Really short answer: SASS

Slightly longer answer: SASS is better on a whole bunch of different fronts, but if you are already happy in LESS, that’s cool, at least you are doing yourself a favor by preprocessing.

Much longer answer: Read on.

The Much Longer Answer

The Learning Curve with Ruby and Command Line and Whatever

The only learning curve is the syntax. You should use an app like CodeKit to watch and compile your authored files. You need to know jack squat about Ruby or the Command Line or whatever else. Maybe you should, but you don’t have to, so it’s not a factor here.

Winner: Nobody

Helping with CSS3

With either language, you can write your own mixins to help with vendor prefixes. No winner there. But you know how you don’t go back and update the prefixes you use on all your projects? (You don’t.) You also won’t update your handcrafted mixins file. (Probably.) In SASS you can use Compass, and Compass will keep itself updated, and thus the prefix situation is handled for you. Yes you’ll have to keep your local preprocessor software updated and compile/push once in a while, but that’s trivial and thinking-free.

So what this comes down to is: SASS has Compass and LESS does not. But it goes deeper than that. The attempts at creating a real robust project like Compass for LESS haven’t succeeded because the LESS language isn’t robust enough to do it properly. More on that next.

Winner: SASS

Language Ability: Logic / Loops

LESS has an ability to do “guarded mixins.” These are mixins that only take affect when a certain condition is true. Perhaps you want to set a background color based on the current text color in a module. If the text color is “pretty light” you’ll probably want a dark background. If it’s “pretty dark” you’ll want a light background. So you have a single mixin broke into two parts with these guards that ensure that only one of them takes effect.

.set-bg-color (@text-color) when (lightness(@text-color) >= 50%) {
  background: black;
}
.set-bg-color (@text-color) when (lightness(@text-color) < 50%) {
  background: #ccc;
}

So then when you use it, you’ll get the correct background:

.box-1 {
  color: #BADA55;
  .set-bg-color(#BADA55);
}

That is overly simplified, but you likely get the idea. You can do some fancy stuff with it. LESS can also do self-referencing recursion where a mixin can call itself with an updated value creating a loop.

.loop (@index) when (@index > 0) {
  .myclass {
    z-index: @index;
  }
  // Call itself
  .loopingClass(@index - 1);
}
// Stop loop
.loopingClass (0) {}

// Outputs stuff
.loopingClass (10);

But thats where the logic/looping abilities of LESS end. SASS has actual logical and looping operators in the language. if/then/else statements, for loops, while loops, and each loops. No tricks, just proper programming. While guarded mixins are a pretty cool, natural concept, language robustness goes to SASS. This language robustness is what makes Compass possible.

For example, Compass has a mixin called background. It’s so robust, that you can pass just about whatever you want to that thing that it will output what you need. Images, gradients, and any combination of them comma-separated, and you’ll get what you need (vendor prefixes and all).

This succinct and intelligible code:

.bam {
  @include background(
    image-url("foo.png"),
    linear-gradient(top left, #333, #0c0),
    radial-gradient(#c00, #fff 100px)
  );
}

Turns into this monster (which is unfortunately what we need for it to work with as good of browser support as we can get):

.bam {
  background: url('/foo.png'), -webkit-gradient(linear, 0% 0%, 100% 100%, color-stop(0%, #333333), color-stop(100%, #00cc00)), -webkit-gradient(radial, 50% 50%, 0, 50% 50%, 100, color-stop(0%, #cc0000), color-stop(100%, #ffffff));
  background: url('/foo.png'), -webkit-linear-gradient(top left, #333333, #00cc00), -webkit-radial-gradient(#cc0000, #ffffff 100px);
  background: url('/foo.png'), -moz-linear-gradient(top left, #333333, #00cc00), -moz-radial-gradient(#cc0000, #ffffff 100px);
  background: url('/foo.png'), -o-linear-gradient(top left, #333333, #00cc00), -o-radial-gradient(#cc0000, #ffffff 100px);
  background: url('/foo.png'), -ms-linear-gradient(top left, #333333, #00cc00), -ms-radial-gradient(#cc0000, #ffffff 100px);
  background: url('/foo.png'), linear-gradient(top left, #333333, #00cc00), radial-gradient(#cc0000, #ffffff 100px);
}

Winner: SASS

Website Niceitude

LESS has a nicer, more usable website. The SASS documentation isn’t awful. It’s complete and you can find what you need. But when competing for attention from front end people, LESS has the edge. I don’t doubt this plays a large role in LESS currently winning the popularity race. Things may be changing though.

Winner: LESS

The @extend Concept

Say you declare a class which has a bit of styling. Then you want another class which you want to do just about the same thing, only a few additional things. In LESS you’d likely:

.module-b {
   .module-a(); /* Copies everything from .module-a down here */
   border: 1px solid red;
}

That’s an “include” essentially. A mixin, in both languages. You could use an include to do that SASS as well, but you’re better off using @extend. With @extend, the styles from .module-a aren’t just duplicated down in .mobule-b (what could be considered bloat), the selector for .module-a is altered to .module-a, .module-b in the compiled CSS (which is more efficient).

.module-a {
   /* A bunch of stuff */
}
.module-b {
   /* Some unique styling */
   @extend .module-a;
}

Compiles into

.module-a, .module-b {
  /* A bunch of stuff */
}
.module-b {
  /* Some unique styling */
}

See that? It rewrites selectors, which is way more efficient.

Winner: SASS

Variable Handling

LESS uses @, SASS uses $. The dollar sign has no inherit meaning in CSS, while the @ sign does. It’s for things like declaring @keyframes or blocks of @media queries. You could chalk this one up to personal preference and not a big deal, but I think the edge here is for SASS which doesn’t confuse standing concepts.

SASS has some weirdness with scope in variables though. If you overwrite a “global” variable “locally”, the global variable takes on the local value. This just feels kind of weird.

$color: black;
.scoped {
  $color: white;
  color: $color;
}
.unscoped {
  // LESS = black (global)
  // SASS = white (overwritten by local)
  color: $color;
}

I’ve heard it can be useful but it’s not intuitive, especially if you write JavaScript.

Winner: Tossup

Working with Media Queries

The way most of us started working with @media queries was adding blocks of them at the bottom of your main stylesheet. That works, but it leads to mental disconnect between the original styling and the responsive styles. Like:

.some-class {
   /* Default styling */
}

/* Hundreds of lines of CSS */

@media (max-width: 800px) {
  .some-class {
    /* Responsive styles */
  }
}

With SASS or LESS, we can bring those styles together through nesting.

.some-class {
  /* Default styling */
  @media (max-width: 800px) {
    /* Responsive styles */
  }
}

You can get even sexier with SASS. There is a really cool “respond-to” technique (see code by Chris Eppstein, Ben Schwarz, and Jeff Croft) for naming/using breakpoints.

=respond-to($name)

  @if $name == small-screen
    @media only screen and (min-width: 320px)
      @content

  @if $name == large-screen
    @media only screen and (min-width: 800px)
      @content

The you can use them succinctly and semantically:

.column
    width: 25%
    +respond-to(small-screen)
      width: 100%

Note: requires SASS 3.2, which is in alpha, which you can install with gem install sass --pre. I don’t think there is any doubt this is a very nice way to work.

Winner: SASS

Math

For the most part, the math is similar, but there are some weirdnesses with how units are handled. For instance, LESS will assume the first unit you use is what you want out, ignoring further units.

div {
   width: 100px + 2em; // == 102px (weird)
}

In SASS, you get a clear error: Incompatible units: ‘em’ and ‘px’. I guess it’s debatable if it’s better to error or be wrong, but I’d personally rather have the error. Especially if you’re dealing with variables rather than straight units and it’s harder to track down.

SASS will also let you perform math on “unknown” units, making it a bit more futureproof should some new unit come along before they are able to update. LESS does not. There is some more weird differences like how SASS handles multiplying values that both have units, but it’s esoteric enough to not be worth mentioning.

Winner: Narrowly SASS

Active Development

At the time of this writing…

Number of open issues on LESS: 392
Number of open issues on SASS: 84

Pending pull requests on LESS: 86
Pending pull requests on SASS: 3

Number of commits in the last month in LESS: 11
Number of commits in the last month in SASS: 35

None of that stuff is any definitive proof that one project is more active than the other, but the numbers do seem to always leans toward SASS. As I understand it, both of the leads work on the languages in whatever little free time they have, as they both have other major new projects they are working on.

Winner: Probably SASS

More Reading

• Chris Eppstein: SASS/LESS Comparison
• Jeremy Hixon: An Introduction To LESS, And Comparison To Sass
• Ken Collins: Too LESS? Should You Be Using Sass?
• Johnathan Croom: Sass vs. LESS vs. Stylus: Preprocessor Shootout

SASS vs. LESS is a post from CSS-Tricks

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• Inhalable caffeine isn’t really meant to be absorbed by the lungs, despite its name. Caffeine doesn’t really seem like a dietary supplement, either. [url]
• The Caffeine Zone app is supposed to help optimize when a person should ingest caffeine for maximal effects. But this simple app doesn’t take into account personal metabolisms — it just predicts how much caffeine will be left in your bloodstream after you enter in how much you drank, when and how fast. [url]
• The CDC and FDA have several warnings against caffeinated alcoholic beverages. But where are the warnings for a rum and Coke? [url]
• To discover more food-related links, check out what’s floating around in StumbleUpon. [url]  

By the way, StumbleUpon can also recommend some good Techdirt articles, too.

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The most obvious and difficult way to involve Congress is through Article II of the Constitution. Under Article II, a treaty negotiated by the executive branch is presented to the Senate for ratification. The process is notoriously difficult, because it requires two-thirds of the Senate to approve. So USTR, almost understandably, wants to avoid the Article II process if at all possible.

A number of years ago, this wouldn’t have been a problem, or at least not a Constitutional one. Congress gave USTR “fast track” authority to negotiate trade agreements, subject to an up-or-down vote at the end of the negotiating process. This authority, however, expired in July 2007. ACTA wasn’t announced until October of that same year. Fast track wasn’t great, because it didn’t allow for amendments, but at least it allowed final oversight over the executive branch by Congress. It also allowed international law to be made, because the hurdle of Senate ratification for Article II treaties can make that process come to a standstill.

USTR knew, then, when it began negotiating ACTA, that it no longer had Congress’s authorization to negotiate these kinds of trade agreements. This doesn’t mean that USTR had to drop its activities, but at the end of the negotiating process, it would have to seek Congress’s approval anew. If Congress decided not to do an up-or-down vote or amend the agreement, the agreement would need to go to the Senate for ratification, or it would fail.

So USTR tried to avoid the process, and Congress, entirely. USTR initially explained that it planned to negotiate ACTA under the President’s powers, alone. This made no sense, as prominent legal scholars noted. The President’s inherent powers do not involve IP. That’s Congress’s purview.

In March 2012, USTR switched gears. After Senator Ron Wyden publicly questioned the way in which ACTA had been negotiated, the Legal Advisor to the Department of State, Harold Hongju Koh (disclosure: also formerly the dean of my law school and my professor of transnational law), explained that ACTA wasn’t being negotiated just by the President. Koh explained that–surprise!–Congress actually had been involved in ACTA, authorizing the negotiation of ACTA beforehand in the 2008 PRO-IP Act.

There’s a major problem with this argument. First, the part of the PRO-IP Act Koh cited describes the creation of a plan for US agencies to generally coordinate on IP enforcement, under the IP Czarina Espinel. It isn’t addressed to USTR, and it doesn’t authorize USTR to negotiate an agreement.

Second, there’s an element of madness in claiming that the 2008 PRO-IP Act authorizes ACTA. ACTA was announced in 2007. How can Congress pre-authorize the negotiation of a treaty that was announced in 2007 through a law enacted in 2008?

Thus, while the EU focuses on ACTA’s impact on fundamental rights and liberties, in the United States the procedural problem blows those questions out of the water.

This is about situating ACTA against a bigger picture of the excessive power of the President, and the ability of Congress to put limits on the executive branch. In the context of treaty-making, it’s about all of our international lawmaking, and an executive branch that has grown used to making international commitments without involving democratic process. It’s important to understand that ACTA is just the tip of the iceberg, where the public has finally encountered the craziness with which international law now gets made in the United States. Frequently, now, international law gets made by the President under purported prior authorization by Congress, without a democratic vote at the end of the process.

There are enormously important values at stake. When the executive negotiates without Congress’s participation, citizens don’t get a say in the process. We don’t get to review the agreement, or pressure our representatives into changing or rejecting it. However, special industry groups do, including the RIAA, as advisors to USTR.

It’s not that all the problems with IP and trade law would disappear if we involved Congress. But the struggles of advocates and academics with USTR’s lack of responsiveness and the secrecy around ACTA and TPP show that we require at least a sense of being able to effect change through democratic process.

Congress needs to get involved here. It needs to make clear to the administration that it must send ACTA to Congress to seek approval, or to the Senate for ratification as an Article II treaty. With this in mind, I am part of a group of legal academics that is writing to the Senate Finance Committee asking them to make these requirements clear with respect to ACTA. The PRO-IP Act doesn’t authorize ACTA, and IP is not part of the President’s inherent powers, so Congress must get involved.

And the problem continues. Last week, the USTR and other countries met to continue negotiating the Trans-Pacific Partnership Agreement (TPP) in Dallas. The TPP also contains an unreleased IP chapter of dubious substance. As of now, USTR still doesn’t have fast-track authority from Congress to negotiate agreements like the TPP. USTR also can’t claim that the PRO-IP Act authorizes negotiations this time, because unlike ACTA, TPP is broader than just IP. So once again, USTR is negotiating an international agreement without a clear plan of how Congress or the Senate will be involved. If USTR does not get the desired fast-track authority for TPP, it will have to try to get after-the-fact approval from Congress or ratify TPP as an Article II treaty. So where ACTA is facing a Constitutional crisis where the executive branch is claiming it can go it alone, TPP is an example of an overactive agency not thinking through how it will Constitutionally accomplish its goals.

What we have right now is an overactive executive branch accustomed to a lack of supervision, and a Congress that has failed to assert its Constitutional responsibility in this sphere. If we want public input on international law-making at any point in the future, this is a dynamic that we’re really going to have to work hard to change.

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This year’s report is no different. It’s more of the same ridiculousness, with a clueless press reporting (totally inaccurately) that the study says that software piracy “costs” the economy $63.4 billion. That’s simply not true. What the report did find was not actually surprising or even very interesting. It’s that people in developing countries tend to infringe more often. You probably knew that already, but if you wanted evidence for that, you shouldn’t look to the BSA and its bogus stats, but a thorough, comprehensive and independent review of the market, such as the one done by Joe Karaganis and SSRC last year. That report found the reason that there was increased piracy in developing markets was because clueless companies don’t realize that people aren’t going to pay a month’s salary for a single digital good.

Of course, rather than recognize it’s their own business model failings at issue, the BSA is once again using this report to call for “tougher penalties” for infringement. This despite the fact that no study has ever shown that such penalties actually drive more people to buy.

Thankfully, at least some people are calling the BSA out on its bogus report, such as by noting that it’s political propaganda designed to get legislation like SOPA and PIPA passed. The reality, of course, is that it shows how out of touch the BSA is with the innovation economy today, instead working to lock up and protect the interests of its major funders: Microsoft, Symantec and Intuit. Those companies are threatened by upstarts with better business models, and the best they can do is to support legislation that will lock down the internet, causing more harm than good for true innovation.

The “Bogus Stats Again” report from the BSA isn’t about dealing with piracy. It’s a way of white washing an agenda of protectionism for some large software companies who don’t want to compete or to adapt.

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In the video game world, a great example of this is when companies open their games up to mods, so users can tweak them or build entirely new games on top of the same basic engine. Valve’s Counter-Strike series grew from a fan-made mod for Half-Life, which was so popular it has been credited with keeping Half-Life on gamers’ radars for years longer than it would have been otherwise, leading Valve to hire the creators and turn it into its own game, which remains one of the company’s most successful titles. This week another example bubbled up on Reddit, in the form of a captioned screenshot of the Steam store titled “Dear developers, this is why you should make your games moddable”:

The game ARMA II: Combined Operations was on track to be another mostly-forgotten game, still enjoyed by a small group of fans with few other prospects. Then, two years after its release, and without getting any kind of promotional sale price, it started selling like crazy and surged to the front page of the Steam leaderboards. Why? Another team of developers released the alpha of Day Z, a zombie-survival game built as an ARMA II mod. Fans have been clamoring for a particular type of zombie game for a while now (and Cracked’s Robert Brockway pitched a similar idea recently) and the description of Day Z sounds like it fits the bill—so when the free alpha of the mod was released, lots of people bought a copy of ARMA II so they could give it a try.

In this situation, everybody wins. Gamers get a new game, ARMA II gets renewed sales, Day Z gets to exist (without the need to build a brand new engine). The sales boost to the original might be temporary, or it might spark new interest in the game and revive it entirely, or it might inspire newer and even more popular mods, or… well, there are a lot of possibilities, none of them bad. All because the ARMA II developers had the foresight to let others add value to what they created.

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According to Wikipedia, “Open Source” is a philosophy that promotes free redistribution and access to a project’s design and implementation details. The end user who edits the program is then allowed to send his/her input to the author for possible inclusion in the project.

If an artist like The Polish Ambassador were to become an open sourced project what might that look like? Is there room/possibility for art/music/brands to become open source? Is it already happening? Could this ideology serve some purpose? Maybe a way to get other people’s ideas out there? A way to collaborate? A way to merge efforts of like minded folks? A way to create art from art? A way to generate $ for end users/charities? It seems to me the possibilities are endless. We all use open sourced software every day. Linux, Firefox, etc, but I haven’t heard of many artists that when I think of their name, I also think, “O yea, she/he’s that open source artist.” Maybe there’s a reason for this, maybe not. With Twitter/Facebook and the web in general, technologically speaking, we have never been more connected. Would love to hear your thoughts and ideas. Could “open source artists” be an evolutionary step for art?

Of course, many folks in the “free culture” world would point to Creative Commons as the artistic equivalent of an open source offering. However, two interesting things strike me. First, as of the time I’m writing this post, no one in the dozens of comments posted to that story mentions CC at all. Second, the request actually goes a bit further than CC. It’s not just about making the works free to distribute or use… but the second part: sending it back to the original creator for possible inclusion in the project. Now, again, we have seen some examples of this with various remix projects. In particular, I’m reminded of the experiment by K-OS, where rather than having fans remix an album, he pre-released all the stems, and let fans create their own original mixes, and then took the best for each song and released a combo album: one of his own mixes, and a second of the best fan mixes. In the hip-hop world, releasing instrumentals or acapellas for fans and other artists to remix (and building contests or other promotions around that) is fairly common—but only a few artists have gone further and offered up the individual bits and pieces. Perhaps that’s along the lines of what The Polish Ambassador is looking for.

Either way, this has me wondering if there isn’t something Creative Commons could include in their offerings, or if if this goes beyond that. It is an interesting point however. One of the thrills people get in working on open source software isn’t the fact that they can do what they want with it, but that they can collaborate to make the project better. Open source developers feel well-earned pride when a contribution gets included in a larger project. Imagine the same situation with musicians. What if your favorite band released your remix of their song? That is, what if they effectively worked with you and said your version was one they really liked — such that you got the official stamp of approval that had the work more widely distributed? Again, it appears that some artists are doing this on the margins, but it seems like the kind of thing that could be more clearly formalized and promoted as a cool way for artists to connect with fans and for fans to gain some form of validation for their own help with certain projects.

Oh, and in the meantime, it appears that The Polish Ambassador is currently offering up its entire discography for free — 7 hours worth of music, all in FLAC format.

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Near the top of the list of the Pirate Party’s demons is copyright protection, and rightly so. Copyright protection is an antiquated relic of the late Middle Ages that has no place in the digital era. It is debatable whether such government-granted monopolies were ever the best way to finance the production of creative and artistic work, but now that the internet will allow this material to be instantly transferred at zero cost anywhere in the world, copyrights are clearly a counter-productive restraint on technology.

As every graduate of an introductory economics class knows, the market works best when items sell at their marginal cost. That means we maximize efficiency when recorded music, movies, video games and software are available to users at zero cost. The fees that the government allows copyright holders to impose create economic distortions in the same way that tariffs on imported cars or clothes lead to economic distortions.

The major difference is that the distortions from copyright protection are much larger. While tariffs on cars or clothes would rarely exceed 20-30 per cent, the additional cost imposed by copyright protection is the price of the product. Movies that would be free in a world without copyright protection can cost $20-$30. The same is true of video games, and the price of copyrighted software can run into the thousands of dollars.

Baker goes on to suggest some alternative means to fund such creative works in a world without copyright, including ideas like “artistic freedom vouchers” that would give people a refundable tax credit on supporting creativity, on the condition that any of the creativity funded by such money would not be able to protect it with copyright for a period of time. I find such program interesting, though I do wonder if they’d even be necessary. As we’ve been seeing over and over again, all sorts of interesting new business models are springing up that have nothing to do with copyright. As there is demand for creativity, I fully expect more and more such models to continue to show up as well. What I fear is that the focus by those who benefit excessively from the monopoly rents and protectionism of copyright, will lead to cutting off innovation or killing off interesting and more efficient business models, before they have a chance to evolve.

Contrary to what some like to say about me, I am not convinced that copyright should be done away with completely. I do think that it needs significant reform. I just want that reform to be based on actual evidence and understanding of basic economics rather than faith and the demands of those who have benefited excessively from it, over those who have been held back because of it.

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Last December (actually the same day that the government was handing back the Dajaz1 domain in a similar dispute), the lower court dismissed the forfeiture claim — saying that the government failed to plead willful copyright infringement, which is necessary to show criminal copyright infringement. However, it allowed the government to refile, which it did. The two sides have filed their latest motions in the case, and once again, it appears that they’re talking about two totally different things. In fact, reading through the government’s filing, it appears that they either have no understanding of the law itself, or have twisted themselves into such a tight knot, that they’re not sure how to get out of it.

The details are a bit tedious, but let’s see if we can break it out. First off, the seizure and forfeiture are “in rem” — meaning that the case is against the domains themselves, and not the owners of the domains. That can be an awkward distinction, obviously, but the government makes it much, much more awkward in that it seems to shift its argument back and forth constantly. For example, it repeatedly (in a rather mocking tone) rejects the arguments of Puerto 80 by noting that no one is accusing Puerto 80 of anything. The case is merely about how the Rojadirecta domains “facilitate” criminal copyright infringement. So the government argues that the court should ignore the (rather compelling) defenses for why Puerto 80 did not violate criminal copyright law.

Now, that part is fine… but where it gets weird is that the government immediately then tries to use Puerto 80s actions as proof of facilitating infringement. If you’re playing along with the home game, the government is arguing both that Puerto 80s actions are meaningless to the case and that Puerto 80′s actions are the key to facilitating criminal copyright infringement. Basically, whenever Puerto 80 points out that its actions do not meet the standard of criminal copyright infringement, the government waves its hands and says “doesn’t matter, we’re not charging you, just the URL.” But then to prove that the URL “facilitated” the actions, it cites Puerto 80′s actions, rather than the URL’s actions. That’s because the URL doesn’t act. It’s just a URL. See the following as an example:

Additionally, there can be no serious argument that the Government has alleged that the
Rojadirecta Domain Names’ facilitation of the underlying copyright offense was anything but substantial.
See Amended Complaint… (“At all relevant times, the links displayed on the main homepage of the
Rojadirecta Website were purposefully aggregated and organized by the owner(s) and/or operator(s) of
the Rojadirecta Website. Moreover, more than half of the material available on the Rojadirecta Website
at any given time during law enforcement’s investigation appeared to be dedicated to making infringing
content available to users of the Rojadirecta Website.”)….

Puerto 80′s arguments about its own conduct are irrelevant and misapprehend the nature of the
inquiry

See that? First it’s “here’s all the evidence of things done by Puerto 80″… and then immediately, “Puerto 80′s actions are irrelevant”.

At times this reaches absolutely absurd levels, such as the part of the government’s filing in which they assert that the domain itself had knowledge of infringement. The feds can’t say Puerto 80 had knowledge, since (again) they admit that Puerto 80 is not being charged. So they switch and anthropomorphize the domain itself:

Indeed, the Rojadirecta Domain Names were repeatedly noticed
that they were linking to copyright infringing content.

You see? It’s not Puerto 80 who was noticed, but the domain name itself. It must have “known.” Or something.

The government’s argument gets even worse from there, because nowhere does it show where the criminal copyright infringement happened. In order for the government to claim that the Rojadirecta domains facilitated criminal copyright infringement, you would think the first step would have to be to show where it actually happened. Here, the government basically waves its hand and says, “of course it happened.” First, it highlights the fact that because of links on the Rojadirecta sites, content could be streamed from third party sites. In fact, it straight out admits that Rojadirecta hosted no infringing content, but rather it was all on these other sites. It then notes that such streams likely violated the performance and reproductions rights under the Copyright Act. That may be true, but that, alone, does not make it a criminal offense. That requires willfulness — which was the problem in the original filing.

But, here again, the feds run into a serious problem: how can they show willfulness on the part of the infringer when they never identify an infringer? The entire filing insists that the domains should be forfeited because they were used to facilitate a crime, but they never show that any crime was actually committed, because they never even attempt to identify who committed the crime. They admit that it’s not Puerto 80 (even as they try to use Puerto 80′s actions). It likely isn’t the users of Rojadirecta (and the government doesn’t even try to make that claim). Instead, it seems to hint at an imaginary party who willfully infringed, but is never actually identified! It’s really amazing.

The implications here are staggering. Basically, the feds are arguing that they can seize and then forfeit a domain without showing any crime actually happened. Instead, all they need to do is vaguely assert that someone, somewhere may have possibly violated a law somehow using the domain in the process — but they never have to actually prove anyone violated the specific law. In other words, if the government wanted to, under this definition, it could easily seize and forfeit any search engine domain or any website that allows public comments, merely by asserting that a link in a search result or a link in a comment led to infringing material. That’s an insane interpretation of the law — yet it appears to be the one that the feds are asserting.

One hopes that the judge actually understands the absolutely insanity of the feds’ argument here. Puerto 80′s lawyers lay it out nicely (pdf) in their response, but courts can be funny sometimes — especially in copyright cases. Still, the argument made by Puerto 80′s lawyers lay out just how ridiculous this interpretation would be:

Under the government’s construction of [the law], every domain name
that pointed to a website containing links to infringing copies would “facilitate” and have a
“substantial connection” to the offense of criminal copyright infringement, and would therefore
be subject to forfeiture. The broad construction of the term “facilitation” the government seeks
would give it the power to shut down google.com, yahoo.com, bing.com, or any of an array of
other channels of communication that—like every site on the Internet—link to content provided
by third parties that might or might not be infringing. The property in question is two domain
names, which (in the government’s words) are merely “labels” that “resolve” to websites, and are
distinct from the servers that host the website or any content of it….

The government’s theory would
have allowed it to seize the New York Times issue that published the Pentagon Papers and
destroy it, on the theory that the New York Times was facilitating Daniel Ellsberg’s violation of
national security laws. And the Times would have had no opportunity to show that its speech
was lawful. There is no reason to think Congress intended the forfeiture statute to extend so
broadly. And even if it had, Congress lacks the power to confer such plenary control over
speech on government agents acting without judicial sanction.

Of course, all of this doesn’t even touch on two other important issues in the case. One is the First Amendment questions raised by seizing a domain and the second is the fact that US copyright law only matters in the US, not in Spain. In both cases, the government again comes back with wacky responses. On the First Amendment claim, it argues there’s no First Amendment issue, relying incorrectly on the Arcara vs. Cloud Books case. But that ruling is clear that it only applies if the crime in question is not expressive. But copyright infringement is often absolutely expressive. It may not be protected expression but it is expression, and as such it requires First Amendment scrutiny to make that determination. The government flat out claims that copyright infringement (which it falsely calls “intellectual property theft”) is “unrelated to speech.” That’s simply incorrect. Courts have long established that there is a balance between copyright and the First Amendment, and you can only establish infringement following a ruling by a court. Yet here the government wants to skip over that step entirely. As Puerto80 notes:

The government argues that the links on the Rojadirecta website are not protected speech
because they constitute copyright infringement. But that argument exactly misses the point of
the prior restraint doctrine. Unless and until there has been a final determination on the merits
after an adversary hearing, there is no basis to find that criminal copyright infringement occurred
on the third party sites to which the Rojadirecta website linked.

As for US law being applied outside the US, here the government just tries to wave this issue off again. It first admits that US law does not apply outside its borders, but then insists that it is “inconceivable” that some infringement didn’t happen inside the US. But that’s not how the law works. You have to actually show the infringement. You can’t just insist that it happened somewhere in the US and move on…

The further this case goes, the worse and worse the government’s arguments seem to get, and the less and less it seems to understand about the hole it has dug for itself.

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Some of the specifics argued in the lawsuit do seem to quite critical of the church, but it’s not clear they rise to the level of defamation:

For what it’s worth, Oregon appears to have a reasonably strong anti-SLAPP law, and I wonder if Smith will make use of that. It will depend on the details of her statements to see if they were truly defamatory, but the general descriptions provided certainly make it appear like a vindictive lawsuit to silence a vocal critic.

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