Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry

from the your-taxpayer-money-at-work dept

Wed, Dec 1st 2010 8:29am — Mike Masnick

We've been quite concerned about the legality of Homeland Security's domain name seizures -- especially in cases where they took down sites that had a ton of legitimate content, such as various hip hop blogs, with no due process and no adversarial hearings. One other concern was where Homeland Security's direction on this was coming from. As we noted, in an earlier similar domain name seizure situation, Homeland Security announced the seizures from Disney's headquarters -- which should raise lots of eyebrows. As we said at the time, imagine any other government agency announcing a third party action that benefits a particular company from that company's offices. For example, imagine the FTC announcing antitrust actions against Google from Microsoft's offices. Wouldn't people question the legitimacy of that?

Well, apparently, Homeland Security and the folks in its Immigration & Customs Enforcement (ICE) group have no qualms at all about being quite upfront and frank about both the fact that they're acting as Hollywood's private police force and that they have little concern for due process. Entertainment Weekly spoke with Erik Barnett, the "assistant deputy director" for ICE, and he readily admitted that they were taking orders from the industry:

"In general, what we can say is, there are specific complaints from rights holders that these sites were infringing on copyrights."

That alone should give you pause. Rights holders have a long and very detailed history of greatly over-exaggerating when their rights were supposedly being "infringed" upon. Remember Jack Valenti of the MPAA claiming that the VCR was the Boston Strangler to the movie industry? Why didn't Customs "swoop in" and block all VCRs from being sold? Why? Because that would be ridiculous. So why is it effectively doing the exact same thing here?

As for due process, Barnett apparently doesn't care, and pretends that due process is basically ICE says you're guilty, so you are:

"I mean, when we're conducting criminal investigations, we don't notify criminals that you need to abate your criminal conduct or there's going to be an enforcement action against you," says Barnett. He is not particularly sympathetic to bloggers who might feel that the shutdowns have damaged their livelihoods without due process. "I understand that this is a question that gets raised," he says. "But from a law enforcement agency standpoint, there's criminal activity. The process that's set up to address that is a law enforcement agency investigates, which is what Homeland Security Investigations does. The Justice Department determines if the elements of the criminal statute have been met. And then a judge determines if the enforcement action that's proposed -- in this case, a seizure warrant -- is appropriate. So that's the process.�

Notice he never mentions an actual trial where the other side gets to put forth its arguments. Of course, for those of us who actually understand due process -- as opposed to just Barnett's cowboy process, we understand that normally you have an adversarial hearing where the other side gets to present its case before summarily being declared guilty. If there's "criminal activity" (and even that's questionable -- as it's difficult to see how what these blogs did goes beyond civil infringement, if it really was infringing at all), then you arrest them and put them on trial. You don't just seize the domains.

Barnett also claims that this is no different than Customs seizing shipments of counterfeit goods as they enter the US, but that's a huge stretch. Customs' job is to guard what crosses the borders. That's it. Seizing entire domain names because there may be some infringing material on the site (which, again, was never established at a trial) has absolutely nothing to do with protecting the borders. And the very fact that Barnett's already admitted to relying on the industry's say so that these things are infringing is downright scary. Why are our tax dollars being used to protect legacy entertainment industry companies that refuse to adapt?

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Filed Under: customs, due process, homeland security, ice, police force

251 Comments

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Anonymous Coward, 1 Dec 2010 @ 8:38am

Copyright infringement is a crime to help artists get paid.
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wallow-T, 1 Dec 2010 @ 8:40am

I would expect that Customs would claim jurisdiction over all bit patterns crossing the border of the United States, and all (global) sources of such bit patterns. Not snark.
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Anonymous Coward, 1 Dec 2010 @ 8:58am

Hey! At least they are being honest about being lackeys for the Entertainment industry! I suppose that puts them a bit higher than most of our politicians on the honesty scale.
Speaking for the general "American Sheeple" (Trademark pending!) at large, I'll miss TechDirt when it gets snatched up by DHS/ICE, like an alien abductee in the dark of the night.
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Spaceman Spiff (profile), 1 Dec 2010 @ 8:59am

Under color of authority
Violation of civil rights under color of authority, as it appears that Barnett is doing, is a US federal felony offense. His chickens WILL come home to roost! With some luck and appropriate actions by the ACLU and other rights-protecting organizations, he will have his own day in court!
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JPen, 1 Dec 2010 @ 9:00am

I presume these words are now null and void in the Land of the Free
"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."
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Not an electronic Rodent, 1 Dec 2010 @ 9:03am

Umm lets see...
[troll]
"Hello Mr. Policeman can you arrest that man over there and confiscate his car please?
"Oh? Why's that? He seems to be driving OK"
"Because that's MY car"
"But there's yours right there"
"yes but his is kinda similar so thats mine too"
"Oh, righto sir I'll just have him off to the nick pronto shall I?"
"Thank you officer"
Ka-ching

[/troll]
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Dave (profile), 1 Dec 2010 @ 9:07am

"Why are our tax dollars being used to protect legacy entertainment industry companies that refuse to adapt?"
Because our government seems easily convinced that movies and music are the only worthwhile export this country still has?

Just a guess. It's not like we have a manufacturing base in this country anymore.

Then again, maybe it's because Disney bought 'em all...
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Matt (profile), 1 Dec 2010 @ 9:26am

Dur process is not the problem
I have been ignoring this issue, but if what Barnett says is true it seems as if due process is not the problem. No one is being denied a liberty right - a full blown trial is probably unnecessary. A judge determines if probable cause exists, and if it does issues a seizure warrant. That is appropriate process. Imagine if, instead of domain names, we were talking about cocaine. Should the cops have to wait until the conclusion of a trial before seizing cocaine pursuant to a seizure warrant? What about the dealer's car (with smuggling compartments in the doors,) or the boat he bought with drug money? If they want an adversarial hearing, they can move for return of property.

It seems to me the process is fine. The trouble is the action itself. Even if criminal copyright infringement is taking place on a website pointed to with a particular domain name, which seems far-fetched here, seizure of the name seems inappropriate. For starters, the names were not used in the commission of the crime. They certainly do not provide evidence of the crime. And they were not purchased at all, let alone purchased with the proceeds of the crime.

ICE's best argument is that the names were used to infringe. It has been a long time since I researched it, and I frankly do not remember if a gun that is present at the scene, but never displayed or referred to, is "used in the commission of a crime". Domain names seem to me to be in a similar position - they do not actually further the willful infringement. They do not assist in copying, or even in publishing, a copyrighted work. At most they assist in marketing, and then only if they call out the infringed work - generic names, like "StolenMovies.com" or "torrent-finder.com" do little if any work at all.
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average_joe (profile), 1 Dec 2010 @ 9:27am

I think you guys are getting a bit too worked up. He's right: The feds don't warn you before they execute a warrant on you. They investigate, determine if there's probable cause, have a neutral magistrate sign off on it, and then execute the warrant. That's how crime fighting works. And you don't see criminals walking because somehow this process violates due process.

Some vague claim in the blogosphere that it violates due process just doesn't sway me. I'm just not easily moved by such rhetoric. Whether or not this violates the Due Process Clause or the First Amendment is certainly not a foregone conclusion, despite what many people apparently believe. Don't get me wrong, I hope this thing gets going in the courts sooner rather than later so we can actually get some answers about its constitutionality. Until then, it's all just whining, IMO.

As far as the idea that it's somehow wrong for the feds to investigate the claims of the rights holders, that just makes no sense. Since when are the feds not supposed to investigate the crimes complained of by the victims? The idea that they shouldn't investigate is preposterous. Of course they investigate. And who's really surprised that once they did investigate they found enough evidence of crime to get a warrant? Good grief. It's like you guys don't get which side is the criminals, and which side is the victims. Cracks me up.
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Mr. Oizo, 1 Dec 2010 @ 9:29am

Very cool
I think we are not far away from a seizure of the name piratebay.org and similar domains. This will lead programmers to real and urgent action. I don't think the government at this point understands how quickly a replacement system, much harder to address from a government point of view, short of, disallowing communication, will be set up. Up to now, everybody thinks once in a while: this would be a cool improvement, or this would be nice, but very few people implement nor adopt radical p2p ideas. It will be interesting to see how strongly motivated many people will become.
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Anonymous Coward, 1 Dec 2010 @ 9:30am

Re:
This website is filled with crime: http://torrent-finder.info/
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Anonymous Coward, 1 Dec 2010 @ 9:38am

Re: Dur process is not the problem
Perhaps not the place for this, but
"Should the cops have to wait until the conclusion of a trial before seizing cocaine pursuant to a seizure warrant? What about the dealer's car (with smuggling compartments in the doors,) or the boat he bought with drug money?
Absolutely, all that crap was legal in the 1920's and little harm was done. The DEA is also a lackey, except they do it for the pharmaceutical industry.
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average_joe (profile), 1 Dec 2010 @ 9:40am

Re: Dur process is not the problem
The trouble is the action itself. Even if criminal copyright infringement is taking place on a website pointed to with a particular domain name, which seems far-fetched here, seizure of the name seems inappropriate. For starters, the names were not used in the commission of the crime. They certainly do not provide evidence of the crime. And they were not purchased at all, let alone purchased with the proceeds of the crime.

ICE's best argument is that the names were used to infringe. It has been a long time since I researched it, and I frankly do not remember if a gun that is present at the scene, but never displayed or referred to, is "used in the commission of a crime". Domain names seem to me to be in a similar position - they do not actually further the willful infringement. They do not assist in copying, or even in publishing, a copyrighted work. At most they assist in marketing, and then only if they call out the infringed work - generic names, like "StolenMovies.com" or "torrent-finder.com" do little if any work at all.

I disagree. If criminal acts are being committed on a website, then the domain name is being used to commit those acts. 18 U.S.C. 2323 allows for the seizure of "any property used, or intended to be used, in any manner or part to commit or facilitate the commission of" criminal copyright infringement. Certainly the domain name is "property used" to commit the crime. It's not the only property used, but it is property used nonetheless. And should there be a trial, the domain name would certainly be evidence. I don't see how it wouldn't be. I think the idea here is analogous to seizing the speed boat used by the smuggler to bring in cocaine. Sure, the smuggler can get another boat, but he's not using THIS boat.
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TPBer (profile), 1 Dec 2010 @ 9:43am

Re: Re:
You gotta love how easy this torrent finder is, like DHS can even make a dent.
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Free Capitalist (profile), 1 Dec 2010 @ 9:43am

Re: Dur process is not the problem
No one is being denied a liberty right

How does the first amendment not apply to communication online? A website is a vehicle of expression and speech, and taking away from the effectiveness of that tool, by denying it a registered name for instance, inhibits this activity.

Should we allow police to cut a part of someone's vocal cord before trial if they "talk like a terrorist"?

The "police actions" here were made without mandate and without jurisdiction. There is nothing that differentiates these actions from vigilantism. Uniform or no, without some form of mandate, the DHS most definitely overstepped their bounds on this one.
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Rajio, 1 Dec 2010 @ 9:44am

international
what if you have a non-dot-com domain like a .ca or a .co.uk? can they seize those just as easily? doesn't this post a potential international issue?
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darryl, 1 Dec 2010 @ 9:44am

Get used to it, its how things work, you have the same right as they do (media), and they the same as you.
"In general, what we can say is, there are specific complaints from rights holders that these sites were infringing on copyrights."

Ok, so someone who has a financial interest in not having his product stolen, illegally, goes to the relevent authorities to see what they can do about the problem.

The authorities, have a task to perform, that is to uphold the existing laws.
Or enforce those laws if you like.

They cannot do otherwise, just as it is your right if someone takes you car, you can call the authorities that deal with stolen cars and see what can be done.

And Mike it does not matter if right holders exagerate or not, that is up to the investigators and the judge to determine that level of damage.

prosecution can also only tell the truth in court, or in getting a warrant.

The investigators (in this case ICE) build a case, do due process, gather evidence, gain a judgement (yes you are not there, but they have all the evidence from you they need to prove your guilt, according to the judge.

So you are charged, or issued a warrent or seizure, you have the right to appeal, and the right probably for a stay.

But if the first judge determines what you have is illegal, he is duty bound to enforce the law.

That is why there is no jury, most cases do not have a jury, its the judge that have final say. Ofcourse if you feel strong enough you can appeal to a higher court.

If you are caught by a cop, with drugs on you, its the end of the story, you are arrested and conviced of that crime.
Possession of an illegal substance, and the very first thing that happens as you are arrested, but not convicted, is that substance is taken away from you.

Then you go to court, and if you plead innocent, the cops will just say they found it on him. But have to prove it with several police witnesses.

Or he can plead guilty, especially if he knows that is what they will find anyway, and try to reduce his sentice with mitigating cercumstances.

Such as yes it was on me, but the cop put it on me, or more usually "these are not my pants" :)

Either way if what you have is illegal and it is determined by the judge as illegal, you are in possession of illegal items. And those items will be removed from you until such time as you can prove rightfull ownership of them, or legal ownership of that item..

so if you go and drive really fast, they will seize your car, then send you to court and charge you.

If you are found with a hidden weapon or an illegal object, that thing will be taken off you on the first instance.

And if a judge has determined that by law that thing is illegal, he has every right to issue action to scieze that contraband.

You still have your presumption of innocent, all the way up to when the judge decides that is not the case, its how the legal system works. And will continue to work..
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average_joe (profile), 1 Dec 2010 @ 9:45am

Re: Re:
This website is filled with crime: http://torrent-finder.info/

And those guys are arguing that since they only link to infringing material and because they show some things in frames, they are somehow not civilly or criminally liable for the infringement. I think they're wrong on both counts. Apparently the prosecutor who applied for the warrant agrees with me. I hope the website guys challenge the seizure in court so we can see who the judiciary agrees with.
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average_joe (profile), 1 Dec 2010 @ 9:51am

Re: international
what if you have a non-dot-com domain like a .ca or a .co.uk? can they seize those just as easily? doesn't this post a potential international issue?

For now, they're only going after addresses like .com since they can issue the warrant to VeriSign which is in the U.S. However, under COICA, they would be able to "get to" addresses that are outside of the U.S. in a roundabout way.
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coldbrew, 1 Dec 2010 @ 9:54am

Re: Re: Due process is not the problem
I thought the reason behind property seizure was to insure evidence is not destroyed. Since one can easily save (i.e. make a copy) an entire website as evidence without taking control of it, it seems the purpose of seizure in this case is not relevant.
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Free Capitalist (profile), 1 Dec 2010 @ 9:54am

Re: international
It seems like it would be an international issue to me.

What is definitely a concern, however, is that by unilaterally seizing domain names, they bring into question the validity of the US's status as "trusted gatekeeper" of the root servers for our global DNS. Additionally, these actions could be create a lack of faith in the IANA as viable, or even potent, international governance.

If the IANA goes down, DNS as a global technology dies with it. Nations, regions and partisans will make their own name systems, fragmenting the global community and throttling international commerce.
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Hephaestus (profile), 1 Dec 2010 @ 9:55am

Re: "Why are our tax dollars being used to protect legacy entertainment industry companies that refuse to adapt?"
"Then again, maybe it's because Disney bought 'em all..."

Actually they are all just disney hall of presidents animatronics. No need for payments anymore.
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darryl, 1 Dec 2010 @ 10:01am

Yes, everyone hates a cop until you need one.. how easy is it to bash those who cannot do anything but the law.
Think about it this way if it helps...

Customes finds a shipping container, full of some drug, an illegal substance.

They do not give that item, to the person who it is addressed too, and then tell them., 'here's you're drugs, enjoy, but expect a visit from the police.

It does not happen that way, the seize the illegal stuff, they might substute that will a fake stuff, and send it on and see who picks it up.

But there is no way the customs people would be allowed, or authorised to pass on knowingly something that has been determined by the justice system as illegal.

Its just how the system works, its how it has worked for quite a long time.

It's a consistent ruleset that enables commerce and enterprise and trading to take place, and to allow people to get along with each other at least to a certain degree, at the same time trying to balance that against your personal right and the rights of everyone else..

That includes everyone, just because you are "media" or a pizza shop, you have to same rights.

Its how a society is created and sustained. and how anarchy is held at bay.
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Joshy, 1 Dec 2010 @ 10:02am

Isn't this like seizing an entire multi-million dollar fully loaded cargo ship because a crew members scorned ex said that one of the crew had a half smoked joint in his pocket.
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Free Capitalist (profile), 1 Dec 2010 @ 10:04am

Re:
Isn't this like seizing an entire multi-million dollar fully loaded cargo ship because a crew members scorned ex said that one of the crew had a half smoked joint in his pocket.

I laughed, then cried when I realized this is probably "OK".
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Anonymous Coward, 1 Dec 2010 @ 10:09am

Re: Yes, everyone hates a cop until you need one.. how easy is it to bash those who cannot do anything but the law.
Seriously, look at all this crime and anarchy: http://torrent-finder.info/
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penstock (profile), 1 Dec 2010 @ 10:10am

Copyright Ownership?
The discussion on 'third-party ownership' of someone else's intellectual property (whether copyrighted or patented) is still incomplete. Some of the discussions here over the past couple years have appeared "promising" toward forwarding a better understanding of this issue, but the fundamental basis for this "ownership" is still unresolved. Can someone "own" the creative IP of someone else - or merely license its use for commercial exploitation? What is a "copyright owner" - wouldn't it be far better to define these "recording studios" as the "current IP licensee" and acting on behalf of the original "IP creative talent" in collecting revenue?
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RD, 1 Dec 2010 @ 10:13am

Re: Re: Re:
"And those guys are arguing that since they only link to infringing material and because they show some things in frames, they are somehow not civilly or criminally liable for the infringement. I think they're wrong on both counts."

Thats right! NAIL those fuckers for talking about what exists! I mean, anything that informs you of the existence of something, or God forbid HOW something works, or Lord in Heaven of All NOT WHERE IT MIGHT BE, should be obliterated from existence, and whoever is responsible should be prosecuted and lose all rights and have their entire life ended. How DARE they point out where to find things, even illegal things! What right do they have to inform ANYONE of how illegal things work? I mean, really, this sort of thing just SHOULD NOT BE ALLOWED! Why do we allow people to do this? Its CRAZY! NO ONE should EVER be allowed to speak, think, share or otherwise communicate ANYTHING About ANYTHING illegal EVER! Anyone who does should just be thrown in jail, as they are obviously a criminal. ALL websites, phonebooks, indexes, journals, encyclopedias, and any and all other reference works should be IMMEDIATELY BANNED and those responsible OR acting in collusion (Libraries, THIS MEANS YOU!!!!) should IMMEDIATELY be censured, fined, arrested, and jailed. The NERVE of people, to think they can just flagrantly run around exposing, discussing, and REFERRING TO illegal activities with impunity. Its INCREDIBLE!

And no /sarc, I MEAN IT! We NEED to follow the examples of whats-his-face up there that INSISTS that no due process is necessary, and arrest/seizures should just be DONE and stop asking so many pesky questions about legalities or constitutional rights. Anyone who does is OBVIOUSLY SUPPORTS CRIMINALS!!!!!!!!!
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darryl, 1 Dec 2010 @ 10:15am

Re:
Well said, yes, so now the feds have to only fight crime and uphold laws you (or some arbitary person) like.

And ignore any laws that you dont like.

Because what you usually find is that the person who is breaking that law will be of the opinion that he does not like that particular law. Therefore he's breaking of that law should not be investigated.

For some reason I just cant see that working in a civilised society.

That is why "mob rule" has never really taken off.

No, we are happy to pay our taxes, and know that there is retirement, health care, police to stop crime, people trying to stop bombers.

People trying to allow other people to live a normal and productive life.

so they too can pay taxes, and help everyone else., pay taxes and buy things, buy things that other people have to make. That pays them to make it, so they can buy things and pay taxes as well.

And you think its all about the media companies, NO, that is also wrong, its about the Government, its about being able to sustain and maintain a goverment, receive taxes of transactions, taxes off income, from people who are employed making things or providing something of value in return for money, or income.

Without that system, with no revinue from transactions, without manufacturing and labour from transactions without tax from wages and from corporations, the government woulld fail.

and I would guess, that would not be so pleasant.
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Gabriel Tane (profile), 1 Dec 2010 @ 10:18am

Re: Get used to it, its how things work, you have the same right as they do (media), and they the same as you.
everything you've said is actually pretty well formulated and (as far as I can tell) right. But you're missing the problem here...

When a cop takes your contraband, he doesn't take everything you own along with it. What we're talking about is the authorities seizing an entire domain for suspected infringing material. And this is where this case diverges from your analogy of contraband and property... that website represents speech and expression. Some of which may be protected speech. If you block protected speech in an effort to stop infringement (or other illegal expression), that's prior restraint and has been shown to be unconstitutional.

Was the judge right in trying to secure the rights of copyright holders? Absolutely... illegal activity should be stopped. However, you cannot infringe upon protected constitutional rights to do so.

I'm not sure why people fail to understand this: Mike is not protecting copyright infringement... he's trying to protect individual rights that are being infringed by those with power and money (entertainment industry). Yes, my right of expression does not trump your copyright... but your copyright does not trump my right to non-infringing expression.
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DogBreath, 1 Dec 2010 @ 10:21am

I'm not suprised Disney is in bed with Homeland Security
Take a look at the past job history of Disney's Mr. Ronald L. Iden
Ronald L. Iden

Senior Vice President, Global Security

Ronald L. Iden was named senior vice president, Security, The Walt Disney Company in July 2004. Mr. Iden focuses on developing and coordinating Disney's security efforts worldwide.

Mr. Iden joined Disney from the California Office of Homeland Security, where he was appointed by and served under Governor Arnold Schwarzenegger. Prior to working for the State, Ron spent 25 years with the Federal Bureau of Investigation holding a variety of roles, culminating in his appointment to lead the FBI's Los Angeles Field Office as assistant director.

Among the positions Mr. Iden held while at the FBI were: Special Agent in Charge of the Los Angeles FBI's investigations of terrorism, foreign counterintelligence, financial crimes and civil rights matters; Deputy Assistant Director of the FBI's Information Resources Division where he was responsible for the FBI's worldwide automation and information management requirements; Chief of the Information Resources Division's strategic planning, budget and personnel operations; and Chief of the FBI's Public Corruption Unit at FBI Headquarters.
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fogbugzd (profile), 1 Dec 2010 @ 10:22am

Not physical goods
This is another case where the analysis to physical goods breaks down.

We keep hearing the analogy of seizing drugs or counterfeit items. Those items can be moved or physically destroyed, so they have to be seized by the government to preserve the evidence. If after the seizure tests show that the items were seized improperly then the items can be returned. The company may have had some lost opportunities while the items were held, but if proven innocent the items are returned and the business continues in most cases.

The domains that were seized were not physical goods. They were domain names. They could not be destroyed or moved or hidden. The evidence of crimes would have been on servers and could have been gathered while the domains were working. In fact, that is exactly how the evidence was gathered in the RIAA file sharing cases as well as the infamous Hurt Locker lawsuits. If a case was to be made, it could have been made just as well if the domains were operational. Shutting down the servers effectively put the owners out of business, and that business can never be fully returned to them by restoring the domain names.
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average_joe (profile), 1 Dec 2010 @ 10:35am

Re: Re: Re: Due process is not the problem
I thought the reason behind property seizure was to insure evidence is not destroyed. Since one can easily save (i.e. make a copy) an entire website as evidence without taking control of it, it seems the purpose of seizure in this case is not relevant.

Preservation of evidence is one reason to seize property. Another reason is prevent that property's continued use in the furtherance of a crime, and that's what I think is happening here.
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pringerX (profile), 1 Dec 2010 @ 10:41am

average_joe, among the websites seized was a torrent search engine. The search engine maintained no links to infringing material. Care to explain? Does this mean Google and Bing should be seized because people could use these search engines to find infringing material? And the "torrents are all infringing" doesn't hold water, because there are legal torrents and p2p applications. Besides, Google's autocomplete usually suggests XYZ torrent when you mention just about any creative visual media work.

These seizures are a thinly veiled attempt to test the waters of what they can get away with, and if we don't push back at every turn eventually we will have no rights left.
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NAMELESS.ONE, 1 Dec 2010 @ 10:42am

@18
and remember ONLY .com they might be able to go after...
.net and .org after coica and only in USA

good i say watch the hosting of even regular business to leave in drives because the risk of any infringement is to great cause the bar is set yo high to NOT have them take your domain..

again the USA does it to themselves...ITS A BRITTNEY
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average_joe (profile), 1 Dec 2010 @ 10:44am

Re: Not physical goods
The domains that were seized were not physical goods. They were domain names. They could not be destroyed or moved or hidden. The evidence of crimes would have been on servers and could have been gathered while the domains were working. In fact, that is exactly how the evidence was gathered in the RIAA file sharing cases as well as the infamous Hurt Locker lawsuits. If a case was to be made, it could have been made just as well if the domains were operational. Shutting down the servers effectively put the owners out of business, and that business can never be fully returned to them by restoring the domain names.

While the domain names may not be "physical goods" that does not mean they aren't "property used, or intended to be used, in any manner or part to commit or facilitate the commission of" criminal copyright infringement, making it property that is subject to seizure under the statute. The law doesn't say they can only seize tangible property or physical goods. That's a distinction you're making, not one the law makes. The law simply says that they can seize property, period.

Evidence of the crimes was being gathered while the domain names were still "in the wild," so I don't really get your point about that. The point of shutting down the domain names was to shut down property that was being used in the furtherance of a crime. Pretty simple really.
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Hephaestus (profile), 1 Dec 2010 @ 10:46am

Re:
One really big problem with your entire argument. Copyright is a civil matter not a criminal one. DHS has no legal authority to intervene matters such as this. Plus you should read ICEs charter this is totally outside what they are allowed to do.

This smacks of someone saying since we are hyping and lumping counterfeit with infringement in all our press releases, and ICE does counterfeit at our borders, lets get them to confiscate sites we dont like.
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Steven (profile), 1 Dec 2010 @ 10:47am

Re: Re: Dur process is not the problem
I think the idea here is analogous to seizing the speed boat used by the smuggler to bring in cocaine.

No. I think this is more like seizing the street sign on the block of the crack house.
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darryl, 1 Dec 2010 @ 10:47am

Re: Re:
depends on what the judge determines based on the evidence to hand.

Its just that easy. At least they have to get a judge to check for legals. Most illegal items are automatically removed.

as for them not being real or 'physical' they most certainly real and physical, and you have every right to own a lawfully obtained version. But if you do not use that product as per the law. you lose your right to its use.

Ie, when they take your car away for speeding, or take your drugs.

You have a right to own, listen too and enjoy that non physical thing, that you at least value enough to take the effort to find it and download it..

So physical or not it has value to you, as it has value to the rightfull owner, that rightfull owner is the owner of the right to copy that song and distribute and sell it.

You dont legally have that right, so that product (yes a product is a physical thing, even a digitally recorded song or movie.

so that product is illegal. as you took illegal action to obtain it, and in obtaining it you broke the law, you are a creator of stolen goods. Goods that you do not have a legal right too.

It does not matter what those goods are, if you have them, and use them you gain value from them.

And just because you are capable of breaking the law, does not make that act right, or socially benificial.

You have to look at your motive, and what is your motive?

Is it you want things of value (to you) but are not willing to pay for that thing ?

I guess that is true of everyone, we all want things of value for free.

But we all (well most) equally understand, that very little is free. Someone has to pay, or it does not get done.

Regardless of if its painting your house, or buying a song, or a movie. You pay what you think is a fair price for a fair product, if you do not think it is a fair price that does not mean you are entitled to gain that item by any means, including breaking the law.

you can argue the law, but that does not change the law, and the requirement to abide by it.

If you argue its not physical and therefore has not intrinisic value, you would have no problems in doing a bank transfer of $10,000 dollars into my account.

After all its only some number on a hard drive, and money itself no utility, it does not do anything, it does not even make a noise (unless its in coins)..

But im sure TO YOU, that number on a computer in the bank that says $10,000 credit means something to YOU.

And you would not be happy if someone else used that 'thing' of yours for their own advantage would you?

If so, let me know, and I will give you my transfer number.. and thanks !!!!
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average_joe (profile), 1 Dec 2010 @ 10:52am

Re:
average_joe, among the websites seized was a torrent search engine. The search engine maintained no links to infringing material. Care to explain? Does this mean Google and Bing should be seized because people could use these search engines to find infringing material? And the "torrents are all infringing" doesn't hold water, because there are legal torrents and p2p applications. Besides, Google's autocomplete usually suggests XYZ torrent when you mention just about any creative visual media work.

These seizures are a thinly veiled attempt to test the waters of what they can get away with, and if we don't push back at every turn eventually we will have no rights left.

You raise a very good point, and I think the simple answer is that search sites like torrent-finder are set up for and dedicated to infringement. I just went there and typed in "Harry Potter" and as far as I can tell, the ONLY results listed are for illicit copies. Contrast that with Google's results which show all the results from the internet, both licit and illicit. Of course Google's search feature can be set so that it only shows torrents of "Harry Potter," but that doesn't change the fact that Google indexes the entire web, while torrent search engines focus on the illicit part of the web. There is some caselaw on point. I'll try to dig that up so we can see how a court has treated the issue.
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JEDIDIAH, 1 Dec 2010 @ 10:54am

Re: Re: Re: Re: Due process is not the problem
Property being taken in the absence of an arrest is just theft. If you want to stop a crime in progress then you APPREHEND THE PERPETRATOR. You don't just steal stuff because you think you can get away with it.

If there is some big ICE bust on a fishing boat, they don't just take the pot. They take the pot and they take the crew into custody and the prosecute them.
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Mike Masnick (profile), 1 Dec 2010 @ 10:57am

Re:
He's right: The feds don't warn you before they execute a warrant on you. They investigate, determine if there's probable cause, have a neutral magistrate sign off on it, and then execute the warrant. That's how crime fighting works. And you don't see criminals walking because somehow this process violates due process.

And, again, there is no issue if the seizure is for the purpose of protecting evidence from being destroyed.

But you really don't see it as a problem that an entire site full of plenty of legitimate speech is seized with no adversarial trial? Do you really want to support such a position?

Some vague claim in the blogosphere that it violates due process just doesn't sway me.

No offense, but what does and does not sway you is meaningless to most people.

Don't get me wrong, I hope this thing gets going in the courts sooner rather than later so we can actually get some answers about its constitutionality. Until then, it's all just whining, IMO.

I'm sorry, can I just clarify: You don't believe people should opine on legal issues until after a court has ruled?

As far as the idea that it's somehow wrong for the feds to investigate the claims of the rights holders, that just makes no sense. Since when are the feds not supposed to investigate the crimes complained of by the victims?

Nice use of "feds" rather than Homeland Security or Immigration and Customs. Homeland Security's job has nothing to do with protecting Disney's business model.

If the FBI wants to investigate, let them investigate, and if there's a real issue, arrest people and hold a trial.

Good grief. It's like you guys don't get which side is the criminals, and which side is the victims. Cracks me up.

You see, out here in the real world, we understand that no one is a criminal until after they've had their day in court. It scares me that you don't believe this to be the case. What do they teach people in law school these days?
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Steven (profile), 1 Dec 2010 @ 10:59am

Re: Re: Not physical goods
If crimes were being committed, were the seizures followed by an equal number of arrests and charges pressed?

Additionally this is outside the jurisdiction of ICE.
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Josef Anvil (profile), 1 Dec 2010 @ 11:01am

Im just not sure
While I may not agree with the seizure of the domains, I can easily see how warrants were issued. Most of the sites in question were supposedly trafficking in counterfeit goods from what I've read. There was the torrent finder that appears to be nothing more than a search engine, but that is the only one that seemed to be completely innocent of any criminal or infringing activity.

The thing that I find more interesting, is that Homeland Security is involved. I would have thought that all of this would be under the jurisdiction of the FBI. Whenever I see the copyright warning at the beginning of a DVD its from the FBI.

It just seems to me that Homeland Security has become an "anything goes" agency. All politicians have to do now is imply that something is a terrorist threat and then Homeland Security can do whatever it likes and if you have questions, then its national security and classified.

And you wonder why the US doesn't like Wikileaks????? The sheeple might actually look up from their grazing.
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TPBer (profile), 1 Dec 2010 @ 11:01am

I have to disagree..
AJ, the bottom line is that none of this so called property is property of any kind. They are in fact part of a service and should be treated as such. Just because copyright says it's property does not make it so.
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Mike Masnick (profile), 1 Dec 2010 @ 11:02am

Re: Re: Not physical goods
Evidence of the crimes was being gathered while the domain names were still "in the wild," so I don't really get your point about that. The point of shutting down the domain names was to shut down property that was being used in the furtherance of a crime. Pretty simple really.

Heh. This is where actually understanding the technology helps. Seizing domain names does not shut down the actual website. Thus, if it was really "pretty simple" they would have seized the actual servers, not the domain names.

That they did not do so raises even more questions.
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average_joe (profile), 1 Dec 2010 @ 11:04am

Re: Re:
One really big problem with your entire argument. Copyright is a civil matter not a criminal one. DHS has no legal authority to intervene matters such as this. Plus you should read ICEs charter this is totally outside what they are allowed to do.

That's a common misconception. Copyright infringement is both a civil and a criminal wrong. See 17 U.S.C. 506, for example. The copyright infringement at play in these seizures is criminal copyright infringement. It's a federal crime that the executive branch is given the authority and the mandate to go after. Your claim that there is no legal authority for them to intervene in these matters is completely without merit.

This smacks of someone saying since we are hyping and lumping counterfeit with infringement in all our press releases, and ICE does counterfeit at our borders, lets get them to confiscate sites we dont like.

They are going after counterfeiters and criminal copyright infringers, as is their job to do.
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average_joe (profile), 1 Dec 2010 @ 11:08am

Re: Re: Re: Not physical goods
If crimes were being committed, were the seizures followed by an equal number of arrests and charges pressed?

It is not necessary that they file actual criminal charges. All they need to do is show by a preponderance of the evidence that the domain names were being used in the furtherance of a crime.

Additionally this is outside the jurisdiction of ICE.

Nope. I don't buy it. The task force set up to enforce the nation's IP laws are very much legit.
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Steven (profile), 1 Dec 2010 @ 11:08am

Re: Re:
torrent-finder (and other similar search sites) don't focus on the 'illicit part of the web'. They index all of the web that has a particular file type. If the makers of Harry Potter released a torrent it would show up on the site.
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Not an electronic Rodent, 1 Dec 2010 @ 11:11am

Re: Yes, everyone hates a cop until you need one.. how easy is it to bash those who cannot do anything but the law.
That was almost lucid... right up to the point where it turns out they haven't actually seized the "illegal goods" at all - no web servers, logs or other actual evidence seem to have been taken, just the domain names. I'm willing to be corrected on that point as I haven't followed back to the actual case, but from the information presented here it appears more a case of, to use your analogy, finding a container full of white powder you assume is coke and seizing the shipping label off it while leaving it there for the owner to re-route.
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average_joe (profile), 1 Dec 2010 @ 11:18am

Re: Re:
And, again, there is no issue if the seizure is for the purpose of protecting evidence from being destroyed.

But you really don't see it as a problem that an entire site full of plenty of legitimate speech is seized with no adversarial trial? Do you really want to support such a position?

These domain names are being used to commit crimes, so I don't have a lot of sympathy for the criminals using them. I do think an adversary hearing up front would be preferable, but I'm not convinced that due process demands it. I imagine we shall soon see.

No offense, but what does and does not sway you is meaningless to most people.

None taken. To each his own. I'm just sharing my opinion like everyone else.

I'm sorry, can I just clarify: You don't believe people should opine on legal issues until after a court has ruled?

Opine, yes. Say it with certainty like there's no other possibility, not so much.

Nice use of "feds" rather than Homeland Security or Immigration and Customs. Homeland Security's job has nothing to do with protecting Disney's business model.

If the FBI wants to investigate, let them investigate, and if there's a real issue, arrest people and hold a trial.

I hope they do arrest some people and hold a trial.

You see, out here in the real world, we understand that no one is a criminal until after they've had their day in court. It scares me that you don't believe this to be the case. What do they teach people in law school these days?

I realize they are only accused of being criminals, and not actually adjudicated to be criminals just yet. Don't be silly. I also realize that alleged criminals get their property seized all the time, and it's perhaps not a bad thing.
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Anonymous Coward, 1 Dec 2010 @ 11:18am

SCAM
Is this story even true? In reading this, it would appear that there are gaps of information.
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average_joe (profile), 1 Dec 2010 @ 11:24am

Re: Re: Re: Not physical goods
Heh. This is where actually understanding the technology helps. Seizing domain names does not shut down the actual website. Thus, if it was really "pretty simple" they would have seized the actual servers, not the domain names.

That they did not do so raises even more questions.

I understand the technology, don't worry about that. I've been using computers for a long time. I agree with you though that if they don't seize the servers too, at least the ones in the U.S. subject to seizure, then that would be kind of weird. As I recall with the seizures back in June, they were seizing the servers. Didn't they seize ninjavideo's (or whatever they were called) servers? I'm not really sure how many of the servers in these recent seizures are in the U.S. though.
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Michial Thompson, 1 Dec 2010 @ 11:28am

Re:
BUT WAIT... little mikee and declared that IP isn't "Persons", "Houses", "Papers" or an "Effect" In fact IP isn't anything. So what happened here, ICE just took a non possession out of someone's bitbucket....

What's the big deal, he couldn't own the domains, he couldn't have been taken because the are "virtual" and there is no "value" to them etc...

So little mikee's trying to cry wolf again and all his little cronies follow blindly...

How did these people's rights get violated, they never lost anything. Remember "Virtual goods cannot be treated or even given the same properties as a physical good"
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Gwiz, 1 Dec 2010 @ 11:28am

Re:
Correct me if am wrong - but aren't most actions where property is seized in a criminal case accompanied by an arrest at the same time?

If that is true - where are the arrests in these cases concerning these seized domains?
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average_joe (profile), 1 Dec 2010 @ 11:30am

Re: Re: Re:
torrent-finder (and other similar search sites) don't focus on the 'illicit part of the web'. They index all of the web that has a particular file type. If the makers of Harry Potter released a torrent it would show up on the site.

But they index that particular file type for the purpose of making copyright infringement easier. That's why those sites exist. That's why people use those sites. That's pretty much the only reason why people use those sites. We all know it.

Google on the other hand is used for so much more. It's ability to be used to locate illicit material is incidental.

And the maker of Harry Potter didn't release any torrents that I'm aware of. That's why I said I thought all of the results there were illicit.
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average_joe (profile), 1 Dec 2010 @ 11:33am

Re: I have to disagree..
AJ, the bottom line is that none of this so called property is property of any kind. They are in fact part of a service and should be treated as such. Just because copyright says it's property does not make it so.

We could get into a debate on the theory, but the bottom line is really that the law says it's property that can be seized, and so it is property that really gets seized.
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Gwiz, 1 Dec 2010 @ 11:33am

Re: Re: Re: Re: Not physical goods
It is not necessary that they file actual criminal charges. All they need to do is show by a preponderance of the evidence that the domain names were being used in the furtherance of a crime.

How do you get your property back then?
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Gwiz, 1 Dec 2010 @ 11:36am

Re: Re:
Nevermind. This is being discussed on a thread further down.
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average_joe (profile), 1 Dec 2010 @ 11:39am

Re: Re:
Correct me if am wrong - but aren't most actions where property is seized in a criminal case accompanied by an arrest at the same time?

If that is true - where are the arrests in these cases concerning these seized domains?

They can seize the property whether or not criminal charges are ever filed.
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Not an electronic Rodent, 1 Dec 2010 @ 11:41am

Re: Re: Re:
Could you explain what was stolen in the case at hand? Or did you mean "copied in contravention of copyrights"? And by the way, if someone steals my $10,000 I'd be rightly furious. If on the other hand they copy my $10,000 and I've still got the original $10,000 I'm fine with that - good luck to them.
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average_joe (profile), 1 Dec 2010 @ 11:41am

Re: Re: Re: Re: Re: Not physical goods
How do you get your property back then?

You show up to the hearing and show by a preponderance of the evidence that the domain names were NOT being used in the furtherance of a crime.
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Killer_Tofu (profile), 1 Dec 2010 @ 11:42am

Re: Re:
I know I shouldn't feed the troll so you will only get a small response.
A domain name is a scarce good. Based on how the internet currently works there can be only one www.whitehouse.gov
Nobody else can use that. Therefor it is a scarce good. Virtual in most cases means infinite. In the case of domain names it does not.
It is not virtual vs physical, it is infinite vs finite. The same reason air is physical but infinite. Do try to understand.

Oh, and a side note, the way you talk about saying 'mikee' and stuff makes you sound like a whiny brat who has no argument so you have to resort to trying to demean people.
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Karl (profile), 1 Dec 2010 @ 11:46am

Re: Re:
What's the big deal, he couldn't own the domains, he couldn't have been taken because the are "virtual" and there is no "value" to them etc...

What a nice straw man argument you made there. Nobody ever said "virtual" equals "valueless."

In fact, this illustrates perfectly the difference between "theft" and "infringement." Theft is depriving others of something - I steal your hammer, you don't have a hammer. Infringement does not deprive others of anything - I make an unlawful copy of your hammer, you still have your hammer.

That works with virtual goods as well. It's not "theft" unless you deprive others of the use that virtual good.

That means these seizures were theft, plain and simple. By seizing the domain names, they deprived everyone of their use. It is perfectly legal theft - even government sanctioned theft - but theft nonetheless. It is absolutely no different than if a SWAT team stormed your house and took your TV.
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Gabriel Tane (profile), 1 Dec 2010 @ 11:49am

Re: Re:
Another point that was missed in the other two responses:

By blocking the publication of these websites (seizing the domain names), the government has squelched free speech in the attempt to block illegal expression (copyright infringement)... this is known as prior restraint and a violation of the First Amendment. Did they lose something of value? Only their rights to free speech.
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Gwiz, 1 Dec 2010 @ 11:51am

Re: Re: Re: Re: Re: Re: Not physical goods
So basically "innocent til proven guilty" is thrown out the window. This has shifted the burden of proof to the accused.

This worries me tremendously.
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Anonymous Coward, 1 Dec 2010 @ 12:01pm

Re: Re: Re: Re:
Even my Harry Potter fanfic parodies?!?

They're not illicit, man!
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Karl (profile), 1 Dec 2010 @ 12:03pm

Re: Re: Re:
And those guys are arguing that since they only link to infringing material and because they show some things in frames, they are somehow not civilly or criminally liable for the infringement.

Notice that torrent-finder does not link to infringing material. They link to third party websites, and those websites link to (potentially) infringing content.

By your standard, Google, Bing, and Yahoo! are also guilty of infringement. Why, right now you can go to Altavista, type in "batman torrent," and it will come up with links to torrentz.com and The Pirate Bay - just like torrent-finder.

As for the iframes, so what? About.com does this all the time (and it's annoying as hell). Google Image Search also shows original web page results within a Google frame, and I'm betting at least some of those images are infringing on copyrights. I guess they're guilty of criminal infringement, too.
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average_joe (profile), 1 Dec 2010 @ 12:10pm

Re: Re: Re: Re: Re: Re: Re: Not physical goods
So basically "innocent til proven guilty" is thrown out the window. This has shifted the burden of proof to the accused.

This worries me tremendously.

Technically, the forfeiture proceeding is a civil proceeding so there's no "innocent" or "guilty." The burden is on the government to prove by a preponderance of the evidence that the domain names should remain seized.
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average_joe (profile), 1 Dec 2010 @ 12:11pm

Re: Re: Re: Re: Re:
LOL!
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Thomas (profile), 1 Dec 2010 @ 12:16pm

Just goes to show
That homeland security is NOT about protecting the citizens of the United States, it's about doing whatever the big businesses tell them to do.

They are probably far more concerned about seizing domain names than keeping people from being killed in terrorist attacks. After all, citizens are criminals anyway, so why care what happens to them?

It's much safer and easier for Homeland Security to investigate file sharing than it would be for them to investigate terrorists planning a nerve gas attack against a U.S. city.
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average_joe (profile), 1 Dec 2010 @ 12:20pm

Re: Re: Re: Re:
Notice that torrent-finder does not link to infringing material. They link to third party websites, and those websites link to (potentially) infringing content.

By your standard, Google, Bing, and Yahoo! are also guilty of infringement. Why, right now you can go to Altavista, type in "batman torrent," and it will come up with links to torrentz.com and The Pirate Bay - just like torrent-finder.

The difference is that neutral search engines can be used incidentally to locate illicit materials, while the torrent search engines are dedicated to the task.

As for the iframes, so what? About.com does this all the time (and it's annoying as hell). Google Image Search also shows original web page results within a Google frame, and I'm betting at least some of those images are infringing on copyrights. I guess they're guilty of criminal infringement, too.

Nope, those search engines are protected by the fair use doctrine since their use is transformative. Read Arriba Soft: http://scholar.google.com/scholar_case?case=13767420941977220880&hl=en&as_sdt=2&as_vis=1 &oi=scholarr
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faststeak (profile), 1 Dec 2010 @ 12:21pm

Just because you can, doesn't mean you should.
Being caught with a boat full of dope != Having a website which might aid someone in finding infringing material. To use the same yardstick, and say that there should be more seizures is a failure to understand the scale and scope of this issue. I don't believe you can make an argument that your 1st amendment rights are being violated because your boat full of dope got seized. However, in the case of a website, that issue is a lot less clear cut.

Does the DEA let the beer industry tell them that a particular white powdery substance is cocaine? Do they make announcements of big drug busts on the steps of the Anhueser-Busch headquarters? I think not.

You're allowing some fairly large leaps of faith by bureaucrats. Those same bureaucrats don't have a clear cut authority, and are taking advice from less than objective observers. If that's not enough to wait until the trial is done before you begin to seize anything, you are failing to understand the concept of rule of law. The rule of law is to keep the big guy with the stick from beating the little guy with no stick, just because he can.
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Killer_Tofu (profile), 1 Dec 2010 @ 12:25pm

Re: Re: Re: Re:
While you do not intend sarc at all, I still loled.
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Gabriel Tane (profile), 1 Dec 2010 @ 12:30pm

Re: Re: Re: Re:
"But they index that particular file type for the purpose of making copyright infringement easier. That's why those sites exist. That's why people use those sites. That's pretty much the only reason why people use those sites. We all know it."

That's a very dangerous assumption to make, much less operate upon. And that's the issue with the search engines being taken down. More and more businesses are making their programs downloadable via bittorent (I think the latest version of my anti-virus was that way). So if we shut down an entire search engine just because there is infringing material out in the great-wide interwebs, what about the legitimate ones? How is that a good decision to block a legitimate business use of a technology just because some people may use it to pirate? Wasn�t that the discussion over VCR�s, Walkman�s, and CD burners? Bittorrent is a new form of this argument� one that many businesses are finding a great value in.

It may be true that these search engines started out as a way to make infringement easier, but that model is changing. It's dangerous to keep operating as though it hasn't.
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Killer_Tofu (profile), 1 Dec 2010 @ 12:38pm

Re: Re: Re: Re: Not physical goods
The task force set up to enforce the nation's IP laws are very much legit.
You need to go look up why ICE was created, because I can tell you it certainly wasn't created to enforce IP laws.
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Killer_Tofu (profile), 1 Dec 2010 @ 12:41pm

Re: Re: Re: Re: Not physical goods
While I cannot speak to your actual technical savvy level, as a guy who has done tech support, I can tell you all too well that using computers almost never equates to understanding the technology. If it did I would not have a spare time job.
Just a small quibble, not intended to show you don't know tech, but only that how you worded it was horrible. =)
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Not an electronic Rodent, 1 Dec 2010 @ 12:44pm

Re: Re:
No, we are happy to pay our taxes, and know that there is retirement, health care, police to stop crime, people trying to stop bombers.
Were I you I wouldn't lay any large wagers on any of those things being true despite the tax paying bit. I've seen the stats for the american welfare state, crime and such like and I suspect you might need your stake to pay for those things when it comes to it..... And when did we get onto taxes?
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DS, 1 Dec 2010 @ 12:44pm

Re:
Anyone who says the word "sheeple" deserves to be shot old yeller style, as they are all self important douches.

Unless, of course, you are talking about some sort of mutant Sheep-Man, but I'm not sure what that has to do with domain seizures.
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Anonymous Coward, 1 Dec 2010 @ 12:48pm

Re:
I second that vote, Big Brother is always watching
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Anonymous Coward, 1 Dec 2010 @ 12:51pm

Re: Re:
Having the knowledge to understand that the average person is nothing but a sheep being led around blinded does not make one a "self important douche". It simply makes them more observant then the sheeple that just flamed him.
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Anonymous Coward, 1 Dec 2010 @ 12:55pm

Re: Re:
So if someone took away all your email account and every other online account you had, just on a whim because they think your infringing on "Something" you would be okay with it?
Not saying that is what happened but the slippery slope is there.
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Gwiz, 1 Dec 2010 @ 1:17pm

Re: Re: Re: Re: Re: Re: Re: Re: Not physical goods
AJ Maybe you can answer this one for me. I asked on another post, but I don't think I got any replays.

Through which court do these domain name seizures go through?
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Gwiz, 1 Dec 2010 @ 1:22pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Not physical goods
Nevermind. I just found where you linked to the warrants. Thanks anyways.
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average_joe (profile), 1 Dec 2010 @ 1:35pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Not physical goods
That warrant I linked to earlier was from June and it was for 7 domain names being seized by one court, the U.S. District Court for the Southern District of New York.

This latest round of seizures involved several different district courts, according to the press release: "Southern District of New York; District of Columbia; Middle District of Florida; District of Colorado; Southern District of Texas; Central District of California; Northern District of Ohio; District of New Jersey; and the Western District of Washington."

http://www.ice.gov/news/releases/1011/101129washington.htm
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average_joe (profile), 1 Dec 2010 @ 1:38pm

Re: Re: Re: Re: Re: Not physical goods
You need to go look up why ICE was created, because I can tell you it certainly wasn't created to enforce IP laws.

Perhaps it's not part of their original mandate, I don't know, but it's clearly part of their mandate now. If the President tells a bunch of agencies to get together and enforce IP laws, they do.
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average_joe (profile), 1 Dec 2010 @ 1:41pm

Re: Re: Re: Re: Re: Not physical goods
LOL! I'm sure there's a lot about computers I don't know, but I've got the basics down on how the web works in general.
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Gwiz, 1 Dec 2010 @ 2:09pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Not physical goods
Got it. Thanks. I was just curious how these Judges became Judges. From what Wikipedia tells me Federal Magistrate Judges are appointed by the Federal District Judges who are appointed by the President.

I have a instinctive distrust of elected officials (mainly because how their campaigns are financed), but that is clearly not the case here.
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Any Mouse, 1 Dec 2010 @ 2:17pm

Re: Re: Re:
''These domain names are being used to commit crimes, so I don't have a lot of sympathy for the criminals using them. I do think an adversary hearing up front would be preferable, but I'm not convinced that due process demands it. I imagine we shall soon see.''

You keep saying things like this, and yet why are there no arrests? No arrest warrants? They're only seizing domain names and not the supposed criminals? Stop and think about that a moment. Depriving someone of their livelihood on the presumption of guilt without actually trying the suspect is all right with you.
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average_joe (profile), 1 Dec 2010 @ 2:47pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Not physical goods
Yep, federal district court judges are appointed by the President and confirmed by the Senate for lifetime appointments. Magistrate judges are voted on by the district court judges and serve terms of 4 or 8 years, I think. Magistrate judges handle pretrial motions and such, and they can even hear entire cases if both sides consent, which they often do.
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Anonymous Coward, 1 Dec 2010 @ 2:51pm

Re: Re: Re: Re: Re:
.torrent = .crime
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chillienet (profile), 1 Dec 2010 @ 3:00pm

Re: Re: Re: Re: Re:
"The difference is that neutral search engines can be used incidentally to locate illicit materials, while the torrent search engines are dedicated to the task."

Are you seriously suggesting that all torrents contain illicit materials?
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Anonymous Coward, 1 Dec 2010 @ 3:16pm

Re: Re: Re: Re: Due process is not the problem
So you think that blocking an entire websight because some user posted a link to an allegedly copyright infringing file is sensible?

oh and ... equating a URL to actual cocaine? really?
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average_joe (profile), 1 Dec 2010 @ 3:18pm

Re: Re: Re: Re: Re: Re:
Are you seriously suggesting that all torrents contain illicit materials?

We're talking about the sites that do, aren't we?
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btr1701 (profile), 1 Dec 2010 @ 3:19pm

Re: Dur process is not the problem
> Imagine if, instead of domain names, we were talking about cocaine.
> Should the cops have to wait until the conclusion of a trial before
> seizing cocaine pursuant to a seizure warrant?

Cocaine is contraband-- illegal on its face. Domain names are not. Therefore, the analogy is invalid.

And cops don't even need a seizure warrant to seize cocaine from someone.
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ChimpBush McHitlerBurton, 1 Dec 2010 @ 3:20pm

Re: Re:
You said "sheeple"

CBMHB
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btr1701 (profile), 1 Dec 2010 @ 3:22pm

Re: Re: Dur process is not the problem
> 18 U.S.C. 2323 allows for the seizure of "any property used, or
> intended to be used, in any manner or part to commit or facilitate
> the commission of" criminal copyright infringement.

And since when did the USA get to pass laws that bind the whole world?

Last time I checked, 18 U.S.C. 2323 didn't apply in Belize or New Zealand or Mongolia.
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btr1701 (profile), 1 Dec 2010 @ 3:24pm

Re: Re: Re: Re: Due process is not the problem
> Another reason is prevent that property's continued use in the
> furtherance of a crime, and that's what I think is happening here.

What crime is being committed by running a search engine that finds links to content?

Please provide a legal citation to the code and section that's being violated.
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average_joe (profile), 1 Dec 2010 @ 3:24pm

Re: Re: Re: Re: Re: Due process is not the problem
So you think that blocking an entire websight because some user posted a link to an allegedly copyright infringing file is sensible?

We don't really know what evidence they came up with in determining whether or not to seize a certain domain name, so it's hard to say really. Clearly the prosecutor thought there was criminal infringement occurring and the judge agreed.

oh and ... equating a URL to actual cocaine? really?

I wasn't equating them, I was making an analogy. Taking the speed boat of the smuggler is like taking the domain name of the infringer in that they are both tools the criminals use.
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average_joe (profile), 1 Dec 2010 @ 3:28pm

Re: Re: Re: Re: Re: Due process is not the problem
17 U.S.C. 506 and 18 U.S.C. 2319 are the starting points for criminal copyright infringement.
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average_joe (profile), 1 Dec 2010 @ 3:30pm

Re: Re: Re: Re:
You keep saying things like this, and yet why are there no arrests? No arrest warrants? They're only seizing domain names and not the supposed criminals? Stop and think about that a moment. Depriving someone of their livelihood on the presumption of guilt without actually trying the suspect is all right with you.

It's not a presumption of guilt, it's a showing of probable cause to a judge who signs off on it.
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btr1701 (profile), 1 Dec 2010 @ 3:32pm

Re: Law
> I think you guys are getting a bit too worked up. He's right: The feds
> don't warn you before they execute a warrant on you. They
> investigate, determine if there's probable cause, have a neutral
> magistrate sign off on it, and then execute the warrant.

I *am* a fed and that's nonsense. Of course you don't warn someone ahead of time if you're executing a search or arrest warrant but those things are just the first step in the process. After you conduct the search or make the arrest, the defendant has the right to defend himself at trial. And if it's a seizure warrant, you don't get to just walk in and seize someone's home or car and walk away. You have to give them a hearing to defend themselves against the seizure and if the government can't prove its case, they get the property back.

Here there are no trials or hearings. Just an accusation from some record company or movie studio that "that web site has our stuff" or even "that web site it talking about our stuff" and we don't like it! So then the government just takes it. No subsequent hearing to determine if the taking was valid, or if there really *was* copyrighted material on it, or if there's any affirmative defenses applicable (e.g., fair use), nothing.

It's the very antithesis of due process.

And that doesn't even touch the jurisdictional issues involved with the US seizing domains belonging to foreign citizens in foreign countries for violating US law, which they aren't even subject to in the first place.
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average_joe (profile), 1 Dec 2010 @ 3:33pm

Re: Re: Re: Dur process is not the problem
And since when did the USA get to pass laws that bind the whole world?

Last time I checked, 18 U.S.C. 2323 didn't apply in Belize or New Zealand or Mongolia.

Who said they bind internationally? I don't really follow you.
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btr1701 (profile), 1 Dec 2010 @ 3:38pm

Re: Re: Re:
> They can seize the property whether or not criminal charges are ever filed.

The person is still entitled to a hearing as to whether the seizure was valid and the burden is on the government to prove it so.

Seems like that's not being followed in these domain name cases.
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average_joe (profile), 1 Dec 2010 @ 3:40pm

Re: Re: Law
I *am* a fed and that's nonsense. Of course you don't warn someone ahead of time if you're executing a search or arrest warrant but those things are just the first step in the process. After you conduct the search or make the arrest, the defendant has the right to defend himself at trial. And if it's a seizure warrant, you don't get to just walk in and seize someone's home or car and walk away. You have to give them a hearing to defend themselves against the seizure and if the government can't prove its case, they get the property back.

Here there are no trials or hearings. Just an accusation from some record company or movie studio that "that web site has our stuff" or even "that web site it talking about our stuff" and we don't like it! So then the government just takes it. No subsequent hearing to determine if the taking was valid, or if there really *was* copyrighted material on it, or if there's any affirmative defenses applicable (e.g., fair use), nothing.

It's the very antithesis of due process.

Nonsense. People with ownership or possessory interests in the domain names can have their day in court. They are allowed to an adversary hearing on the merits. How you can suggest otherwise is beyond me.

And that doesn't even touch the jurisdictional issues involved with the US seizing domains belonging to foreign citizens in foreign countries for violating US law, which they aren't even subject to in the first place.

I imagine that any foreign-owned property that is determined to be used for crime that happens to be in the U.S. is subject to seizure.
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btr1701 (profile), 1 Dec 2010 @ 3:40pm

Re: Re: Re: Re: Re: Re: Due process is not the problem
> 17 U.S.C. 506 and 18 U.S.C. 2319 are the starting points for criminal
> copyright infringement.

Okay, and under those statutes, point out to me the part that criminalizes linking to a site that links to a site where infringement occurs.

Or, in other words, point out where in the code third party criminal liability attaches merely for talking about sites that talk about other sites where infringing material exists.
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btr1701 (profile), 1 Dec 2010 @ 3:41pm

Re: Re: Re: Re: Dur process is not the problem
> Who said they bind internationally? I don't really follow you.

Not all of the domain names seized resolve to sites in the USA.
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average_joe (profile), 1 Dec 2010 @ 3:42pm

Re: Re: Re: Re:
The person is still entitled to a hearing as to whether the seizure was valid and the burden is on the government to prove it so.

Seems like that's not being followed in these domain name cases.

Of course they will get a hearing. Relax.
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average_joe (profile), 1 Dec 2010 @ 3:47pm

Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
Okay, and under those statutes, point out to me the part that criminalizes linking to a site that links to a site where infringement occurs.

Or, in other words, point out where in the code third party criminal liability attaches merely for talking about sites that talk about other sites where infringing material exists.

Are you familiar with how conspiracy and accomplice liability works in the criminal law?
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average_joe (profile), 1 Dec 2010 @ 3:49pm

Re: Re: Re: Re: Re: Dur process is not the problem
Not all of the domain names seized resolve to sites in the USA.

Right, but the property, i.e. the domain name, is in the U.S., and that property was seized.
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btr1701 (profile), 1 Dec 2010 @ 3:51pm

Re: Re: Re: Law
> Nonsense. People with ownership or possessory interests in the
> domain names can have their day in court

Not according to everything we've heard from ICE to date.

> How you can suggest otherwise is beyond me.

I can suggest it because it hasn't happened for the people involved, nor is it scheduled to. If that's beyond you, I'm not sure how I can help at this point.

> I imagine that any foreign-owned property that is determined to be
> used for crime that happens to be in the U.S. is subject to seizure.

Interesting theory. Now exactly how do we determine where an intangible item that has no physical substance (like a domain name) is located?

The logical way would be to say the domain name exists wherever the site it resolves to is hosted but... let me guess... we're not going to do that, are we? We're going to just declare that all domain names exist in America because that allows ICE to seize them, right?

I wonder what's gonna happen when other countries start trying to do this to American web sites?

Germany and France have laws that make Holocaust denial a crime. In America, that's not only legal, it's protected speech. Should they be allowed to seize domain names of American web sites, which are perfectly legal in America, for violating German law? Should France be able to define the limits of free speech on the internet for everyone?

How about Iran or Syria? Being fundamentalist Islamic states, I'm sure they have all sorts of laws about what is and is not allowed on the internet. Should they be allowed to seize domain names of anyone who violates them?

Or is this another case of "it's okay when the USA does it, but no one else is allowed to"?
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btr1701 (profile), 1 Dec 2010 @ 3:54pm

Re: Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
> Are you familiar with how
> conspiracy and accomplice
> liability works in the criminal
> law?

Quite familiar. More so than you, apparently.

One significant element of conspiracy is that the conspirators have to know each other and agree amongst themselves to commit the predicate offense.

Hardly the case here.

Would you like to try again?
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btr1701 (profile), 1 Dec 2010 @ 3:55pm

Re: Re: Re: Re: Re:
> > The person is still entitled to a hearing as to
> > whether the seizure was valid and the burden
> > is on the government to prove it so.

> > Seems like that's not being followed in these
> > domain name cases.

> Of course they will get a hearing. Relax.

Other than just your say so, on what evidence do you base your claim?
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btr1701 (profile), 1 Dec 2010 @ 3:58pm

Re: Re: international
> However, under COICA, they would be able to "get to" addresses
> that are outside of the U.S. in a roundabout way.

And how do you feel about that?
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average_joe (profile), 1 Dec 2010 @ 4:13pm

Re: Re: Re: Re: Law
Not according to everything we've heard from ICE to date.

Really? Did ICE say that the domain name owners would never get their day in court? I must have missed that.

I can suggest it because it hasn't happened for the people involved, nor is it scheduled to. If that's beyond you, I'm not sure how I can help at this point.

How much time does the prosecutor have to initiate the proceedings? That's the question. Just because it hasn't happened yet doesn't mean it's not happening.

Interesting theory. Now exactly how do we determine where an intangible item that has no physical substance (like a domain name) is located?

It's property just like any other property, no?

The logical way would be to say the domain name exists wherever the site it resolves to is hosted but... let me guess... we're not going to do that, are we? We're going to just declare that all domain names exist in America because that allows ICE to seize them, right?

I dunno. You tell me.
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average_joe (profile), 1 Dec 2010 @ 4:17pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
Quite familiar. More so than you, apparently.

One significant element of conspiracy is that the conspirators have to know each other and agree amongst themselves to commit the predicate offense.

Hardly the case here.

Would you like to try again?

Drop the attitude, please, or else I'll find someone else to chat with.

I was throwing out conspiracy and accomplice liability as ways that these website operators could be criminally liable. Obviously the accomplice liability fits your hypo, not the conspiracy liability. Do you agree that they could be liable as accomplices?
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average_joe (profile), 1 Dec 2010 @ 4:17pm

Re: Re: Re: Re: Re: Re:
Other than just your say so, on what evidence do you base your claim?

Um, because that's how seizures work.
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average_joe (profile), 1 Dec 2010 @ 4:19pm

Re: Re: Re: international
And how do you feel about that?

Works for me. How about you?
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Any Mouse, 1 Dec 2010 @ 4:19pm

Re: @18
Still struggling with capitalization, punctuation, and spelling, I see?
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DS, 1 Dec 2010 @ 4:21pm

Re: Re: Re:
True, but it was done as a way to talk about the word itself. I could have said S-word, but would that of been any better?
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DS, 1 Dec 2010 @ 4:24pm

Re: Re: Re:
Yaa maaaann.. stick it to the government maaaannnn...

No, you are a douche who thinks that they are better than "the average person".

Doubly so when you randomly decide to call me a "sheeple" as well without knowing anything about me.

Someday when you are not living under the protection of Mom & Dad you just may grow up.
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Any Mouse, 1 Dec 2010 @ 4:44pm

Re: Re: Re: Re: Re:
You use probable cause to search a home or car, not to deny someone legal income or their first amendment speech. I understand exactly what you are saying, but I disagree that any of this is at all right or moral. Just because 'the law supports it' doesn't make it right. Certainly doesn't make it just.
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Any Mouse, 1 Dec 2010 @ 4:49pm

Re: Re: Re: Re: Re: Law
'How much time does the prosecutor have to initiate the proceedings? That's the question. Just because it hasn't happened yet doesn't mean it's not happening.'

For a seizure of property? The hearing should logically be BEFORE said property is forfeited. To do otherwise is an aberration of 'innocent until proven guilty,' and no matter how you hash it out, that pretty much stands in the public mind.
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average_joe (profile), 1 Dec 2010 @ 4:52pm

Re: Re: Re: Re: Re: Re: Law
For a seizure of property? The hearing should logically be BEFORE said property is forfeited. To do otherwise is an aberration of 'innocent until proven guilty,' and no matter how you hash it out, that pretty much stands in the public mind.

You don't need a full-blown hearing to seize a person, i.e., to arrest them. Why would you need one to seize property?
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athe, 1 Dec 2010 @ 6:54pm

Re: Re: Re: Re: international
AMERICA!!!! F*@K YEAH!!!!!!!!
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Anonymous, 1 Dec 2010 @ 7:29pm

Re: "Why are our tax dollars being used to protect legacy entertainment industry companies that refuse to adapt?"
You are correct.

I'll never understand the people that are unable to grasp this important point.
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Anonymous, 1 Dec 2010 @ 7:33pm

Re: Re: Re: Re: Re: Re: Due process is not the problem
Joe- thank you very much for your posts here. There are so many incorrect opinions about the law thrown up on this site that your commentary is absolutely crucial.
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average_joe (profile), 1 Dec 2010 @ 7:38pm

Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
Joe- thank you very much for your posts here. There are so many incorrect opinions about the law thrown up on this site that your commentary is absolutely crucial.

Thanks. I'm trying to "keep it real." I'm trying to keep it positive too, but enough about my medication management. :)
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Anonymous, 1 Dec 2010 @ 7:49pm

Re: Re: Re: Re: Re:
I see this line of defense all the time on this blog, and I'm going to tell you right now, it won't work.

Stick to it all you want, but the courts will laugh at you if you do.

We all know what's happening on these sites.

The easiest solution is to not break the law.
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Anonymous, 1 Dec 2010 @ 7:55pm

Re: Im just not sure
It's already been pointed out many times that this is US Customs at work. In a bureaucratic organizational move, US Customs, and 20+ other agencies, were grouped under the DHS umbrella in the early 2000s.

Masnick likes to call it 'Homeland Security' in order to further his agenda and incite fear.
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average_joe (profile), 1 Dec 2010 @ 7:57pm

Re: Just because you can, doesn't mean you should.
Being caught with a boat full of dope != Having a website which might aid someone in finding infringing material. To use the same yardstick, and say that there should be more seizures is a failure to understand the scale and scope of this issue. I don't believe you can make an argument that your 1st amendment rights are being violated because your boat full of dope got seized. However, in the case of a website, that issue is a lot less clear cut.

Does the DEA let the beer industry tell them that a particular white powdery substance is cocaine? Do they make announcements of big drug busts on the steps of the Anhueser-Busch headquarters? I think not.

You're allowing some fairly large leaps of faith by bureaucrats. Those same bureaucrats don't have a clear cut authority, and are taking advice from less than objective observers. If that's not enough to wait until the trial is done before you begin to seize anything, you are failing to understand the concept of rule of law. The rule of law is to keep the big guy with the stick from beating the little guy with no stick, just because he can.

I agree with you in that I think these seizures raise legitimate First Amendment issues. The balance between the First Amendment and the Copyright Clause is an interesting one. Throw in the Fourth and Fifth Amendments like we have here, and I'm making popcorn.

You bring up the idea that the "industry" is just telling the feds which sites they want taken down, and the feds follow orders. I don't think it's like that at all. I think the "industry" points out sites they don't like, and then the feds do their own investigation to decide independently which sites to go after. That's what the press release said anyway, and I've no reason to think otherwise.
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Anonymous, 1 Dec 2010 @ 7:59pm

Re: Just goes to show
It's already been pointed out many times that this is US Customs at work. In a bureaucratic organizational move, US Customs, and 20+ other agencies, were grouped under the DHS umbrella in the early 2000s.

Masnick likes to call it 'Homeland Security' in order to further his agenda and incite fear.
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Anonymous Coward, 1 Dec 2010 @ 8:01pm

"Why are our tax dollars being used to protect legacy entertainment industry companies that refuse to adapt?"

Because the government is too stupid to catch real criminals or terrorists (only the terrorists that they fabricated and entrapped themselves) so the only way they can look useful is to catch people who the industry alleges are infringers.
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average_joe (profile), 1 Dec 2010 @ 8:03pm

Re: Re: Re: Re: Re: international
LOL! Love that movie.
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btr1701 (profile), 1 Dec 2010 @ 8:16pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
> Do you agree that they could be liable as accomplices?

No, because again accomplices have to be acting in concert based on a planned criminal act.

Not the case here, either.
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btr1701 (profile), 1 Dec 2010 @ 8:18pm

Re: Re: Re: Re: Re: Re: Re:
> Um, because that's how seizures work.

Well, considering the property owner is entitled to a hearing within 14 days in a typical seizure case, the clock seems to be winding down for the government's case here.

They don't even have hearings scheduled for these domain name owners. Not exactly how seizures usually work.
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btr1701 (profile), 1 Dec 2010 @ 8:21pm

Re: Re: Re: Re: Re: Law
> Really? Did ICE say that the domain name owners would never get
> their day in court? I must have missed that.

No seizure hearings have been scheduled for the domain name cases to date. That's a departure from typical seizure cases.

> How much time does the prosecutor have to initiate the proceedings?

14 days.

> > Interesting theory. Now exactly how do we
> > determine where an intangible item that has no
> > physical substance (like a domain name) is located?

> It's property just like any other property, no?

No, obviously not.

> I dunno. You tell me.

I pretty much already have.
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btr1701 (profile), 1 Dec 2010 @ 8:25pm

Re: Re: Re: Re: Re: Re: Re: Law
> You don't need a full-blown hearing to seize a person, i.e., to
> arrest them. Why would you need one to seize property?

An arrest warrant isn't a seizure. Not unless they're auctioning off arrestees somewhere that I haven't heard of...

When someone is arrested, the state is required to present an indictment within 72 hours and then prove the person guilty beyond a reasonable doubt at trial.

If those steps were also required of property seizures, I don't think anyone here would be complaining.
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btr1701 (profile), 1 Dec 2010 @ 8:27pm

Re: Re: Re: Re: international
> > And how do you feel about that?

> Works for me. How about you?

That's what I figured you'd say. Since you ignored this point earlier, I'll reiterate it again and maybe get an answer this time:

I wonder what's gonna happen when other countries start trying to do this to American web sites?

Germany and France have laws that make Holocaust denial a crime. In America, that's not only legal, it's protected speech. Should they be allowed to seize domain names of American web sites, which are perfectly legal in America, for violating German law? Should France be able to define the limits of free speech on the internet for everyone?

How about Iran or Syria? Being fundamentalist Islamic states, I'm sure they have all sorts of laws about what is and is not allowed on the internet. Should they be allowed to seize domain names of anyone who violates them?

Or is this another case of "it's okay when the USA does it, but no one else is allowed to"?
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average_joe (profile), 1 Dec 2010 @ 8:47pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
No, because again accomplices have to be acting in concert based on a planned criminal act.

Not the case here, either.

The caselaw I've read confirms that anyone who incites, encourages, abets, or assists in the perpetration of a crime is a party to the crime and can be convicted as if they perpetrated the crime themselves. Accomplices are generally liable for the reasonably foreseeable results of the contemplated crime. Accomplices need not know each other personally, nor must they know the other even exists. Sounds like a perfect match here, IMO. Don't you think the operators of these sites knew "someone" was using them to commit a crime?

You don't think the website operators of such sites as torrent-finder and thepiratebay incite, encourage, abet, or assist in the perpetration of a crime? I think they clearly do. That's what those sites exist for, and we all know it.
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Karl (profile), 1 Dec 2010 @ 9:40pm

Re: Re: Re: Re: Re: Re: Re:
We're talking about the sites that do, aren't we?

That's circular logic.

You can't claim that "searching for torrents" is the same as intent to infringe, use that as a defense for shutting down torrent search sites, then say "they were infringing because they were shut down."

The fact that .torrent is a protocol. Searching for a torrent file is not, in and of itself, an intent to infringe. In other words, torrent-finder is also a "neutral search engine." It does not somehow disallow the search for legitimate content.

Weren't you the one that claimed record industries &etc. were not targeting a "technology," but a "use" of technology? Here is a clear-cut example where the technology itself is being targeted.

And, again, go to any search engine and type in "batman torrent." Count how many pages it links to, do not themselves link to infringing content. By your argument, then, that search engine is not "content neutral."
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chillienet (profile), 1 Dec 2010 @ 10:19pm

Re: Re: Re: Re: Re: Re: Re:
Specifically I was discussing http://torrent-finder.info/

After 3 quick searches on that site I can provide you with the following links, please point to me which torrent listed contain illicit material.

Public Domain - http://bit.ly/fiWagL
VODO - http://bit.ly/g74fCN
Ubuntu - http://bit.ly/fEiQK2
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chillienet (profile), 1 Dec 2010 @ 10:26pm

Re: Re: Re: Re: Re: Re: Re: Re:
Please note that these are not just 3 random searches, I have downloaded torrents from all 3 in the last few months. I recently downloaded piano sheet music for Chopin from the Public Domain section, I'm a huge supporter of VODO and am currently seeding 7 of their torrents, and I have recently started to play around with Ubuntu in an effort to move away from Windows.
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Karl (profile), 1 Dec 2010 @ 10:45pm

Re: Re: Re: Re:
But they index that particular file type for the purpose of making copyright infringement easier. That's why those sites exist.

The only thing torrent-finder does is allow users to search other websites for torrents (and it links to pages at those other websites, not to the torrent files themselves). It is, to use your words, "content neutral." The only reason you think its purpose is infringement, is because in your mind, "torrent" = "piracy."

Again, here you're singling out a technology as having no purpose other than "making copyright infringement easier." You're confusing the technology itself with what users do with that technology.

As for the "we all know it" comment: In the late 1990's, "we all knew" that DivX was only used to create infringing VCD's. It was common knowledge. Today, Hollywood studios regularly use their codec for film trailers, and indie filmmakers use it to distribute their films online. The codec is even built into most DVD players.

This also shows how Big Media has twisted the American thought process. They have pounded the notion that "torrent" = "theft" into our brain pans. Their goal was to equate file sharing (all file sharing) with "theft," so that they can blackmail an entire industry.

But since they've caused people to associate using torrents with downloading movies, that's what most people do. Thus, it becomes a self-fulfilling prophecy. In effect, Big Media has been unintentionally complicit in torrent piracy. "The chickens have come home to roost."
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bobb, 1 Dec 2010 @ 11:56pm

That Pesky Liberty Thing
Progressives and Government have been trying to do away with due process for over 100 years, it looks like they are winning.
That's why we need to know what our Constitution says and what the framers meant when they wrote it.
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Mike Masnick (profile), 2 Dec 2010 @ 12:47am

Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
There are so many incorrect opinions about the law

And the truth outs.

Anyone who has an opinion other than Mr. Anonymous is a "wrong opinion."

Funny. Meanwhile, you keep posting that I've somehow lied about ICE being a part of Homeland Security. For the fourth time this week, can you point out how that is, in any way, inaccurate?
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btr1701 (profile), 2 Dec 2010 @ 3:42am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
> Don't you
> think the
> operators of
> these sites
> knew
> "someone
> was
> using them
> to commit
> a crime?

No, because there was *no crime* being committed on many of these sites. All they did was talk about *other* sites (to which they had no connection whatsoever), which talked about still *other* sites. How far down the chain do you think someone should be liable if someone commits the horror of downloading a song? Should Masnick lose TechDirt for writing articles about the people who talked about the people who talked about the people who talked about the downloaders?

In any event, accomplice liability is something the state should have the burden to prove beyond a reasonable doubt before they can just take someone's property out from under them.

These people aren't "accomplices" any more than someone who is asked where they can score some pot and responds by telling him where the bad part of town is located is an accomplice to selling drugs. If the state tried to arrest someone as an "accomplice" for doing that, they'd be laughed out of court.
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Anonymous Coward, 2 Dec 2010 @ 4:13am

Re: Re: Re: Re:
[x] "Mother's basement"
[ ] "As bad as Hitler"
[x] Slangy personal attacks
[x] Equating your opponent's political statements to vagaries uttered by stoners
[ ] Misspellings

Congrats, you scored a lot of points on the internet argument checklist! Unfortunately you missed these items:

[ ] Making a cogent argument of your own that's insightful and interesting
[ ] Contributing to the conversation in any way whatsoever
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Anonymous Coward, 2 Dec 2010 @ 4:16am

Re: Re:
The REALLY important point that every other commenter missed:

If IP is not property then government authority doesn't need to protect it, either.
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Anonymous Coward, 2 Dec 2010 @ 4:20am

Re: Re: Re: Re: Re: Re: Re:
Circular reasoning
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Anonymous Coward, 2 Dec 2010 @ 4:23am

Re: Very cool
Even so, the government still wins an important victory: They intimidate us into giving up our rights, rather than fighting back for them. What we should do is make that alternate system AND assert that these domains are legitimate. Torrent trackers getting shut down shouldn't be moving permanently: They should be moving only as extra insurance, and fighting against the seizure on principle
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Anonymous Coward, 2 Dec 2010 @ 4:27am

Re: Re: Re: Re: Re: international
>How about Iran or Syria? Being fundamentalist Islamic states, I'm sure they have all sorts of laws about what is and is not allowed on the internet.

Funny you should mention that, because I was just reading an article where a woman was sentenced to death for blasphemy against Islam

Won't it be great when Draw Mohammed Day is not just silently censored by Facebook and Youtube, but involves American citizens being handed over to Pakistan for beheading?

http://www.telegraph.co.uk/news/newstopics/religion/8120142/Christian-woman-sentenced- to-death-in-Pakistan-for-blasphemy.html
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btrussell (profile), 2 Dec 2010 @ 4:39am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
"IF" Ubuntu becomes frustrating for any reason, I'd like to recommend PCLinuxOS.
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btrussell (profile), 2 Dec 2010 @ 4:54am

Re: Re: I have to disagree..
Some of the sites were back up in hours.

How did they get their "seized property" back so quickly?
Are the courts that fast now?
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Gabriel Tane (profile), 2 Dec 2010 @ 5:48am

Re: Re: Re: Re: Re: Re:
"I see this line of defense all the time on this blog, and I'm going to tell you right now, it won't work."

Your expert opinion is noted and filed appropriately.

"Stick to it all you want, but the courts will laugh at you if you do."

We'll just have to see won't we? And the courts have already decided in similar situations like this in the past. I'm tired of arguing case laws, so feel free to go back and read all the discussions on previous posts. I�m not going to be dragged back into that argument again. Go ahead and bring up Arcara vs Cloud Books since I know you're dying to. I'll dismiss it as already argued down to my satisfaction.

"We all know what's happening on these sites."

No, you have your judgementalist opinion of what's going on with these sites. And the fact that people who also share that over-zealous opinion are the ones telling the government to "sick'em!" is what's scary.

But you know, you're right. Let's all operate on what we "all know". We �all know� that all government officials are corrupt, so why don�t we get rid of them all. We �all know� that Catholic priests are really child molesters, so let�s get rid of them too. And hey, those black people in run-down neighborhoods� we �all know� that they are all hardened thug criminals, so hell, let�s just KILL them. See how silly such generalizations are?

"The easiest solution is to not break the law."

I truly hope you're not so naive to think that no innocent person has ever been wrongly accused of a crime. If so, my question of "what about the ones who aren't breaking the law" would be wasted. As much as you may not want to admit it (because it would seriously jeopardize your argument), there are legitimate uses for bittorents... there are legitimate search engines and discussion boards out there that are used for legal and illegal purposes outside the control of the hosts.

I am truly scared that you want to so quickly throw away basic free-speech rights and protections just to stop a few files from being downloaded. Especially since there are demonstrated legitimate uses for not only allowing files to be downloaded, but using these "pirate channels" as a distribution method to get files out to consumers.
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Gabriel Tane (profile), 2 Dec 2010 @ 5:59am

Re: Re: Just because you can, doesn't mean you should.
"You bring up the idea that the "industry" is just telling the feds which sites they want taken down, and the feds follow orders. I don't think it's like that at all. I think the "industry" points out sites they don't like, and then the feds do their own investigation to decide independently which sites to go after. That's what the press release said anyway, and I've no reason to think otherwise."

I hate the feeling of tinfoil on my head as much as the next (sane) person. And I agree that it's rarely as bad as the theorists would have us believe. However...

You say that the government looks at sites the industry points out and then runs their own investigation. Ok... but how much sway would the industry's money has on what the government sees when it looks into it?

I'm not saying that's the case. I am saying that there better be some damned good transparency and disclosure of evidence if the government wants to avoid whacking the conspiracy-hornet's nest with a big ol' stick.
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average_joe (profile), 2 Dec 2010 @ 6:00am

Re: Re: Re: Re: Re: Re: Re: Re:
Well, considering the property owner is entitled to a hearing within 14 days in a typical seizure case, the clock seems to be winding down for the government's case here.

They don't even have hearings scheduled for these domain name owners. Not exactly how seizures usually work.

And don't forget the seizures from June. I'm not aware of any of those seizures resulting in a hearing. Weird.
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average_joe (profile), 2 Dec 2010 @ 6:02am

Re: Re: Re: Re: Re: Re: Re: Re: Law
An arrest warrant isn't a seizure. Not unless they're auctioning off arrestees somewhere that I haven't heard of...

When someone is arrested, the state is required to present an indictment within 72 hours and then prove the person guilty beyond a reasonable doubt at trial.

If those steps were also required of property seizures, I don't think anyone here would be complaining.

Arrest warrants are seizures under the Fourth Amendment. That's been the case since the Constitution was enacted.
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average_joe (profile), 2 Dec 2010 @ 6:05am

Re: Re: Re: Re: Re: international
Sorry, I didn't mean to ignore you. When people bring up the Holocaust and such, I stop reading. Godwin's Law and all. It's not you, it's me. I just don't like going there.
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average_joe (profile), 2 Dec 2010 @ 6:09am

Re: Re: Re: Re: Re: Re: Re: Re:
That's circular logic.

You can't claim that "searching for torrents" is the same as intent to infringe, use that as a defense for shutting down torrent search sites, then say "they were infringing because they were shut down."

The fact that .torrent is a protocol. Searching for a torrent file is not, in and of itself, an intent to infringe. In other words, torrent-finder is also a "neutral search engine." It does not somehow disallow the search for legitimate content.

Weren't you the one that claimed record industries &etc. were not targeting a "technology," but a "use" of technology? Here is a clear-cut example where the technology itself is being targeted.

And, again, go to any search engine and type in "batman torrent." Count how many pages it links to, do not themselves link to infringing content. By your argument, then, that search engine is not "content neutral."

When I typed "Harry Potter" into torrent-finder and got thousands of hits that looked like illicit copies of Harry Potter movies, it didn't seem so "neutral" to me. How do I get torrent-finder to NOT return only illicit stuff?
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average_joe (profile), 2 Dec 2010 @ 6:13am

Re: Re: Re: Re: Re:
The only thing torrent-finder does is allow users to search other websites for torrents (and it links to pages at those other websites, not to the torrent files themselves). It is, to use your words, "content neutral." The only reason you think its purpose is infringement, is because in your mind, "torrent" = "piracy."

Again, here you're singling out a technology as having no purpose other than "making copyright infringement easier." You're confusing the technology itself with what users do with that technology.

As for the "we all know it" comment: In the late 1990's, "we all knew" that DivX was only used to create infringing VCD's. It was common knowledge. Today, Hollywood studios regularly use their codec for film trailers, and indie filmmakers use it to distribute their films online. The codec is even built into most DVD players.

This also shows how Big Media has twisted the American thought process. They have pounded the notion that "torrent" = "theft" into our brain pans. Their goal was to equate file sharing (all file sharing) with "theft," so that they can blackmail an entire industry.

But since they've caused people to associate using torrents with downloading movies, that's what most people do. Thus, it becomes a self-fulfilling prophecy. In effect, Big Media has been unintentionally complicit in torrent piracy. "The chickens have come home to roost."

Does torrent-finder get used to commit crimes? Wasn't it set up for just that purpose? I don't think torrent=piracy. I do think torrent-finder=piracy. Fifteen seconds on that site and that much was clear.
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average_joe (profile), 2 Dec 2010 @ 6:17am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
No, because there was *no crime* being committed on many of these sites. All they did was talk about *other* sites (to which they had no connection whatsoever), which talked about still *other* sites. How far down the chain do you think someone should be liable if someone commits the horror of downloading a song? Should Masnick lose TechDirt for writing articles about the people who talked about the people who talked about the people who talked about the downloaders?

In any event, accomplice liability is something the state should have the burden to prove beyond a reasonable doubt before they can just take someone's property out from under them.

These people aren't "accomplices" any more than someone who is asked where they can score some pot and responds by telling him where the bad part of town is located is an accomplice to selling drugs. If the state tried to arrest someone as an "accomplice" for doing that, they'd be laughed out of court.

I don't really know enough about the sites that were seized to say what went on there. Clearly the prosecutor thought they were being used for crimes, and the judge agreed.

If you ask me where to score pot, and I help you score some, then I'm an accomplice. That's what they teach in law school anyway.
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average_joe (profile), 2 Dec 2010 @ 6:19am

Re: Re: Re: I have to disagree..
Some of the sites were back up in hours.

How did they get their "seized property" back so quickly?
Are the courts that fast now?

The domain names went back up in hours? I doubt that.
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Voodoo Idol, 2 Dec 2010 @ 6:50am

Re: Dur process is not the problem
Um, no. Typically, when it comes to copyright infringement, a seizure warrant will be issued to seize the offending material - not the entire store. The web site is the store, the contents are the product. All they needed to do was gain FTP access to the site, download it, remove the offending material, and upload the modified site.
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Killer_Tofu (profile), 2 Dec 2010 @ 6:58am

Re: Re: Re: Re: Re: Re: Not physical goods
I don't doubt that. You speak intelligently, even if I do not agree with your points or conclusions all the time.
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Anonymous Coward, 2 Dec 2010 @ 8:04am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
"When I typed "Harry Potter" into torrent-finder and got thousands of hits that looked like illicit copies of Harry Potter movies, it didn't seem so "neutral" to me. How do I get torrent-finder to NOT return only illicit stuff?"

And again, if you go type "Harry Potter torrent" into any search engine, you'll get a similar list. I'm not sure why this is so difficult to follow.
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Anonymous Coward, 2 Dec 2010 @ 8:06am

Re: Re: Just goes to show
It's fun watching your desperate flailing. Thanks.
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average_joe (profile), 2 Dec 2010 @ 8:55am

I remembered the caselaw I mentioned above dealing with torrent search engines. It was the isohunt/torrentbox case, Columbia Pictures v. Fung. The court held that Fung induced infringement and therefore lost his safe harbor under Section 512 of the DMCA.

Eric Goldman's blog entry: http://blog.ericgoldman.org/archives/2009/12/torrent_sites_i.htm

The court's decision: http://www.wired.com/images_blogs/threatlevel/2009/12/fungruling.pdf
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btr1701 (profile), 2 Dec 2010 @ 9:11am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
> If you
> ask me
> where
> to score
> pot, and
> I help
> you score
> some, then
> I'm an
> accomplice.

Merely pointing out the general area where pot is sold in a city cannot (and never has) been legally sufficient to hold someone criminally liable as an accomplice in the sale of illegal drugs.

But apparently these long-established rules and precedents have no meaning the moment some record label feels their copyrights are being infringed.
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average_joe (profile), 2 Dec 2010 @ 9:12am

Re: Re: Re: Re: Re: Re: Re: Re:
Well, considering the property owner is entitled to a hearing within 14 days in a typical seizure case, the clock seems to be winding down for the government's case here.

They don't even have hearings scheduled for these domain name owners. Not exactly how seizures usually work.

The statute governing these civil forfeiture proceedings is 18 U.S.C. 981. I didn't see anything in there about 14 days. It did mention that the proceedings could be stayed in the government requests it because the investigation is ongoing. Such stays can be granted ex parte. That's my guess as to what's happening here.
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btr1701 (profile), 2 Dec 2010 @ 9:14am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Law
> Arrest warrants
> are seizures
> under the
> Fourth
> Amendment.

They're not seizures the way the word is used in the context of this discussion. We're talking civil asset forfeiture here. An entirely different legal animal with an entirely different set of standards than the type of "seizure" conducted under an arrest warrant.
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average_joe (profile), 2 Dec 2010 @ 9:21am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
Merely pointing out the general area where pot is sold in a city cannot (and never has) been legally sufficient to hold someone criminally liable as an accomplice in the sale of illegal drugs.

But apparently these long-established rules and precedents have no meaning the moment some record label feels their copyrights are being infringed.

I just went into torrent-finder and did a search, and it didn't point me to the "general area" of where the torrent is, it took directly to the torrent. I don't think your analogy quite works. The torrent search engines would be kind of useless if they just pointed you to the "general area" of the torrent, no?
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btr1701 (profile), 2 Dec 2010 @ 9:21am

Re: Re: Re: Re: Re: Re: international
> When people bring up the Holocaust and
> such, I stop reading. Godwin's Law and all.

That Godwin nonsense has just become a tired and all-too convenient out for people to avoid an issue they don't want to discuss. In any event, it doesn't even apply here because I didn't actually bring Nazis into the conversation. I wasl talking about modern laws in France and Germany that criminalize people's speech and conduct regarding what happened there half a century ago.

But hey, if it makes you feel more comfortable, go ahead and skip past the Holocaust bit and focus on the Islamic fuindamentalist part.

The issue is the same regardless. When you legitmize the attempts of one country to impose its laws on every citizen of the world, you can't then turn around and complain when other countries jump on board and do the same.
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average_joe (profile), 2 Dec 2010 @ 9:26am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Law
They're not seizures the way the word is used in the context of this discussion. We're talking civil asset forfeiture here. An entirely different legal animal with an entirely different set of standards than the type of "seizure" conducted under an arrest warrant.

A seizure made pursuant to a seizure warrant signed by a judge after a showing of probable cause in these forfeiture cases is a seizure under the Fourth Amendment.

An arrest made pursuant to an arrest warrant signed by a judge after a showing of probable cause is also a seizure under the Fourth Amendment.

Yes, arrests and civil forfeitures are obviously different, but both undeniably involve seizures under the Fourth Amendment.

I'm not really sure how we got on this line of discussion, though. Seems kind of beside the point to me.
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average_joe (profile), 2 Dec 2010 @ 9:37am

Re: Re: Re: Re: Re: Re: Re: international
I'm not really sure where you're going with this. Are you saying that the U.S. did not have jurisdiction to seize this property?
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faststeak (profile), 2 Dec 2010 @ 12:06pm

Re: Re: Just because you can, doesn't mean you should.
I also don't believe the the the industry is giving orders and the ICE folks just blindly take websites down. But I still think that taking the sites down before a trial is unwarranted (in the extreme, with expletives added).

The government seizing anything, from anyone, for any purpose, is bad. The only way they should be allowed to proceed with this bad act, is to prove that it will prevent worse acts if the item(s) weren't seized. In some cases, possession of the thing to be seized and the circumstances are enough to justify the seizure. The Navy seizing said boat full of cocaine as is transits the Caribbean towards Florida for instance.

A website that might provide access to infringing (but legal to consume/listen to/watch) material is so far from that boat in magnitude. Seizing it before a trial has been held to actually establish guilt? What wrong(s) did the seizure prevent? Isn't the damage to the 1st and 4th Amendments a much greater wrong than the possible infringement? Then add to these circumstances the clear connection to the "wronged" industry. It adds up poorly if you like your civil rights.
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btr1701 (profile), 2 Dec 2010 @ 12:35pm

Re: Re: Re: Re: Re: Re: Re: Re: international
> I'm not really sure where you're
> going with this. Are you saying
> that the U.S. did not have jurisdiction
> to seize this property?

No, I'm responding to your comment about COICA and how it "works for you" that (if it's passed) the USA will be able to "get to" web sites located in other countries, even if the owners of those web sites aren't breaking any law in the country in which they're located.

Will it "work for you" when other countries start trying to impose their laws on US citizens who are not only not breaking any US law but are engaging in conduct that is protected by the Bill of Rights?

Or to put it more broadly, will it "work for you" that the inevitable conclusion of setting such a precedent is that the most oppressive governments in the world will be the ones defining the limits on speech and conduct on the internet for every person on earth?

Why would the US get to impose its laws worldwide but China can't?
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techflaws.org (profile), 2 Dec 2010 @ 12:48pm

Re: Re: Re:
"These domain names are being used to commit crimes"

Says who? You? The entertainment industry? How very convincing.
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average_joe (profile), 2 Dec 2010 @ 12:55pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: international
Gotcha. It's hard to follow along when you aren't reading things in threaded view. The threaded view is pretty much unusable for me on my netbook with its tiny screen.

Yeah, it works for me. Sorry if you don't approve. I don't share your apparent pessimism, and I'm OK with it.
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average_joe (profile), 2 Dec 2010 @ 12:58pm

Re: Re: Re: Re:
Says who? You? The entertainment industry? How very convincing.

In the case of these seizures, the prosecutor thought there was probable cause that the sites were being used to commit crimes, and the judge agreed, hence the warrant.

I looked at torrent-finder, did a quick search, and it looked like the site was dedicated to infringement to me. Have you been there? What do you think?
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btrussell (profile), 2 Dec 2010 @ 1:48pm

Re: Re: Re: Re: Re:
Looked like a torrent search engine to me.

There does appear to be infringing works on the net, which it finds.

Did the entertainment industry put works up to entrap people?

Are you sure the content is what the title says it is?
I'll bet you can't tell until you download the complete file.
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average_joe (profile), 2 Dec 2010 @ 2:05pm

Re: Re: Re: Re: Re: Re:
Looked like a torrent search engine to me.

There does appear to be infringing works on the net, which it finds.

Did the entertainment industry put works up to entrap people?

Are you sure the content is what the title says it is?
I'll bet you can't tell until you download the complete file.

It's pretty obvious torrent-finder exists for the primary purpose of assisting infringement. You can dance around it all you want, but I'm not buying it.
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btr1701 (profile), 2 Dec 2010 @ 2:29pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: international
> Yeah, it works for me.

What exactly?

The idea that USA apparently thinks it has jurisdiction over the entire world?

Or the notion that the most repressive countries on earth will be able to dictate the limits of our freedoms regardless of what our laws and Constitution say?

Or both?
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average_joe (profile), 2 Dec 2010 @ 2:31pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: international
What exactly?

The idea that USA apparently thinks it has jurisdiction over the entire world?

Or the notion that the most repressive countries on earth will be able to dictate the limits of our freedoms regardless of what our laws and Constitution say?

Or both?

I don't agree with either of those assertions. What "works for me" is a bill like COICA. I'm just not as doom and gloom about it as some others are.
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Zacqary Adam Green (profile), 2 Dec 2010 @ 2:42pm

Ah, I see now.

Mike, this isn't 1984-esque deliberate fascism, it's Brazil-esque incompetence. What's happening is that the government actually doesn't have any idea that there's a difference between a physical object, like illegal narcotics, and an intangible no�morphic concept, like a domain name.

It's the same thought process that leads to copying being declared "theft": the government doesn't have a malicious intent, it just doesn't understand the laws of physics.
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chillienet (profile), 2 Dec 2010 @ 2:43pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
"How do I get torrent-finder to NOT return only illicit stuff?"
Did you look below at my reply?
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chillienet (profile), 2 Dec 2010 @ 2:47pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Cheers, as I'm not yet attached to Ubuntu I'll give PCLinuxOS a shot.
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A Real American, 2 Dec 2010 @ 3:38pm

You must be confused. The America you are thinking of died a long, long time ago. Today it is the United States of, by, and for the Corporations. Freedom is just a saying, it no longer has any actual meaning. You belong to the Corporations, and they will do whatever they like to you.
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A Real American, 2 Dec 2010 @ 3:38pm

You must be confused. The America you are thinking of died a long, long time ago. Today it is the United States of, by, and for the Corporations. Freedom is just a saying, it no longer has any actual meaning. You belong to the Corporations, and they will do whatever they like to you.
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Karl (profile), 2 Dec 2010 @ 3:49pm

Re: Re: Re: Re: Re: Re:
Does torrent-finder get used to commit crimes?

If you mean it's used to infringe copyrights, I'm sure it is, just like every search engine is. Whether their users are committing criminal infringement is a different story, but I'd say it's not very likely.

Wasn't it set up for just that purpose?

How would you know why it was set up? Do you have any actual evidence that it was, other than a whole fifteen seconds of browsing?

I don't think torrent=piracy. I do think torrent-finder=piracy.

If using torrents isn't piracy, why would finding torrents be piracy? It's legal to torrent a Linux distribution, but it's illegal to search for that torrent?

Again: the only reason you think it's "infringement" is because it has the word "torrent" in its name. That says a lot about your (and the public's) perception of torrents, and nothing else.

Tell me: how do you think a site like torrent-finder could possibly work within the bounds of the law? It doesn't host, or directly link to, torrent files. It can't obey a DMCA request, because it can't "take down" what it never put up in the first place. There's no law that says they have to filter their search terms (thankfully, since that would be overt censorship).

Not only is it a leap to call it "criminal infringement," it's not even clear that it's infringement at all under current laws.
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Karl (profile), 2 Dec 2010 @ 3:56pm

Re:
You do realize that torrent-finder is not doing the same thing as Isohunt, right? Isohunt hosted torrent files and ran a tracker. Torrent-finder does neither. It doesn't even link directly to torrent files on third-party websites.
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Karl (profile), 2 Dec 2010 @ 4:03pm

Re:
Also, it would be appropriate to quote Eric Goldman's final paragraph:

Overall, I believe this opinion reflects an ongoing strain of P2P doctrinal exceptionalism. I can rationalize the Napster ruling (and the many cases trying to follow in its footsteps) only by concluding that P2P copyright law irreconcilably deviates from mainstream copyright law. We have P2P copyright law on the one hand, and mainstream copyright law on the other, and it simply isn�t possible to harmonize them.
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btrussell (profile), 2 Dec 2010 @ 6:07pm

Re: Re: Re: Re: Re: Re: Re:
It is obvious to me that the internet exists for the primary purpose of sharing.
Don't like it? Lock up your IP. How much value does it have now?
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btrussell (profile), 2 Dec 2010 @ 8:08pm

Re: Re: Re: Re: I have to disagree..
All they do is redirect traffic to one of their sites.
Nothing is "seized." You can access the sites by typing the IP address.
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btr1701 (profile), 2 Dec 2010 @ 8:53pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: international
> I don't agree with either of those assertions.

Odd, because that's exactly what COICA does: it purports to extend US jurisdiction over every web site in the world, and at the same sets the precedent that countries can enforce their domestic laws worldwide.
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joe blow, 2 Dec 2010 @ 10:35pm

Why govt works for hollywood
"Why are our tax dollars being used to protect legacy entertainment industry companies that refuse to adapt?"

Because the same people that run the entertainment industry run the American government.
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Karl (profile), 3 Dec 2010 @ 2:36am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
I just went into torrent-finder and did a search, and it didn't point me to the "general area" of where the torrent is, it took directly to the torrent.

Please show me what you did, because when I went there, it wouldn't do that.

Here's what I did:
1. Typed in "batman" and hit "search."
2. torrent-finder.info returned table with a bunch of metadata about torrents.
3. I click on one of the torrent names. A third-party website (btjunkie) is loaded, contained within torrent-finder's frameset.

That's all that happened. At no point was I offered the torrent file directly. Unless I missed something?

Now, compare that to doing a Google search for "batman filetype:torrent". How is it any different?
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average_joe (profile), 3 Dec 2010 @ 6:53am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: international
Odd, because that's exactly what COICA does: it purports to extend US jurisdiction over every web site in the world, and at the same sets the precedent that countries can enforce their domestic laws worldwide.

I disagree. Websites whose predominant effects are felt in the U.S. are already subject to U.S. jurisdiction, even if registered and hosted abroad. I'm sure you're familiar with long-arm statutes.

Playboy Entertainment v. Chuckleberry Publishing: district court held that Italian website infringing on Playboy's trademark was subject to jurisdiction in New York.

Yahoo v. LICRA: Ninth Circuit held that French groups were under U.S. jurisdiction because there were sufficient contacts in the U.S.

It works the other way too.

Dow Jones & Co. v. Gutnick: High Court of Australia subjected Dow Jones to suit in Australia for defamation over a posting made on Dow Jones's U.S.-based server.

Richardson v. Schwarzenegger: United Kingdom's High Court of Justice held that the Govinator's campaign manager could be sued for defamation in England for comments made in the U.S.
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average_joe (profile), 3 Dec 2010 @ 6:54am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Did you look below at my reply?

Missed it. Which number is it if you're looking in flattened view?
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average_joe (profile), 3 Dec 2010 @ 6:58am

Re: Re:
You do realize that torrent-finder is not doing the same thing as Isohunt, right? Isohunt hosted torrent files and ran a tracker. Torrent-finder does neither. It doesn't even link directly to torrent files on third-party websites.

Sure, it's not a perfect fit on the facts, but I think the court's analysis is very instructive in looking at sites like torrent-finder. The analysis doesn't necessarily turn on whether or not the site hosts the torrent files or not.
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average_joe (profile), 3 Dec 2010 @ 7:01am

Re: Re:
Also, it would be appropriate to quote Eric Goldman's final paragraph:

Overall, I believe this opinion reflects an ongoing strain of P2P doctrinal exceptionalism. I can rationalize the Napster ruling (and the many cases trying to follow in its footsteps) only by concluding that P2P copyright law irreconcilably deviates from mainstream copyright law. We have P2P copyright law on the one hand, and mainstream copyright law on the other, and it simply isn�t possible to harmonize them.

All that says to me is that P2P sites have a tougher hill to climb. Doesn't that hurt your argument?
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average_joe (profile), 3 Dec 2010 @ 7:04am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
Please show me what you did, because when I went there, it wouldn't do that.

Here's what I did:
1. Typed in "batman" and hit "search."
2. torrent-finder.info returned table with a bunch of metadata about torrents.
3. I click on one of the torrent names. A third-party website (btjunkie) is loaded, contained within torrent-finder's frameset.

That's all that happened. At no point was I offered the torrent file directly. Unless I missed something?

Now, compare that to doing a Google search for "batman filetype:torrent". How is it any different?

Where does it say that liability turns on whether a site "offered the torrent file directly"? Courts are going to look at the totality of the circumstances, and that is but one piece. Google is different because it's ability to search for illicit files is merely incidental.
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average_joe (profile), 3 Dec 2010 @ 7:14am

Re: Re: Re: Re: Re: Re: Re:
Answer me this, Karl. In your opinion, do you think the majority of torrent-finder's traffic is for infringement or for legitimate purposes? Just give me your honest best guess. Obviously we aren't in a position to know for sure.

I'm not sure that a site like torrent-finder which intentionally aggregates hundreds of piracy sites is ever going to be able to operate legally. I'm not losing any sleep over it, that's for sure.

The problem is that all torrents are illicit. The problem is that the majority of them are, and we all know it. You can dance around the issue, and argue that they're so removed from the infringement that they're legit, but I don't buy it.
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average_joe (profile), 3 Dec 2010 @ 7:22am

Re: Re: Re: Re: Re: Re: Re: Re:
The problem is that all torrents are illicit.

Woops. Should say: "The problem ISN'T that all torrents all illegal."
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btrussell (profile), 3 Dec 2010 @ 1:00pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
http://pclosmag.com/
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btr1701 (profile), 3 Dec 2010 @ 2:23pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: international
> I disagree. Websites whose
> predominant effects are
> felt in the U.S. are already
> subject to U.S. jurisdiction,
> even if registered and
> hosted abroad. I'm sure
> you're familiar with
> long-arm statutes.

No, long-arm statutes only apply if there is a physical presence or contact with the US. And the enforcement of such statutes can only be accomplished through the consent of the foreign country involved. They agree to enforce our law in exchange for us reciprocating and enforcing theirs.

In this instance, the US Congress is passing a law which purports to be enforceable worldwide without obtaining any such reciprocal agreements from other nations.

> district court held
> that Italian website
> infringing on Playboy's
> trademark was
> subject to
> jurisdiction in
> New York.

Without reading the case, as I don't have time right now, I'd bet that that jurisdictional ruling is based on a mutual enforcement treaty signed between Italy and the US, and is not merely a unilateral extension of US jurisdiction over Italy.

However, if that's not the case, then all you've done is point out a court decision which simply does what COICA purports to do: impose US law on the rest of the world. That would completely undermine your position that my fear of a dawning age of American legal imperialism are unfounded and "pessimistic".

> Australia subjected
> Dow Jones to suit
> in Australia for
> defamation over
> a posting made
> on Dow Jones's
> U.S.-based server.

Courts around the world do this all the time. However, until COICA, there was no way to enforce the judgement. There have been several courts in France that have indicted US citizens for violation of France's Holocaust denial laws. However, since such speech is protected in the US, they can't extradite US citizens to answer for those crimes. The best they can do is put the person in a database and hope they some day come to France and arrest them then.

In the Australian case, if the defamation charge doesn't meet US 1st Amendment protections, they'll never be able to execute the judgment against the US defendant. These rulings are nothing but ineffectual paper tigers.

But with COICA as precedent (if it passes) all they have to do is seize the domains of any site they don't like. How can we possibly object if we're out there doing the same thing to their citizens?

> United Kingdom's
> High Court of
> Justice held that
> the Govinator's
> campaign manager
> could be sued
> for defamation
> in England
> for comments
> made in the U.S.

Yep, and Congress has drafted a law of its own to ensure that such judgments in other countries don't abridge the constitutional rights of US citizens:

http://www.google.com/hostednews/afp/article/ALeqM5jEPZqtdlJ7-6D-TH2QM2UGZ-xNtg

The Senate has now passed an anti-libel tourism bill, which would prevent the US courts from enforcing foreign judgments in libel cases that seem to go against the US First Amendment.

Senate Judiciary Committee chairman Patrick Leahy charged that libel judgments in foreign courts were undermining freedom of speech and of the press and chilling open debate in the United States.

"While we cannot legislate changes to foreign law that are chilling protected speech in our country, we can ensure that our courts do not become a tool to uphold foreign libel judgments that undermine American First Amendment or due process rights," he said in a statement.

So while we're protecting ourselves from the imposition of foreign laws on our citizens that conflict with our own, we're charging ahead with a bill which will impose our laws on all other nations, regardless of what their own laws have to say on the matter.
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average_joe (profile), 3 Dec 2010 @ 3:34pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: international
No, long-arm statutes only apply if there is a physical presence or contact with the US. And the enforcement of such statutes can only be accomplished through the consent of the foreign country involved. They agree to enforce our law in exchange for us reciprocating and enforcing theirs.

The internet makes it easy for there to be sufficient contact in the U.S. to trigger long-arm statutes, and that's how cases like these are adjudicated in the U.S. I'm not sure how you can argue that the long-arm statutes don't work this way. The caselaw clearly indicates otherwise. There's no mention of such a reciprocal agreement in the cases I mentioned. The courts' analysis about jurisdiction did not include any mention of any agreements. Perhaps you should read the caselaw I cited before we continue down this path. I think you're confusing jurisdiction with enforcement.

In this instance, the US Congress is passing a law which purports to be enforceable worldwide without obtaining any such reciprocal agreements from other nations.

COICA is not enforceable worldwide, it is enforceable only in the U.S. How could we make other countries enforce if we wanted too? That does not make sense to me.

Without reading the case, as I don't have time right now, I'd bet that that jurisdictional ruling is based on a mutual enforcement treaty signed between Italy and the US, and is not merely a unilateral extension of US jurisdiction over Italy.

Such a treaty was not a part of the case. I think you are confusing jurisdiction with enforceability.

However, if that's not the case, then all you've done is point out a court decision which simply does what COICA purports to do: impose US law on the rest of the world. That would completely undermine your position that my fear of a dawning age of American legal imperialism are unfounded and "pessimistic".

It enforces U.S. law on U.S. citizens. No imperialism needed.

Courts around the world do this all the time. However, until COICA, there was no way to enforce the judgement. There have been several courts in France that have indicted US citizens for violation of France's Holocaust denial laws. However, since such speech is protected in the US, they can't extradite US citizens to answer for those crimes. The best they can do is put the person in a database and hope they some day come to France and arrest them then.

COICA allows for U.S. laws to be enforced on U.S. soil. It streamlines the ability to block sites that deal in counterfeiting and infringement via court orders, warrants, and injunctions. Courts already have these tools at their disposal, and they can already use them in this way. I don't see what all the fuss is about.

In the Australian case, if the defamation charge doesn't meet US 1st Amendment protections, they'll never be able to execute the judgment against the US defendant. These rulings are nothing but ineffectual paper tigers.

But with COICA as precedent (if it passes) all they have to do is seize the domains of any site they don't like. How can we possibly object if we're out there doing the same thing to their citizens?

COICA won't be used to shut down sites that contain defamation. That's not what it's for.

Yep, and Congress has drafted a law of its own to ensure that such judgments in other countries don't abridge the constitutional rights of US citizens:

http://www.google.com/hostednews/afp/article/ALeqM5jEPZqtdlJ7-6D-TH2QM2UGZ-xNtg

The Senate has now passed an anti-libel tourism bill, which would prevent the US courts from enforcing foreign judgments in libel cases that seem to go against the US First Amendment.

Senate Judiciary Committee chairman Patrick Leahy charged that libel judgments in foreign courts were undermining freedom of speech and of the press and chilling open debate in the United States.

"While we cannot legislate changes to foreign law that are chilling protected speech in our country, we can ensure that our courts do not become a tool to uphold foreign libel judgments that undermine American First Amendment or due process rights," he said in a statement.

So while we're protecting ourselves from the imposition of foreign laws on our citizens that conflict with our own, we're charging ahead with a bill which will impose our laws on all other nations, regardless of what their own laws have to say on the matter.

I'm just not seeing it. COICA only imposes U.S. law on U.S. soil. How could we "impose our laws on all other nations" even if we wanted to? I just don't follow you.
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Anonymous Coward, 3 Dec 2010 @ 3:48pm

Why
Why didn't Customs "swoop in" and block all VCRs from being sold? Why?

Because the times have changed. Today, they probably would. And maybe arrest some people, too.
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Anonymous Coward, 3 Dec 2010 @ 3:50pm

Re: Re: Re: Re:
Doubly so when you randomly decide to call me a "sheeple" as well without knowing anything about me.

Your own words told enough about you for that.
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Anonymous Coward, 3 Dec 2010 @ 4:00pm

Re: Re: Re: Re:
It is wrong to call you a sheeple without knowing you yet you can call someone a "self important douche" without knowing them riiiight. And to top it off, assuming I live with my parents, you are just full of hypocritical statements Congratulations!

When ones IQ is in the top 20% of the country... yeah I think that gives one the right to think they're smarter. However that may only be the point of view that intelligent people have....

Also when the general populace does not even know who Archduke Franz Ferdinand was yaaa. I think that give everyone else the right to call them idiots.
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Karl (profile), 3 Dec 2010 @ 5:24pm

Re: Re: Re: Re: Re: Re: Re: Re:
In your opinion, do you think the majority of torrent-finder's traffic is for infringement or for legitimate purposes?

In my opinion, most searches for "Batman" on Google are for infringement. But it's insane to blame Google for that.

The problem [ISN'T] that all torrents are illicit. The problem is that the majority of them are, and we all know it.

Their website only searches for pages on other websites that offer torrents, and only indexes pages with terms that users are searching for. It has no ability to judge whether those websites link to infringing torrents or not. Maybe "the majority" are, but so what? You can't run a search engine under the assumption that your content is, by default, illegal. You'll have nothing to search.

You didn't answer it, so I'll ask you again. Pretend that you're a company that wants to allow users to search for torrent files, but only legal torrent files - such as those on The Pirate Bay that are uploaded by the artists themselves. According to you, is this even possible?

Oh, wait, it's not:

I'm not sure that a site like torrent-finder which intentionally aggregates hundreds of piracy sites is ever going to be able to operate legally.

Notice what you did here. You claimed they were "piracy sites," merely because they offer torrents (whether those specific torrents are infringing or not). And because all torrent sites are "pirate" sites, even the ability to search for torrents is also "piracy."

Which means you're against torrents. Not infringing torrents, but any use of the torrent technology itself. Ten years ago, you would have shut down any site with "mp3" in the name, since people back then mainly used MP3's to pirate music. Thirty years ago, you would have made cassettes illegal, because most people were using cassettes to record songs off the radio and make mix tapes. And so on.

You can dance around the issue, and argue that they're so removed from the infringement that they're legit, but I don't buy it.

I happen to be one of those insane people who believe people should only be punished for what they can control. Torrent-finder can't control what is on third party websites, so they shouldn't be punished for their content.

You can argue that every single entity that is tangentially involved in any crime (e.g. delivery drivers that drop off newspapers with libelous content) should be considered a criminal, but I don't buy it.
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Karl (profile), 3 Dec 2010 @ 5:40pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Incidentally: The reason I'm up in arms about this, is that I offer my own music for download on my site. I'd absolutely love to distribute it via the BitTorrent protocol. But my webhost won't let me.

Why? Because of the automatic assumption that every torrent is infringing. I'm prevented from using a beneficial technology, even though I want to, because people like you have made it de facto illegal.

It's the same situation that many of my musician friends have faced with pressing plants. They won't press any albums with samples on them, even though those samples are almost certainly fair use. It's called a "chilling effect," it's very real, and it harms legitimate speech the most.
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average_joe (profile), 3 Dec 2010 @ 6:20pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
In my opinion, most searches for "Batman" on Google are for infringement. But it's insane to blame Google for that.

You ducked the question. Should I take that as tacit assent that you think the majority of traffic on torrent-finder is for infringement purposes?

Their website only searches for pages on other websites that offer torrents, and only indexes pages with terms that users are searching for. It has no ability to judge whether those websites link to infringing torrents or not. Maybe "the majority" are, but so what? You can't run a search engine under the assumption that your content is, by default, illegal. You'll have nothing to search.

Actually, it seems overwhelmingly apparent to me that they set up that site for the explicit purpose of collating illegal content. They operate under that assumption as priority one.

Notice what you did here. You claimed they were "piracy sites," merely because they offer torrents (whether those specific torrents are infringing or not). And because all torrent sites are "pirate" sites, even the ability to search for torrents is also "piracy."

Are these sites not generally "piracy sites"?

Which means you're against torrents. Not infringing torrents, but any use of the torrent technology itself. Ten years ago, you would have shut down any site with "mp3" in the name, since people back then mainly used MP3's to pirate music. Thirty years ago, you would have made cassettes illegal, because most people were using cassettes to record songs off the radio and make mix tapes. And so on.

I'm not against torrents, I'm pro-reality.

I happen to be one of those insane people who believe people should only be punished for what they can control. Torrent-finder can't control what is on third party websites, so they shouldn't be punished for their content.

You can argue that every single entity that is tangentially involved in any crime (e.g. delivery drivers that drop off newspapers with libelous content) should be considered a criminal, but I don't buy it.

I don't think the torrent search engine sites are sufficiently far removed from the crime to not be considered criminal themselves.
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Karl (profile), 4 Dec 2010 @ 1:43am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
You ducked the question. Should I take that as tacit assent that you think the majority of traffic on torrent-finder is for infringement purposes?

No, I didn't. I admitted that it's likely the majority of users are looking for content which is probably infringing. You, however, refused to address why their actions are in any way different from any other search engine's.

Actually, it seems overwhelmingly apparent to me that they set up that site for the explicit purpose of collating illegal content.

But as you keep admitting, you're extraordinarily biased.

It seems overwhelmingly apparent to me that they set up a search engine. Why they did it is obvious: torrents are popular, and they want to have a popular site. But if their users were only searching for legal content, I don't think they'd just pack up and leave the internet.

Are these sites not generally "piracy sites"?

The have significant non-infringing uses, so I'd say the answer is "no." To anyone who releases their content under a CC license, they're not "piracy sites," they're popular tools allowing users to do exactly what you intended.

I'm not against torrents, I'm pro-reality.

Apparently not, since following your logic, every technological ability to copy data should have been banneed as soon as it reached the public. You're not pro-reality, you're anti-progress.

People like torrents. They will always find a way to use them. That's reality.

I don't think the torrent search engine sites are sufficiently far removed from the crime to not be considered criminal themselves.

And according to you, there's no possible way that any search engine ever could be.
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Karl (profile), 4 Dec 2010 @ 1:48am

Re: Re: Re:
Doesn't that hurt your argument?

That when it comes to the internet, the law is applied unfairly? Not really.
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Karl (profile), 4 Dec 2010 @ 1:50am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Uh, "baneed" = "banned." Sorry.
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Scott, 4 Dec 2010 @ 6:47am

Re: Re: Dur process is not the problem
And should the owner of the boat not be a smuggler, the government should be required to prove its case in order to keep the boat. Period. No requirement for the owner to request anything. Return everything if there is no conviction, or you have deprived somebody of property without due process.

Same with these domain names. *Immediately* bring cases and obtain convictions, or return them. And if the purpose of the seizure is to secure evidence - wouldn't the quality of the evidence actually be *better* were the sites still up? As it stands, the content is either on private servers yet to be seized or lost to the ether, and for any prosecution the government would have to rely on its downloads and browser caches right before takedown, or web archives, anyway, all of which would be available as evidence with or without takedown.
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average_joe (profile), 4 Dec 2010 @ 8:04am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
No, I didn't. I admitted that it's likely the majority of users are looking for content which is probably infringing. You, however, refused to address why their actions are in any way different from any other search engine's.

I think I've answered that question three times already in this thread, but here it goes again: The difference is that Google can be used merely incidentally to infringe, whereas with these torrent sites, that's the primary purpose.

But as you keep admitting, you're extraordinarily biased.

It seems overwhelmingly apparent to me that they set up a search engine. Why they did it is obvious: torrents are popular, and they want to have a popular site. But if their users were only searching for legal content, I don't think they'd just pack up and leave the internet.

Really, Karl? You don't think maybe they had "helping out the pirate world" in mind when they set up shop? And just why are torrents so popular? Does it have anything to do with piracy?

The have significant non-infringing uses, so I'd say the answer is "no." To anyone who releases their content under a CC license, they're not "piracy sites," they're popular tools allowing users to do exactly what you intended.

But the reality is they are used primarily for piracy.

Apparently not, since following your logic, every technological ability to copy data should have been banneed as soon as it reached the public. You're not pro-reality, you're anti-progress.

People like torrents. They will always find a way to use them. That's reality.

That's a bit extreme. I love technology and progress. A bunch of people "sharing" other people's IP on the internet is not progress. And I hope people use all the torrents they want--just keep it legit.

And according to you, there's no possible way that any search engine ever could be.

And again, it's pretty clear that the sites in question exist to assist others in pirating. Legitimate search engines are great. Pirate search engines I have no sympathy for.
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btrussell (profile), 4 Dec 2010 @ 9:52am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"Record labels are not always acting honestly when it comes to file-sharing. In public they often condemn BitTorrent sites and file-hosting services, but behind the scenes they sometimes use the same tools to promote their artists. This has become painfully obvious in the ongoing court case between EMI and MP3tunes where evidence was provided that the record label posted tracks on the �piracy haven� RapidShare."
http://torrentfreak.com/emi-promotes-music-on-piracy-haven-rapidshare-101204/
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Anonymous Coward, 4 Dec 2010 @ 11:36am

Re: Re: Re: Re: Re: Re: Re:
It's pretty obvious that torrent-finder exists as a tool to search for a file type. A file type is not infringement, even if it can be used as a tool for such things. You can make stuff up and blame everyone but the infringers all you want, but I'm not buying it.
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Anonymous Coward, 4 Dec 2010 @ 1:07pm

Re: Re: Re: Re: Re: Re: Re:
.torrent = .crime
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Mike Masnick (profile), 4 Dec 2010 @ 3:19pm

Re: Re: Re: Re: Re: Re: Re: Re:
Answer me this, Karl. In your opinion, do you think the majority of torrent-finder's traffic is for infringement or for legitimate purposes? Just give me your honest best guess. Obviously we aren't in a position to know for sure.

Hey AJ. When the Supreme Court legalized VCRs, one of the points that was raised was that 90% of VCR usage at the time was infringing.

So, given your position that a simple majority 50%+ means dedicated to infringing activity, is it your position that the Supreme Court erred in the Betamax/Sony ruling?
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average_joe (profile), 4 Dec 2010 @ 3:41pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Hey AJ. When the Supreme Court legalized VCRs, one of the points that was raised was that 90% of VCR usage at the time was infringing.

So, given your position that a simple majority 50%+ means dedicated to infringing activity, is it your position that the Supreme Court erred in the Betamax/Sony ruling?

That's a great point, Mike. Sets up a nice dilemma. You would do quite well in law school, I'm sure. Not to mention I think you'd enjoy it. Was it that 90% of the usage was infringing, or was it that it was potentially infringing but it was really fair use? I'd have to look it up to see, but I'm leaning towards it being the latter. If so, it's not a great analogy and I've escaped the dilemma. If not, I'll have to get back to you on that one. Well played either way, though.
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chillienet (profile), 4 Dec 2010 @ 3:54pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
http://www.techdirt.com/articles/20101130/23192212067/homeland-security-admits-that-its-private-poli ce-force-entertainment-industry.shtml#c1872
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Anonymous Coward, 4 Dec 2010 @ 8:52pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Correct me if I'm wrong, but wasn't this same argument made in the case of Napster/Grokster/Limewire? Specifically, that the services themselves weren't making anything available, but merely allowing users to do so? And further, that public domain works and independent songs were available on the services, and that a court order would effectively silence legitimate speech and inhibit technological innovation? The courts in those cases (including the Supreme Court) had no problem shutting down these services (or issuing orders that had the effect of as much.

The question is whether courts and judges are capable of telling the difference between the VCR and sites like mp3fiesta.com. I think by constantly referring back to the Sony case, you are clouding the issue. The problem with these arguments is that they assume that the law can't make distinctions between situations that are different from one another.

A&M Records v. Napster (9th Cir):

"We, however, briefly address Napster's First Amendment argument so that it is not reasserted on remand. Napster contends that the present injunction violates the First Amendment because it is broader than necessary. The company asserts two distinct free speech rights: (1) its right to publish a �directory� (here, the search index) and (2) its users' right to exchange information. We note that First Amendment concerns in copyright are allayed by the presence of the fair use doctrine. There was a preliminary determination here that Napster users are not fair users. Uses of copyrighted material that are not fair uses are rightfully enjoined.

Indeed, the court has taken a position very similar to average joe's:

"For the reasons set forth below, the court finds that any potential non-infringing use of the Napster service is minimal or connected to the infringing activity, or both. The substantial or commercially significant use of the service was, and continues to be, the unauthorized downloading and uploading of popular music, most of which is copyrighted."
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Anonymous Coward, 4 Dec 2010 @ 9:16pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Really, Karl? You don't think maybe they had "helping out the pirate world" in mind when they set up shop?

Do you think so? Do you have any evidence to back that up or are you just making unfounded accusations (again)?
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Anonymous Coward, 4 Dec 2010 @ 9:19pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
So, given your position that a simple majority 50%+ means dedicated to infringing activity, is it your position that the Supreme Court erred in the Betamax/Sony ruling?

If it isn't, then he's being inconsistent (which would be typical).
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IronM@sk, 4 Dec 2010 @ 9:23pm

Re: Re: Re: Re: Re: Re: Due process is not the problem
Clearly the prosecutor thought there was criminal infringement occurring and the judge agreed.

Well done. You just proved Mike's point about what is wrong here. There was no prosecutor. There was no Judge. LMAO!
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Karl (profile), 5 Dec 2010 @ 4:08am

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The difference is that Google can be used merely incidentally to infringe, whereas with these torrent sites, that's the primary purpose.

Since Google and torrent-finder are used in exactly the same way, how is one use "incidental" and the other a "primary purpose?" If you believe torrent-finder is automatically infringing, then you must believe that Google allowing torrent searches is also infringing.

You don't think maybe they had "helping out the pirate world" in mind when they set up shop?

I doubt they give a rat's ass about "helping out the pirate world." I think they saw that torrent sites are popular, and inserted themselves as an unnecessary middleman between the users and those sites, without adding any value. All the site does is add an additional layer of annoying advertising. I doubt any actual pirates would cry if it shut down.

Of course, that doesn't mean it's doing anything illegal. Certainly not illegal enough to warrant criminal charges.

And just why are torrents so popular? Does it have anything to do with piracy?

Why are MP3's so popular? Why were cassette tapes so popular? Are you seriously suggesting that the majority of users of MP3's or cassette tapes weren't infringing?

It's incredibly unwise to shut down a technology just because it's used for infringement. For every infringing use, there's a use that can be used by rights holders to make money.

A bunch of people "sharing" other people's IP on the internet is not progress.

According to who? Progress doesn't have a "goal," just like evolution doesn't have a "goal."

Yes, sharing other peoples' IP is progress. It might not be progress that you like, but it is progress. Dinosaurs didn't like the asteroid that wiped them out, but that asteroid was progress. And the death of the dinosaurs allowed the surviving creatures - including our ancestors - to flourish. That's how progress works.

I hope people use all the torrents they want--just keep it legit.

I'll ask you one more time: according to you, how does one build a "legit" torrent search engine? You didn't answer before, because according to you, there's no answer.

So according to you, there is no way to "keep it legit." If you set up any website having anything to do with torrents, it should automatically be considered a "pirate website." It should be assumed that all torrent sites "exist to assist others in pirating."

That's exactly what you're doing in this case.
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Karl (profile), 5 Dec 2010 @ 4:20am

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wasn't this same argument made in the case of Napster/Grokster/Limewire?

And the government seized the domain names in exactly zero of these cases.

That standard doesn't allow them to be let of the hook in civil trials, but criminal cases have a much higher standard of proof. And if these aren't criminal cases, DHS (and its subsidiaries) shouldn't be involved at all.
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average_joe (profile), 5 Dec 2010 @ 6:41am

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http://www.techdirt.com/articles/20101130/23192212067/homeland-security-admits-that-its-private-poli ce-force-entertainment-industry.shtml#c1872

I'm sure you can find some content on that site that isn't infringing. That doesn't mean the site's not dedicated to infringement though.
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average_joe (profile), 5 Dec 2010 @ 6:47am

Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
Well done. You just proved Mike's point about what is wrong here. There was no prosecutor. There was no Judge. LMAO!

I don't follow you. There was an investigation. The fruits of the investigation were handed over to the prosecutor. The prosecutor went to the judge and presented probable cause that the domain name was being used for crime. The judge agreed and signed the seizure warrant. That's how these seizures are going down.

If you want to see one of the warrants from the June seizures, it's here: http://www.courthousenews.com/2010/06/30/Warrant.pdf
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average_joe (profile), 5 Dec 2010 @ 7:00am

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Since Google and torrent-finder are used in exactly the same way, how is one use "incidental" and the other a "primary purpose?" If you believe torrent-finder is automatically infringing, then you must believe that Google allowing torrent searches is also infringing.

I don't think torrent-finder is "automatically infringing." I think it's predominantly infringing. Google is not predominantly infringing, so it's not infringing. There's a pretty clear difference in my mind between the two.

I doubt they give a rat's ass about "helping out the pirate world." I think they saw that torrent sites are popular, and inserted themselves as an unnecessary middleman between the users and those sites, without adding any value. All the site does is add an additional layer of annoying advertising. I doubt any actual pirates would cry if it shut down.

Of course, that doesn't mean it's doing anything illegal. Certainly not illegal enough to warrant criminal charges.

And the investigators, prosecutors and judges who looked at the evidence decided differently. I hope they take it to court so we can see.

Why are MP3's so popular? Why were cassette tapes so popular? Are you seriously suggesting that the majority of users of MP3's or cassette tapes weren't infringing?

It's incredibly unwise to shut down a technology just because it's used for infringement. For every infringing use, there's a use that can be used by rights holders to make money.

They're not shutting down torrents. They couldn't if they wanted to. They're going after particular users who are using the technology to commit crimes. Sites like torrent-finder make money while helping others infringe. I don't think that's a good thing.

According to who? Progress doesn't have a "goal," just like evolution doesn't have a "goal."

Yes, sharing other peoples' IP is progress. It might not be progress that you like, but it is progress. Dinosaurs didn't like the asteroid that wiped them out, but that asteroid was progress. And the death of the dinosaurs allowed the surviving creatures - including our ancestors - to flourish. That's how progress works.

I simply disagree.

I'll ask you one more time: according to you, how does one build a "legit" torrent search engine? You didn't answer before, because according to you, there's no answer.

So according to you, there is no way to "keep it legit." If you set up any website having anything to do with torrents, it should automatically be considered a "pirate website." It should be assumed that all torrent sites "exist to assist others in pirating."

That's exactly what you're doing in this case.

Maybe it's not possible to set up a legit torrent search engine. I don't know. I do think that torrent-finder is NOT legit, which is the point.
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average_joe (profile), 5 Dec 2010 @ 7:08am

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And the government seized the domain names in exactly zero of these cases.

Those weren't criminal cases, so of course the government didn't seize any domain names. There was an injunction or two, as I recall. Those cases probably could have been criminal cases under the law at the time, but that was before the PRO IP Act--before we had an IP Czar and before the civil forfeiture statute was amended to streamline seizure of the instrumentalities used by infringers.

That standard doesn't allow them to be let of the hook in civil trials, but criminal cases have a much higher standard of proof. And if these aren't criminal cases, DHS (and its subsidiaries) shouldn't be involved at all.

The level of proof needed to get the seizure warrant is probable cause. The level of proof needed to make the seizure permanent is preponderance of the evidence (greater than 50%) since the forfeiture proceedings are civil rather than criminal. It's not exactly that these aren't criminal cases, since the seizures are done pursuant to a criminal investigation.
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btrussell (profile), 5 Dec 2010 @ 7:33am

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Can you do a google search and show me what isn't infringing?

In other words, what is on the web that isn't copyrighted?

I can take a screen shot of any site. I can copy any text/pic/song/movie that I can view/hear on the net. Actually, it was copied already or I couldn't hear/view it.

I think Microsoft should be seized for aiding and abetting in copyright infringement.
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Anonymous Coward, 5 Dec 2010 @ 7:36am

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And the government seized the domain names in exactly zero of these cases.

This is irrelevant. The First Amendment concerns are the same, because in both cases it is the government's actions that shut down the site/service. In Napster the defendant's argued that the court's shut down order (i.e., the government's actions) would violate the First Amendment. Indeed, they argued that there was a great amount of lawful speech occurring, and that peer-to-peer file sharing technology should be allowed to flourish despite the fact that infringement was taking place between users. Needless to say, they lost.

And this didn't spell the end of file sharing as a technology, just as shutting down torrent sites overrun with infringing links won't end the torrent technology. Do you see the difference between shutting down an unlawful website and shutting down an entire technology?
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btrussell (profile), 5 Dec 2010 @ 7:50am

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Just to clarify:
"They're going after particular users who are using the technology to commit crimes. Sites like torrent-finder make money while helping others infringe. I don't think that's a good thing."

The majority are using MS OSs'.
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btrussell (profile), 5 Dec 2010 @ 7:59am

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"Do you see the difference between shutting down an unlawful website and shutting down an entire technology?"

Then you too believe that MS should be seized?
I think you will find that 90%+ of all the "pirated" games are games designed to run on MS OSs' and/or MS OS is being used to download/upload 90%+ of them all.
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average_joe (profile), 5 Dec 2010 @ 8:02am

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Can you do a google search and show me what isn't infringing?

In other words, what is on the web that isn't copyrighted?

I can take a screen shot of any site. I can copy any text/pic/song/movie that I can view/hear on the net. Actually, it was copied already or I couldn't hear/view it.

I think Microsoft should be seized for aiding and abetting in copyright infringement.

Search engines like Google don't infringe by returning searches, linking, showing thumbnails, etc. because they're protected by the fair use doctrine. See Perfect 10 v. Amazon/Google, for example: http://www.ca9.uscourts.gov/datastore/opinions/2007/12/03/0655405.pdf
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btrussell (profile), 5 Dec 2010 @ 8:14am

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Why doesn't it apply to a torrent search engine?
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Modplan (profile), 5 Dec 2010 @ 8:16am

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I think the original point has been lost somewhat. In the Napster et al cases, they were not shut down before some sort of hearing/trial - the first amendment issues had already been addressed either way by the time the services were shut down. That hasn't happened here with the seizure of the domains, which was the point - that there hadn't been an opportunity in the courts in the first place for the potential first amendment issue in closing the sites to actually be addressed.
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btrussell (profile), 5 Dec 2010 @ 8:17am

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And what about MS? They are making money while assisting users to get these torrents and use the torrents.
PC games don't work on Linux.
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average_joe (profile), 5 Dec 2010 @ 8:46am

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Why doesn't it apply to a torrent search engine?

Torrent search engines are used predominantly for infringement. With Google, it's ability to be used for infringement is only incidental. There's a big difference. I think this is the fifth time I've said this in this thread.
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average_joe (profile), 5 Dec 2010 @ 8:48am

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And what about MS? They are making money while assisting users to get these torrents and use the torrents.
PC games don't work on Linux.

Again, the ability to use MS products to infringe is only incidental, whereas torrent search engines are predominantly used for infringement.
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btrussell (profile), 5 Dec 2010 @ 11:51am

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Torrent search engine should be covered under same fair use that applies to google. Unless you believe torrent = infringe.

People who infringe are predominantly using MS.
DVDs don't play on Linux and neither do PC games and apps.
Seize MS and majority of infringement is cured.
Or are we just looking to make money, not find the cure?
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chillienet (profile), 5 Dec 2010 @ 1:31pm

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Wow, you really are stubborn aren't you AJ. That is like saying that a used car dealer is dedicated to ford cars yet if you bothered to look around the entire car lot instead of just the cars on the front drive you would find that Toyotas, Nissians, VWs together all out numbered the Fords. I give up AJ no point in discussing this with you anymore.
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pointer, 6 Dec 2010 @ 1:52am

Interesting Discussion
Thanks for the interesting discussion (weird to encounter in a comment string).

The only analogy I can come up with is Ms. Cleo. If Ms. Cleo is a scam, then certainly her 1-900 seems like a prime target for seizure. So I see the logic there.

However, Torrent-Finder isn't Miss Cleo. It is a search engine, more like a 411 service that happened to have a lot of Psychic Networks listed.

Likewise, copy-machines. Yes, copy machines are primarily used for mainly infringing purposes. Everyone knows the copy machines at music schools or universities are used mostly to infringe. Printers are probably even more guilty these days! Just think of all those Senior Pictures & Wedding Photos that are the property of the photographers but are stolen when some overzealous mother-in-law prints it off the Facebook gallery (after illegally uploading it onto Facebook in the first place).

Clearly there is copyright infringement but even on the Torrent sites, it's impossible to know if the downloaders already own the content (it's possible). Further, there are significant free speech uses of Torrents. It may be easy to find infringing material but it is also equally as easy to find non-infringing content (though certainly not in equal proportion but that argument doesn't seem to outlaw printers).

I fail to see a significant difference between 411 directory service that is broad and more widely used and one that is focused on technology that could be used for copyright infringement.

In other words, if it is legal for ICE to seize TorrentFinder under the pretense of significant criminal activity it is certainly legal for them to seize Google under the same pretense. (Though I think the seizures are civil, which would seem to indicate that this avenue attack would be open to anyone with a good lawyer and a friendly judge?)

Good hunting.
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Gabriel Tane (profile), 6 Dec 2010 @ 6:11am

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"They're not shutting down torrents. They couldn't if they wanted to. They're going after particular users who are using the technology to commit crimes. Sites like torrent-finder make money while helping others infringe. I don't think that's a good thing."

They're not going after the users, they're going after the public forum where these users congregate. Which is the problem here... or at least one of them.

1) I'm not any more convinced that shutting down a forum (regardless of its "percentage of intentionality in contribution to piracy") is right than you are convinced that IP sharing is progress.

2) It's pointless to seize domain names in this manner... it runs the risk of upsetting the prior-restraint arguments and people can get past it. If you're right and torrent-finder is the pirate haven you make it to be, what's to stop those pirates from just using Google?

Summary: The government running the risk of being found to be overstepping its bounds to shut down a single method of sharing that can easily be recreated elsewhere.
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Anonymous Coward, 6 Dec 2010 @ 9:50am

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Again, the ability to use MS products to infringe is only incidental.

No, most Windows computers are used to infringe copyright.
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Anonymous Coward, 6 Dec 2010 @ 9:58am

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I doubt that there's an automobile dealer anywhere in the US whose cars haven't almost all been used in some illegal manner. By your twisted logic, they should all be shut down (and the owners and people working there maybe sent to prison).

Right....
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Jay (profile), 18 Dec 2010 @ 4:56pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
But it can do the exact same thing as going to Torrent Finder

Sophistry is pretty weak in this argument. I can go to Torrent Finder or I can do it on Google. It's my choice either way. Why was Torrent Finder picked out and not Google picked on?
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