business has the power to destroy someone's life.

Yes, they may be able to get the word out to some of their customer base. But
a substantial fraction of the customer base that they had won't find them
again. And there is likely to be real value in having the dot com.

~~~
smokeyj
> And this is what happens when a judge who does not understand

You're assuming the judge is ignorant and not malevolent.

~~~
splat
Once you start assuming malevolence for an action that can just as easily be
explained by incompetence, you very quickly start to step into tin-foil-hat
territory.

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burgerbrain
My legalize is poor, is this judge suggesting this is the case in this
_particular_ case, or in the general case?

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bhewes
In the future I will make sure that I register domains that are not under the
control of the U.S. government.

~~~
Astrohacker
I would like to do the same. Do you have any suggestions about which TLD to
use and which registrar to use?

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lukeschlather
Are they redirecting MX records? What would happen, for example, to a Google
Apps user in this situation? My understanding is that the entire online
infrastructure would disappear for a Google Apps user without some
intervention by Google.

It seems that there are are a variety of situations where having your domain
cut off would result in significant data loss. This might even be a blessing
in disguise for people facing charges in court. "No your honor, I can't give
law enforcement access to my email - they were deleted by Google when you
seized my domain, since I was no longer the verified owner."

~~~
MiguelHudnandez
I have moved away from Google Apps for Domains without canceling, and I could
still manage the account from <https://www.google.com/a/domain-name.example/>

So if this is still true, a user could set up for the new domain name and
carry on.

Of course if there is a warrant to seize the name, there may also be a warrant
to seize control of associated services.

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ltamake
Stupid judge. He has no idea what happens when you lose a domain: you need to
pay money for a new one, alert your customers, pay for new ads, and possibly
modify your site with the new code.

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jneal
I know I can't be the only one that worries for the future of the internet? I
know the internet will be around for a long time to come, but the question is,
will it ever be the same?

~~~
fleitz
If you want a picture of the future, imagine a boot stamping on a human face —
forever.

~~~
glimcat
And the past smells like roses?

There is some messed up stuff going on and the potential for more, but that's
something to fix and not an excuse for fatalism. Protecting individual freedom
and human rights is an ongoing process.

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dromidas
I suspect that if it was an american website it would be considered more
substantial.

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nirvana
If the seizure of the domains didn't cause substantial hardship, why were they
seized in the first place? Seems this judge thinks the government can play
both sides of the fence depending on what is convenient in a given context.

