Full Affidavit On Latest Seizures Again Suggests Homeland Security Is Twisting The Law
from the you-said-what-now? dept
A few days after everyone already knew it had seized the domains of some sites that apparently were associated with streaming sporting events online, Homeland Security has put out its official press release about the domain name seizures. As many people thought, Homeland Security basically admits that it decided to seize these domains at this time because of the Super Bowl. Nice to see that Homeland Security is working for the NFL these days.Eric Goldman was kind enough to send over the affidavit that Homeland Security used to seize the domains this time around (it's embedded below), but as we saw last time around, the affidavit itself is chock full of legal and technical errors, compounded by assertions-as-facts that seem to have little basis in reality. This is immensely troubling, especially given that the specific legal issues here are hardly settled law, and Homeland Security seems to be acting as if these cases are no brainers, allowing them to flat out seize domains, even when those websites have been declared perfectly legal in their home countries.
The biggest problem is that Homeland Security seems to suggest -- without a hint of doubt -- that merely linking to infringing content is criminal copyright infringement. That is a huge stretch. The affidavit appears to make it clear that it believes that these sites are guilty of direct criminal copyright infringement, rather than any sort of contributory copyright infringement. As we've discussed in the past, the courts have tended to say that embedding and linking can be contributory infringement, but not direct infringement. Homeland Security and ICE may be in for a bit of legal trouble trying to prove that embedding is direct infringement.
As with the last batch of seizures, it quickly becomes clear that Homeland Security was taking orders from private companies, and made absolutely no effort whatsoever to determine if the assertions made by those private parties (who might be helped by having Homeland Security shut down competitors and/or more innovative solutions) were accurate. For example, the affidavit, written by yet another recent addition to the Homeland Security force (though, unlike last time, when it was a kid fresh out of college, this time the guy, agent Daniel Brazier, was a police officer before this job came calling) seems to rely solely on information from various sports leagues (the NFL, NBA, NHL, WWE and UFC -- I'm really surprised that MLB isn't included, but that's probably only because it's the off-season), and appears to make no attempt to independently verify much of the information provided by those leagues. For example, without any evidence or proof, he asserts that the leagues "suffer significant negative impact from the unauthorized streaming of live television programming."
You would think that such an assertion would require proof. There is none. There are more assertions related to this, but no evidence that wider distribution of the video (including the commercials) does any actual harm. Agent Brazier claims that because of these streams, it impacts the league's ability to sell game tickets. This is laughable. Years ago, these same sports leagues would claim that having games shown on TV "hurt" the ability to sell tickets. Only recently have some of the leagues realized this is simply untrue. Larger audiences lead to more connected fans, meaning more fans willing to come out to see games live, because they know that the live experience is totally and completely different than the on-screen experience.
I find it disturbing that Homeland Security would repeat this blatant myth in order to support suppressing and censoring websites.
There are some other issues as well. Part of the argument against atdhe.net, ilemi and channelsurfing.net is that they embed from elsewhere online streams from MSNBC. MSNBC apparently told Agent Brazier that it "had not authorized third party distribution over the internet of its broadcasts" by these sites. One little problem: if I go visit MSNBC TV, I see live streaming of content from the channel. And, if I click on the "clip & share" link, I am given an option to embed the stream. Yup. It certainly looks like MSNBC does, in fact, give permission to embed its content on other sites. Anyway, I've embedded some video below from MSNBC. I'm curious if this makes Techdirt a criminal enterprise. Perhaps I'll find out after Homeland Security seizes our domain.
Visit msnbc.com for breaking news, world news, and news about the economy
Finally, it appears that every one of these sites clearly stated that it did not host any content, and that it obeyed the local laws from where the server was located. The affidavit mentions this each and every time... and then doesn't seem to care at all about this. Now, the argument against this, of course, is that Homeland Security doesn't care one bit about the laws in other countries, and is only concerned about the laws in the US. That's all well and good... in theory. But reality makes this a bit more complex. If the website is hosted and operated in a foreign country, claiming that the domain name itself is subject to US laws seems like a huge stretch, and will only serve to increase concerns from foreign countries that the US government has too much control over the internet. Even worse, in the case of Rojadirecta, Agent Brazier seems to flat-out admit that the site targets people in Spain by highlighting how much traffic it gets in Spain. So if the site is hosted in Spain and clearly targets people in Spain -- and the affidavit admits this -- why is a US court saying the domain can be seized?
Unlike last time, when the magistrate judge in question literally rubber stamped the affidavit, at least magistrate judge Frank Maas appears to have decided to really sign this document. However, there is no indication that he followed the rules required under Fort Wayne Books v. Indiana, which requires a higher standard than probable cause when attempting to take "materials presumptively protected by the First Amendment" out of circulation. There is no indication that any effort is made to surpass these basic First Amendment hurdles. There is no indication that the judge took the time to find out whether or not these seizures were required to preserve evidence, as case law suggests is necessary in such circumstances.
Once again, it appears that Homeland Security is acting as something of a rogue cowboy operation, where it feels no compunction about seizing domains under an extremely questionable legal theory that linking or embedding is somehow direct copyright infringement. I've now spoken to numerous lawyers about this, and I can't find one who thinks this is a clear case of criminal copyright infringement. Similarly, there are serious questions concerning the fact that these websites are all hosted in foreign countries, and all of them made it clear that they sought to obey the laws in their own countries. Even more amazing is that despite the fact that many of these issues were raised previously, Homeland Security has simply decided to forge ahead. One hopes that a court will put a stop to these seizures before too long.
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Filed Under: copyright, criminal copyright, daniel brazier, direct infringement, domain seizures, homeland security, ice
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Miss spelling
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Re: Miss spelling
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"I'm going to Disney world to get back my seized domain name!"
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I need glasses
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When someone presents themselves to a judge to have an order or something signed by a judge, sometimes they'll they bring the original to sign and copies to keep.
When that happens, the judge will sign the first one and the ones that are not signed get stamped by the clerk with the judge's signature. Because they are the same, they are considered "true copies."
Sometimes after getting the signature, the attorney's runner will have copies made of that and then have those trued.
And that's why we see stamped signatures on orders. There's nothing nefarious about it.
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Re:
Heh. I just thought it was funny. Never meant to imply nefarious intent.
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Re: Re:
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There is no accountability in government
In the interim, once a court puts a stop to this, there will be no accountability for the DHS. Nobody will be fired, nobody will be fined and nobody will get jail time. So there is ZERO incentive not do to this sort of thing.
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Re: There is no accountability in government
Is this sarcasm? Weren't all the sites back up just not under ".com" addresses within hours of them being pulled?
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Re: Re: There is no accountability in government
I would not be surprised if their traffic increased.
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Re: There is no accountability in government
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Re: There is no accountability in government
Nice try btw.
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Re: Re: There is no accountability in government
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Re: Re: Re: There is no accountability in government
Except none of these cases will even sniff the SC..
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I need glasses and to kkep things from falling on my laptop
said "Full Affidavit of Laziest Seizures"
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Responsibility, they have none.
There used to be the possibility (however remote) that doing wrong could get you fired, this is apparently no longer possible in the name of "Homeland Security".
There need to be draconian penalties for public servants misusing the powers they are given, the VERY LEAST of which is the removal from jobs that give them power ranging all the way up to criminal prosecution and jail when warranted.
We also need to remove the protection against civil suits by those who's rights have violated.
But of course, none of that will never happen.
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HLS Motto..
"LAWS!? We don't need no stinkin' LAWS!"
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Re: HLS Motto..
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Re: Re: HLS Motto..
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Personal Police force
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I agree with Mike that a site that only links to or embeds infringing videos is not themselves the direct infringer... but that simply doesn't matter here. The only issue is whether or not the sites are being used to commit criminal infringement. The direct infringer, i.e., the principal criminal, would be the person who runs the site that is being linked to. That does not change the fact that these sites are property used to commit criminal infringement.
If the feds were going to prosecute the operators of these sites, I believe it would be on an accomplice or conspirator theory. However, what theory the operators of these sites could be prosecuted under simply does not matter. It's all a big red herring.
As to the other claims... all red herrings.
Whether or not unauthorized streaming in fact harms the rights holders is irrelevant to the issue of probable cause. MSNBC allows people to embed clips, not the live stream. A site's claim that it is legal is not relevant, nor is the site's actual legality in other countries. Fort Wayne Books doesn't apply since there the seizure of works was based on the message being conveyed in the works. Here, that's not what's happening. Copyright cases simply do not operate the same as obscenity cases.
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Question @ Joe
Can you explain this? Not asking obnoxiously - just don't understand the difference, where the line is, or where it's from.
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Re: Question @ Joe
It's a great question. Terry Hart explains it very well on Copyhype: http://www.copyhype.com/2011/01/domain-name-seizures-dont-violate-first-amendment/
The issue is whether or not it's prior restraint to seize these domain names without a prior adversary hearing. The Court in Fort Wayne Books said that a preseizure hearing on whether or not certain books were obscene was needed since the books are presumptively protected speech. Here, the thing being seized is a domain name, and domain names are not presumptively protected speech. These seizures are targeted at infringement, not obscenity, and any effect the seizures have on expressive speech is only incidental. Thus, the First Amendment does not bar the seizures.
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Re: Re: Question @ Joe
Almost none of the above is accurate. It's really too bad that you keep repeating it.
The seizure of the domain name takes down with it protected content in many cases, and First Amendment case law is quite clear that putting place things that block such content is considered prior restraint.
The idea that the impact on expressive speech "is only incidental" is flat out wrong. Taking down full blog posts that contain plenty of non-infringing content goes way beyond what copyright law allows, and AJ should know this.
There are currently means within the law to specifically target only the infringing content, and to do so in a way that each side gets to present their case. Homeland Security chose to ignore these things, and there are an awful lot of folks out there who believe DHS's actions clearly violate the law in very serious ways.
AJ uses a neat, but dangerous sleight of hand, in which he claims the domain is not speech (only the site is speech) but then claims that the domain is property used in a crime, even though it *might* be the site, not the domain.
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Re: Re: Re: Question @ Joe
And you've been told how many times that you're wrong?
Don't like Arcara? Ok, how about O'Brien, the benchmark case:
"When "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms."
http://supreme.justia.com/us/391/367/case.html
So stop your BS and FUD, Masnick. Now.
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Re: Re: Re: Re: Question @ Joe
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Re: Re: Re: Re: Question @ Joe
So far none. I mean, you and some law school students have been screaming this, but the lawyers I've discussed this with -- including some of the most respected lawyers in the biz, all have noted that the seizures are almost certainly illegal.
But, we shall see once it gets to court.
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Re: Re: Re: Re: Re: Question @ Joe
You go on about prior restraint in all of these cases, yet the reality is that since only the domain was seized (and not the business, not the data, not the servers, or anything like that) they are still entirely free to continue their business. It is like the police seizing a cell phone. What do you do? Get another phone and keep going.
Since none of these sites lost anything truly key to their businesses that wasn't easily replaced, there is no prior restraint.
After that, it becomes a question of free speech, but the 1st amendment doesn't cover illegal or infringing speech. It is a question for the courts to decide, but there is already rulings, such as the one mentioned above.
The truth of the matter is you don't like the acts by ICE. I sort of have a feeling that the whole idea of things like this being illegal scares you, because it really destroys the business models you have been proposing. I think you truly fear that any online regulation is bad for business.
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Re: Re: Re: Re: Re: Re: Question @ Joe
It set a precedent, a bad one were mere accusations lower the bar for due process since copyright cannot be seem, touched or felt in any perceptible way, is like accepting the testimony of the blind to accuse someone and seize everything they own, that doesn't look good at all.
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Right, so why does ICE even bother?
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Re: Re: Re: Re: Re: Question @ Joe
The SC ruling upon which all First Amendment cases are now measured by...
Why does Mike Masnick so vehemently defend ripping off artist's work?
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Re: Re: Re: Re: Re: Re: Question @ Joe
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Re: Re: Re: Re: Re: Question @ Joe
But, we shall see once it gets to court.
Terry Hart is not a law student and you know it. Why must you lie to try and discredit people? Why don't your "most respected lawyers in the biz" stop by and give us their arguments? I'm sure we'd all rather hear it straight from them. If they can't stop by, why don't you tell us what their legal arguments are? Either of those would be more productive than you lying about Terry Hart and then proffering hearsay about how some mystery bunch of genius lawyers tells you you're right. I'd like to debate them. Surely they could school a lowly law student like me. Are they not up for it? You certainly aren't, and that's fine... I wouldn't last two seconds in a debate on economics with you. But what's their excuse?
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Re: Re: Re: Re: Re: Re: Question @ Joe
Just a guess, but perhaps they don't have time, because, being successful lawyers and all, they have actual work to do.
Some day, you too might have some actual work to do. And I imagine that, if and when that occurs, we will see a drastic reduction in the amount of time you have to spend commenting on blog posts.
Everyone has to grow up some day.
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Re: Re: Re: Re: Re: Re: Re: Question @ Joe
Speak for yourself. :)
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Re: Re: Re: Re: Re: Re: Question @ Joe
He just graduated. I wouldn't exactly suggest he's particularly experienced in these issues. It wasn't a "lie," it was shorthand.
Why don't your "most respected lawyers in the biz" stop by and give us their arguments? I'm sure we'd all rather hear it straight from them.
Well, for one thing, most of them are pretty busy working to see what can be done to stop this violation of the law, and that seems a bit more important than arguing with a bunch of folks on a comment forum who don't understand the law.
But, if you look around you might see some of them have made it clear they agree:
http://twitter.com/#!/ericgoldman/status/33262595016232963
http://twitter.com/#!/copyce nse/status/33271623817629697
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Re: Re: Re: Re: Re: Re: Re: Question @ Joe
You intentionally misrepresented him. That makes it a lie. Besides, when he graduated law school says nothing of the validity of his arguments. He's providing detailed legal analysis of these seizures. You're writing hit pieces.
Well, for one thing, most of them are pretty busy working to see what can be done to stop this violation of the law, and that seems a bit more important than arguing with a bunch of folks on a comment forum who don't understand the law.
But, if you look around you might see some of them have made it clear they agree:
http://twitter.com/#!/ericgoldman/status/33262595016232963
http://twitter.com/#!/copyce nse/status/33271623817629697
Those guys are great, I agree. I follow them both, just like you. I'd love to see their written analysis of the situation, no matter which side they may happen to take.
By the way, Terry Hart has more great analysis today: http://www.copyhype.com/2011/02/super-bowl-seizures/
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Re: Re: Re: Re: Re: Re: Re: Re: Question @ Joe
I've addressed the (lack of) validity of his points elsewhere.
Those guys are great, I agree. I follow them both, just like you. I'd love to see their written analysis of the situation, no matter which side they may happen to take.
As I said, they're pretty busy... though, I will say that at least one of them let me know that my analysis was basically what he would have written. So, you can take my analysis as proxy.
But have no fear, expect to hear more very shortly from some other lawyers well versed on the subject.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Question @ Joe
And failed miserably. You're not a lawyer, Masnick, and you constantly blow off examples that demonstrate your ideas are laughable.
But you don't care, because your agenda is to defend piracy and the people that rip off artists. At any cost, the truth and law be damned, that's all you really care about doing.
And everyone knows it, as it's on display here every day.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Question @ Joe
Keep on repeating that, and maybe someday it might approach truth. For now, it's just you pissing in the wind. Congrats, you just wet yourself with your pants down.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Question @ Joe
You keep saying that as if repeating it will somehow make it true.
Let's look at the facts:
1. What good is there in "defending piracy"? I can't see any.
2. I do not partake in any infringement. I buy all my music, except in cases where the musicians willingly give it away free.
3. I spend a lot of time looking for ways and helping artists make more money.
4. You yourself have admitted multiple times that the bands you work with are making less money today than in the past, while the artists that I have worked with are making more money than they have in the past.
Add all of those up, and I fail to see how any reasonable mind could conclude that I "defend piracy and ripping off artists." It's the opposite, kiddo. I'm helping the artists that you're leading down a path of ruin.
I've offered before and I'll offer it again: since you're flailing so badly, give me a call and I'll help you out.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Question @ Joe
Now you're getting me all excited! :)
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Re: Re: Re: Question @ Joe
I'm repeating it because I believe it is an accurate statement of the law.
The seizure of the domain name takes down with it protected content in many cases, and First Amendment case law is quite clear that putting place things that block such content is considered prior restraint.
The idea that the impact on expressive speech "is only incidental" is flat out wrong. Taking down full blog posts that contain plenty of non-infringing content goes way beyond what copyright law allows, and AJ should know this.
Seizing the domain name does affect potentially protected speech, incidentally, but the target of the seizure is not that potentially protected speech. That's what makes it "incidental." The real issue is whether or not such an incidental effect on potentially protected speech is permissible. I know you don't agree, but the Supreme Court's language in Arcara v. Cloud Books is controlling:
Arcara v. Cloud Books, 478 U.S. 697, 706-07 (1986)
Since the conduct that was drew the legal remedy in the first place wasn't expressive, the First Amendment is not a bar.
There are currently means within the law to specifically target only the infringing content, and to do so in a way that each side gets to present their case. Homeland Security chose to ignore these things, and there are an awful lot of folks out there who believe DHS's actions clearly violate the law in very serious ways.
Terry Hart and I are the only ones I know of who think these seizures are legal, if you don't count the DOJ and the judge who signed off on them. I'm anxious for a court to decide the constitutionality of one of these cases on the merits, as I'm sure you are.
AJ uses a neat, but dangerous sleight of hand, in which he claims the domain is not speech (only the site is speech) but then claims that the domain is property used in a crime, even though it *might* be the site, not the domain.
The domain name can be seized because it's property used to commit a crime on the site. I really don't understand what the confusion is with this point.
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Re: Re: Re: Re: Question @ Joe
There are many others.
Trust me.
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Re: Re: Re: Re: Re: Question @ Joe
Trust me.
I should have included you too. Sorry. :)
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Re: Re: Re: Re: Re: Question @ Joe
Anonymous: "I am a brainless shill paid by my corporate masters to perpetuate the delusion that they are still in control. I am terrified of being wrong, of admitting it, and will never do so even when proven so over and over again by Mike and others. I cannot even understand the simple concept of infinite supply + no cost of distribution = price dropping to zero. I can't even understand the number zero or what it means. I can only flail about like a toddler upset that he's not getting his way because technology is changing and my corporate masters are being made obsolete by it. I cannot fathom that the legacy media corporations could ever do anything wrong even though it's been proven time and time again that they take advantage of creators over and over again and have done so for years on end. They are the real pirates, but I cannot admit that because that would be admitting that I have been wrong about everything that I have ever said. Oh no! CHANGE! RUN FOR THE HILLS! THINGS AREN'T THE SAME ANYMORE! WE CAN'T PRICE-FIX AND GOUGE OUR CUSTOMERS ANYMORE! THEY KNOW TOO MUCH ABOUT US AND WHAT WE DO! OUR PAID SHILLS ARE USELESS AND INEFFECTIVE! OUR MEDIA COMPANIES ARE COLLAPSING ONE AFTER ANOTHER LIKE DOMINOES! WE CAN'T AFFORD TO HAVE TEN MANSIONS ANYMORE! WAAAHHHHH!!!!"
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Re: Re: Re: Re: Re: Re: Question @ Joe
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Re: Re: Re: Re: Re: Re: Re: Question @ Joe
No lawyer in this country would dare argue otherwise unless they were looking to graft some poor freetard sucker or completely ignorant of precedent.
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Re: Re: Re: Re: Re: Re: Re: Re: Question @ Joe
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Re: Re: Re: Re: Re: Re: Question @ Joe
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Re: Re: Re: Re: Re: Re: Question @ Joe
But does he share his secret posts with his therapist?
And does she steal music too?
Stay tuned...
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Re: Re: Re: Re: Re: Re: Re: Question @ Joe
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Re: Re: Re: Re: Re: Re: Re: Question @ Joe
Do you want to freak out here is another study saying piracy augments sales, coming from a respected Japanese government agency LoL
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Re: Re: Re: Re: Re: Question @ Joe
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Re: Re: Question @ Joe
Amendment I.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of greivances."
Key phrase: Congress shall make no law
This means that it's ILLEGAL to make a law that affects free speech AT ALL; even if that affectation is incidental, it's still illegal.
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Re: Re: Re: Question @ Joe
It's not illegal, it's unconstitutional, which, since the US Constitution is the highest law in the land, is worse than illegal.
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Re: Re: Re: Re: Question @ Joe
Copyright is in Article 1 of the Constitution. The First Amendment didn't even arrive until a few years later.
Try again.
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Re: Re: Re: Re: Re: Question @ Joe
That's a pretty extraordinary claim. How about providing some links to famous expositions on this doctrine. Surely Thurgood Marshall, or Byron White or even Scalia or Rehnquist wrote something about how the minor privilege of freedom of speech must not get in the way of natural right of owning ideas and concepts.
Yes, in his stirring December 7, 1941 radio address, FDR exhorted the US population to take up arms against the Japanese to defend ownership of ideas and concepts. Freedom of speech?!? Bah, humbug, we have ownership of ideas!
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Re: Re: Re: Re: Re: Question @ Joe
I truely thought I addressed this the other day.
http://www.techdirt.com/articles/20110202/01203012918/homeland-security-domain-seizures-raise-more -questions-is-embedding-video-criminal-infringement.shtml#c950
Let's try again.
By the very definition of 'amendment', the 1st Amendment changes the nature of all things that come before it in the scope of its address. By the very definition of 'amendment', any part of the Constitution that deals with speech, religion or the press is modified by the 1st Amendment.
If you really believe your stance, why do you have to resort to something that is so patently wrong to defend yourself? Next, you’ll be arguing that up is down and left is right.
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Re: Re: Re: Question @ Joe
This means that it's ILLEGAL to make a law that affects free speech AT ALL; even if that affectation is incidental, it's still illegal.
You're certainly not the first to argue that all copyright laws must be unconstitutional because they abridge the First Amendment. I'll spare you the caselaw, but suffice it to say that the Supreme Court thinks that argument is absurd. Don't you think the Copyright Act would have shot down as unconstitutional sometime in the past 220 years if that was the case? Logic is your friend.
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Re: Re: Re: Re: Question @ Joe
Logic helps us grow.
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Re:
Forfeiture as stated there can only happen if you are found guilty of something not before.
So what grounds do they have to seize anything without a sentence?
Did they got powers to sentence others without a trial?
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Why can the police seize drugs, the car used to transport drugs, the box used to transport an illegal fire arm, or seize (seal) the residence where it was all found?
You are confusing seizure until judgement with outright forfeiture.
The police are only seizing what has been used to commit the criminal act, no different from seizing a gun at a shooting or collecting documents from a company running fraud. Those items are held until judgment.
Let's say someone is using a truck to smuggle drugs. When the truck is stopped and the drugs found, do you not also think that the truck is getting seized? The intention of the seizure isn't just to collect what is there now, but to stop further activity until the matter is settled in court.
Remember: No servers were seized, no one was deprived of the information they already had. These guys could easily register another domain name tomorrow and continue their "free speech" without any restraint. They were not shackled, the tools of their trade where not removed. They didn't suddenly become unable to type or post a blog entry. Prior restraint and first amendment issues just aren't at play here at all, no matter how loudly Mike tries to yell about it.
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Because some of the websites are not even in American territory did they consult with someone to see if they have jurisdiction over that or if there were relevant treaties?
Would Canada be in the clear if it seized all assets from the music labels until the judge passed sentence?
Would France be able to seize all assets from Warner Music because their executives where convicted of a crime there?
That seems reasonable to you?
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No, you are confusing civil case with a criminal case. Please try again.
Because some of the websites are not even in American territory did they consult with someone to see if they have jurisdiction over that or if there were relevant treaties?
The seizures have to do with the parts of the operation there were in US jurisdictions, namely the domains.
Would Canada be in the clear if it seized all assets from the music labels until the judge passed sentence?
See, now you are getting silly. There was only one thing seized: Domain names. Now, in Canada, if the material was illegal (say in violation of copyright) the judge might order all of the material held until judgement. But again, it would require that it is a criminal case and not a civil matter.
Would France be able to seize all assets from Warner Music because their executives where convicted of a crime there?
Those assets in France and used to commit the crimes might actually be at risk. I am not good on French law, but at the time of the arrest, if the material was being used to commit the crime, there may be potential. But if the crime is one like "fail to file the right document", the answer would clearly be no.
That seems reasonable to you?
Nope, none of your points are reasonable because you haven't figured out the differences between things like civil and criminal cases, nor have you understood the idea of what was or was not involved in the crime.
I would actually say you are trying (very transparently) to throw up smoke and mirrors. All you ended up with is 7 years bad luck and a bad cough.
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So nobody has succeeded in connecting the dot between "I'm taking your stuff - piss off" and "You're in quite a bit of trouble - all this stuff is now probably ours" to which said 'suspect' is arraigned, given a court date and, likely, sufficient reason to recognise that his stuff will be gone when he gets out of jail.
There seems to be an extraordinary level of childish forces at play here. We're talking about domain names which are rather analogous to a street address (which can be unwillingly changed on you but not "taken" I think) and the IP address would probably best describe the house (as it relates to visiting something).
Taking a domain is absurd, patently ridiculous or otherwise down right silly. If they're so certain that they are 100% based in real legal framework they'd be stomping the show by taking your IP like a real man and getting your servers stuffed into their black sub-urbans. no? Otherwise I'm really failing to see the point. Whack-a-mole? That sounds pretty far from legal that does.
\r
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Because that is evidence that needs to be maintained "as found" in case of a trial.
Since continuing to have the name "atdhe.net" in DNS would not cause evidence to be destroyed, there is no need to seize it. As a matter of fact, by making these domain names no longer connect to the site in question, DHS has actually destroyed evidence. I suspect that's planned, though, since most of these sites seem to be only linking to material, and there is now no evidence that they can use to show they were only doing the same thing as Google, Bing, etc.
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What I quoted, and what the affidavit quoted, is 2323(a), which deals with civil forfeitures.
You are quoting 2323(b), which deals with criminal forfeitures.
2323(a) is the right place to be looking since these are civil forfeitures.
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Why does he ignore that and continue with the FUD and misrepresentations?
Because his agenda is piracy apologism and legal facts do not matter to him.
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More FUD and lies from the Super Shill.
Infringement IS A CIVIL MATTER. Read that again and get it through your thick skull.
CRIMINAL copyright infringement IS NOT THE SAME, and has a very much more specific and narrow set of criteria compared to civil infringement. The FUD here, and in your "the LAW IS THE LAW! rah-rah go Govt oppress the people no matter what" garbage-speak, is that nowhere in these siezures has ANY CRIMINAL-LEVEL INFRINGEMENT BEEN BROUGHT FORTH. Just ASSERTING it isnt enough, and is sure as SHIT isnt enough for CRIMINAL-level charges, which once again, has a MUCH HIGHER BAR than CIVIL. Homeland is trying to have it both ways: they are applying criminal-level siezures but have leveled no criminal charges, and then turn around and try to apply civil-level arguments.
It doesnt wash, they are getting called on it (now by other politicians) and you stand there and defend them because they can DO NO WRONG, because they are in power and therefore anything they do is right. Nixon said something similar ("When the President does it, its not a crime."), and history blasted him for it.
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http://www.techdirt.com/articles/20110203/01402812935/full-affidavit-latest-seizures-ag ain-suggests-homeland-security-is-twisting-law.shtml#c2140
Perhaps people are mean to you because you're an asshole.
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I'm going to take that tangent and call you on it. This is a nation of laws and not of men. If you don't agree with the law, you have the Constitutional right (First Amendment) to petition for change. Until then, regardless of whether or not a law is oppressive -- and some of them most certainly are oppressive -- IT IS THE LAW and breaking the law carries consequences, regardless of who you are.
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True...but only to a point. Or would you care to explain the founding of this country by TREASONOUS persons who BROKE THE LAW to get away from what they considered to be oppressive government? Or something like Prohibition? Civil Rights? You know, it was "legal" to own slaves at one time.
Just because its Law doesnt make it a Just Law.
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As does misinterpreting it. Remember who is ultimately in charge in this country.
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Good to see you back. Did the meds wear off?
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Yes, I do. Thats because in order to get through to PEOPLE TOO FUCKING STUPID TO LIVE, you have to SHOUT to get their attention.
Nice to see you too, I guess. Never taken meds in my life, but thanks anyway. (and, wouldnt the insult be properly about NOT taking meds? Guess thats ANOTHER (
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MSNBC allows people to embed clips, not the live stream.
Most important on this is that it is their business decision to do it or not. It isn't something that some snot nosed l33t hacker kid can choose to do for them. Technically, it's possible to do. That is never the point. The point is always that the ones producing the content should get to choose how it is distributed. It is a matter of law, but it is also a matter of respect (something that is sorely lacking around here).
If the feds were going to prosecute the operators of these sites, I believe it would be on an accomplice or conspirator theory
I think you are correct again. You can ignore the whole FUD of the judges and the law enforcement people being ignorant about technology, they are doing what is nicely referred to as "plain site". They are working from what they can see in plain site. Go to this site, see a copyright violating video, see it being used to support a commercial enterprise. That is all they need to have probably cause. "it's only embedded" is effectively an affirmative defense, not a negation of responsiblity.
The direct infringer, i.e., the principal criminal, would be the person who runs the site that is being linked to
One of the problems here is that it that some use off site services to host their infringing content, specifically to avoid prosecution. Don't upload it to your own servers (and don't pay bandwidth to display it) and instead put it on an upload site or a video site and embed it from there. They think they are slick in avoiding responsiblity, but in the end, they are still part of the game.
They are all part of the processing of taking infringing material and getting it to the public, which is what distribution is all about. Mike may not like it, but the law is clear on this one.
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That will be wonderful, I want to see studios and labels bickering and seizing each other assets because of this, not only that I want to see other countries trying to protect their markets using the same arguments you are using here and see they seize all your assets, no websites, no brick and mortar, no products on shelves, because probable cause is enough to disrupt a potential criminal action without due process.
You just can't ignore the stupidity of law enforcement in this case is just beyond belief.
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Umm, no, what makes you think that?
I don't think "all the assets" of anyone have been seized here.
put down the pipe, crack is whack!
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I honestly think it's because he was under the delusion that piracy was never going to face law enforcement.
He conned himself so thoroughly that when this stuff happens, his brain just goes into "does not compute" mode.
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I don't believe that's correct. I believe you are (unintentionally?) confusing "the site" with "the domain name."
This is a problem. You seem to switch back and forth quite frequently. When someone points out that this is a prior restraint issue, you claim it's not because "the site" was not seized, only the domain. Yet, when you defend the seizure because it's "property used to commit criminal infringement" you are relying on evidence of "the site" but not "the domain."
I don't think you can have it both ways.
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No, I'm not. The domain name can be seized because the site it points to is being used to commit a crime.
This is a problem. You seem to switch back and forth quite frequently. When someone points out that this is a prior restraint issue, you claim it's not because "the site" was not seized, only the domain. Yet, when you defend the seizure because it's "property used to commit criminal infringement" you are relying on evidence of "the site" but not "the domain."
I don't think you can have it both ways.
I'm not trying to have anything both ways. The domain name is property used to commit a crime, and that crime occurs on the site. I'm not really sure what the confusion is. How could a domain name by itself be criminal? It's only criminal in the full context.
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By Spanish law it was legal and was contested twice and found legal, by American law is yet to be determined.
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Spanish law says you can rip off all TV broadcasts from the US!!!!!
Hear that NFL, NBA, MLB, and NHL?????
All your broadcasts are now free because a court in Spain said this site was legal. YIPPPEEEEEE!!!!!
WELCOME TO FANTASY ISLAND. DA PLANE, BOSS, DA PLANE!!!!!!!
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According to the WTO ruling recently(2007) Antigua could just have ignored American copyrights and patents to the tune of 4 billion dollars.
If you try to stop companies that are legal in other countries you will have to respond to the WTO and WIPO, those are the forums to settle those things not unilaterally and every single country on the world will concur with that. You think the U.S. can survive alone in the world? you think the U.S. can ignore what other countries want?
WELCOME TO FANTASY ISLAND. DA PLANE, BOSS, DA PLANE!!!!!!!
The U.S. had to bend backwards to not get sanctions imposed by a little island on the Caribbeans exactly because of that way of thinking. Just imagine what others will do if they feel their interests are being threatened.
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Here ia another quote from the past for you dude.
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English Premiership fears loss of TV cash
In that case a Greece broadcaster had paid for the rights at lower rates and it is selling their product in the U.K.
And as always a lawyer with no business cunning whatsoever have a different position.
I trust business owners to find solutions to their problems and continue to invest in the interest of their target public, reducing prices to afford continued level of services even when those go against the original service provider, this goes to show that those rights have limits too.
Also I want to note that anyone with a camera can go in an stream a game anywhere, I have not heard that it is against the law to provide your own stream of a public sport event.
With cameras everywhere people could make a server where it will collect all those streams and make a 3D presentation in real time of any game or sport event, will people forbid cellphones then?
I want to see people challenged those horrible exclusive contracts that are put in place to the detriment of consumers everywhere.
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Exactly any wrong doing is being done in foreign territory and should have the proceeding being started by that party not the U.S..
Is the U.S. going to charge anyone with a crime committed in foreign soil?
What would happen if other countries started to apply their own laws against Americans interests in their own countries and any violation of their laws by Americans with assets there?
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But the domain name is not used in any manner to commit a crime. The site may be, but the domain name is not.
That's the problem.
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Try again.
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Is not illegal in Spain, the Spaniards need to fallow U.S. law now?
This means that all Spanish people with assets in the U.S. must know American law to not break it inside their on country?
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But the domain name is not used in any manner to commit a crime. The site may be, but the domain name is not.
seizing the domain name cannot be prior restraint (because the information is on the site, not the domain).
You cannot have it both ways.
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That's the problem.
The domain name is used to get to the site where the crime is committed. It's property used to facilitate the crime.
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The supposed crime which was not ruled us such is happening outside U.S. borders, on a foreign soil that has different laws that says it is legal.
Is the U.S. now going to seize every asset from anyone who don't fallow U.S. law?
Can the U.S. seize Canadian companies assets in U.S. soil because they have different laws over there but have companies that operate inside the U.S.?
That is just absurd isn't?
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Why are there not any Chinese websites in there then? or Russians? or Canadian(i.e. ISOHunt).
Or is this line of reasoning just selective to those who won't fight back?
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Otherwise it's a non-issue.
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Try and keep up. Google "17 U.S.C. 506" and "18 U.S.C. 2319" and then get back to us.
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So is the internet, the browser, your computer.
Where does it end?
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Where does it end?
It's not that hard to figure out. If the servers were located in the U.S., you could seize those. Same goes for the criminal's computers. The internet as a whole would not be seized, nor would the browser company.
Think about this one. Say I run a child porn server from my house on my home computer. Say too that I also use the same computer to publish my latest novel on the internet. Do you think the cops can get a warrant ex parte and kick in my front door to seize that computer? Or do you think that since I use that computer to also serve my novel, that changes the calculus, and there has to be an adversary hearing before the seizure can take place?
According to you, once the novel is also on the server, there has to be a prior adversary hearing. But that's just not how it works. If it worked like that, every criminal would just put some sort of protected speech on every instrument of their crime. That way there would be a prior adversary hearing, and the criminal would never be surprised by a warrant. That would do wonders for the criminals, but that's just not what happens.
The HUGE POINT that you consistently seem to gloss right over without any explanation is the fact that when the primary thing being seized is not potentially protected speech, the First Amendment does not bar its seizure absent a prior adversary hearing. You're a smart guy, Mike, but it baffles me that you don't grasp the difference between the target of the seizure being the potentially protected speech or being something else. How is it that you can't comprehend the meaning of "incidental"? C'mon, you have to be pretending, right? You can't be that dumb, can you?
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It's important to understand why Mike Masnick lies about these seizures so much; the facts do not matter to Mike, what matters is defending piracy at any cost.
Once you understand that Masnick's agenda is to defend piracy, everything else he does makes sense.
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The site (and the actual domain name itself too) it points to is NOT being used to commit a crime since no crime has been charged nor prosecuted with a finding of guilt, either civil nor criminal, nor even administrative law.
All of this is allegation based on balance of probabilities attested to by ONE investigator who has now sworn under threat of perjury that they have investigated to the best of their professional ability and all the affidavit is true and correct.
Though it is strange how your ICE has no mention of "alleged" (instead it is specifically stated "they are illegal") in its press report and has now tainted its case, and most likely criminally defamed all offshore sites that are legal in their respective jurisdictions.
I can see how under the wording of the statute ICE seems to think they have absolute indemnity in doing all this, though it might be interesting what will happen in other jurisdictions if the seized domain name owners decide to take criminal and/or civil action against not only the USA itself (pointless exercise) but against the actual individuals who initiated this damage.
I'm intrigued though why no-one has actually looked at the seizure law in this statute and come to an interesting conclusion. If it is not used for evidential discovery and preservation... then maybe it comes under another type of seizure which could very much be challenged called "eminent domain". Since this is what the USG is basically doing, especially when the domain names are being redirected to an image showing logos of govt departments which can be construed as the govt now owns these domain names (THEY ARE NOT PARKED) and are using them for their own purposes.
Oh and for ICE to bring INTERPOL into this debacle (look down bottom of press release) is going to cause problems internationally, especially within Spain/Germany.
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Heck China, Russia, India, Europe should all pile on.
All those developing countries now got a new tools to fend off big pharma, they will just seize all assets from big pharma now since they are caught red handed biopirating everything in the third world.
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Snore. It's being seized because a judge signed off on a warrant based on probable cause that the domain name was being used to facilitate crime.
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The U.S. is just asking for another ass whopping at the WTO again.
If all countries fallow that reasoning, everyone can charge anyone in the world with wrong doing and seize assets located locally that is just absurd.
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Irrelevant. The property can be seized and forfeited without the criminals ever being charged. That's how it works. Should it work that way? Perhaps not. But that is how it works.
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Remember that distribution of material is not enough to claim any wrong doing.
What else do they got there?
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Remember that distribution of material is not enough to claim any wrong doing.
What else do they got there?
The willful part is EASILY proved. Do you think these sporting events are rebroadcast on accident? LOL!
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If it is not necessary to prove a crime, then isn't it possible, just possible AJ, that this could be abused? I get that you want to support the rights of artists, authors, etc. but the arguments you bring here could lead one to conclude that you believe such support should be delivered through ANY means or price, and at ANY risk?
You you want the law to be respected. Please explain how this sort of action encourages citizens to trust or respect their government. If the government loses the trust and respect of the public, then how do you think that the rule of law will be respected.
If you accept that "perhaps" it shouldn't "work that way", then why do you work so hard argue against those who are incensed at the ongoing aggrandizement of government power.
Regardless of what you might think, for most of us, the end concern isn't whether the website operators are guilty or not. If a court of law finds them guilty, so be it. The main concern is-- If a government agency can do this to them at this time -- what will be NEXT?
Stop allowing your enthusiasm for IP to cause you to make excuses for steps which lead toward authoritarianism.
That's not what our country's founding principles were.
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The obvious answer to me is they're walking softly so as to create the least amount of uproar and thus attempting to prevent direct and loud challenges to their actions.
And I'm really stuck on the authoritarian tone. "It would seem therefor it must be". The precedent, regardless of current use of the tactic, is frightening and it needs to be challenged sooner rather than later. Like now, yesterday. Homeland Security - that just infuriates me.
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The domain name is not "in other sovereign nations." It's right here in the U.S. That's how a U.S. court is able to order its seizure. And it's not "technically speaking . . . an act of war." Give me a break. If a Columbian-owned speed boat full of cocaine was seized in the Port of Los Angeles, would you consider that an act of war? Of course not. Foreign-owned property used to commit crimes gets seized by the U.S. all the time.
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Drugs you can see and touch and rarely there is confusion if it is illegal or not, but copyright?
There is no way someone could say it is illegal or not just by looking at it, that is why is so cumbersome and why is so ridiculous to use those hardcore schemes is just going to be abused and could lead to severe consequences to commerce and investments.
Since all you have to do is claim infringement and someone would seize all assets from a competitor, who wants to invest in a country like that? would you?
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There is suspicion and maybe probable cause for most of them, but no actual judgment, can you say all of them are criminal and violate the law? are you a judge?
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A criminal case doesn't mean a criminal judgement, it means a case. Judgement are the end results of criminal cases.
3 posts in a row and you show in each one you are entirely clueless. Quit trying to add FUD.
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There was no criminal activity, there is a suspicion of criminal activity you moron, go back to school.
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18 U.S.C. § 2323 - Forfeiture, destruction, and restitution - Title 18 - Part I - Chapter 13 - (a)(1)(B)
17 U.S.C. § 506 - Criminal offenses - Title 17 Chapter 5 - (a)(2)
Can you read?
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I'm looking specifically at criminal copyright infringement.
It's all regarding seals of departments and agencies.
(a) Any person who violates section 506 (a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b), (c), and (d) and such penalties shall be in addition to any other provisions of title 17 or any other law.
506a - 18 U.S.C. § 506 - Seals of departments or agencies
(b) Any person who commits an offense under section 506 (a)(1)(A) of title 17
(A) for purposes of commercial advantage or private financial gain;
(B) by the reproduction or distribution, including by electronic means, during any 180day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or
(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.
Let me get this straight... We have this domain seizure thing because they're competing?
Wow is that the mother of all loopholes!
So let's go to how this should be proceeded:
The forfeiture of property under paragraph (1), including any seizure and disposition of the property and any related judicial or administrative proceeding, shall be governed by the procedures set forth in section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853), other than subsection (d) of that section.
Hook to 21 U.S.C. § 853 - Criminal forfeitures - (a) Property subject to criminal forfeiture
Any person convicted of a violation of this subchapter or subchapter II of this chapter punishable by imprisonment for more than one year shall forfeit to the United States, irrespective of any provision of State law
(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation;
(2) any of the persons property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation; and
(3) in the case of a person convicted of engaging in a continuing criminal enterprise in violation of section 848 of this title, the person shall forfeit, in addition to any property described in paragraph.
So... A person has to be CONVICTED of a crime. Let's look up that definition shall we?
Conviction
In law, a conviction is the verdict that results when a court of law finds a defendant guilty of a crime.
ICE is not acting in a lawful manner.
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When you know they were filled as civil procedures, so there is probably no criminal grounds or else the AG would have filed the things in the name of the federal government.
That is why you need to study harder, you keep going back and forth into criminal and civil, confusing people.
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They are treating them like they would treat any other person against whom they have evidence of criminal wrongdoing. Instruments of crime can be seized and forfeited in a civil forfeiture proceeding.
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First what is a domain name in this.
Second, how is the site and the domain name being used in criminal activity when there has been no judge to look at evidence of this? Yes a judge signed off on the warrant BUT...
What evidence can these sites bring and HOW can they go to a court to defend their case for prior restraint?
The Spanish takedown is especially egregious because of the fact that they've had to fight their battle twice. Now a third time? If this were a murder trial, it would be damn near triple jeopardy.
Anyway, the criminal copyright infringement case is REALLY REALLY tentative if anything...
So what are they being charged with (domain owners), what can they do to fight it (BEFORE a takedown) and why does a governmental entity have such power to mess up their Merry Christmas?
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Ok so thats it then? They can just seize whatever they deem part of a ALLEGED crime by ALLEGED criminals and then just keep it and do nothing else at all? Because thats what they have done: take property, file no charges, taken no one to court, arrested no one, arraigned no one.
Where is the point where they MUST TAKE THEM TO COURT, file charges and/or arrest these scumbag criminals? They DO get to have their day in court, you know.
And if they dont (or wont), then how can they justify taking property under seizure laws but then never giving it back (which you have to do if you dont file charges)? You cant just TAKE shit from people you "accuse" of being a criminal and keep it all. Even ALLEGED criminals have rights (which we can all see by your comments you dont believe in, since you think accusation=guilt in all cases and that means the accused must be deprived of everything.)
Cant have it both ways. One of these has to happen, and the other is wrong.
Your answer will be very revealing here.
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Which is it? Pick a path and stick to it. This is why we are all calling bullshit on you so much. You mix these things so much just to be confusing.
From here out, I call you a liar. Criminal or civil. Choose. ICE has no jurisdiction in civil matters.
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it would seem that the only way to get around that little fact is to make the assertion that since the .com was registered under godaddy, who is a US company. since it was registered by a US company, it therefor can be considered 'in the US' and subject to seizure but not the content itself since that content was hosted outside the US.
oh but wait... you just made it very very clear (and im not just putting this on you, several AC's made the same assertions) that its the site, not the domain name itself.
it would seem that the only people who backed themselves into a corner would be the people who didnt stop to actually take a look at where the content was hosted and where the domain was registered prior to letting their fingers go on rants that now make them look a bit foolish since they are defending something without even knowing all the information.
having said all that, perhaps the fact that the domains were registered with a US company is why ICE believes themselves to have jurisdiction... and maybe they do in that case (i really doubt it, but thats for a court of law to decide not me).
If that really is the case however... they have pretty much done a huge disservice to US based domain registrars.
If thats not the case however, they have really overstepped their boundaries by seizing the assets that they had no jurisdiction over in the first place.
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Re:
So by those standards LG can now ask to South Korean courts to seize all Apple's assets in the country right?
Since there is probable cause that Apple copied them and are selling the iPhone.
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Why bother with guilt convictions in a court of law? Just sieze them on accusations and "belief" that a crime has been committed. After all, whats good for the USA and HS should be good enough for any other nation. Right AJ? After all, you have proven that there DOES NOT need to be ANY kind of trial determination of guilt to seize property, so they should just be able to take anything they want as long as they can convince a judge that they think the site is doing criminal (actually, civil, so the bar is even lower) activities.
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atdhe.net!!!!
anyways...
anyone got the ip adress for me??
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Re: atdhe.net!!!!
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Thanks ICE, ive been looking for that
P.S. I have decided to stream the super bowl at my party this weekend. Even though I pay for TV and would have the game in HD already I'll put in the extra effort to bring the NFL's profit down by .000001% because fuck them for buying off a law enforcement agency that suppose to work for the public good.
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Well
I'm sure we'll all understand once the thorough details of the investigation that formed the unshakable basis for these harsh but surely necessary actions comes to light.
I'll patiently wait for such concrete details as I try to find that sarcmarc I seem to have misplaced.
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isn't the easy question qualification?
I see nothing that shows that anywhere.
just because someone's a cop doesn't mean they know what's legal on the internet. etc.
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Just for fun
http://www.facebook.com/wwwICEgov
and selecting the option:
"Contains hate speech or attacks and individual" as I believe they are attacking several individuals.
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Re: Just for fun
Violence or harmful behavior > Theft or vandalism
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So what else is new?
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Re: So what else is new?
But it's still not tolerable and we should all bitch and moan (at the very least) when we see it.
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Hello hyperbole!
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That's why I've been recommending
That's why my sites are hosted in Canada, and use the .CA TLD, so that if anyone wants to take offense with me, they have to do it on my home ground.
Wayne
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Re: That's why I've been recommending
If people can seize anything on a whim, no companies should build factories or have stores here.
Imagine having your factory seized because in some place in the world you violated American law and now they can seize everything you own.
WTF is wrong with those people are they mentally challenged?
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Re: That's why I've been recommending
I'm not arguing your post, mainly because I can't find any fault in your logic.
What I AM arguing is the fact that the above quoted statement is ever even considered in this country; beyond common manners, anyway.
According to the US Constitution First Amendment, I have the right to offend you; and you have the right to be offended by me; and I have the right to be offended by the fact that you are offended by me; etc. In other words, if I say something in public that offends you, either POLITELY say something TO ME about it, or bugger off!
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Re: That's why I've been recommending
Now, if you want to break the law, I would suggest the Netherlands, Sweden, or perhaps Turkey as good places to host, as they are the least likely to chase you down.
Canada? You never know what can happen.
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Re: Re: That's why I've been recommending
The laws aren't too clear, particularly in the case of copyright. Even experts in copyright law say this.
This doesn't even begin to tap into the general vaugueness of a lot of laws these days. It's hard to be a law abiding citizen.
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Don't buy stock in American companies it can be taken away.
Don't invest in America your money may be seized.
Don't own anything inside America because on a whim and without due process you can loose everything.
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A direct quote from the warrant: "a civil seizure warrant is authorized under 18 U.S.C. 2323(a)(1)(A)-(B) and 981(b) because the SUBJECT DOMAIN NAMES are property used and intended to be used to commit and facilitate the commission of criminal infringement of copyrights."
Why is it clear that they believe the sites are guilty only of direct criminal copyright infringement?
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As we've discussed, criminal accomplice theory requires a much higher bar than anything shown in the affidavit.
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Red herring. The only thing the affidavit need show is that the property is used to facilitate crime. For the seizure it matters not who is the principal criminal and who is the accomplice or the conspirator.
If I supply a bank robber with a car to use in the robbery, that car can be seized. It doesn't matter that it's my car, not the robber's, nor does it matter that I'm only an accomplice and/or a conspirator. The car gets seized because it's property used to commit the crime.
Basic stuff, Mike.
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From who? You seem to have overlooked the fact that this government is willing to give blanket immunity to its agencies for breaking the law.
However, there is no indication that he followed the rules required under Fort Wayne Books v. Indiana, which requires a higher standard than probable cause when attempting to take "materials presumptively protected by the First Amendment" out of circulation. There is no indication that any effort is made to surpass these basic First Amendment hurdles. There is no indication that the judge took the time to find out whether or not these seizures were required to preserve evidence, as case law suggests is necessary in such circumstances.
Why would he? The government says "Jump!" and the judges ask "How high?" It's not like he'll face any recriminations for helping the government violate the law.
Even more amazing is that despite the fact that many of these issues were raised previously, Homeland Security has simply decided to forge ahead. One hopes that a court will put a stop to these seizures before too long.
If by some miracle, that actually happens, they'll just push through the COICA or similar bill that will give them the official legal power to do this anyway.
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Could the Fed's take down Google?
http://www.publicradio.org/columns/marketplace/tech-report/2011/02/could-the-feds-take-do wn-google-for-linking-to-illegal-material.html
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17 U.S.C. § 506 - Criminal offenses - Title 17 Chapter 5 - (a)(2)
Can you read the law please, and answer how do you know a crime was commited?
Have you incontestable proof off any wrong doing from all the websites in question?
Have they not any good reasons to do what they are doing?
Can't they possibly be legal?
Have you heard from both sides to reach a conclusion?
Of course you did nothing of the sort, you couldn't because this is the discovery part of the process you can't possible know if the websites are illegal or not, you may suspect and have strong signs but that alone doesn't make them illegal does it now?
Further seizing assets from other countries companies and individuals can create international problems that can scalate to proportions that would not be beneficial to U.S. interests, also those actions are irresponsible because of the nature of copyright that because in this case is not material it cannot be easily gauged or measured without further inquiry. There are no signs that safeguards to guard against abuse resulting in unfair competition were deployed and without that other countries should start questioning the U.S. government actions specially the E.U. should ask directly to the U.S. government to explain how they did it and why they did it because those tools can be used to gain unfair commercial advantages and could threat E.U. interests in America.
You believe this is something to be taken lightly?
Should we ignore the severe consequences this could have just because somebody got overzealous?
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OMG Google watch out!!!
OMG does this mean google linked me to infringing content?
Just wondering
Try it - Go to google and type in watch live sports
and see if they give you links to copyright infringing links
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My front page has a disclaimer
You may enter this website only if you are NOT a U.S. Government Official.
If you are a U.S. Government Official you may NOT enter this website. Instead please go to Disneyland.com
Please check one
Yes I am a U.S. Government Official. (you will be redirected to Disneyland.com)
No I am NOT a U.S. Government Offical(you will be redirected to the website)
So am I covered?
Just wondering
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No, this is not legal.
I only check this site every couple of days now, and every time I read the comments on the seizure stories, Average Joe and Sucka A.C.'s are jumping in to opine how this is all right and good and legal and we should be glad ICE is doing their job.
Nobody else is challenging them anymore, so I'll reiterate why these seizures are the very definition of prior restraint.
The activities that these sites are doing has never been considered criminal infringement. Remember that "evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright." (17 U.S.C. 506(a)(2).) The state has not met their burden of showing that criminal activity occurred at all.
Moreover, it's pretty hard to claim "willful infringement" when a site has been declared completely legal under its own country's laws. If it's infringing, it's at most "innocent infringement," which is in no way a criminal act.
Furthermore, none of these sites are "primary" infringers. To be criminal, they must be considered an accomplice, and that requires much, much more proof than "contributory" or "vicarious" infringement does in tort cases. You must share the primary's actus reus and mens rea - in layman's terms, you had to actively, intentionally, and directly participated, and moreover you had to know the act was criminal. It's amazingly obvious that this doesn't apply to these websites.
Under 17 U.S.C. 512's "safe harbors" provisions, if the sites followed the rules laid out therein, they are not liable for infringement at all, and the only relief available is laid out in 512(j). Nothing in 17 U.S.C. 506 takes those safe harbors away. Even if you wrongly believe it did, obeying the law would (once again) make you an "innocent infringer" at most, thus ineligible for criminal infringement under 506. Yet there was not even an attempt to show that the sites did not follow those rules. And apparently many did.
These seizures were also done ex parte, meaning that the defendants were not given prior notice, and were not given a chance to contest the seizures in a pre-seizure hearing. Nor, for that matter, were they given that chance after the seizures occured.
Fort Wayne Books v. Indiana makes it very clear that an ex parte seizure of potentially protected speech, with the intent to take material out of circulation, is prior restraint:
Note that even taking the offending material itself out of circulation is prior restraint. These seizures went beyond that, and attempted to take entire websites out of circulation, non-infringing speech and all.
Some rebut with Heller v. New York, but nothing in Heller contradicts Fort Wayne:
In other words, Heller only applies when you seize a copy of the work, you do it to preserve it as evidence, and it does not prevent public access to the work itself.
Moreover, Heller quotes United States v. Thirty-seven Photographs, which lays out three requirements for ex parte seizures:
These seizures fail every single one of those requirements. Those requirements were put in place "so that administrative delay does not in itself become a form of censorship." This is exactly what is happening here. Forfeiture proceedings for the first round of seizures were only initiated six months after the seizures occurred. The majority of sites still have not had a chance to contest them, and have not even been contacted by ICE in any way.
Others may rebut with Arcara v. Cloud Books, in which an adult bookstore was closed down because of prostitution occuring on its premises. The usual claim is that "the First Amendment is no shield against criminal activity." But Arcara was only constitutional because "the sexual activity carried on in this case manifests absolutely no element of protected expression." Furthermore, "We have also applied First Amendment scrutiny to some statutes which, although directed at activity with no expressive component, impose a disproportionate burden upon those engaged in protected First Amendment activities."
Copyright infringement does, in fact, have "an element of protected expression" - that is, a First Amendment defense can be raised (it need not be raised successfully). For that reason alone, Arcara does not apply. But even if the activity was not itself protected, the mere fact that it imposes a "disproportionate burden" upon free expression, disqualifies it from Arcara exemptions. Arcara absolutely, positively does not apply to these seizures.
In case you're wondering - no, obscenity is not any more "presumptively protected" than copyright infringement is. (Hint: child pornography is a subset of "obscenity.") The same seizure rules (18 U.S.C. 56) apply to both; First Amendment challenges can be raised to both; obscenity, unlike infringement, is always a criminal offense; and the punishment for obscenity is about the same as for criminal infringement. (It's all in 18 U.S.C. 71.)
It's also a dodge to claim that domain names are not "presumptively protected speech." First of all, that's not true. Name.Space v. Network Solutions ruled that general top-level domains (.com, .net, etc) are not protected, solely because they cannot possibly be expressive. When the domain name can possibly be expressive, it is presumptively protected speech, and First Amendment concerns apply. (See: every single "sucks site" case, and the one about Glen Beck raping and murdering a young girl in 1990.)
But it's even more of a dodge because the domain names are not even allegedly infringing. They were seized solely to prevent the public from accessing the websites themselves. So the TLDs' status as "protected" is completely immaterial; it only matters whether the websites themselves are possibly protected expression.
And, of course, they are. The majority of the speech on some sites (forums, blog posts, comments, etc) is absolutely, 100% protected speech.
Now, about those seizure laws. 17 U.S.C. 506 references 18 U.S.C. 2323, which allows the seizing of any "article, the making or trafficking of which" is criminal infringement. Compare this with the ennumerated articles that can be impounded from 17 U.S.C. 506: "all copies or phonorecords," "all plates, molds, matrices, masters, tapes, film negatives, or other
articles," and "records documenting the manufacture, sale, or receipt." These laws were clearly to be used for counterfeit goods, not file sharing.
The actual seizure procedure is in 18 U.S.C. 56. There are three sections dealing with civil forfeiture, none of which seem particularly appropriate. It seems that judicial forfeiture is covered exclusively in Section 985. 985(d)(1)(B) states:
In other words, even with counterfeit goods, you're supposed to allow an adversarial hearing before seizing anything. An ex parte seizure order is the "nuclear option," to be used only when other methods are insufficient. The affidavits claim that these were indeed "exigent circumstances," but that claim is completely laughable on its face - especially since the sites were operational for years at the same domain name, without risk of "destruction" or "sale." And the fact that the seizures did not preserve (or even help gather) any evidence whatsoever. And no, "continued unlawful use" is not an "exigent circumstance" when that "use" involves potentially protected expression. Or, for that matter, when the use is not necessarily unlawful in the first place.
...Now, I'm not a lawyer, and I'm only repeating what I've been able to dig up. You can possibly disagree with some of the above. But in order for these seizures to be legal, you have to disagree with all of it. I'm sure some here will try (and many more will just call me a "freetard" or "pro-piracy" or "LOL!" at me). But no matter how you slice it, the legality of these seizures is not obvious. It's not even likely.
The more I read the law, the more convinced I become that the seizures were a repulsive abuse of power. ICE did this deliberately to route around safe harbors and the First Amendment. They have no intent of filing criminal charges, are hoping the domain owners would be scared into silence. It is prior restraint, and it is censorship, plain and simple.
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Re: No, this is not legal.
Like I told Mike above:
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Re: Re: No, this is not legal.
And contrary to popular belief, people can understand the law once they focus on it.
Isn't it supposed to be "ignorance of the law is no excuse from it?"
Well, consider we're working to learn it regardless of license. If you want to help, great. If not, great. But the attitude of "you need X to practice law" can go elsewhere.
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Re: Re: No, this is not legal.
How is preventing access to even a single comment underneath a single seized domain not preventing access to protected free speech?
Where are you coming from?
As far as I can tell we're all paying to protect sadly out of date business models here.
You're all legal eagle and good with it but I fail to see how you fail to see that this could be used for bigger and more nefarious purposes than business model protection. Gosh, based on this Google and Bing are "guilty", without a doubt I should think.
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Re: No, this is not legal.
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Re: No, this is not legal.vj
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Logic
Would you have the same problem if they shut down a web site wholly dedicated to sharing links to child pornography?
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Re: Logic
Because alleged could meant a toy manufacturer being closed or seized because someone thinks the promo pictures are pornographic.
If after judgment and a hearing of both parts it is decided that someone engaged in something illegal then less of a problem with procedures and if there is still something wrong I would complain about the laws.
But here procedure is wrong.
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Re: Logic
I'm getting sick and tired of seeing politicians use CP as some miracle wand that make things happen, it took away the seriousness that I saw and transformed that in a sentiment of doubt, instead of accepting just the headline I look for details now because I find it absurd that children are being prosecute as pedo and market for the rest of their lifes for exploring their sexuality in a natural although naive way, more disturbing is that society can cause more psychological harm than the actual exploitation could have in some cases, violent rape of anybody is a traumatic event that can create monsters, but sexual exploration is not sexual exploitation but the law doesn't distinguish between those things it lumps all under the same umbrella and people can get marked forever by society and create deep psychological scars.
There was a time people trusted their governments to not go over some lines today appears that there is no limits people want cross in America, people can't be trusted and even serious things coming from them can't be accepted at their face values anymore, people will plan and distort reality to make it appear like something illegal to serve their own self-serving agendas, this is the end of the society trust in public figures.
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Re: Logic
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If so, it's working.
If you think that you are convincing anyone of anything, though, you are failing miserably. Karl and Mike both come off as being much more rational than you.
Perhaps you are right and they are wrong, but if so, you should know that to this bystander at least, your childish behavior vitiates your arguments.
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I really cannot believe someone can be so entirely ignorant of their own actions.
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In the matter of seizures and forfeitures, a contrary view to what is regularly and repeatedly expressed here in this and other articles can be found in an article at:
http://www.fed-soc.org/publications/pubid.1437/pub_detail.asp
I urge commenters here to read it and other related articles, some of which appear as links in the above Federalist Society article.
The issues are not as clear cut as so many here appear to believe is the case.
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Average Joe: "I am a shark-wannabe who dreams of fleecing my customers like any bad lawyer, and I cannot understand the concept of fighting against bad laws rather than simply letting them stand. I worship the law and bow down before it, and to me it can do no wrong. If there was a law that said I had to go streaking in my neighborhood every day, I would do it without question, because it would be the law."
Anonymous: "I am a lying industry shill with no sense of morality or even the pretext of a point. I fear change like nothing else and cannot comprehend living without extorting as much as I can from my clients and blaming the 'losses' on a nonexistent problem. I do not know how to address an argument or even present one. I just flame because I know I'm wrong and unable to prove a single thing I've said, and I'm terrified to admit it."
And no, Anon, I'm not Mike on an alt. He doesn't need one in order to refute your easily debunked posts. He has better things to do than feed you every day. Also, see if you can wrap your head around this fact (it'll be struggle, I know): Admitting something is inevitable is not the same as supporting it. And I'm still waiting for you proof or complete retraction. Now.
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Re: Re:
http://www.techdirt.com/articles/20110204/23291412974/judge-bans-handing-factual-pamphlets- to-jurors-raising-first-amendment-issues.shtml#c1092
And I'll clarify, you can't say "unprovoked" just because you've behaved in this thread or this post or on this day.
You'll notice that few of us give Anonymous much leeway anymore for his assholitry... not because we don't like him or because we're all mean... it's because we tried... repeatedly and he still keeps at it.
All I'm saying is that if you want people to stop reacting to you that way, stop giving them reasons to do so... anywhere.
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DHS WTF
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